author: SPICER, P.J.,

text:
    Commonwealth v. Thompson

      Roy A. Keefer, district attorney, for the commonwealth.

      Michael A. George, for defendant.

      January 5, 1990
   SPICER, P.J.,

Defendant moves to arrest judgment following his convictions by the Honorable John D. Kuhn following a bench trial; Defendant was found guilty of possessing drug paraphernalia and a small amount of marijuana and complains that evidence by which he was convicted should have been suppressed. .

The undersigned refused pretrial motions to suppress October 16, 1989. Defendant then waived his right to a jury trial and was found guilty November 2, 1989. Since the sole issue raised in his post-verdict motions relates to the undersigned’s denial of defendant’s suppression motion, the case presently comes before this writer for disposition.

After carefully considering defendant’s arguments and the record, this writer concludes that evidence was subject to suppression and that the ruling of October 16, 1989, was erroneously decided.

The suppression record was scanty, indeed. By stipulation, the court considered as true recitals in an application for search warrant and the police report. While those facts come very close to establishing probable cause for an arrest and/or search, the undersigned finds that an important conclusion previously drawn is not supported by the facts and, without this, the seizure cannot be justified.

The application for a search warrant recited that, because of “the number of persons who enter this residence and remain there for a short' period of time” all persons in the residence should be searched. The warrant authorized searches of all individuals in the residence. It did not authorize such searches for persons outside the residence.

Salient facts regarding defendant appear in the report. That document recites that while a search of lower level premises was being conducted, the following occurred:

“At approximately 11 a.m. a vehicle arrived at the residence which was being operated by accused, Thompson. After exiting the vehicle, I informed Thompson who I was and ascertained that he was not a juvenile. I read him his Miranda warnings and he said that he understood them. I asked him whether or not he anything [sic] in his pockets that he shouldn’t, he said that he did not. I patted him down and felt several buldges [sic] in his pockets and asked if he would empty his pockets. He agreed to do so. After he said that he had emptied his pockets, I again patted him down, and still I felt something in the left front pocket. I reached into this pocket and found a plastic bag which contained a small amount of marijuana and rolling papers.” Pennsylvania State Police Initial Crime Report, page 2.

The building involved is in a residential area within the Borough of Carroll Valley. The application for warrant distinguished between an upper-level dwelling, occupied by persons with no involvement in this case, and the lower-level dwelling occupied by two persons, one named Barclay. The warrant was issued only for the Barclay residence.

This writer concluded, from reading the report, that defendant’s .destination was the Barclay residence. Thus, he fell within a class that could be described as potential purchasers. However, as defendant points out, the word “residence” does not identify which residence nor was defendant’s destination or purpose ever subject to inquiry. While it is clear that customers who come upon search scenes are subject to search, Commonwealth v. Merriwether, 382 Pa. Super. 411, 555 A.2d 906 (1989), there is only the showing in our case that defendant arrived at a dually occupied and divided residence.

Defendant argued at the suppression hearing that stops and frisks under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), are justified only if police believe the detainee is armed and dangerous. This court rejected that argument, pointing out that the focus is properly on the likelihood that criminal activity is afoot. Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988).

However, Terry authorizes only “limited pat-down.” Commonwealth v. Merriwether, supra.

“A search may be conducted incident to a Terry stop only if the police officer reasonably believes it to be necessary for his own safety or that of others. The search must be limited to the detainee!s person and immediate surroundings and can go no further than is necessary to discover any dangerous weapons which may be used on that occasion against the officer.” Commonwealth v. Pine, 370 Pa. Super. 410, 419, 536 A.2d 811, 816 (1988). (citations omitted)

All other searches require probable cause to believe that the person possesses evidence of crime. See Commonwealth v. Merriwether, supra.

As was mentioned in the court’s earlier opinion, there is no clear litmus test for determining when a seizure exceeds the bounds of an investigative stop and becomes an arrest. Commonwealth v. Elliott, supra. Appellate courts have made numerous attempts to clarify basically a murky area. In Commonwealth v. Brown, 388 Pa. Super. 187, 565 A.2d 177 (1989), Judge Beck, as have others, classified contact between citizens and police as “mere encounters, non-custodial detentions, and custodial detentions,” noting that “both non-custodial detentions and custodial detentions are seizures of the person that trigger Fourth Amendment protection.” Id. However, constitutional protection invoked by Terry requires suspicion, not probable cause.

It is important to understand that “seizure” refers to, detention of the person in these contexts. The intrusion discussed in Commonwealth v. Elliott, supra, is the intrusion on a person’s freedom of movement. This writer did not stress this point in the suppression opinion and did not stress the difference between a pat-down (outside the pocket) and a search (inside the pocket).

Careful consideration of cases justifying seizures of evidence reveals that, almost without exception, other factors have been involved. For example, when detention has developed into an arrest situation, consent has been utilized to justify a search. In Commonwealth v. Douglass, 372 Pa. Super. 227, 539 A.2d 412 (1988), a suspect said he had no objection to a chemical test and that was equated with consent. In Commonwealth v. Pine, supra, an officer was allowed to read a serial number on a television because that item was in open view. In Commonwealth v. Rodriquez, 387 Pa. Super. 271, 564. A.2d 174 (1989), the court apparently approved the routine police practice of searching purses because of the need for protection. In most cases in which searches are upheld, police have probable cause. In Commonwealth v. Elliott, supra, police saw contraband in open view. In Commonwealth v. Merriwether, supra, defendant appeared at a residence and expressly stated he wished to purchase a controlled substance.

Unfortunately for the commonwealth, the record in this case falls short of establishing probable cause, consent, or the need for self-protection. In searching defendant’s pocket, the police exceeded a limited pat-down. The evidence should have been suppressed.

It appears that suppressing the items seized will terminate the prosecution. Therefore, defendant is entitled to have judgment arrested.

Because the court deals with setting aside verdicts of guilty, this writer has asked Judge Kuhn to join in the order granting relief.

ORDER OF COURT

Arid now, January 5, 1990, judgment is arrested and defendant is discharged.


source: Caselaw Access Project

author: MILLER, J.,

license: Public Domain

text:
    Beveridge v. PennDOT

      William A. Kuhar Jr., deputy attorney general, for the commonwealth.

      Brian J. Lindsay, for plaintiff.
    March 22, 1990
   MILLER, J.,

Petitioner was involved in a long police chase which included two different and separate police departments. The initial pursuit was begun in Saegertown by a Saegertown police officer. Petitioner refused to stop and the chase continued into Meadville. Once inside the City of Meadville, a Meadville police officer also pursued' petitioner. Petitioner therefore was being pursued by two different police departments simultaneously. Petitioner pled guilty to two counts of fleeing and attempting to elude police. Petitioner also pled guilty to driving under the influence. As a result of these convictions petitioner was considered a habitual offender by Pennsylvania Department of Transportation and his driver’s license was revoked for five years.

Petitioner now appeals his license revocation maintaining that the two fleeing or attempting to elude charges constitute only one offense, because it was one continuous chase and the Saegertown officer gave chase till the' end.

DISCUSSION

DOT must revoke the operating privileges of a person whose driving record shows three convictions for “separate and distinct offenses” where those offenses are among those enumerated by the statute and which are “committed either singularly or in combination” and by any such person (75 Pa.C.S. 1542). That section refers to revocation of the license of a “habitual offender.” That is probably a misnomer. One would normally think of a “habitual offender” as a repeat offender and not one who has only one bad night and is a “multiple offender.” However, the term “habitual offender” is clearly defined to mean anyone who amasses three convictions no matter how long or short the period of time is in which those convictions are amassed.

Among the convictions that are included are those to which defendant pled guilty. Those include two counts of fleeing or attempting to elude a pursuing police vehicle (75 P.S. §3733).

Petitioner’s “one-episode” argument fails. In Reese v. Commonwealth, Department of Transportation, 71 Pa. Commw. 244, 455 A.2d 232 (1983), one episode involving driving without lights to avoid the police in two municipalities was held to be two separate acts. In Weaver v. Commonwealth, Department of Transportation, 52 Pa. Commw. 625, 416 A.2d 628 (1980) one episode of driving under the influence, fleeing or attempting to flee to elude police and leaving the scene of an accident involving damage to attended property amounted to three convictions for license revocation purposes. In Johnson v. Commonwealth, 68 Pa. Commw. 384, 449 A.2d 121 (1982) a three-minute chase through three municipalities involving 10 Vehicle Code violations, including two violations of 75 Pa:C.S.§ 3733, resulted in a proper five-year license suspension. The various violations did not coalesce into one act merely because they occurred in a short period of time in one continuous episode. See also, Commonwealth v. Aumon, 59 Pa. Commw. 468, 430 A.2d 373 (1981), and Nolt v. Commonwealth, 64 Pa. Commw. 144, 439 A.2d 874 (1982).

Petitioner here attempted to elude the. Saegertown and Meadville police departments, even though in one chase, first committed a singular offense and then committed offenses “in combination” as provided in section 1542.

The petitioner cites Commonwealth v. Swope, 23 D.&C. 3d 345 (1982) as compelling on the theory that it is the only case involving a continuous chase rather than multiple violations of different code sections. There the operator tried to elude a State Police officer and in a 16-minute chase two other State Police officers picked up at separate intervals to chase the defendant. He was ultimately stopped by the state trooper who last picked up the chase. The court held that there was one chase, not three, but not in a license suspension appeal case. In Swope, supra, the defendant filed a motion asking that all three criminal charges be consolidated into one charge on double jeopardy theories. We think that distinguishes Swope from this case and sets up the principles of law upon which this case should be cited.

