author: KOPRIVA, J.,

text:
    Lynch v. Daus

      James R. Duffy, for plaintiffs Kathleen Lynch and Kelly Lynch, administrator of estate of Daniel S. Lynch, deceased.

      Lewis G. Steinberg, for plaintiffs Ammerman.

      Joel M. Kormanski, for defendant Daus.

      George R. Spector,, for plaintiff Gagetta, administrator of estate of Charles Lynch, deceased.

      P. Brennan Hart, for defendant Gagetta, administrator of estate of Charles Lynch, deceased.

      Richard A. Gray, for defendants Ammerman.

      Richard M. Rosenthal, for defendant PennDOT.
    December 19, 1990
   KOPRIVA, J.,

Before this court are three motions for summary judgment filed on behalf of the following defendants: (1) William K. Daus, Imler’s Poultry; (2) David A. Ammerman; and, (3) Commonwealth of Pennsylvania, Department of Transportation.

The above-captioned matter arises out of an accident which occurred January 7, 1989. Four separate lawsuits were filed as a result of the accident. Those separate actions were consolidated by order of this court dated September 20, 1990. Oral argument was heard on the motions for summary judgment on November 16, 1990. We will now proceed to disposition of the motions considering each separately beginning with the motion of William K. Daus, Imler’s Poultry.

FACTS

The accident occurred on Pennsylvania Legislative Route 220 in Snyder Township near Reese’s Market. A general outline of the facts as they have been developed through discovery are. that Charles Lynch was travelling north on 220 toward State College. Mr. Lynch was following a tractor-trailer owned by Imler’s Poultry and driven by William Daus. Mr. Daus was on his way to Reese’s Market to make a delivery. As he approached the market, Mr. Daus activated his right-turn signal and started slowing his truck. The roadway was icy, although the weather was clear and there was no precipitation at the time of the accident.

Prior to the Imler’s truck beginning to turn into the market, the Lynch vehicle pulled around the rear of the truck in an apparent attempt to pass the Imler vehicle. At that moment, a car driven by David Ammerman appeared, traveling south on 220 in the opposite direction as the Lynch and Imler vehicles. The Lynch vehicle and the Ammerman vehicle collided head-on, resulting in the deaths of Charles Lynch and his son, Daniel, who was seated in the front passenger side.

The various plaintiffs brought suit against William Daus and Imler’s Poultry alleging negligence for failure to use due care and caution under the conditions as they existed at the time of the accident. Specifically, plaintiffs claim Mr. Daus bypassed entrances into the market that would have permitted the tractor-trailer to exit the roadway at an oblique angle and instead chose an entrance that necessitated a sharp turn. Defendants argue that taking into consideration the condition of the highway, it was unreasonable for Mr. Daus to use the normal entrance where the use of that entrance would cause the rig to partially block the highway and force traffic to come to a halt to allow for such a turn, particularly when a safer alternative is alleged to have existed. Defendants assert that plaintiffs are unable to establish any degree of negligence or causation under such facts and therefore, defendants should be granted a summary judgment.

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035(b) which provides for the granting of said motion where the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file show that there is no genuine issue as to any material fact. In ruling on a motion for summary judgment, we must accept as true all properly pleaded facts in the non-moving party’s pleadings, as well as all reasonable inferences which may be drawn therefrom. Ferguson v. King, 362 Pa. Super. 543, 524 A.2d 1372 (1987). In summary judgment proceedings it is not the court’s function to determine facts, but only to determine if a material issue of fact exists. French v. United Parcel Service, 377 Pa. Super. 366, 547 A.2d 411 (1988). To accomplish this task, the record as a whole must be examined in the light most favorable to the party opposing the motion. Ferguson, supra. Summary judgment may only be entered in those cases which are clear and free from doubt. Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989).

In this matter, the issue of the negligence of Mr. Daus is not free from doubt. We find a question of fact to exist regarding whether the actions taken by Mr. Daus were reasonable under the weather conditions and market entrances as they existed at the time of the incident. Plaintiffs have alleged that Mr. Daus should have attempted to leave the highway at a point south of the entrance he obviously intended to use. Deposition testimony confirms the fact the roadway was quite icy and Mr. Daus was aware of the hazardous conditions. Although Mr. Daus explains in his deposition why he bypassed the southerly entrance, such explanation raises a question of fact and does not remove the inference of negligence which arises from plaintiffs’ allegations. Under good weather and road conditions, defendant’s use of the northerly entrance into Reese’s may indeed be reasonable. But, where the roadway has been described as being a “sheet of ice,” the use of that same entrance, where an alternate entrance exists which might permit the tractor-trailer to exit the highway in a more efficient manner, is sufficient to justify an inference of negligence for purposes of this summary judgment motion.

The question of negligence is for a jury to determine and a court should not remove the question from the jury unless the facts leave no room for doubt. Dougherty v. Boyertown Times, 377 Pa. Super. 462, 547 A.2d 778 (1988). Only in exceptional cases should a court pre-empt the determination of whether a party’s conduct contributed to some degree, if only slightly, to the harm suffered by plaintiffs. Gilpin v. Langan, 789 F.2d 1034 (3d Cir. 1986). In the instant matter we do not find the alleged negligence to be so causally remote from the harm as to take the issue of proximate cause from the jury. A question of fact does exist as to defendant Daus’s negligence although the evidence supporting the inference of negligence is ever so slight. However, we are bound by the legal premise that material issues of fact are not to be usurped from the jury on the mere basis of a weak case.

Defendant, David A. Ammerman, also moves for summary judgment on the basis the record sets forth insufficient facts to support a finding of negligence by a jury. Using the standard we previously set forth with respect to the Imler/Daus motion, we find a question of fact to exist so as to prevent the entry of summary judgment.

In her deposition, Kathleen Lynch testified that she woke up just before the collision and saw the Ammerman vehicle out of control. (Deposition at 33.) That statement together with the fact of Mr. Ammerman testifying that the road was not icy, but merely slushy, gives rise to a conflict of fact and the question of whether Mr. Ammerman was using due care in operating his vehicle. Every other witness testified as to the icy condition of the roadway; if Mr. Ammerman was not aware of the hazard, a fact finder could reasonably infer he may have been travelling too fast and was therefore unable to control his vehicle so that the accident may have possibly been avoided.

The question of negligence attributable to Mr. Ammerman is clearly for a jury to decide. As with Mr. Daus, although the evidence supporting the question of fact is slight, a material issue of fact does exist and therefore summary judgment must be denied.

Ill

The third motion for summary judgment is set forth by the Commonwealth of Pennsylvania Department of Transportation. The various plaintiffs have based their negligence action against PennDOT on a failure to treat the icy condition of the roadway. PennDOT claims such allegations fail to state a cause of action for which relief can be granted since PennDOT is immune from this type of civil liability pursuant to 42 Pa.C.S. §8522.

The evidence of record indicates that the roadway on which the accident occurred had not been treated by PennDOT. However, that portion of Route 220 south of Snyder Township had been treated. Plaintiffs argue section 323 of the Restatement (Second) of Torts applies to the facts of this case and supersedes any immunity alleged. Therefore PennDOT may be held liable in a negligence action. Section 323(a) provides that one who undertakes to render services to another, which he should recognize as necessary for the protection of the other person, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform the undertaking. Plaintiffs cite no case law in support of their claim that the tort of negligent performance is an exception to or supersedes the immunity granted the Commonwealth under section 8522. Although plaintiffs claim the Commonwealth Court employed section 323(a) in their decision of Commonwealth of Pennsylvania, Department of Transportation v. Weller, 133 Pa. Commw. 18, 574 A. 2d 728 (1990), we find no merit to their contention.

In Weller, the facts establish that the plaintiff’s vehicle vaulted over a bridge railing. At trial, Weller argued that PennDOT negligently piled the snow and ice in such a fashion that it formed a ramp over the guardrail which the vehicle ascended before clearing the guardrail and falling to the ground. In affirming the liability verdict against PennDOT, the Commonwealth Court rested its decision on the distinction between natural and artificial accumulations of ice and snow. PennDOT has no common-law duty to remove or treat natural accumulations of ice and snow. Huber v. Commonwealth, Department of Transportation, 122 Pa. Commw. 82, 551 A.2d 1130 (1988). The Weller court found the “ice ramp” at issue to be an artificial accumulation of ice and snow; and thus, sovereign immunity is waived where an artificial accumulation is alleged to have caused an injury to occur. Weller, supra. Had the Weller accident resulted from a natural accumulation of ice and snow, the negligence action would have been barred by 42 Pa.C.S. §8522.

There is no question the icy roadway in the case at bar resulted from natural conditions. This is not a case where PennDOT’s conduct created an artificial accumulation that resulted in an accident. Rather, this is a situation where PennDOT had not treated the roadway at all. As was previously stated, PennDOT has no duty to remove natural accumulations of ice and snow. Huber, supra. Once it is determined that the allegations complained of are not actionable under a common-law theory of negligence, our inquiry ends. Mindala v. American Motors Corp., 518 Pa. 350, 543 A.2d 520 (1988). The exceptions to sovereign immunity apply to “negligent acts where damages would be recoverable under the common law. . .” 42 Pa.C.S. §8522(a). Here there is clearly no common-law duty to support the negligence action and therefore, summary judgment must be entered in favor of PennDOT.