This case should not be decided on whether or not there was one episode or a continuous chase. This court must be guided by the standards articulated in Commonwealth, Department of Transportation v. Rinehart, 113 Pa. Commw. 452, 537 A.2d 940 (1988).

“In a license revocation appeal, the trial court’s scope of review is limited to a determination of whether the motorist was convicted and whether DOT acted in accordance with applicable law. The trial court cannot consider facts and circumstances surrounding the conviction because the relevant inquiry is whether the motorist was convicted, not whether he should have been convicted.”

The license revocation appeal is a civil proceeding which is totally separate from any criminal charges which may have been brought against the licensee. Radice v. Commonwealth, Department of Transportation, 118 Pa. Commw. 627, 545 A.2d 1005 (1988). A reviewing court may not consider any claimed procedure defects or errors in the criminal proceeding which formed the basis for the suspension or revocation. Commonwealth, Department of Transportation v. Schmidt, 57 Pa. Commw. 318, 426 A.2d 1222 (1981).

Instantly, petitioner’s appeal constitutes a collateral attack on a criminal conviction. This court’s inquiry is limited to determining whether petitioner has in fact been convicted of a traffic violation and whether DOT has faithfully observed the provisions of the Vehicle Code. Commonwealth, Department of Transportation v. Gray, 59 Pa. Commw. 590, 430 A.2d 407 (1981).

It is undisputed that petitioner was convicted for twice violating 75 Pa.C.S. §3733. These two convictions coupled with the DUI conviction place him within the purview of the habitual offender statute. The action taken by DOT was not only appropriate, but mandated. The merit of the conviction is not for DOT or the courts to decide, Rinehart, supra.

Finally, where a license suspension appeal is actually an attempt to attack a defect in the criminal proceeding which ultimately resulted in the suspension, the appeal must be dismissed. Commonwealth, Department of Transportation v. Kintigh, 52 Pa. Commw. 58, 415 A.2d 437 (1980).

      . 75 Pa.C.S. §3733.

      . 75 Pa.C.S. §3731.

      . 75 Pa.C.S. §1542(a).

      . That argument is not entirely true. See Johnson v. Commonwealth, supra.


author: PODCASY, J.,

text:
    L.J. v. V.J.

      Ronald J. Worobey, far plaintiff.

      Joseph F. Iracki, for defendants.
    February 12, 1990
   PODCASY, J.,

This matter comes before the court on the captioned defendants’ preliminary objections in the nature of a motion to strike or dismiss complaint.

The action was commenced by the named plaintiff on September 18, 1989, seeking a declaratory judgment pursuant to sections 203, 204 and 205 of the Pa. Divorce Code, 23 P.S. §§203-205.

Plaintiff requests this court deem the marriage between his minor daughter, V.J., and L.F. be declared null and void.

It is alleged that the said minor was 16 years of age on August 11, 1989, when she married the said L.F., age 36, in Frederick County, Maryland. It is further alleged that the said minor, having not received the consent of her parents, was induced to enter into the marriage due to fraud, duress, coercion, or force exerted by defendant L.F. The gravamen of said averment is that the minor was suffering at the time of the marriage, and continues to suffer, from a severe mental disorder which dispels her capacity to consent to her marriage vows. Plaintiff contends the minor is being treated by a psychiatrist for the disorder.

On September 22, 1989, defendant L.F. filed the present preliminary objections in the nature of a motion to strike or dismiss the complaint, the essence of which is two-fold: first, that plaintiff lacks standing under the law, and particularly the Divorce Code, to file the present complaint for declaratory judgment; and secondly, that the averments as to the minor’s mental condition are not specifically set forth.

In order to properly dispose of the pending objections, it is necessary for this court to focus our attention on the Pa. Divorce Code, and particularly, sections 203, 204 and 205 thereof, governing the annulment and invalidity of marriages.

■ Section 204(3) of the code, 23 P.S. §204(3), declares that a marriage is void when either party to the marriage was incapable of consenting by reason of deficient mental capacity. In circumstances of a void marriage, it is suggested by our courts that any party, such as the present plaintiff, may bring the action for annulment. In Interest of Miller, 301 Pa. Super. 511, 448 A.2d 25 (1982).

On the other hand, voidable marriages are governed by section 205 of the Pa. Divorce Code, 23 P.S. §205, and include those marriages where one party was induced to enter into, the same due to the fraud, duress, coercion or force attributable to the other party. It is clear in these cases, however, that the marriage may be annulled only by either party thereto and is valid and subsisting unless and until challenged by one of them. In Interest of Miller, supra; Perlberger, Pa. Divorce Code §3.2 (1980).

The complaint in the instant matter is somewhat of a travesty in that plaintiff first avers that the marriage was entered into by the minor under the specter of fraud, duress, coercion or force. Consequently, in his complaint plaintiff is making allegation of a voidable marriage. If this, is accepted as true, plaintiff has no standing under law to bring the action. 23 P.S. §205; In Interest of Miller, supra.

In paragraph 6 of the complaint, however, plaintiff avers that defendant is suffering from a severe mental disorder, which is being treated by a psychiatrist and which vitiates her capacity to consent to the marriage. In this realm, plaintiff is contending that the marriage is allegedly void and by implication then, he is a proper party plaintiff under the law.

This court, however, cannot overlook that plaintiffs allegation of mental disorder is inherently vague and does not indicate the nature of the minor’s mental infirmity, the treatment received therefor, and to what extend the same may have contributed to her lack of assent to the marriage. This information in our view is essential to plaintiffs cause of action under section 204 and must be adequately pled. In this respect, we remind the parties that pleadings serve the function of defining issues and giving notice to the opposing party of what the pleader intends to prove at trial, so that the opposition may in turn prepare to meet such proof with' its own evidence. Laursen v. General Hospital of Monroe County, 259 Pa. Super. 150, 393 A.2d 761 (1978); Bermeron v. Washinski, 79 Luzerne Leg. Reg. 172 (1989).

Therefore, it is entirely proper under the circumstances because of both the inconsistent nature of plaintiffs pleading and the non-specific character of his allegations of a void marriage, to sustain defen- . dants’ preliminary objections while granting plaintiff leave to file an amended pleading consistent with the directives contained herein.

ORDER

It is hereby ordered, adjudged and decreed as follows:

(1) The preliminary objections filed by defendant L.F. are granted;

(2) Plaintiff is permitted leave of court to amend his complaint consistent with the directives contained in our attached opinion; 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.

      . The statute states in pertinent part:
      “(a) Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of any person shall be deemed void in the following cases:
      “(3) Where either party to such marriage was incapable of consenting by reason of insanity or serious mental disorder, or otherwise lacked the capacity to consent or did not intend to assent to such marriage.
      “(b) In all such cases of marriages which are void, the marriage may be annulled as set forth in section 203(1), or its invalidity may be declared in any collateral proceeding.”

      . “Grounds for annulment of voidable marriages” provides in pertinent part:
      “(a) The marriage of any person shall be deemed voidable and subject to annulment in the following cases:

        “(2) Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not ratified such marriage upon reaching the age of 18 and such proceeding for annulment is commenced within 60 days after the marriage ceremony.
      “(5) Where one party was induced to enter into such marriage due to the fraud, duress, coercion, or force attributable to the other party, and there has been no subsequent voluntary cohabitation after knowledge of such fraud or release from the effects of fraud, duress, coercion or forces.
      “(b) In all such cases of marriages which are voidable, either party thereto may seek and obtain an annulment of such marriage, but unless and until such decree is obtained from a court of competent jurisdiction, such marriage shall be valid and subsisting. The validity of such a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties thereto or if either party has died.”


author: WOOD, J.,

text:
    Commonwealth v. Cozzone

      Nicholas J. Caserita and Robert Siegel, assistant district attorneys, for the commonwealth.

      Joseph P. Green Jr., for defendant.
    April 25, 1990
   WOOD, J.,

On August 18,1989, following a jury trial, defendant Anthony Cozzone was found guilty of driving under the influence of alcohol to a degree which rendered him incapable of safe driving. The incident occurred in the Fox Knoll Condominium complex parking lot.

Driving under the influence of alcohol is defined in the Vehicle Code as a “serious traffic offense,” pursuant to 75 Pa.C.S. §3101(b). This type of offense must be committed on a highway or a trafficway. This area was clearly not a highway. Section 102 of the Vehicle Code defines “trafficway” as follows:

“ ‘Trafficway.’ The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter or right or custom.”

The jury found that the Fox Knoll parking lot was a “trafficway” and found defendant guilty of operating his vehicle on this “trafficway” while under the influence of alcohol, in violation of 75 Pa.C.S. §3731.

This matter is presently before me on Mr. Cozzone’s post-trial motions in which he challenges the sufficiency and weight of the evidence to establish that he was driving on a “trafficway.” Mr. Cozzone argues that the parking lot in question was a “private road” pursuant to 75 Pa.C.S. §102, which defines “private road” as:

“A way or place in private ownership used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.”

The central issue here is: what distinguishes a “trafficway” from a “private road”?

Defendant relies on Commonwealth, Dept. of Transportation v. McLaughlin, 124 Pa. Commw. 496, 556 A.2d 533 (1989) to support his contention that the Fox Knoll parking lot is a private road. The facts of McLaughlin are similar to the case at bar in that it involved a defendant driver who was under the influénce of alcohol and arrested in his condominium complex parking lot. McLaughlin held that the condominium parking lot was not a “trafficway” pursuant to 75 Pa.C.S. §102, because “[i]t is a private lot to be used only by the residents of the complex.” 124 Pa. Commw. at 501, 556 A.2d at 5367.

Case law indicates that an area is a “trafficway” if it is either open to the public or in fact used by the public. In Commonwealth v. Baughman, 357 Pa. Super. 535, 516 A.2d 390 (1986) the court held that a dirt track through a field was a “trafficway.” The Baughman court based its ruling on the fact that there were no signs or barriers which restricted access to the roadway. Likewise, in the case at bar, at the time of this offense there were no restrictions on entering the Fox Knoll parking area. Dept. of Transportation, Bureau of Driver Licensing v. Bendik, 112 Pa. Commw. 591, 535 A.2d 1249 (1988) involved a motel parking lot which was deemed a “trafficway.” The court stated:

“It would appear from the use of a motel parking lot that it is customarily open to the public for the purpose of vehicular travel to the extent that members of the general public are welcome to drive onto the lot if they wish to park their car. . .” 112 Pa. Commw. at 595, 535 A.2d at 1250.

Similarly, testimony here demonstrated that the Fox Knoll parking lot is open to the public for “vehicular travel” and parking in that it was used by garbage and delivery trucks, visitors, potential condominium buyers, and, on March 12, 1989, this defendant.

In Commonwealth v. Wilson, 381 Pa. Super. 253, 553 A.2d 452 (1989) the trial court held that the fact that an Elks Club parking lot was used by the public made it a “trafficway” even though it was marked “private.” The court stated:

“Even if restricted by signs, if a parking lot is used by members of the public, it is a trafficway. . .” 381 Pa. Super, at 257, 553 A.2d at 454. (emphasis supplied)

At the time of this incident, there was not even a sign erected on these premises designating them as private. I conclude that the jury could properly find this condominium area to be a trafficway.

ORDER

And now, April 25, 1990, defendant’s post-trial motion in arrest of judgment and/or new trial is denied. The court administrator shall schedule this matter for sentencing.


author: HESS, J,

text:
    U.S. Fidelity and Guaranty Co. v. Franks

      Brady R, Johnson, for plaintiff.

      Ron Turo, for defendants.
    March 29, 1990
   HESS, J,

This action was brought by the United States Fidelity and Guaranty Company to construe the terms of a contract of insurance issued to Russell Franks. Specifically, USF&G seeks a declaration that the underinsured policy limits are $35,000 per vehicle and that those limits are binding on all operators listed in the policy. The decision in this case requires the application of various sections of the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. §1701 et seq., which act was in effect during all times pertinent hereto. The act requires that the insured receive notice of the various coverages permitted by law pursuant to section 1791 of the act. It also provides, generally,- that uninsured and únderinsured motorist coverage must be provided in amounts equal to the policy’s bodily injury liability limits. Section 1734 of the act provides that the insured may waive the higher limits and select lower uninsured/underinsured coverage provided he elects to do so in writing.

Plaintiff has offered into evidence a written request, signed by Mr. Franks, which waiver clearly requests underinsured motorist coverage less than the bodily injury liability limits and specifically in the amount of $35,000. At the trial of the case, Mr. Franks admitted signing the form and, while he now claims not to have understood it, he acknowledged that he had no difficulty reading and, in fact, knew that his election would result in the lowering of his premiums.

In the case of Nealy v. State Farm Mutual Automobile Ins. Co., no. 2885 Civil 1989, we recently grappled with the matter of the import of the insured’s signature on the election of lower underinsured/uninsured limits. Specifically, we addressed the holding in Prudential Property and Casualty Insurance Co. v. Pendleton, 858 F.2d 930 (3d Cir. 1988). This latter case provides that the voluntary signing of an election to reduce coverage creates a conclusive presumption with respect to the insured’s election. Critical to an understanding of Prudential, we felt, was the meaning of the term “voluntary.”. Without repeating what we said in Nealy, supra, it is clear that for a signature to be “voluntary” not only must the signature have been a volitional act, but the insured must have had the opportunity to read the waiver.

At the trial of this case, Mr. Franks gave the following testimony concerning his execution of the section 1734 request for lower underinsured limits:

Q: Mr. Franks, did anyone at any time tell you that you had to sign that form for insurance?
A: No.
Q: Did you have any opportunity — let me rephrase that. Were you able to telephone call your agent?
A: Yes.
Q: And didn’t you in fact call your agent at various times to discuss various items?
A: Yes.
Q: Was there anything that prevented you from calling your agent and asking him about this form?
A: No, not at all, except that I didn’t know what I would be asking about anyway.
Q: You signed the form, so you had it in front of you at some point, right?
A: Yes.
Q: So you could have called your agent and asked him about the form, couldn’t you?
A: If I knew what the form was telling me, yes. But I wasn’t under the impression as to what it was meaning.
Q: Why did you sign it?
A: I just told you that.
Q: To reduce your premium?
A: Correct.
Q: How did you know it would reduce your premium? "
A: Well, if it is a lower amount of money, I am going to pay a less premium.
Q: I understand that, but how do you know that signing that , document — or how did you know that signing that document would lower your premium?
A: When they quoted me the price.
Q: So you spoke with your agent about it, and he quoted you a price that was lower?
A: Yes.
Q: They didn’t tell you that you had to sign it?
A: No.
Q: They didn’t tell you that you had a time limit signing it, or you wouldn’t get the lower premium, did they?
A: No.
Q: Could you in fact have signed it at any time and gotten the premium?
A: I imagine so, yes.
Q: So you could have signed it a week later?
A: I could have, probably. I don’t know.
Q: You could have seen an attorney about it or asked a friend about it?
A: I could have, yes.
Q: Just final questions. Do you know how to read?
A: Yes.
Q: And in fact, you subscribe to at least one magazine, don’t you?
A: Correct.
Q: And you have read books from time to time?
A: Correct.
Q: And in fact, don’t you read books on diesel mechanics and the like for your employment?
A: Correct.
Q: Do you have any trouble understanding those?
A: No.
Q: And you don’t have dyslexia or any other reading disorders?
A: No.

It is clear that Mr. Franks’ execution of the form was voluntary. In retrospect, his decision to lower underinsured limits appears to have been unwise. Notwithstanding, we know of no affirmative duty on the part of an insurance company to dissuade their insureds from making such choices. Similarly, we know of no requirement that insurers guarantee complete understanding of matters otherwise plainly explained in writing.

While the form wherewith Mr. Franks lowered his underinsured limits is undated, it is clear from all of the evidence in the case that it was executed in July 1985. Thus, the lower limits apply to the claim, made against this policy, arising out of an accident which occurred on September 13, 1987. Moreover, the election of lower limits was preceded by the giving of notice, of the various benefits under the Motor Vehicle Financial Responsibility Act, pursuant to 75 Pa.C.S. §1791. These notices were sent with the premium billing on November 8, 1984.

For all of the foregoing reasons, we believe that the declaration sought by United States Fidelity and Guaranty Company is warranted by the law and the facts of this case. Accordingly we enter the following

VERDICT

And now, March 29, 1990, the court finds and declares that:

(1) The underinsured policy limits applicable to this case are $35,000 per vehicle pursuant to an election to reduce coverage executed by the sole named insured prior to the policy period during which the accident of September 13, 1987 occurred; and

(2) The election of Russell Franks, the sole named insured, is binding on all “operators” listed on the policy, including John Michael Franks.


author: BROMFIELD, J.,

text:
    Hornberger v. Hommel

      Neil J. Rovner, for plaintiff.

      Robert L. Walsh, for defendants.
    April 25, 1990
   BROMFIELD, J.,

The complaint in this case alleges that plaintiff was injured in an automobile accident through the negligence of one of the defendants, Todd Hommel. Plaintiff has alleged direct negligence by Todd in the causation of the accident, and negligent entrustment against the mother of Todd Hommel, Irene Hommel, for allowing Todd to be driving the vehicle owned by her. To the count of negligent entrustment, defendant mother has filed preliminary objections in the nature of a demurrer. Those preliminary objections are before the court.

The complaint alleges, at paragraphs 31 and 32, that Irene Hommel knew or should have known of Todd’s inexperience in operating a motor vehicle (Todd was a minor at the time of the accident) and further that she knew or should háve known of his habitual driving in a careless and reckless manner. The complaint does not allege any. factual foundation for the imputation of knowledge to the mother of the minor driver. The mother has demurred, challenging that allegation as insufficient to support the theory of negligent entrustment.

Thus the legal issue: Is an allegation of assumed knowledge sufficient to preserve the cause of action from the challenge of a demurrer? For reasons which follow, the court has determined that such an allegation, without more, is a legal rather than a factual conclusion, and insufficient to preserve the théory of negligent entrustment.