In accordance with the foregoing' opinion, we will enter the following

ORDER

And now, December 20, 1990, after hearing oral argument on the within motions for summary judgment, and reviewing the briefs submitted along with the deposition testimony, we hereby order, direct, and decree as follows:

(1) The motion for summary judgment of defendants William K. Daus and Imler’s Poultry is denied.

(2) The motion for summary judgment of defendant David A. Ammerman is denied.

(3) The motion for summary judgment filed by the Commonwealth of Pennsylvania, Department of Transportation is granted.

(4) The District Court Administrator shall schedule a pretrial conference of this matter at the earliest possible date after 30 days.

       The fact that PennDOT may have treated portions of Route 220 south of Snyder Township of is no moment. Liability will not be imposed where PennDOT begins treating a highway and an accident occurs on a portion that has yet to be treated. Plaintiffs’ argument is completely unrealistic and would serve to impose seemingly infinite liability on PennDOT for every accident resulting from snowy and icy roads. Such exception to sovereign immunity is not within the scope or spirit of 42 Pa.C.S. §8522(b).


source: Caselaw Access Project

author: KUHN, J.,

license: Public Domain

text:
    Miller v. Borough of Littlestown

      Samuel E. Teeter, for plaintiff.

      Leo E. Gribbin, for defendant.
    October 26, 1990
   KUHN, J.,

This action was instituted by complaint on November 6, 1989, wherein plaintiff alleged that the Borough of Litt-lestown, acting through police officer, Harmon, and the Alpha Fire Company No. 1, acting through its ambulance crew, were negligently responsible for the loss of her diamond earrings. She avers that at approximately 2:50 p.m. on May 30, 1989, Patrolman Harmon and the ambulance crew were dispatched by Adams County Control to an apartment occupied by plaintiff and her husband for the purpose of locating a female who had reportedly taken an overdose of pills. Neither plaintiff nor her husband was at home. The officer forced his way into the apartment. Allegedly, as the officer departed he announced to those who had gathered that no one was present.

No measures were taken by defendants’ agents or employees to lock or secure the premises upon their departure. When plaintiff returned home at 4:30 p.m. that day she discovered the front door open and her diamond earrings missing. She argues that defendants were negligent in failing to properly secure her premises against the unlawful intrusion of others.

Defendants have raised the immunity defense and now move for judgment on the pleadings.

As a general rule no local agency is liable on account of injury to the property of another, 42 Pa.C.S. §8541, unless (1) damages would be recoverable at common law or by statute except for the immunity defense, and (2) the injury is negligently caused by the acts of an employee of a local agency acting within the scope of his duties with respect to any of eight different categories. 42 Pa.C.S. §8542. The only question in this case is whether the conduct complained of fits within one of those eight categories. Otherwise, the defense is a bar to this action. There are only two categories which could arguably apply in this case.

42 Pa.C.S. §8542(b):

“(2) Care, custody or control of personal property — The care, custody or control of personal property of others in the possession or control of the local agency. The only losses for which damages shall be recoverable under this paragraph are those property losses suffered with respect to the personal property in the possession or control of the local agency.

“(3) Real Property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.”

Plaintiff argues that the premises and its contents came within the “care, custody or control” of defendants when their agents or employees initially broke in to answer the emergency call. Naturally, defendants argue to the contrary. We find, however, that we need not decide this case on the basis of determining whether the earrings were within the care, custody or control of defendants. Rather, on the basis of Walsh v. Camelot Bristol Co. Inc., 102 Pa. Commw. 76, 517 A.2d 577 (1986), we conclude that defendants did not have “possession” of the premises or its contents. There a volunteer fire company responded to a fire call. The court held that:

“A volunteer fire company’s temporary occupancy of a privately owned building for the limited purpose of extinguishing a fire does not constitute "possession’ of that property for purposes of section 8542(b)(3).” 102 Pa. Commw. at 79, 517 A.2d at 578.

Both section 8542(b)(2) and (3) require that the personal property be in the ""possession” of or real property be in the ""possession” of the local agency. Here, as in Walsh, supra, where employees or agents of a local agency enter premises for emergency purposes they are not in ‘"possession” of the premises or its contents for purposes of including such conduct within the exceptions to governmental immunity.

Accordingly, the attached order is entered.

ORDER OF COURT

And now, October 26, 1990, defendant’s motion for judgment on the pleadings is granted and the complaint is dismissed.


author: BOZZA, J.,

text:
    Commonwealth v. Scepura

      William A. Dopierala, assistant district attorney, for the Commonwealth.

      Dennis G. Kuftic, for defendant.
    December 11, 1990
   BOZZA, J.,

Defendants Karen Scepura, Ronald Scepura and Patrick Casher have each been charged with violation of 75 P.S. §1531, driving under the influence of alcohol. A preliminary hearing was scheduled prior to which counsel for each defendant served a subpoena on the Pennsylvania State Police requesting that at the time of the preliminary hearing, they bring “the last annual certificate of calibration of an intoxilyzer machine serial number 27-102605 taken prior to August 11, 1990, the last monthly certificate of breath test device accuracy on said intoxilyzer taken prior to August 11, 1990, and all log entries from the date of the annual certificate of calibration to August 11, 1990.” The request was contained in a subpoena issued by the Clerk of Courts in a form provided by Rule 235.5 of the Pennsylvania Rules of Civil Procedure. The subpoena was not provided by the issuing authority (i.e., the district justice).

The State Police, ostensibly on the advice of the Erie County District Attorney’s Office, did not comply with the subpoena, refusing to produce log entries for more than 30 days prior to the date in issue. Defendants now come before this court requesting that the Commonwealth be ordered to comply with the subpoenas and produce the requested log entries.

Initially, this court notes (notwithstanding the correctness of defendants’ position) the preferred procedure for challenging a subpoena is to file a motion to quash. Simply ignoring the request does not facilitate the expedient resolution of a disputed legal issue or contribute to the efficient operation of the criminal judicial system.

The only question presented by defendants is whether they are entitled to obtain the requested information prior to or at the time of a preliminary hearing. There is no authority in Pennsylvania which squarely addresses this question and federal constitutional law appears silent on this point as well. It is noted that the defendant has not raised the question of the sufficiency of the Commonwealth’s case in support of finding a probable cause nor challenged the foundation requirements for the introduction of chemical tests of breath.

The purpose of a preliminary hearing is limited to determination of whether probable cause exists to continue a criminal prosecution. As such, it serves as a check on the government’s decision to make an arrest and facilitates the prevention of unlawful detentions. Commonwealth v. Lacey, 344 Pa. Super. 576, 496 A.2d 1256 (1985). See also, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed. 2d 54 (1975). While the discovery of information about the prosecution’s case is a natural by-product of a preliminaiy hearing, it is not conducted for that purpose. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970), the Supreme Court determined that the preliminary hearing constituted a “critical stage” in the criminal process and therefore a defendant is entitled to be represented by counsel. In reaching its decision, the court noted that one of the things that may be accomplished by counsel in a preliminary hearing is the discovery of information which would assist in the preparation of a proper defense. While the court in Coleman recognized the usefulness of the preliminary hearing, from the defendant’s perspective, of obtaining “discovery,” it did not imply or otherwise indicate that discovery during or prior to a preliminary hearing was an implicit requirement of due process. Indeed, Pennsylvania has not recognized the applicability of its own discovery rules at a preliminary hearing or at any prior time.

Defendants have argued that discovery of the log entries of the State Police concerning the history of the breathalyzer in question is essential to allow them to challenge the admissibility of breathalyzer results at a preliminary hearing and attempt to negate a prima facie case. While defendants are correct in suggesting the Commonwealth’s burden is to present evidence sufficient to support a prima facie case, they incorrectly conclude they are entitled, in the absence of compelling circumstances, to require the production of the documentation in question.

The nature and function of a preliminary hearing in jurisdictions where it is utilized as an alternative to a grand jury proceeding precludes its formal use as a vehicle for discovery. Discovery issues are more expediently resolved at a stage in the process where the greatest amount of information is most predictably available and in a forum more receptive to the legal analysis of the issues involved. At a preliminary hearing, the Commonwealth is not obligated to present its entire case but only evidence sufficient to prove probable cause. In doing so, it is required to meet whatever mandatory foundation requirements, statutory or common law, which may apply. See Commonwealth v. Parra, no. 438 of 1989 (Erie County, filed February 28, 1990). It would be of little benefit to a defendant to be presented with information which must already be introduced by the Commonwealth. Where the Commonwealth has . failed to do so, leading the defendant to believe that a finding of probable cause is erroneous, sufficient remedies are available to prevent unjust prosecutions and/or unlawful detentions. Moreover, exculpatory and certain other items of information, including results of certain scientific tests, must be provided to the defendant upon request following arraignment.