The principles for ruling on the demurrer are not in dispute by either counsel. The demurrer admits all relevant facts sufficiently pleaded and all inferences fairly deducible therefrom, but does not admit conclusions of law. In order to be sustained, it must appear with certainty that upon the facts averred, the law will not permit recovery. Although the amount of facts which must be pleaded cannot- be set forth with any precision, at a minimum, the pleader must allege precisely the facts upon which his cause of action is based. In a negligence action,, the plaintiff must establish the duty, the breach and the injuries suffered by the plaintiff and the causal nexus. See, e.g., Pike Cty. Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978).

The theory of negligent entrustment was recognized by our Supreme Court in Gibson v. Bruner, 406 Pa. 315, 178 A.2d 145 (1961). In that case, the son had received permission to use the vehicle, was involved in a drunk driving incident, and the father was named as a defendant. The Supreme Court disallowed the claim against the father, ruling that the evidence was insufficient to establish liability on the part of the father because the plaintiff could not prove that, at the time the permission was granted, the father knew that the son “was not in a condition to operate the motor vehicle.” The principle was reaffirmed in Robare v. Pekarcik, 109 Pa. Commw. 87, 530 A.2d 534 (1987), again holding that the knowledge which is in issue is the knowledge of unfitness at the time the permission was granted.

The theory in the instant case is that a generalized knowledge, of inexperience or previous erratic driving, is also sufficient to impute to the owner of the vehicle a responsibility to deny permission of a driver to use the vehicle, even if that driver is licensed and otherwise authorized to use the vehicle. The theory is further attenuated in the instant case by the lack of any specific facts upon which the generalized knowledge is presumed.

Plaintiffs counsel has contended that such a theory can withstand the initial test of sufficiency because an averment of knowledge is an allegation of fact. That argument presumes that knowledge is the product of sensory observations, and that those sensoiy observations are more appropriately the subject of discovery and investigation. Defendant’s counsel responds that an averment of knowledge is a conclusion of law, and fails to set forth the facts upon which the knowledge is based. Without such a foundation, the allegation that a defendant “knew or should have known” is simply an unsupported conclusion.

The court accepts defendant’s argument. If a bald assertion of presumptive knowledge is sufficient, eo ipso, to preserve a cause of action, then any allegation would suffice. No facts would need to be alleged to support the theory of negligent entrustment against any parent of an inexperienced driver. All parents are, theoretically, presumed to know that a recently licensed driver is less experienced. All parents are, theoretically and practically, presumed to know that the increased insurance premium notices they receive relate to the general proposition that younger drivers have increased risks of accidents. All parents could be presumed to know that some level of erratic driving has been demonstrated by young drivers in learning how to drive. All parents would be defendants under a “presumed to know” theory. No such general cause of action has yet been recognized in Pennsylvania. The Gibson case both announces the principle of negligent entrustment and circumscribes its application: the knowledge in dispute is incident-specific, not generalized misgivings. Gibson v. Bruner, supra.

Finally, the court rejects the argument that an allegation of presumed knowledge is a factual allegation. In Stempler v. Frankford Trust Co., 365 Pa. Super. 305, 529 A.2d 521 (1987), the general allegations in support of the negligent performance of duties included the same phraseology: “knew or should have known.” Although ultimately resting its holding on grounds that no duty existed, the Superior Court in its analysis addressed the factual predicates for the presumed knowledge, stating that there were no facts which described the manner or time or extent of the discharge of the underlying obligations.

For the reasons set forth above, the preliminary objections of defendant Irene Hommel will be granted.

ORDER

And now, April 25, 1990, for the reasons set forth in the foregoing opinion, the preliminary objections in the nature of a demurrer are sustained and the claim against Irene Hommel, defendant, dismissed.


author: FORNELLI, J.,

text:
    Bakaric v. Bakaric

      Michael L. Bangs, for plaintiff.

      Sandra Edwards Gray, for defendant.

    May 23, 1990
   FORNELLI, J.,

This proceeding arises out of a writ of execution by which plaintiff seeks to garnish an Individual Retirement Account, and certain annuities held for defendant by garnishee Protected Home Mutual Life Insurance Company located in the city of Sharon, Mercer County, Pennsylvania. Presently before the court are defendant’s preliminary objections which, for the reasons set forth below; are dismissed.

I

The factual background is not adequately reflected in the record of this case. The briefs of the parties, however, agree as to the following:

“On July 6, 1989, in the Court of Common Pleas of Cumberland County, Pennsylvania, judgment was entered for the plaintiff, Helen L. Bakaric, against defendant, Nicholas G. Bakaric, in the amount of $300,000, plus interest from January 30, 1989. On the same day, plaintiff filed a praecipe for writ of execution against Mr. Bakaric and against Protected Home Mutual Life Insurance Company, garnishee. The Sheriff was instructed to garnish all accounts and funds belonging to Mr. Bakaric in the possession of the garnishee and identified as follows: Individual Retirement Account, policy no. 789068Y, Single Premium. Deferred Life Annuity (SPDLA), policy no. 805501, SPDLA policy no. 805502, SPDLA policy no. 805503, and SPDLA policy no. 805504.” Defendant’s brief at 1. See also, plaintiffs brief at 1.

Pursuant to rule 3141(b) of the Pennsylvania Rules of Civil Procedure, the garnishee elected venue in Mercer County and the writ was transferred to this court from Cumberland County, Pa., on July 24, 1989.

On August 15, 1989, defendant filed preliminaiy objections asserting that the IRA and SPDLAs “áre exempt from Execution pursuant to Federal Law, the Internal Revenue Code of 1986, and IRS Regulations.” Defendant’s preliminary objections to writ of execution and garnishment, paragraph 1. In the alternative should execution be permitted, defendant asserts: “Garnishee should withhold Federal income tax for all payments made to plaintiff from any and all accounts and funds belonging to defendant as required by the Internal Revenue Code of 1986 and IRS Regulations.” Id., paragraph 2. In his brief in support of these preliminary objections, defendant argues that both the IRA and the SPDLAs are exempt from execution and garnishment under Pennsylvania law.

In opposition, plaintiff argues that defendant’s claim of exemption has been waived. Plaintiff first asserts that the claim of exemption on the basis of federal law and regulations has been waived because “[t]he defendant fail[ed] to cite any federal statute, law or IRS regulation in. support of his claim that the IRA or the annuities are exempt from execution.” Plaintiffs brief in opposition to defendant’s preliminary objections at 2. Plaintiff then contends that defendant has also waived any claim of exemption under Pennsylvania law because, although asserted and argued in defendant’s supporting brief, “Pennsylvania law” was not expressly mentioned in the preliminary objections.

Plaintiff further argues that the annuities are subject to execution because they are personal property and all personal property is subject to. execution unless specifically exempted. Moreover, countering defendant’s argument that the cash surrender values of the policies are only optional rights incapable of being garnished, plaintiff asserts that since it is garnishment of the actual policies that is sought, rather than their cash value, execution upon them is possible as well as permissible.

Finally, asserting that the issue is not before the court in this proceeding, plaintiff seeks dismissal of defendant’s preliminary objection in the nature of a request thát, if the policies are subject to execution, the garnishee be required to withhold amounts in satisfaction of any federal income tax liability which would accrue to defendant as a result of the garnishment.

(a)

Plaintiffs position that defendant has waived the right to claim exemption of the subject policies is not supported by the applicable law. The Pennsylvania Rules of Civil Procedure state: “The defenses of immunity or exemption of property from attachment or a question of jurisdiction over the garnishee may be raised by preliminary objections filed by the defendant or the garnishee.” Pa.R.C.P. 3142(a). This rule further provides that “[ejxemption or immunity of property from execution may be raised at any time.” Pa.R.C.P. 3142(c). Moreover, even if a defendant fails to raise preliminary objections to a writ of execution, a stay can be obtained on the basis of an exemption:

“(a) Execution shall be stayed as to all or any part of the property of the defendant.. .
“(4) upon a showing of exemption or immunity of property from execution;. . .
“(b) Execution may be stayed by the court as to all or any part of the property of the defendant upon its own motion or application of any party in interest showing .
“(1) a defect in the writ, levy or service; or
“(2) any other legal or equitable ground therefor. . . .
“(d) The court may on application of any party in interest set aside the writ, service or levy
“(1) for a defect therein;
“(2) upon a showing of exemption or immunity of property from execution, or
“(3) upon any other legal or equitable ground therefor.” Pa.R.C.P. 3121(a), (b), and (d).

Thus, it is clear that the Rules of Civil Procedure do not provide for waiver of a defendant’s claim of exemption in an attachment of property proceeding. To the contrary, the rules permit a claim of exemption to be raised by any party in interest, or by the court sua sponte, at any time prior to levy. Therefore, plaintiffs assertion that defendant has waived the right to claim that the policies are exempt from execution is meritless.

Accordingly, consideration will now be given to defendant’s claims that the IRA and SPDLAs, which plaintiff seeks to garnish, are exempt from execution and attachment.

(b)

Pennsylvania law provides for the exemption from execution of certain items of personal property. With regard to IRAs, the Pennsylvania exemption statute provides:

“(b) Retirement funds and accounts
“(1) Except as provided in paragraph (2) [applies only to paragraph (l)(i) through (vi)], the following money or other property of the judgment debtor shall be exempt from attachment or execution on a judgment:
“(viii) Any retirement or annuity fund of any self-employed person (to the extent of payments thereto made while solvent, but not exceeding the amount actually excluded or deducted as retirement funding for federal income tax purposes) and the appreciation thereon, the income therefrom and the benefits or annuity payable thereunder.” 42 Pa.C.S. §8124(b)(l)(viii).

Therefore, IRA 789068Y is exempt from execur tion if it qualifies under 42 Pa.C.S. §8124(b) (l)(viii). See also, Industrial Valley Bank & Trust Co. v. Rosenfield, 37 D.&C. 3d 621 (1985); Marine Midland Bank v. Surfbelt Inc., 532 F.Supp. 728 (W.D. Pa. 1982).

To date, however, a copy of the subject IRA has not been made a part of the record in this matter. The record also fails to include, in either the pleadings or in the form of affidavits, any factual averments by defendant capable of supporting a conclusive; determination that the IRA is exempt from garnishment. Consequently, no determination can presently be made as to whether the IRA satisfies the statutory requirements to qualify for exemption.

A similar situation was presented in Estate of Zeitchick v. Zeitchick, 215 Pa. Super. 106, 257 A.2d 371 (1969). In that case, the Superior Court reviewed the lower court’s dismissal of a writ of attachment execution on life insurance policies which had been taken out by the defendant’s deceased father on his own life and which provided for periodic payments to the defendant rather than a lump sum payment. Defendant filed preliminary objections, which the lower court sustained, claiming exemption on the basis of spendthrift provisions contained in the policies. Id. at 107-9, 257 A.2d at 372-3. The Superior Court reversed and remanded because “the actual language contained in the insurance policies was never made part of the record. The only reference to the spendthrift clause is contained in the answers to interrogatories which, apparently, merely paraphrase the language of the policies themselves.” Id. at 109, 257 A.2d at 273.

More specifically, in the instant case, there is no express statement of record as to amounts “actually excluded or deducted as retirement funding for Federal income tax purposes” pursuant to the requirement of 42 Pa.C.S. §8124(b)(l)(viii). This same deficiency was presented to the district court in Surfbelt Inc., 532 F.Supp. at 730. There, defendant claimed exemption under Pennsylvania law of an IRA garnished by plaintiff. The district court found that the record as it then stood failed to contain proof of actual exclusion or deduction from defendant’s federal income tax of amounts contributed to the IRA and, absent such evidentiary foundation, determined that it could not dispose of the matter. Id. at 730.

Accordingly, in the instant case, as in Zeitchick and Surfbelt, the record does not provide an adequate evidentiary basis to support a determination the IRA 789068Y is exempt from execution and attachment under 42 Pa.C.S. §8124(b)(l)(viii).

(c)

Certain insurance policies and the proceeds therefrom are also exempt from execution and attachment. The following provisions of the Pennsylvania exemption law are relevant to the SPDLAs in the instant case:

“(c) Insurance proceeds — The following property or other rights of the judgment debtor shall be exempt from attachment or execution on a judgment:. . .
“(3) Any policy or contract of insurance or annuity issued to a solvent insured who is the beneficiary thereof, except any part thereof exceeding , an income or return of $100 per month.
“(4) Any amount of proceeds retained by the insurer at maturity or otherwise under the terms of' an annuity or policy of life insurance if the policy or a supplemental agreement provides that such proceeds and the income therefrom shall not be assignable. . . .
“(6) The net amount payable under any annuity contract or policy of life insurance made for the benefit of or assigned to the spouse, children or dependent relative of the insured, whether or not the right to change the béneficiary is reserved by or permitted to the insured. The preceding sentence shall not be applicable to the extent the judgment debtor is such spouse, child or other relative.” 42 Pa.C.S. §8124(c)(3), (4) and (6).

Assuming one or more of these subparagraphs provide the basis for defendant’s claim of exemption, a determination of whether the SPDLAs qualify for exemption thereunder cannot be made on the present state of the record.

Copies of the four subject SPDLAs, verified to be correct and complete, have not been made a part of the record in this matter. A copy of SPDLA 805501 and its face sheet, as well as the face sheets from SPDLAs 805502, 805503 and 805504, were attached by plaintiff as exhibits to the deposition of Nicholas G. Bakaric. These exhibits indicate that ,as to the four SPDLAs, the owner and primary beneficiary ' is Nicholas G. Bakaric; the annuitant is Victoria Mahoney, the daughter of Nicholas G. Bakaric; and the contingent beneficiary is Helen Bakaric. However, these exhibits do not provide an adequate basis for determining whether the four SPDLAs currently qualify for exemption under 42 Pa.C.S. §8124(c)(3), (4) and (6). They are incomplete, unverified and subject to exception.

Accordingly, the evidentiary basis currently provided by the record in this case is inadequate to determine whether SPDLAs 805501, 805502, 805503 and 805504 qualify for exemption from execution and attachment under 42 Pa.C.S. §8124(c)(3), (4) and (6).

(d)

Defendant’s second preliminary objection is presented as an alternative to the first, in the event and to the extent that the subject IRA and SPDLAs are determined not to be exempt from execution and attachment. By his second preliminary objection, defendant requests that this court order the garnishee to withhold 28 percent of any amounts of the subject policies determined to be subject to garnishment by plaintiff. The purpose of the withholding would be to satisfy any federal income tax liability accruing to the defendant as a result of the garnishment.

Federal income tax liability and withholding requirements are totally extrinsic and immaterial. The issue before this court is whether the subject policies can be garnished by plaintiff pursuant to the instant writ of execution. Should the policies be determined to be subject to garnishment, any resultant federal income tax liability would arise independently out of federal law and regulations as would any related obligation to withhold.

Defendant has failed to present any authoritative support for the proposition that federal income tax liabilities and withholding obligations are issues to be considered by this court in the matter now before it. Accordingly, defendant’s second preliminary objection fails to present an appropriate issue for the court’s determination in this writ of execution proceeding.

Ill

In conclusion, on the present state of the r.ecord this court is unable to determine whether the subject IRA and SPDLAs are exempt from garnishment under the Pennsylvania exemption statute. Moreover, defendant’s request, in the event the policies are determined to be subject to garnishment, that the garnishee make withholding for defendant’s potential federal income tax liability is not an issue properly before this court for determination.

Hence, this

ORDER

And now, May 23, 1990, defendant’s preliminary objections to the writ of execution are dismissed.

      . The writ was originally filed at Cumberland County docket number 1268 Civil 1983. To avoid possible confusion, the current pendency of a similar, collateral proceeding involving the same parties should be noted. In that action Helen L. Bakaric filed a writ of execution in the’Court of Common Pleas of Cumberland County, Pa., seeking to garnish the same policies as in the case at bar (IRA 789068Y and SPDLAs 805501, 805502, 805503 and 805504) to satisfy a $4,887 judgment of. that court pursuant to a support action. The writ of execution to satisfy the support judgment was docketed in Cumberland County at number 1634 Civil 1988 and was transferred to Mercer County on June 24, 1988, where it was assigned, coincidentally, docket number 70 E.D. 1988.
      The dormancy of the matter at 70 E.D. 1988 is presumably due to the value of the subject policies, which was placed at a total of $34,729.52 by Protected Home in its August 8, 1989, answers to plaintiffs interrogatories at 70 E.D. 1989. Since the combined value of the policies is currently much greater than the $4,887judgment sought to be satisfied by the writ of execution at 70 E.D. 1988, but less than the $300,000 judgment at 70 E.D. 1989, it is presumed plaintiff is focusing her efforts on obtaining a garnishment of the IRA and four SPDLAs in a single proceeding.

      . Plaintiff does not cite any authority in support of the position that defendant has waived the right to now claim exemption under either federal law or Pennsylvania law.

      . See, e.g., Schmitz v. Schmitz, 305 Pa. Super. 328, 331, 451 A.2d 555, 556 (1982) (“The general rule in a majority of jurisdictions is that the cash surrender value of a debtor’s life insurance policy is merely an optional right which cannot be attached or garnished by a judgment creditor”).

      . Plaintiff cites Gulf Mortgage & Realty Investments v. Alten, 282 Pa. Super. 230, 422 A.2d 1090 (1980), in support of the proposition that, absent a specific exemption, all personal property is subject to execution. On this basis alone, apparently, plaintiff concludes that the annuities are subject to execution. Plaintiff neither offers nor argues any law specifically rebutting defendant’s claim that the. annuities are exempt from execution under Pennsylvania law.

      . Plaintiff also argues that defendant’s alternative request for federal income tax withholding should be dismissed for failure to cite any support for the proposition. However, plaintiff also fails to cite any authority in support of her opposing position.

      . It is also possible that a claim of exemption may be initially raised by a garnishee on appeal or by post-judgment motions to open or strike. 9 Goodrich-Amram 2d §3142(c): 1.1 n. 46.

      . Defendant did attach a copy of the IRA, as well as the four SPDLAs, to his brief in support of preliminary objections to the writ of execution. However, the brief is not a pleading and is not filed as a part Of the record; it is neither verified nor subject to exceptions of opposing parties. Such “speaking briefs” do not comport with the rules of civil procedure and any factual averments set forth therein of exhibits attached thereto are not a part of the record upon which the court must base its decision.