For all of the reasons stated above, defendants’ motion must be denied.

ORDER

And now, December 11, 1990, upon consideration of defendants’ motion for order to require police agencies and the District Attorney’s Office to comply with subpoenas to produce records of log entries on breathalyzer and intoxilyzer equipment at preliminary hearings, it is hereby ordered, adjudged and decreed that said motion is denied.

       It is noteworthy that the introduction of the results of chemical tests of breath at the preliminary hearing may not be necessary in determining the existence of probable cause to believe that a defendant has violated section 3731.


author: PODCASY, J.,

text:
    Amerman v. Shop Rite Supermarkets Inc.

      Jerry B. Chariton and Ross A. Corrozza, for plaintiff.

      Frank J. Lavery Jr. and James D. Young, for defendants.
    November 27, 1990
   PODCASY, J.,

This matter comes before the court once again on the motion to strike filed by plaintiff to the answer and new matter of defendants above named. The cause of action arises out of a slip-and-fall incident which occurred at the Shop Rite Supermarket in Kingston on July 2, 1987. A complaint and an amended complaint were filed by plaintiff on June 28, 1989.

Defendants initially filed preliminary objections in the nature of a demurrer and more specific complaint on July 25, 1989. We granted the preliminary objections and gave plaintiff leave to file an amended complaint.

Plaintiff filed this second amended complaint and defendants again filed preliminary objections in the nature of a demurrer and more specific pleading.

The second set of preliminary objections were denied and defendants filed their answer and new matter to same on June 15, 1990. Plaintiffs reciprocated with preliminary objections to defendants’ answer and new matter in the form of a motion to strike.

The issues in the present preliminary objections center on the following allegation of defendants’ answer and new matter found at paragraph 40:

“The proximate cause of plaintiff’s fall was his failure to utilize the entrance as a means of ingress to the answering defendants’ premises, failing to exercise due caution and pay sufficient attention to where he was walking, and in failing to exercise due care under the circumstances.”

Pennsylvania Rule of Civil Procedure 1017(b)(2) provides a party the right to objection in the form of a motion to strike.

Plaintiff argues that the language in defendants’ answer and new matter is boilerplate, conclusory in nature and adds no facts to their pleading, and therefore should be stricken.

Plaintiff relies on Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), wherein our Supreme Court suggested that an averment of “otherwise failing] to use due care and caution under the circumstances” may be the subject of a preliminary objection in the nature of a request for a more specific pleading or motion to strike. Connor, supra, at 311 n.3, 461 A.2d at 602 n.3.

Our court recently has taken a lead from Connor. In Badowski v. Acme Markets, 80 Luzerne Leg. Reg. 44, 47 (1990), Judge Augello stated that the language contained in plaintiff’s complaint as “negligence at law” was:

“[S]o general as to fail to provide defendant with information sufficient to enable it to prepare its defense. In view of the possible prejudice to the defendant if the general averment of negligence is permitted to stand . . . we sustain the motion for a more specific pleading with instructions that if plaintiff cannot plead with greater specificity, paragraph 6(f) of plaintiff’s complaint be stricken.”

Prior to Badowski, supra, our court in Hustey v. Hustey, 71 Luzerne Leg. Reg. 199 (1986) held that the language “in otherwise failing to exercise reasonable care given the circumstances” added nothing of factual significance to the plaintiff’s complaint, failed to apprise the answering party of the claims it purported to raise and was unduly prejudicial. In both Badowski and Hustey, supra, and presumably in Connor, the pleading circumstances are distinguishable from the instant case in that the pleading examined was a plaintiff’s complaint. The Badowski and Hustey decisions of our courts centered on the possibility of prejudice because of a later amendment to the boilerplate averment of a complaint.

On the other hand, the present averment is contained in new matter and the possibility that this averment will be later amended is remote. Additionally, given the protraction that has accompanied this litigation, we find the need for judicial economy outweighs the potential prejudice to plaintiff.

For the reasons set forth above, we enter the attached

ORDER

And now, November 27, 1990, at 11:30 a.m., it is hereby ordered, adjudged and decreed as follows:

(1) Preliminary objections filed by plaintiff to defendant’s answer and new matter are denied and dismissed;

(2) Plaintiff is directed to make answer to defendant’s new matter within 20 days hereof; and

(3) The prothonotary is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P. 236.

       Pa.R.C.P. 1017(b)(2) provides as follows:
      “Preliminary objections are available to any party and are limited to a motion to strike off a pleading because of lack of conformity to law or rule of court or because of scandalous or impertinent matter.”


author: HOURIGAN, P.J.,

text:
    United States of America v. Chapuisat

      James A. Gibbons, for plaintiff.

      A. Richard Caputo, for defendant.
    June 27, 1990
   HOURIGAN, P.J.,

This matter is before the court on defendant’s motion for judgment on the pleadings.

HISTORY AND FACTS

On October 18, 1989, plaintiff filed a praecipe for writ of revival and a writ of revival against the terre tenant. This writ is based upon a judgment that plaintiff entered on March 4, 1983, to no. 459-L of 1983 against Colleen B. Judge in the amount of $97,636.56, and a judgment that plaintiff entered on April 29, 1983, to no. 880-L of 1983 against James W. Judge in the amount of $98,352.56. These judgments resulted from a lawsuit that plaintiff filed to no. 82-0819 in the United States District Court for the Middle District of Pennsylvania against James W. Judge and Colleen B. Judge.

In that federal action, the default judgment entered on February 14, 1983, against Colleen B. Judge appears as follows:

“Judgment is hereby entered in favor of the plaintiff, United States of America, and against the defendant, Colleen B. Judge {only) in the amount of $97,636.56, plus interest in the sum of $1,634.69 to the date of judgment, together with interest pursuant to Title 28, U.S. Code, section 1961, at the legal rate of 8.65 percent per annum from the date of judgment, plus costs in the sum of $37.70, ($20 to the United States Attorney’s office, $11.20 to the United States Marshal’s Service and $6.50 for entering judgment locally and for foreclosure and sale of the mortgaged property). In the event there is a balance still due the plaintiff after application of the sale proceeds, then plaintiff requests that a deficiency judgment be entered against the defendant.”

Further, on March 21, 1983, the judgment was entered in the federal action against James W. Judge as follows:

“It is ordered and adjudged that judgment be and hereby is entered in favor of the plaintiff, United States of America, on behalf of its agency the Small Business Administration, and against the defendant James W. Judge, in the amount of $98,352.56 plus interest accruing on the obligation from March 9, 1983 at the daily rate of $2.71 until judgment and at the legal rate thereafter, plus costs of suit, fees and expense of sale.”

At all times relevant to this proceeding, James W. Judge and Colleen B. Judge were husband and wife and were the owners, as tenants by the entireties, of real estate located in Luzerne County. By deed dated June 27, 1985, the Judges conveyed this entireties property to Mary Blair V. Chapuisat, the terre tenant herein; this deed was subsequently recorded on August 2, 1985, in Luzerne County Deed Book 2166, page 802.

The terre tenant herein filed her answer and new matter to plaintiff’s writ of revival on December 5, 1989, with the present motion for judgment on the pleadings filed on March 9, 1990.

DISCUSSION AND LAW

Terre tenant’s motion for judgment on the pleadings avers as follows:

.“(1) As a result of plaintiff’s failure to respond to terre tenant’s new matter, the allegations contained in this new matter are deemed admitted;

“(2) Plaintiff has improperly joined two separate judgments into this revival action for the purpose of attempting to create a terre tenant status where none exists under each individual judgment; and

“(3) The judgment sought to be revived by plaintiff did not attach to any real property owned by terre tenant and she is, therefore, improperly joined in this revival action.”

A motion for judgment on the pleadings may be granted only in cases where no facts are at issue and the law is so clear that a trial would be a fruitless exercise. Keystone Automated Equipment Co. Inc. v. Reliance Insurance Co., 369 Pa. Super. 472, 535 A.2d 648 (1988). In addition, a court must view as true all well-pled facts of the non-moving party. Beardell v. Western Wayne School District, 91 Pa. Commw. 348, 496 A.2d 1373 (1985). In a motion for judgment on the pleadings, all well-pled material facts and inferences reasonably deduced therefrom must be accepted as true, but conclusions of law and unjustified inferences will not be so considered. Merritt v. Board of Education of School District of Philadelphia, 99 Pa. Commw. 178, 513 A.2d 504 (1986).

Initially, the terre tenant contends that plaintiff’s failure to file a responsive pleading to her new matter should result in the allegations contained therein being deemed admitted. Pursuant to Pa.R.C.P. 1029, where a party fails to reply to new matter the averments of such new matter will be considered as true for purposes of a motion for judgment on the pleadings. See Boyle v. O’Hara, 29 Bucks L.R. 321 (1976); Dixon v. Keystone Centers Inc., 16 Lebanon Leg. J. 148 (1976); and Marvin Shore Advertising Inc. v. The Legal Intelligencer Inc., 72 D.&C. 2d 470 (1975). Accordingly, for purposes of this particular proceeding, the material facts in terre tenant’s new matter are accepted as true. However, insofar as the factual allegations in this new matter are insufficient to be dispositive of this action, the additional arguments of terre tenant in support of this motion must be addressed.