      . Protected Home’s answers to plaintiffs interrogatories, filed November 7, 1989, does indicate the dates and amounts of defendant’s contributions to IRA 789068Y. However, this information merely indicates that such amounts could have been deducted for federal income tax purposes, not that they actually were as required by 42 Pa.C.S. §8124(b)(l)(viii). Plaintiffs deposition of defendant, the transcript of which was filed on November 6, 1989, also fails to indicate whether defendant’s contributions to the IRA were actually excluded or deducted for federal income tax purposes. At the deposition, plaintiff was sure that he was self-employed when he made the contributions to the IRA, but seemed to know or remember little else regarding these contributions (defendant could not recall the number of contributions made to the IRA, the yearly amounts contributed or even the total amount contributed). Moreover, although waiving objections to the deposition’s reading, signing, sealing and certification, the parties expressly stipulated that “all objections, except as to the form of the question, are reserved to the time of trial.” Deposition of Nicholas G. Bakaric at 3.

      . Defendant fails to specify upon which subparagraph^) of 42 Pa.C.S. §8124(c) he bases his claim of exemption for the SPDLAs. Indeed, defendant never discusses or cites section 8124(c) at all. Defendant’s argument supporting his claim that the SPDLAs are exempt from garnishment focuses entirely upon the issue of whether the cash surrender value of the annuities is subject to garnishment and fails to expressly set forth the statutory basis for the actual claim of exemption. The sole authoritative basis proffered by defendant in support of his claim of exemption for the SPDLAs consists of the following citations: Schmitz v. Schmitz, 305 Pa. Super. 328, 451 A.2d 555 (1982); Taylor v. Taylor, 36 D.&C. 320 (1940); Commonwealth v. Gault, 21 D.&C. 420 (1933); Gordy v. Buscillo, 18 D.&C. 224 (1932).

      . Defendant did attach copies of the four SPDLA’s to his brief in support of preliminary objections to the writ of execution. As previously noted, however, these copies are not a part of the record and do not provide a basis for the court’s determination of the issues now before it. See note 7, supra.

      . The record even fails to state whether Nicholas G. Bakaric and Helen L. Bakaric are divorced or still married. Although the current marital status of plaintiff and defendant may not be a determinative factor in this matter, it is nonetheless relevant to section 8124(c) analysis.

       This court has through the course of its opinion and footnotes documented inadequacies in the record and briefs and the impropriety of the attempted supplements to the record. It is done with hopes that subsequent matters in this litigation will more diligently reflect the proper procedure and law applicable.


author: AUGELLO, J.,

text:
    Handman v. Greco

      Charles A. Shaffer, for plaintiff.

      Ronald V Santora, for defendants.
    May 4, 1990
   AUGELLO, J.,

The claimant (plaintiff), Carl J. Handman, filed a mechanic’s lien claim on December 18, 1989.

As a result of a praecipe filed by the owners (defendants), Victor F. Greco and Thom Greco, t/a Phoenix Estates, the said claimant filed a complaint on March 5, 1990. The said owners filed preliminary objections to the complaint on March 19,1990.

Further, on March 21,1990, the Luzerne County Court through the Honorable Judge Patrick J. Toole has refused a petition filed by the said claimant to stay the above-captioned matter because of purported arbitration proceedings between the parties.

The owners’ preliminary objections are in the nature of a demurrer and motion to strike.

The owners’ demurrer alleges that the claimant is an architect and that his complaint with exhibit, as a matter of law, does not qualify him as a person entitled to perfect a mechanics’ lien under the Mechanics’ Lien Act of 1963, as amended, namely section 1201(4) as found in 49 P.S.

The owners’ preliminary objections in the nature of a motion to strike allege the same contention.

This court has the benefit of briefs submitted by the parties, together with oral argument.

The complaint alleges that the said Carl J. Hand-man is an architect who entered into a written contract with the owners pertaining to a project known as the Phoenix Plaza Office Building in Wilkes-Barre, Luzerne County, Pennsylvania.

The issue before this court is whether or not the said Carl J. Handman qualifies as a contractor under the definition of same as set forth in section 1201(4) of the said Mechanics’ Lien Law.

The said act defines a contractor as follows:

“ ‘Contractor’ means one who, by contract with the owner, express or implied, erects, constructs, alters or repairs an improvement or any part thereof or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman. The term also includes an architect or engineer who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, construction, alteration or repair. ” (emphasis supplied)

The Pennsylvania Rules of Civil Procedure provide for the commencement of an action upon a mechanics’ lien by filing a complaint and that the procedure to obtain judgment shall be in accordance with the rules relating to a civil action. See Pa.R.C.P. 1651 and 1653. That is, of course, after the claimant has filed his mechanics’ lien claim.

The claimant, as aforesaid, filed his mechanics’ lien claim on December 18, 1989. The owners are entitled under the said Mechanics’ Lien Law of 1963 to file preliminary objections to the claim. Since the.parties hereto have not objected to any procedural irregularities, in the. interest of judicial economy we will decide the said preliminary objections based on the pleadings filed in this case, the briefs and oral argument of the parties. See Lisk Plumbing and Heating Co. v. Schons, 283 Pa. Super. 344, 423 A.2d 1288 (1981).

As previously cited, the said Mechanics’ Lien Law does permit an architect to file a mechanics’ lien if he can show compliance with section 1201 of the Mechanics’ Lien Law as set forth in 49 P.S., as aforesaid.

Thus, there is no question that an architect can file and perfect a mechanics’ lien provided that by contract, express or implied, he also superintends or supervises any erection, construction, alteration or repair of a building project.

The claimant’s complaint alleges he performed inspection duties in conjunction with his responsibilities and “services” pursuant to the agreement of the parties.

The claimant has further attached and made part of his complaint the written agreement between the parties which is dated November 19, 1987.

The said agreement provides in Article 2, (2.4.4) that the architect shall be a representative of and advise and consult with the owners during construction and in Article 2, (2.4.5) shall visit the site at intervals to become generally familiar with the quality and progress of the work and to determine in general if the work is being performed in accordance with the contract documents. While the said section 2.4.5 does not require the architect to make exhaustive or continuous inspections, it requires the architect to “keep the owner informed of the progress and quality of the work and the architect shall endeavor to guard the owner against defects and deficiencies in the work.”

The architect further is required based on his “observations and evaluations” to review the contractors’ applications for payment and certify same for payment to the owners. The architect also has the authority to “reject work which does not conform to the contract documents.” See agreement, Article 2, §§2.4.7, 2.4.8, 2.4.9 and 2.4.10.

It is clear to this court that the claimant’s complaint with the attached exhibit clearly brings him within the ambit of section 1201(4) of the Mechanics’ Lien Law.

•The owners’ reliance on Article 2, 2.4.6, of the agreement between the parties is totally misplaced. That section, in effect, simply does not make the architect an agent for or responsible for the contractors’s legal obligations.

Since, the owners have raised the same arguments as it pertains to both preliminary objections, we will decide same separately but with the same result.

The law is absolute that a demurrer admits every well pleaded fact set forth in the complaint as well as all inferences reasonably deduced from the complaint. If there is any doubt, that doubt should be resolved in overruling the demurrer. See Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976).

In acting upon preliminary objections concerning a mechanic’s lien claim, our appellate court has held it is analogous to sustaining preliminary objections in a civil lawsuit. Accordingly, it has been held in such cases:

“ ‘[W]hen the sustaining of preliminary objections will result in a denial of claim, or a dismissal of suit, preliminary objections should be sustained only in cases which are clear and free from doubt. . .’ ” See Chambers v. Todd Steel Pickling Inc., 323 Pa. Super. 119, 124, 470 A.2d 159, 162 (1983).

It has been held that a motion to strike is not the appropriate method of determining the merits of the • controversy. See Standard Pennsylvania Practice 2d, Vol. 20, §105.169. We further find the said claimant’s complaint and claim show on their faces that they are authorized by statute and are not in violation of any statute or Rule of Civil Procedure.

Therefore, we will not sustain the owners’ preliminary objections.

The claimant will be permitted to proceed with his claim and the owners will be permitted to file an answer to the complaint of the claimant within 30 days of this order.

Accordingly, we enter the following

ORDER

It is hereby ordered, adjudged and decreed:

(1) That defendants’ preliminary objections in the nature of a demurrer are denied.

(2) That defendants’ preliminary objections in the nature of a motion to strike are denied.

(3) That defendants are granted 30 days from the date of this order to file an answer to plaintiffs complaint.

(4) That the prothonotary of Luzerne County is directed to send copies of this order and opinion to all counsel of record pursuant to Pa.R.C.P. 236.


author: HESS, J.,

text:
    Commonwealth v. Marsh

      Shawn Wagner, assistant district attorney, for the commonwealth.

      John W. Marsh, in properia persona.
    March 7, 1990
   HESS, J.,

On November 8, 1989, defendant, John W. Marsh, was found guilty by a jury of obstructing the administration of law or other governmental function, 18 Pa.C.S. §5101. The conviction arose out of an incident which occurred on April 26, 1989, when Constable Charles Marpoe and Deputy Constable Charles York went to defendant’s residence pursuant to a lawful order of execution issued by District Justice Terry Keller. At the time of his arrival at defendant’s residence, Constable Marpoe was wearing a constable identification badge on the pocket of his jacket and was acting within his official duties as a state constable in attempting to make a levy upon defendant’s property. Defendant responded to the door of his residence and was, due to a medical condition, seated in a wheelchair. After being informed by the constable that he was there to levy upon defendant’s property, Mr. Marsh refused to permit the levy. His wheelchair blocked the entrance to his residence and the only recourse available to Constable Marpoe would have been to forcibly move defendant from the doorway.

Faced with this situation, Constable Marpoe explained to defendant that if he did not allow the constable to enter the residence to levy upon the property, then Mr. Marsh would be charged with obstruction of law or other governmental function. Constable Marpoe went on to explain that this was a criminal charge. Notwithstanding this explanation, defendant continued to physically block the doorway and refused to allow Constable Marpoe to enter the residence to perform the levy.

Defendant has been convicted of violating a section of the Crimes Code which provides, in pertinent part:

“§5101. Obstructing administrhtion of law or other governmental function
“A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle . . . except that this section does not apply to flight by a person charged with crime. . .”

The commonwealth, as verdict winner, is entitled to have the evidence viewed in a light most favorable to it. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). Given, therefore, that the above-recited facts are true, the question becomes whether a case of obstructing the administration of law or other governmental function has been made out as a matter of law. We are entirely satisfied that it has been. -

Specific to this case, it was incumbent upon the commonwealth to prove two elements of the crime: First, that defendant intentionally obstructed, impaired or perverted the administration of a governmental function; and, second, that defendant did so by physical interference or obstacle. It is clear from the evidence presented at trial that Constable Marpoe was attempting to perform a governmental function in this instance, such function being the levy on property pursuant to a valid execution order entered by a district justice. It is also clear that he was obstructed or impaired in the performance of his duty by physical interference or obstacle.

Specifically, defendant blocked the entrance to his doorway with his wheelchair and refused to allow the constable to enter his residence. The jury was completely warranted in finding that defendant’s actions physically obstructed the p erf ormanee of an official duty.

We have been unable to locate a similar case in any other court of this commonwealth. Nonetheless, the plain wording of the statute points ineluctably to defendant’s guilt. In his brief, however, defendant draws a parallel between the offense with which he is charged and the crime of resisting arrest, 18 P.S. §5104. He suggests, thereby, that in order to be guilty of obstructing a governmental function, he must have employed “means justifying or requiring substantial force to overcome resistance.” 18 P.S. §5104. Admittedly, the necessity that law enforcement officers use substantial force before a person can be convicted of resisting arrest, is an element of that crime by the clear wording of the statute. In section 5101, however, there is no mention of the necessity that a representative of the government use force in response to an act of obstruction. A contrary legislative intent would appear to be the case. Construing the statute the way Mr. Marsh would have us do it would have required Constable Marpoe to have physical contact with defendant before defendant could be convicted of obstructing. We can understand why the legislature would want to avoid any such policy.

ORDER

And now, March 7, 1990, for the reasons set forth in the accompanying opinion, defendant’s post-trial motions are denied, a presentence investigation is ordered and it is directed that the district attorney list this matter for sentence without undue delay.


author: HOWSARE, P.J.,

text:
    Pennsylvania State Police Bureau of Liquor Control Enforcement v. Cogan

      Stanley J. Wolowski, assistant counsel, for appellee.

      William H. Snyder Jr., for appellant.
    January 19, 1990
   HOWSARE, P.J.,

This matter is presently before the court on the appellee’s motion in limine requesting that this court enter an order limiting the evidence at the hearing to the administrative record.

This case arose when appellant was issued a citation by the Pennsylvania State Police, Bureau of Liquor Control Enforcement, for violation of section 493(1) of the Liquor Codé, 47 P.S. §4-493(1), on December 1, 1988. On May 2, 1989, a hearing was held before the Honorable Felix Thau, administrative law judge, at which hearing appellant was found to have committed a violation of section 493(1) of the Liquor Code, 47 P.S. §4-493(1), and upon whom the penalty of a $1,000 fine was imposed. Pursuant to section 471 of the Liquor Code, 47 P.S. §4-471, appellant filed an appeal from the decision of the administrative law judge' to the Pennsylvania Liquor Control Board. The PLCB concluded in an opinion with a mailing date of October 12, 1989, that there was substantial evidence to support the decision of the administrative law judge and, accordingly, affirmed the administrative law judge’s decision. On November 1, 1989, appellant filed a petition for appeal from decision of Pennsylvania Liquor Control Board to the Court of Common Pleas of Bedford County. Appellant requests this court in its petition for appeal to hear the citation de novo and to reverse the order of the PLCB affirming the administrative law judge’s decision.

The sole issue to be determined at this juncture is whether appellant is entitled to a de novo review of the PLCB’s affirmation of the administrative law judge’s decision upon appeal to the court of common pleas pursuant to section 471 of the Liquor Code, 47 P.S. §4-471.'

Prior to its amendment on June 29, 1987, the relevant portion of section 471 of the Liquor Code, 47 P.S. §4-471(b), pertaining to appeal to the court of common pleas, provided:

“In the event the person who was fined or whose license was suspended or revoked by the board shall feel aggrieved by the action of the board, he shall have the right to appeal to the court of quarter sessions or the county court of Allegheny County in the same manner as herein provided for appeals from refusals to grant licenses. Upon appeal, the court so appealed to shall, in the exercise of its discretion, sustain, reject, alter or modijy the findings, conclusions and penalties of the board, based on the findings of fact and conclusions of law as found by the court. ...” Act of April 12, 1951, P.L. 90, Art. IV, §471; as amended June 3, 1971, P.L. 143, no. 6, §1 [§509(a)(147)]. (emphasis supplied)

The Supreme Court of Pennsylvania contemplated the scope of review of courts of common pleas for appeals filed pursuant to section 471 of the Liquor Code, prior to its amendment, in Adair v. Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988). Focusing on the underscored portion of the above reference to section 471, the Supreme Court determined that such language mandated a de novo review by the court of common pleas.

Approximately 11 months prior to the Adair decision, section 471 of the Liquor Code was reenacted and amended. The portion pertaining to appeals to the court of common pleas is as follows:

“In the event the bureau or the person who was fined or whose license was suspended or revoked shall feel aggrieved by the decision of the board, there shall be a right to appeal to the court of common pleas in the same manner as herein provided for appeals from refusals to grant licenses.” As amended June 3, 1971, P.L. 143, no. 6, §1 [§509(a)(147)]. As re-enacted and amended June 29,1987, P.L. 32, no. 14, §70, effective July 1,1987.

Insofar as the language which provided the basis for the Adair decision was omitted by the legislature, the Adair ruling is not applicable to cases arising under the 1987 amendment to section 471 of the Liquor Code, such as in the present case. It is significant to note that in the Adair decision, the Supreme Court did not consider the language in section 471 which provides a “right to appeal to the court of quarter sessions ... in the same manner as herein provided for appeals from refusals to grant licenses. . .,” which language remains virtually unchanged by the 1987 amendment, when it determined the legislative intent regarding de novo review. Yet this language made a reference to section 464 of the Liquor Code which provided for de novo review by the court of common pleas in application cases. However, the court in Adair never placed any significance on such language when it arrived at its holding. This language can only be read to provide procedural guidelines for appeals from citation cases. If the language were read to grant a de novo review, there would be no need for the court in Adair to construe the language which follows as granting broad discretion to the courts of common pleas on appeal therefore granting a right to de novo review.

Yet it is upon this language, providing a reference to section 464, that appellant bases her request for de novo review. It is absurd to assert that the legislature would attempt to grant a right to de novo review by a reference to section 464 when it could have left in the language omitted by the 1987 amendment to section 471 and thereby achieve the same result. It is a settled canon of statutory interpretation that “the legislature cannot be presumed to intend an absurd or unreasonable result to follow from its enactments,” Lehigh Valley Co-op Farmers v. Commonwealth Bureau of Employment Security, Dept. of Labor, 498 Pa. 521, 447 A.2d 948 (1982). The fact that the language which granted the right to a de novo review in citation cases as determined in Adair was omitted in the 1987 amendment is indicative of legislative intent to affect a change, Rivera v. Philadelphia Theological Seminary, 326 Pa. Super. 509, 474 A.2d 605 (1984). “[I]n ascertaining legislative intent, the practical results of a particular interpretation may be considered,” Le-high Valley Co-op Farmers, supra.

The logical inference we draw from the omission of the language granting the right to a de novo review in the 1987 amendment to section 471 of the Liquor Code is that the legislature will no longer dictate on the issue of scope of review in cases arising under section 471.

As section 471 is no longer instructive on the issue of scope of review, we must look to the Judicial Code, 42 P.S. §5105(a)(2); (d)(1), which provides:

“§5105. Right to Appellate Review
“(a) General Rule — There is a right of appeal under this subsection from a final order... of every:
“(2) Government unit which is an administrative agency within the meaning of section 9 of Article V of the Constitution of Pennsylvania to the court having jurisdiction of such appeal. . .
“(d) Scope of Appeal —r
“(1) Except as otherwise provided in this subsection an appeal under this section shall extend to the whole record, with like effect as upon an appeal from a judgment entered on the verdict of a jury in an action at law and the scope of review of the order shall not be limited as on broad or narrow certiorari. . . .” As amended October 12, 1984, P.L. 959, no. 187, §4.

In addition, 42 P.S. §933(a)(l)(v) provides express authority for the courts of common pleas to hear appeals from the Pennsylvania Liquor Control Board.

We conclude, therefore, that our review of the PLCB’s decision in the present case is limited to the whole record made below.

Wherefore, we enter the following

ORDER OF COURT

And now, January 19, 1990, for the reasons set forth in the foregoing memorandum, the motion in limine of appellee is hereby granted.


author: WETTICK, A.J.,

text:
    Universal Advertising and Promotions Inc. v. Leonard

      Nicholas D. Krawec, for plaintiff.