The terre tenant contends that separate judgments were entered in federal court against Colleen B. Judge and James W. Judge; the terre tenant points out that the docket of the federal action against the Judges indicates that a judgment was entered on February 14, 1983 against Colleen B. Judge “only,” while a separate judgment against James W. Judge was entered on March 21, 1983. Moreover, these judgments were for different amounts of money, contained different provisions, and were filed to different terms and numbers in our court on different days. Plaintiff counters by stating that both judgments arose out of a joint action against the Judges as husband and wife, and therefore, these judgments are not separate and distinct judgments against each of the Judges.

For purposes of this proceeding, a determination as to whether the subject judgments were separate or joint is crucial because, under Pennsylvania law, a creditor of either spouse cannot acquire, by judgment, an enforceable lien on entireties property. Stop 35 Inc. v. Haines, 374 Pa. Super. 604, 543 A.2d 1133 (1988). Since entireties property is not subject to separate debts of either spouse, this property may be conveyed without infringing upon the rights of the individual creditors of the husband and wife. See Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976), and Stop 35 Inc., supra.

In support of her position, terre tenant cites the case of Blusiewicz v. Rosenfield, 33 D.&C. 2d 470 (1964). In Blusiewicz, a creditor entered judgment against a husband and wife individually on the same day and it was held that:

“ ‘Where consent judgment was rendered and entered against defendants husband and wife, “individually,” land held by husband and wife as tenants by the entirety was not subject to levy under execution on such judgment; “individually” meaning separately and personally, as distinguished from jointly or officially, and as opposed to collective or associate action or common interest.’

“That the estate of ‘tenants by the entireties’ has long existed in Pennsylvania is well established. It holds a particular place in Pennsylvania law and the principle behind this estate has been adjudicated many times.

“The principle established by these cases as a whole is that there cannot be an execution against property held as tenants by the entireties unless it is upon a judgment wherein defendants have acted jointly as tenants by the entireties and by their action have waived the substantive law of tenants by the entireties. This court is of the opinion that the incidents of tenants by the entireties should not be destroyed, and accordingly, will not disregard them.” Blusiewicz, 33 D.&C. 2d at 473.

Plaintiff attempts to distinguish the Blusiewicz case by contending that the judgments in that action were specifically entered against the husband and wife individually and that the term “individually’’ is not found in the judgments against Mr. and Mrs. Judge, respectively. This argument is not convincing, considering that the judgment against the wife in the present matter specifically contained the provision that same was against “Colleen B. Judge (only).” Furthermore, the other facts surrounding the entry and transfer of these judgments are sufficient to conclude that these are separate judgments. Accordingly, the entireties property conveyed to the terre tenant by Colleen B. Judge and James W. Judge was not subject to levy by plaintiff, pursuant to the separate judgments against Mr. and Mrs. Judge. Therefore, this subject real estate cannot be attached by plaintiff; there can be no revival of these separate judgments against the terre tenant.

ORDER

It is hereby ordered that the terre tenant’s motion for judgment on the pleadings is granted.


author: TERPUTAC, J.,

text:
    George v. Borough of Canonsburg

      M. Scot Curran, for plaintiffs.

      Kathleen Smith-Delach, for defendant Borough of Canonsburg.

      Stephen M. Elek, for defendant Canon-McMillan School District.
    October 1, 1990
   TERPUTAC, J.,

The issue before the court is whether two of the defendants, Borough of Canonsburg and the Canon-McMillan School District, are entitled to summary judgment as a matter of law.

This suit arises from the injuries sustained by Elsie George when she tripped and fell on a walkway behind the school district’s football stadium. This accident occurred on June 2, 1988, while Mrs. George was walking as a form of exercise. Mrs. George has alleged that the borough and school district were the owners, occupiers, possessors and/or exercised dominion and control over the property where the accident occurred.

For the reasons set forth in the following paragraphs, the motions for summary judgment of the borough and the school district are granted.

Summary judgment should be entered only in those cases which are clear and free from doubt. The court must accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Daughen v. Fox, 372 Pa. Super. 405, 539 A.2d 858 (1988). The function of the court is not to decide whether issues of fact exist, but to determine whether issues of fact are to be tried. If no genuine issues of material fact exist, the moving party is entitled to summary judgment as a matter of law. McCain v. Pennbank, 379 Pa. Super. 313, 549 A.2d 1311 (1988).

In their motions for summary judgment, the borough and school district claim that they are immune under the Recreation Use of Land and Water Act, 68 P.S. §477-1 et seq. As stated in section 477-1, the purpose of RULWA is to encourage owners of land to make their land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes. Section 447-2 defines land as “land-, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.” The same section defines owner as “the possessor of a fee interest, a tenant, lessee, occupant, or person in control of the premises.” Finally, recreational purpose “includes but is not limited to, any of the following or combination thereof: hunting, fishing, swimming, boating, camping, picnicking, skiing, pleasure driving, nature study, water skiing, water sports and viewing or enjoying historical, archaeological, scenic, or scientific sites.” In section 477-6, the act lists only two exceptions to this immunity, i.e., when there is willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity and when the owner charges a fee for entry upon the land.

The threshold issue is whether the borough and school district, both political subdivisions of the Commonwealth, are afforded immunity as a matter of law when read in pari materia with the governmental immunity provisions set forth in 42 Pa.C.S. §§8541 and 8542. In DiMino v. Borough of Pottstown, 129 Pa. Commw. 154, 564 A.2d 1329 (1989), the court held that RULWA applies to actions for injuries sustained while engaged in recreational activities on land including those of the Commonwealth and its political subdivision intended to be used for recreation. See Walsh v. City of Philadelphia, 104 Pa. Commw. 494, 522 A.2d 174 (1987); Kniaz v. Benton Borough, 112 Pa. Commw. 416, 535 A.2d 308 (1988); and Lowman v. Indiana Area School District, 96 Pa. Commw. 389, 507 A.2d 1270 (1986).

In reviewing 42 Pa.C.S. §8542, as amended, the applicable section, either (b)(3) or (b)(7), may be relevant. In various pleadings in the instant case, the site of the accident is most often referred to as a walkway or pathway, not a sidewalk. Also, nowhere does it state that this pathway was within the right-of-way of streets owned by the local agency, a requirement of section (b)(7). With regard to the real property exception of section (b)(3), through discovery the ownership of the property where the accident occurred lies with Washington County, not the borough or the school district. However, under 68 P.S. §3 477-2, even if it is determined later that one or both of the defendants were in control, they are owners under the definitions of section 477-2 of RULWA.

The most recent case involving the application of RULWA is Favoroso v. Bristol Borough, 131 Pa. Commw. 231, 569 A.2d 1045 (1990). Here the court applied the holding of Dept. of Environmental Resources v. Auresto, 511 Pa. 73, 511 A.2d 815 (1986), which stated that the immunity of RULWA applies to the Commonwealth and its political subdivisions. Specifically, the court stated the borough was immune and denied damages to a minor who was injured when she struck a rock protruding from the surface of the borough’s playground. Immunity was also granted to the Commonwealth agency in Pomeren v. Commonwealth, Dept. of Environmental Resources, 121 Pa. Commw. 287, 550 A.2d 852 (1988).

In response, plaintiffs have argued that because the borough and school district have denied ownership, possession, and control of the premises, they are not owners and RULWA cannot apply. However, if the foregoing denials were accepted as true for the purposes of applying RULWA, then there would be no foundation for naming the borough and school district as defendants. Thus, plaintiffs’ argument has no merit.

ORDER

And now, October 1, 1990, it is hereby ordered, adjudged, and decreed that the motions for summary judgment of the Borough of Canonsburg and of the Canon-McMillan School District are granted. Upon praecipe, the prothonotary shall enter judgment in favor of these defendants and dismiss them from the case.


author: GRIMES, J.,

text:
    Plavi v. Nemacolin Volunteer Fire Company

      Louise D. Monaghan, for plaintiffs.

      Richard L. McMillan, for defendant.
    November 26, 1990
   GRIMES, J.,

Plaintiffs seek to recover damages allegedly suffered as a result of an indecent assault by Michael Yandura, an on-duty fireman and emergency medical technician, upon the minor plaintiff, Robert Wayne Plavi. Plaintiffs allege that the Nemacolin Volunteer Fire Company was negligent in failing to prevent the incident, which occurred in the fire hall by a member of the fire company. In its motion for summary judgment, the defendant claims that, as a local agency, it is provided statutory immunity. 42 Pa.C.S. §8541.

In both Wilson v. Dravosburg Volunteer Fire Department, 101 Pa. Commw. 284, 516 A.2d 100 (1986), and Merryman v. Farmington Volunteer Fire Department, 132 Pa. Commw. 124, 572 A.2d 46 (1990), volunteer fire departments were found to be local agencies. Court cases have recognized that there are times when a volunteer fire company is not subject to immunity. This arises characteristically when the company is conducting, or its facilities are being used for, activities which are not serving its firefighting purposes.

Plaintiffs cite Guinn v. Alburtis Fire Company, 134 Pa. Commw. 270, 577 A.2d 971 (1990), in arguing that in the present circumstance defendant does not have statutory immunity. However, Guinn is inapplicable. In Guinn, the plaintiff alleged that the fire company served the plaintiff a large quantity of alcohol while the plaintiff was a business invitee. At the time, the fire hall had a special license to serve malt and brewed beverages. It is clear that the fire hall was being used in some way which involved a special LCB license, and beer was being served. Those facts may support a finding that the firefighters were not performing firefighting duties. In the present case, no facts were pled which would remove the statutory immunity afforded defendant. No acts by defendant are alleged which, if proven, would show that defendant was operating in a way distinct from traditional firefighters’ duties. Plaintiffs may have a cause of action against the perpetrator of the incident but the company is immune from action by statute.

ORDER

And now, November 26, 1990, it is ordered that defendant’s motion for summary judgment is granted.


author: WOLFE, P.J.,

text:
    Sventek v. County of Warren

      Arthur J. Stewart, for plaintiff.

      Mark E. Mioduszewski, for defendant.
    January 7, 1991
   WOLFE, P.J.,

The pleadings are closed, and defendant has moved for summary judgment under the Rules of Civil Procedure, Rule 1035.

Plaintiff alleges he sustained personal injuries as an inmate in the Warren County Jail occasioned by his inability to “pivot” in the exercise yard after catching a basketball. Specifically, plaintiff’s complaint alleges:

“(5) Said exercise floor consists of a poured concrete floor which surface is highly rough and abrasive in nature.

“(6) At the time and place' of said incident, plaintiff did reach toward the floor in order to pick up a basketball which had been bounced to the plaintiff by another inmate. In the process of reaching for said basketball it was necessary for the plaintiff to turn and pivot. While plaintiff was making this turn and reaching for the basketball, and because of the rough and abrasive nature of the exercise floor, the plaintiff’s left foot did fail to pivot in a manner which would have permitted him to complete the movement without incident. Rather, the improperly abrasive and rough texture of the exercise floor did restrain the plaintiff’s left foot from a normal pivoting; the plaintiff’s body continued to twist despite his left foot’s failure to pivot.”

Defendant’s motion for summary judgment is bottomed in the Governmental Immunity Act, 42 Pa.C.S. §8541, as implemented by case'law: Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987); McCloskey v. Abington School District, 115 Pa. Commw. 289, 539 A.2d 946 (1988); Gallagher v. Bureau of Correction, 118 Pa. Commw. 516, 545 A.2d 981 (1988); and Crowell v. City of Philadelphia, 131 Pa. Commw. 418, 570 A.2d 626 (1990).

The essence of these cases is clear. The court is required to narrowly interpret the waiver of governmental immunity as the waiving statute is contrary to common-law immunity, and broad exceptions and interpretation would subject the sovereign as well as its governmental agencies and municipalities to complete financial deterioration.

Plaintiff’s cause of action, if viable, must spring from section 8542 of the act, addressing exceptions to governmental immunity and specifically the care, custody or control of real property in possession of the local agency.

Plaintiff rejects Gallagher, McCloskey, Mascaro and Crowell, supra, as not applicable to the instant case because the injuries therein were caused by an act of a third party or, alternatively, the plaintiffs failed to allege a defective condition or averred the injury was occasioned by the defendant’s failure to supervise.

Plaintiff’s deposition reveals he was not, in fact, playing basketball but rather was walking around the perimeter of the exercise yard when another inmate threw a basketball at plaintiff who reached for it and was unable to pivot on his left foot.

We disagree with plaintiff in the argument the governmental agency may only escape liability when there is an intervening agency. In Mascaro, supra, at 361, 523 A.2d at 1123, the court discussed what it termed the most difficult question under consideration, to wit, whether the real estate exception to the Political Subdivision Tort Claims Act exposes a city and center to liability coextensive with the liability imposed on private landowners. The court said this:

“In pertinent part, the section permits a cause of action against the political subdivision for injuries arising out of The care, custody or control of real property in the possession of the local agency. . .’ 42 Pa.C.S. §8542(b)(3), supra.

“In construing this section, it must be kept in mind that it represents an exception to the absolute rule of governmental immunity stated in 42 Pa.C.S. §8541. (emphasis by the Supreme Court)

“ ‘Except as otherwise provided in this sub-chapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. ’ (emphasis by the Supreme Court)

“Since section 3 is an exception to the rule of immunity, we believe that its extent must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability, (citations omitted)

“Commonwealth Court has consistently held that the real estate exception imposes a standard of liability on the political subdivision to an extent no greater than that of a private landowner, and that this duty is to maintain the property safely for the activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used. Vann [v. Board of Education of the School District of Philadelphia, 76 Pa. Commw. 604, 464 A.2d 684 (1983)]; Vince v. Ringold School District, 92 Pa. Commw. 598, 499 A.2d 1148 (1985). Commonwealth Court has also ruled that the conduct or negligent act complained of must be directly related to the condition of the property. Frank v. SEPTA, 96 Pa. Commw. 221, 506 A.2d 1015 (1986); Fezzano v. Borough of Ridley Park, 94 Pa. Commw. 179, 503 A.2d 157 (1986).” (emphasis supplied)

In construing this saving exception for common-law liability, the court further stated:

“We believe those cases to have been decided correctly and they persuade us to hold that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself caused the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.” (emphasis by the Supreme Court)

Here, the exercise yard was not constructed to be a basketball court but rather a exercise yard for use of the inmates generally. Noting again the allegations of plaintiff’s complaint that the floor material was of poured concrete with a highly rough surface and abrasive in nature does not by any stretch of the imagination allege a defect or that the floor construction and material utilized therein when mirrored to the duty of a private landowner that the county failed in its duty to maintain the property safely for the activities for which it was regularly used, to wit, an exercise yard, or for which it was intended to be used or for which may have reasonably been foreseen to be its purpose of use. Plaintiff’s alleging that the exercise floor was not suitable for the purpose of exercise is not dispositive, nor is the allegation defendant failed and neglected to keep and maintain the exercise floor in good repair and in safe condition for exercise in absence of any allegation that the floor was in fact in a state of disrepair or was constructed in any manner to render an unsafe condition for the purpose of which it was constructed.

Next, plaintiff argues because he has alleged defendant was negligent in the construction of the floor and that the negligence was the cause of his injury, it ergo raises a question of fact and thus summary judgment is not appropriate. We disagree.

Rule 1035(d) states, inter alia:

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

In Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973), the court, in addressing 1035(d), stated unequivocally, “The above rule specifically prohibits the appellant from relying on any allegations in the complaint.” 451 Pa. at 150, 303 A.2d at 829. The court further stated:

“ ‘The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The . . . doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. . . .’

A motion for summary judgment under Rule 1035 would be a useless procedural appendage if a court were required to deny such a motion because the original pleadings raised a genuine issue of material fact. Issue of facts in the pleadings are significant only when there are no supporting affidavits before the court.” (citations omitted)

Thus, viewing plaintiff’s complaint here as broadly as possible to discern if there is a genuine issue for trial, it is clear the mere fact plaintiff pleads that in his attempt to pivot the floor surface prevented him from doing so does not, in our opinion, raise a trial issue as we have heretofore observed there are no allegations of defect in the floor where plaintiff attempted the pivot.

In considering a motion for summary judgment, which is in essence a broad demur, we are compelled to accept all of the well-pled facts as true, and as true determine whether they state a cause of action for which plaintiff may recover damages. Here, accepting all of the well-pled facts of the complaint as true, we conclude there is no genuine issue for resolution by the fact finders. An oft-cited case and a leader to resolve this motion is Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968), which explored all of the ramifications of the motion, stating:

“The language of Rule 1035, adopted in 1966, was taken verbatim from Federal Rule of Civil Procedure 56(c). Interpretation of the scope of Rule 1035 can be aided by reference to the cases decided under the federal rule, which establish the following criteria. ‘On motion for summary judgment the court must consider the entire setting of the case and all the papers that are included in the record. . . . One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact. . . . The court must consider both the record actually presented and the record potentially possible at the time of trial. ... A hearing on a motion for summary judgment is not a trial on the merits, and the court on such motion should not attempt to resolve conflicting contentions of fact.’ International Latex Corporation v. Lexicon Products Inc., 37 F.R.D. 524, 525, 526 (E.D. Pa. 1965). The court is to accept as true all well-pleaded facts in the plaintiff’s pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Pittsburgh Hotels Assn. Inc. v. Urban Redevelopment Authority of Pittsburgh, 202 F.Supp. 486 (W.D. Pa.), aff’d. 309 F.2d 186 (3d Cir. 1962), cert. denied, 372 U.S. 916 (1963). The record must be examined in the light most favorable to the non-moving party. Fiumara v. Texaco Inc., 204 F.Supp. 544 (E.D. Pa.), aff’d, 310 F.2d 737 (1962). In passing upon a motion for summary judgment ‘it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.’ (In the instant case, appellee.) Admiral Corporation v. Cerullo Electric Supply Co., 32 F.R.D. 379, 380 (M.D. Pa. 1961). ‘[A] party should not be deprived of an adequate opportunity to fully develop [sic] his case by witnesses and a trial, when the issues involved make such procedure the appropriate one. ... It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts. . . . Under such circumstances the case is not one to be decided by the trial judge on a motion for summary judgment.’ S.J. Groves & Sons Company v. Ohio Turnpike Commission, 315 F.2d 235, 237, 238 (6th Cir.), cert. denied, 375 U.S. 824 (1963).”

Finally, we agree with defendant’s argument the alleged failure of the county to render medical treatment subsequent to plaintiff’s injury is barred by immunity. The obligation to render treatment or care addresses itself to the Sovereign Immunity Act and not the Governmental Immunity Act.

Because we find no defect in the complaint that could be cured by an amendment, we will not grant leave to amend.

For these reasons we enter the following

ORDER

And now, January 7, 1991, defendant’s motion for summary judgment is granted.


author: ALEXANDER, P.J.,

text:
    Commonwealth v. Elliott

      Joseph T. Strong, assistant district attorney, for the Commonwealth.

      D. Shawn White, for defendant.
    November 16, 1990
   ALEXANDER, P.J.,

Defendant was issued a citation alleging that he consumed a malt brewed beverage in Paint Township, Clarion County, Pennsylvania at 1:35 a.m. on April 1, 1990 in violation of section 6308 of the Crimes Code (18 Pa.C.S. §6308). Defendant was found guilty at a trial before Magistrate Norman Heasley (District Justice 18-3-02) on May 10, 1990 and appealed to this court. At a trial de novo on July 13, 1990 this court sustained defendant’s demurrer at the conclusion of the Commonwealth’s evidence. The purpose of this opinion is to reduce to writing the statements made by this court from the bench at the time the demurrer was sustained and to elaborate upon the reasons for that decision.

The offense which defendant has been accused of violating is statutorily defined as follows:

“(a) Offense defined — A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions).” 18 Pa.C.S. §6308(a).

Defendant was not charged with purchasing, possessing, or transporting, but only with consuming an alcoholic beverage.

The only witness to testify at the trial was Trooper Robert L. Maxwell of the Pennsylvania State Police who testified that while investigating an automobile accident in Monroe Township, Clarion County, Pennsylvania, he detected the odor of alcohol on the breath of defendant, who was a passenger in the vehicle. Trooper Maxwell transported defendant, along with the driver, to the state police barracks in Paint Township, Clarion County, Pennsylvania and at approximately 1:35 p.m. on the morning of April 1, 1990 administered an intoxilyzer test to defendant, the results of which revealed that defendant’s blood contained 0.048 percent alcohol.

Trooper Maxwell also testified that defendant admitted to him that he was under 21 years of age and had drunk four beers but the trooper did not ask him when or where he drank this beverage.

It is the contention of the Commonwealth that defendant was consuming beer at the time that he submitted to the intoxilyzer test at the state police barracks in Paint Township since the alcohol from that beer was still in his bloodstream. Defendant contends that the crime of consuming is not a continuing event which continues as long as the alcohol remains in the bloodstream but is a crime which is only committed when the person drinks the beverage.

If defendant’s contention is correct, the Commonwealth offered no evidence that any crime was committed by defendant in Paint Township as was charged, nor within the jurisdiction of this court.

The pivotal issue in this case is whether a person “consumes” beer from the time he drinks it until its existence in his bloodstream totally disappears.

The issue of whether or not the crime of consuming alcohol by an underage person is a continuing offense was before the Pennsylvania Superior Court in Commonwealth v. Pincavitch, 206 Pa. Super. 539, 214 A.2d 280 (1965). Evidence of a burglary was found on Pincavitch by a police officer who smelled alcohol on his breath. The Commonwealth had successfully contended at Pincavitch’s trial that the search was incident to the lawful arrest of Pinca-vitch, a minor, for the summary offense of underage drinking.

In the context of the Pincavitch case it was incumbent upon the Commonwealth to show that an offense had been committed in the presence of the police officer to justify the arrest and thereby validate the search.

The Superior Court reversed the conviction of Pincavitch stating that Pincavitch’s conduct did not “constitute an offense committed in the officer’s presence under the act forbidding minors to consume alcoholic or malt beverages.”

The Superior Court later reaffirmed the scope of the underage drinking statute in Commonwealth v. Garrick, 210 Pa. Super. 124, 232 A.2d 8 (1967). In Garrick the court found that the term “use” in the narcotics statute was broader than the term “consume” in the underage drinking statute. The court therefore found that Garrick was “using” even though there was no evidence of when and where he ingested the drug. The court noted that the word “use” means “putting to service of a thing,” citing Webster’s Third New International Dictionary. See also, Commonwealth v. MacKay, 96 Montgomery L. Rep. 134. (1973).

In a lower court decision in Cumberland County, the court applied the reasoning of the Garrick case to an underage drinking case. See Commonwealth v. Mixell, 47 D.&C. 2d 499 (1969). The lower court in Mixell believed that it could not accept the Pinca-vitch decision because it would mandate that a police officer must see the alcohol consumed.

This court believes that the lower court in Mixell improperly relied upon the Superior Court’s definition of “use” and ignored it’s definition of “consume.” Furthermore, this court does not believe that the Pincavitch decision mandates that a police officer must actually see the alcohol consumed by a minor in order to sustain a conviction under the underage drinking statute. Certainly a conviction can be sustained under that statute by circumstantial evidence if it can be proven beyond a reasonable doubt by such evidence that the accused did in fact consume alcohol at a known location.

The issue which is now before this court was before the Supreme Court of the State of Washington in Washington v. Hornaday, 713 P.2d 71 (1986). The precise issue in Hornaday was whether or not the Washington court should reverse the conviction of Hornaday for resisting arrest, which crime in Washington is predicated upon the arrest being lawful. Under Washington law the arrest which Hornaday resisted was only lawful if Hornaday, who was underage, was violating the Washington underage drinking statute in the presence of the arresting officer by having alcohol in his body. The Washington court came to the same conclusion as did the Pennsylvania Superior Court in Pincavitch, supra, but, unlike the court in Pincavitch, fully explored the scope of its underage drinking statute.

The Washington statute defined “consume” as including “the putting of liquor to any use, whether by drinking or otherwise.” The Washington Supreme Court, however, found that the statutory definition was not helpful in resolving the issue of whether or not the consumption of liquor includes the assimilation of alcohol which occurs after the liquid has been swallowed. The court therefore turned to the common definition of the word to interpret the statute.

Since the Pennsylvania statute contains no definition of consume, the common definition of the word will control in this case the same as it controlled in Homaday.

The Washington court found, as does this court, that “consume” is present tense and is defined as follows:

“To destroy or to bring to utter ruin; to destroy the substance of, especially by fire; to destroy by eating, devouring and annihilating the form of a substance; to destroy, to use up, to expend; to waste or burn away; to perish, to spend wastefully, or to use up, expend, waste, devour, or exhaust.

“The word ‘consume’ is also defined to mean . . . to eat or drink up (food); devour ....

“ ‘Consume’ may be employed as the equivalent of, or synonymous with, ‘absorb,’ ‘destroy,’ ‘engulf,’ ‘exhaust,’ ‘lavish,’ ‘swallow up,’ and ‘waste’; also ‘dissipate,’ ‘spend,’ and ‘squander’; and also ‘expend’ and ‘use.’ ” 16D C.J.S. Consume 711-2 (1985).

This court does not believe that any ambiguity exists in the statute and that the legislature has made it clear that it intended to make a specific act of a person a crime and did not intend to make a specific condition of a person a crime. For the sake of argument, however, if we were to assume that the language of the statute is ambiguous, such language must be interpreted in a light most favorable to the criminally accused. See 1 Pa.C.S. §1928(b)(l); Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979); Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959).

The Washington Supreme Court in Homaday, supra, raised a “practical consideration” in its discussion of the statute:

“Finally, practical considerations as well as rules of statutory construction persuade us that the State’s interpretation of ‘consume’ as an ‘ongoing process’ is improper. Consider the situation where a 20-year-old minor journeys into Idaho or British Columbia where the legal drinking age is 19 and there imbibes intoxicating liquor. Under the statutory interpretation urged by the State, probable cause to arrest the same 20-year-old for violation of RCW 66.44.270 exists if he returns to the state of Washington with any trace of liquor still present in his body. Thus, although he did not drink any intoxicating liquor within this state, he might still be subject to arrest for ‘consuming’ liquor in the presence of a police officer who happened to notice his condition or who smelled alcohol on his breath. The minor who has legally consumed liquor with the consent of parents, for legal religious purposes, or legally just across the state line has not committed a crime and does not commit one by coming near a police officer before the alcohol in his blood has been dispelled. The legislature could not have intended such a result in those instances.”

There is an additional policy reason which could cause the legislature to hesitate in enlarging the scope of the underage drinking statute to include the continuing offense of having alcohol in the bloodstream. Such a crime would discourage all underage users from seeking medical or other aid when needed for themselves or their companions; if they knew that they can be arrested for having alcohol in their bloodstreams, they would naturally avoid contact with adults of authority.

A reasonable argument can be made, however, that the underage drinking problem in this state is of sufficient magnitude to cause the legislature to enlarge the scope of the underage drinking statute to include the continuing offense of having alcohol in the bloodstream.

There is no question that the legislature could, if it wished to, make the condition of a person be the essence of the crime. If such a continuing offense is created, however, it must be created by the legislature and not by a court.

The issue before this court is relatively clear. Defendant was arrested for consuming an alcoholic beverage in Paint Township, Clarion County. The Commonwealth’s testimony not only failed to prove that he consumed alcohol in Paint Township, but negated the possibility that he did since his presence in that township was at all times in the company of the police officer.

The Commonwealth’s case does not fail simply because its evidence contradicts the facts alleged in the citation. The Commonwealth has not been able to show that a crime was committed within the jurisdiction of this court. There is no question that the locus of a crime is always at issue because a court has no jurisdiction unless a crime was committed within the county of trial. Commonwealth v. Boyle, 516 Pa. 105, 532 A.2d 306 (1987).

There is no order attached to this opinion since this opinion has been written as an explanation of the order of this court of July 13, 1990, sustaining defendant’s demurrer.

      . The statute in the Pincavitch case was a predecessor of the current underage drinking statute, i.e., Act of June 24, 1939, P.L. 872, §675.1, as amended 18 P.S. §4675.1 There is no distinction for the purpose of the issue before this court in the language of the 1939 statute defining underage drinking and the present statute under which defendant was arrested.

      . The Homaday court was also faced with the question of whether or not the defendant was guilty of possessing alcoholic beverages when those beverages were still within his body. The Washington court held that the essential element of control is absent once the alcohol has been assimilated into the body and that the person is, therefore, not in possession within the meaning of the underage drinking statute. The issue of possession is not before this court since defendant in this case was not arrested for possession. This court, however, has found that alcohol within the bloodstream does not constitute possession. See Commonwealth v. Amato, Court of Common Pleas, Clarion County 89 CR 1989, and Commonwealth v. Spires, Court of Common Pleas, Clarion County 90 CR 1989.


author: GILBERT, Member,

text:
    In re Anonymous No. 16 D.B. 87

      Disciplinary Board Docket no. 16 D.B. 87.
    January 25, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GILBERT, Member,

Pursuant to Rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the within petition for discipline.

HISTORY OF PROCEEDINGS

Respondent, born in 1920, was admitted to the practice of law in the Commonwealth of Pennsylvania on November 20, 1967. His current address is [ ]-

Respondent, the administrator of the [A] Pension Fund, was indicted by a grand jury in the United States District Court for the [ ] District of Pennsylvania. (Stip. para. 3, exh. P-1.) Respondent was charged with six counts of violating general conspiracy statutes and 18 U.S.C. §1027 concerning false statements and concealment of facts in relation to documents required by the Employee Retirement Income Security Act of 1974.

On May 17, 1985, the jury found respondent guilty on all counts. (Stip. para. 25, 26; exh. P-1, P-2A through 2H.) By opinion and order dated October 9, 1986, the Honorable [B], Senior Judge, granted respondent’s motion for a new trial on counts II, III, IV based on his finding that he had inadequately instructed the jury on respondent’s good-faith defense. (Stip. para. 27; exh. P-7.) By order dated December 4, 1986, Judge [B], acting on respondent’s motion for reconsideration, granted a new trial on count I. (Stip. para. 32; exh. P-10 and P-11.)

Respondent’s conviction on counts V and VI remained in which respondent was found guilty of knowingly failing to disclose, in the annual reports of the pension fund for 1982 and 1983, his private interest in properties for which the pension fund provided mortgages.

On December 5, 1986, Judge [B] sentenced respondent to a term of imprisonment for two years on each count to run concurrently. (Stip. para. 29; exh. P-9A and 9B.) At the time of sentencing, Judge [B] suspended the sentence of imprisonment and entered the order in which respondent was placed on probation for five years, serving the first six months under house arrest; respondent was fined $5,000, and made to pay restitution to the fund in the amount of $100,000. (Stip. para. 30; exh. P-9A and 9B.) Judge [B] also ordered that respondent be suspended from the practice of law in the United States District Court for the [ ] District of Pennsylvania. (Stip. para. 31; exh. P-9B.)

By order dated March 6, 1987, the Supreme Court of Pennsylvania immediately suspended respondent and referred respondent’s conviction to the Disciplinary Board pursuant to Rule 214(f), Pa.R.D.E. (Stip. para. 33.)

On May 14, Office of Disciplinary Counsel filed a petition for discipline against respondent charging that respondent’s conviction is grounds for discipline under Rule 203(b)(1), Pa.R.D.E. An answer to the petition for discipline was filed on June 15, 1987, in which respondent, through counsel, admitted violation of D.R. 1-102(A)(4) — conduct involving misrepresentation.

On June 17, 1987, the matter was referred to Hearing Committee [ 1 comprised of [ ]. An evi-dentiary hearing was held on February 28, 1989, at which time the Office of Disciplinary Counsel proceeded by way of stipulation and respondent presented testimony in mitigation.

The hearing committee filed its report on November 3, 1989 in which the committee recommended a three-year suspension retroactive to the date of respondent’s interim suspension. Neither respondent nor the Office of Disciplinary Counsel filed a brief on exceptions.

Thereafter, the matter was referred to board member [ ] for review. The matter was adjudicated by the Disciplinary Board at its scheduled meeting on December 8, 1989.

FINDINGS OF FACT

The board adopts the following findings of fact which led to respondent’s conviction and have been stipulated by counsel:

(1) Respondent served as the administrator of the [A] Pension Fund since he was hired by the trustees in 1963. (Stip. para. 5; exh. P-1.)

(2) In November 1979, respondent and [C] formed a partnership known as [D] which purchased property at [ ] Street in [ ] for the development of nine units. (Stip. para. 8.)

(3) In March 1980, the partnership obtained a two-year $952,500 construction loan from [E] Savings and Loan at a variable rate of two percentage points over the prime rate. (Stip. para. 9.)

(4) Respondent and his partner personally guaranteed the loan. (Stip. para. 10.)

(5) Construction on the nine proposed units began. According to the documentation of [E], by May 4, 1981, the partnership was two months delinquent in interest payments. The interest rate for the delinquent period was 19.25 percent. As of August 1981, the partnership was delinquent in the amount of $27,254.56 for interest due for the months of May, June and July 1981. As of September 28, 1981, the interest rate on the construction loan was 20.125 percent. (Stip. para. 11.)

(6) Respondent was the administrator of the fund on June 12, 1981 when he called a special meeting of the fund’s trustees to discuss the possibility of the fund providing mortgages to buyers of [ ] Street units. (Stip. para. 12.)

(7) The three trustees voted unanimously to permit the use of fund money to finance the [ ] Street mortgages by buyers. (Stip. para. 13.)

(8) The only persons at the June 12, 1981 meeting were three trustees, respondent and [C]. (Stip. para. 14.)

(9) The United States government and respondent do not agree on what was revealed to the trustees at the June 12 meeting by respondent and [C] about their interests in the [ ] Street units and the terms of the mortgages to be provided by the fund. Respondent contended he made full disclosure and the government contended he did not. (Stip. para. 15.)

(10) There are two different sets of minutes concerning the June 12, 1981 meeting. (Stip. para. 16; exh. P-3 and P-4.)

(11) Thereafter, three separate loans totaling $466,000 were approved for the purchase of three of the [ ] Street units as follows:

(a) Units one and three were purchased by [F], a partnership whose partners were [C] and [G], for $148,500 and $155,600, respectively.

(b) Unit nine was purchased by [H], a partnership whose partners were [C] and [I], for $161,900. (Stip. para. 17.)

(12) Respondent had a prior relationship with both [G] and [I]. (Stip. para. 18.)

(13) The loans were for a 30-year term at a fixed rate of 14-percent interest. (Stip. para. 19.)

(14) The sales of units one, three and nine relieved respondent of some of his personal obligations to [E] Savings and Loan for the construction loan. (Stip. para. 20.)

(15) All three loans went into default and civil actions in foreclosures were initiated by the fund. (Stip. para. 21.)

(16) The pension fund has initiated a lawsuit to recover funds it contends are owed to it by respondent. Respondent is defending that action. (Stip. para. 22.)

(17) Federal law (29 U.S.C. §§1021(b)(4) and 1024) requires the filing of an annual report with the Department of Labor by the fund. (Stip. para. 23.)

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

(18) Respondent, [ ], was born on June 15, 1920 and was 68 years of age at the time of the hearing. (N.T. 58.)

(19) After two years of high school, respondent enlisted in the United States Coast Guard. (N.T. 58.) While in the Guard, he served in the Pacific campaign during World War II. Respondent was involved in the Battle of Midway Island and was wounded in combat. He received an honorable discharge. (N.T. 59-60.)

(20) Respondent became involved with the [A] Union by initially working as a [ ] and then was ultimately appointed in the 1950s to be the steward. (N.T. 62.)

(21) Respondent was subsequently appointed to the position of business agent and served in that capacity in the early 1960s. (N.T. 63.)

(22) Respondent became very active in organizing the [A] Union which was Local [ ] District Council and was instrumental in negotiating a pension plan for the union in the 1960s. (N.T. 64.)

(23) Respondent subsequently was appointed as the paid administrator in the 1960s and remained in that position until his aforementioned criminal conviction which is contained in the stipulation of facts. (N.T. 65.) Respondent resigned that position after his conviction. (N.T. 65, 66.)

(24) During respondent’s administration, the pension plan grew from an idea to a pension fund that had assets of approximately $16 million. (N.T. 66.)

(25) Respondent testified he went to law school because he thought the knowledge would assist him in his responsibilities with the [A] Union. (N.T. 67.)

(26) Respondent attended [ ] Law School and graduated in 1967, and was 46 years of age at the time of his graduation. (N.T. 67.)

(27) Respondent was admitted to practice law in 1968 in Pennsylvania and continued in his own law practice from 1968 until his interim suspension in 1987. (N.T. 69.) He briefly had an association with Attorney [J].

(28) Respondent was a member of the various bar associations including the [ ] Bar Association, [ ] County Bar Association, Pennsylvania Bar Association and the American Bar Association during the years of his practice. (N.T. 69, 70.)

(29) Respondent’s law practice, during the 20 years of his practice, emphasized labor relations. He also had an active practice in the area of criminal law and personal injury law. (N.T. 69.)

(30) Respondent’s law office was located at [ ] which was next to the local Union office for which he was the administrator. (N.T. 70.)

(31) Respondent had been very active in political matters in the City of [ ]. Respondent was the elected [ ] City Councilman from the [ ] District for the years 1968 and 1969 when he filled out a term of a councilman who died in office. (N.T. 67, 68.)

(32) Respondent was active with the Pennsylvania Association for [ ]. He served on the Board of Trustees of that organization for approximately three or four years and was very active during that time period without charge. (N.T. 71.)

(33) Respondent has also been very active in assisting individuals who have problems with alcohol abuse. Respondent himself is not an alcoholic. (N.T. 71.)

(34) Respondent, during the summer, takes children out on his boat and has been doing that for the last six or seven years. The children are referred by a Catholic nun. Further, he organizes outings for children through a friend of his. (N.T. 73, 74.)

(35) Respondent also has spent a great deal of time involved with individuals who have difficulty reading in assisting them in learning to read through tutoring them. (N.T. 74, 75.)

(36) Respondent testified to working with one young man for approximately three years and that individual is now able to read today. (N.T. 74, 75.) He indicated he has helped approximately six other individuals in that regard. (N.T. 76.)

(37) Respondent indicated that during his years of practicing law, he also was involved to some extent in pro bono work particularly in the area of adoptions because another lawyer did a free adoption for him years ago. (N.T. 76.)

(38) Respondent testified he fully complied with the terms of his federal probation. (N.T. 77.)

(39) Respondent indicated that his contracting business is presently his main source of income. (N.T. 79.)

(40) Respondent testified that he accepted the conviction and described how painful the conviction had been, particularly to his personal and professional life, and his deep regret and remorse. (N.T. 85, 86.)

(41) Respondent indicated he would like to be admitted to practice law though he was uncertain whether he would ever actually formally engage in the practice if he was readmitted because of his age. (N.T. 86.)

(42) Respondent presented a number of character witnesses, some of whom testified individually and some of whom testified collectively. The witnesses testified as to respondent’s excellent reputation in the community for honesty, as a law-abiding citizen and a practicing attorney.

CONCLUSIONS OF LAW

The board concurs in the hearing committee’s finding that respondent did not violate D.R. 1-102(A)(3) which prohibits an attorney from engaging in illegal conduct involving moral turpitude.

The board also supports the conclusion of the hearing committee that respondent was guilty of violating the following Disciplinary Rules:

(1) D.R. 1-102(A)(4), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and

(2) D.R. 1-102(A)(6), which prohibits an attorney from engaging in other conduct which adversely reflects on fitness to practice law.

DISCUSSION

The parties have stipulated to the violation of one Disciplinary Rule of the Code of Professional Responsibility and the underlying facts that support such a violation. Also, respondent’s conviction is grounds for discipline pursuant to Rule 203(b)(1), Pa.R.D.E. Thus, the sole issue before this board is the appropriate measure of discipline to be recommended to the Supreme Court of Pennsylvania. The hearing committee has recommended a three-year suspension retroactive to the date of respondent’s interim suspension to which neither Disciplinary Counsel nor respondent have taken exceptions. Respondent has been convicted of violating 18 U.S.C. §1027, concerning his failure to disclose in the annual reports of the pension fund for 1982 and 1983 his private interest in properties for which the pension fund provided mortgages. At the time of the conviction, respondent was administrator of the fund; a position which inherently involved fiduciary obligations. In fact, respondent was the person who negotiated for the original pension fund in the early 1960’s and was the administrator of the pension fund since its inception. Due to his long-standing dedication to the fund, respondent was implicitly trusted by the trustees of the fund who looked to respondent for guidance and by the laborers who relied on respondent to protect their interest in the pension fund. Respondent, in such a high position of trust, owed a fiduciary duty and was accountable to a high standard of integrity. The Supreme Court of Pennsylvania has emphasized the principles applicable here:

“Few vocations offer as great a spectrum for good and honorable works as does the legal profession. The attorney is entrusted with the life savings and investments of his clients. He becomes the guardian of the mentally deficient, and potential savior for the accused. He is a fiduciary, a confidant, an advisor, and an advocate. However, the great privilege of serving in all of these capacities does not come without the concomitant responsibilities of truth, candor and honesty. In fact, it can be said that the presence of these virtues in members of the bar comprises a large portion of the fulcrum upon which the scales of justice rest. Consequently, an attorney’s character must remain beyond reproach.” In re Leopold, 469 Pa. 384, 366 A.2d 227 (1976) (emphasis supplied), quoting Judge Digges, speaking for the .Court of Appeals in affirming the disbarment of former Vice President Spiro T. Agnew, in Maryland State Bar Association Inc. v. Agnew, 271 Md. 543, 318 A.2d 811 (1974).

Respondent betrayed the trust of the laborers by engaging in self-dealing and placing his personal interest ahead of those for whom he was acting as a fiduciary. Respondent, involved in a failing business venture, used his position of trust to arrange loans through his business partner resulting in personal profit to him in that it relieved him of liabilities. Respondent has demonstrated that he is willing to ignore his fiduciary duties by misreporting information concerning money which belongs to others. Respondent clearly has violated D.R. 1-102(A)(6), which involves engaging in conduct which adversely reflects on his fitness to practice law, and D.R. 1-102(A)(4), for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Respondent, through counsel, contends that respondent presented substantial mitigating circumstances which should lessen the recommended disciplinary sanction. In the words of. respondent’s counsel, “Respondent’s life is almost that of a storybook from which legends are made.” The board acknowledges respondent’s otherwise good reputation in the community and his numerous charitable, civic, and political activities. The board also recognizes the fact that respondent has complied with all the terms of his probation, which included making restitution in the amount of $100,000. However, these factors did not negate the continuing obligation respondent owed the laborers who entrusted him with their hard-earned pension funds. Respondent had a duty to protect their interests. But instead, he has acted in clear disregard of his duty as a fiduciary and an attorney of the bar. As the Supreme Court of Pennsylvania has pointed out, payment of restitution will not settle or destroy the public’s right to protection against an attorney guilty of unworthy practice in his profession. See In re Leopold, 469 Pa. 384, 366 A.2d 227 (1976).

The primary purposes of the disciplinaiy system are to protect the public from unfit attorneys to maintain the integrity of the legal system, and to preserve the confidence of the public in the legal profession and the judicial system. Office of Disciplinary Counsel v. Stem, 515 Pa. 68, 526 A.2d 1180 (1987).

Respondent’s breach of trust and neglect of his fiduciary duties in order to preserve his own personal interests require severe sanctions in order to protect the public and the integrity of the legal system.

RECOMMENDATION

The Disciplinary Board recommends that respondent, [ ], be suspended from the practice of law for a period of five years, suspension retroactive to December 5, 1986, the date of the sentencing. The board recommends further that respondent be ordered to pay the costs of investigating and prosecuting this matter.

Messrs. Eckell and Gilardi dissent and would recommend a three-year suspension.

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

ORDER

Rule to show cause entered by this court on March 15, 1990 is discharged. It is hereby ordered that respondent be and he is suspended from the Bar of this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Justice McDermott did not participate in the consideration or decision of this case.

Mr. Chief Justice Nix and Mr. Justice Flaherty dissent and would impose a suspension of five years.