      D. Stephan Ferito, for defendant Daniel K. Leonard.
    December 19, 1989
   WETTICK, A.J.,

The subject matter of this opinion and order of court is plaintiffs petition to assess post-judgment discovery expenses pursuant to Pa.R.C.P. 3117(b).

After obtaining a judgment against defendant Daniel K. Leonard, plaintiff engaged in discovery to locate his assets. Through its petition to assess post-judgment discovery expenses, plaintiff requests this court to tax against this defendant as costs the reasonable counsel fees and other expenses plaintiff incurred in connection with this discovery. At the oral argument on this petition, defendant opposed the assessment of discovery expenses on the grounds that (1) the discovery was unnecessary because plaintiff already knew of the location and existence of the assets which defendant disclosed in his responses to plaintiffs discovery and (2) defendant could not use these assets to satisfy plaintiffs judgment because of the liens of prior creditors.

Plaintiff bases its request for the award of counsel fees as costs solely on Pa.R.C.P. 3117, which reads as follows:

“Rule 3117. Discovery in Aid of Execution
“(a) Plaintiff at any time after judgment, before or after the issuance of a writ of execution, may, for the purpose of discovery of assets of the defendant, take the testimony of any person, including a defendant or a garnishee, upon oral examination or written interrogatories as provided by the rules relating to Depositions and Discovery. The prothonotary of the county in which judgment has been entered or of the county within this commonwealth where the deposition is to be taken, shall issue a subpoena to testify.
“(b) All reasonable expenses in connection with the discovery may be taxed against the defendant as costs if it is ascertained by the discovery proceedings that he has property liable to execution.”

We find to be without merit plaintiffs contention that it is automatically entitled to the reasonable counsel fees and other expenses incurred in connection with its discovery upon a showing that defendant’s responses to the discovery disclosed assets that are subject to execution.' Rule 3117(b) provides that the reasonable expenses “may” be taxed against the defendant. Ordinarily, the use of the word “may” means that the exercise of discretion is intended. The term “shall” would have been used if a mandatory duty had been imposed. See, generally, Drum v. Leta, 354 Pa. Super. 448, 512 A.2d 36 (1986); In the Matter of Columbia Borough, 24 Pa. Commw. 190, 354 A.2d 277 (1976); Commonwealth v. Ferguson, 381 Pa. Super. 23, 552 A.2d 1075 (1988). The use of the word “may” will not be construed to mean “shall” unless “the context or subject matter compels such construction or unless it is necessary to give effect to the clear policy and intention ... [of the provision].” Matter of Columbia Borough, supra, 24 Pa. Commw. at 193-4, 354 A.2d at 279.

In the present case, neither the context or subject matter of the rule nor the clear policy of the rule compels a mandatory implementation. Pennsylvania follows the American Rule under which each party assumes responsibility for his or her own counsel fees and costs unless a statute or rule of court provides otherwise. Gardner v. Clark, 349 Pa. Super. 297, 503 A.2d 8 (1986). Rule 3117 was promulgated as an exception to the American Rule for discovery in aid of execution. But through its use of the word “may” in rule 3117, it is clear, that the Pennsylvania Supreme Court did not intend to abolish totally the American Rule in execution proceedings, but, instead, to provide for the award of counsel fees only when the judgment creditor was forced to engage in discovery because of the judgment debtor’s lack of cooperation. This is a reasonable approach for. a jurisdiction that ordinarily finds those policy considerations favoring the American Rule to outweigh those favoring the English Rule. See, e.g., section 1716 of the Motoi Vehicle Financial Responsibility Law (Act of February 12, 1984, P.L. 26, 75 Pa.C.S. §1716) which provides for the insured who prevails in a dispute over the payment of benefits to recover counsel fees only if the insurer was found to have acted in an unreasonable manner in refusing to pay benefits when due. Consequently, we must construe the rule in the manner in which it is written.

We are basing our opinion solely on the language of rule 3117(b) and its apparent purposes because there appears to be no case law that has construed this rule. Goodrich-Amram 2d §3117(b) :1 recommends that this rule be construed in a manner consistent with this court’s opinion:

“The Rule is cast in discretionary terms; the expenses may be taxed. This is proper, for there will be situations within the letter of the Rule where it would be unwise to impose the burden, on the debtor. Nevertheless, judicial willingness to invoke the Rule and to be realistic rather than penurious or grudging in the interpretation of expenses is essential if the Rule is in practice to serve as any deterrent whatever to debtors who do have assets subject to execution, but who prefer to impose on the judgment creditor the burden of discovering them.” (footnote omitted) Also see, Alfiero v. Berks Mutual Leasing Co., 347 Pa. Super. 86, 500 A.2d 169 (1985).

If defendant’s allegations are correct that plaintiff already knew of the existence and location of the assets which he described in his responses to plaintiffs discovery requests and that plaintiff also knew that defendant’s assets were in all likelihood fully encumbered as a result of obligations to prior creditors, we would not tax as costs the expenses that plaintiff incurred in connection with its discovery. Under these circumstances, discovery was not necessary because of defendant’s conduct. Defendant did not have readily available assets to pay the judgment and he did not fail voluntarily to furnish relevant information which the creditor required concerning his assets and liabilities.

While defendant would be successful if these allegations are correct, these allegations are apparently contested by plaintiff. Thus, a factual record must be developed in order for this court to decide plaintiffs petition. The appropriate procedure for developing a factual record is the petition and^ answer practice provided for by rules 206 through 209 of the Pennsylvania Rules of Civil Procedure. Alford v. Philadelphia Coca-Cola Bottling Co. Inc., 366 Pa. Super. 510, 531 A.2d. 792. (1987). Under this procedure, a court shall issue a rule to show cause why the petition should not be grantejd if the petition on its face would justify the relief that the petitioner seeks. Tronzo v. Equitable Gas Co., 269 Pa. Super. 392, 410 A.2d 313 (1979). In this case, plaintiffs petition, on its face, supports the award of post-judgment discovery expenses as costs. Consequently, we enter the following

ORDER OF COURT

On this December 19, 1989, it is hereby ordered that a rule is issued to show cause why plaintiffs petition to assess post-judgment discovery expenses pursuant to Pa.R.C.P. 3117(b) should not be granted. Defendant Daniel K. Leonard shall file an answer within 20 days. All factual disputes shall be resolved pursuant to rules 206 through 209.


author:
EDENHARTER, S.J.,
     EDENHARTER, S.J.,

text:
    City of Reading v. J&S Sportswear Inc.

      Peter F. Cianci and Jack A. Linton, for plaintiff.

      Paul J. Datte, for defendant.
    June 28, 1989
   EDENHARTER, S.J.,

Plaintiff, City of Reading, instituted this action for declaratory judgment against defendant, J&S Sportswear Inc., seeking a declaration that it could levy, assess, and collect its business privilege tax on the income of J&S derived from its activities related to production of apparel for women.

The. issue is whether or not J&S is engaged in “manufacturing” and thereby exempt from taxation under the business privilege tax.

The pertinent facts are not in dispute, J&S is a Pennsylvania corporation engaged in activities related to production of apparel for women at its facility located at Ninth and Cotton Streets in the City of Reading. J&S employs approximately 30 individuals. The majority of the employees of J&S are sewing machine operators engaged in sewing garments and the remainder are engaged in operating fusing machines, pressing machines, ironing, shipping, and supervision.

The principal products produced by J&S are skirts and pants. J&S is provided with the material, as well as patterns and designs, from the entities with which it contracts. The materials and patterns are then forwarded to other entities for cutting. The cut material is then returned to J&S to be made into the final product.

. The operation of J&S 'begins when the pre-cut material is “sew-barred.” “Sew barring” consists of type matching and marking the pre-cut material so that fronts and backs of garments are properly matched. After the material is sew barred, portions of the material are fused. Fusing is thin material with glue on one side which is cut by J&S and used to attach one piece of cloth to another piece of cloth by a fusing machine which is operated by an employee of J&S. J&S has small and large fusing machines for this purpose. After portions of the material are fused, the material is then provided to the sewing machine operators, each of whom is responsible for a different aspect of the process.

The sewing machine operators use thread which has been purchased by J&S. Some machine operators are responsible for direct sewing of component parts of the garment. Other machine operators attach hanger loops, band fusing, seam binding, or waistband piping. Additionally, belt looping is cut and sewn into the garment for belt loops. Zippers are also attached to some of the garments. Stays, tags, and buttons are also attached to and made part of the garment. Some sewing machine operators operate button machines and are responsible for inserting button holes into the garment. Taffeta lining is also cut and sewn into the garment by the sewing machine operators. The combination of fusing and sewing the constituent materials result in the production of the final garment.

After the garment is sewn, it is ironed and pressed. Then it is bagged and labeled for shipping to the entity with which J&S has contracted.

The buttons, stays, tags, zippers, belt looping, waistband piping, seam binding, hangar loops, thread, band fusing, fusible, taffeta lining and related items are generally purchased by J&S for the process, unless the entity with which J&S is contracting provides special buttons or parts which that contracting party desires to have incorporated into the garment. The sewing machines, fusing machines, irons, presses, and other machinery at the Ninth and Cotton Street location of J&S are either owned or leased by J&S. The employees who operate the machinery and are otherwise involved in the process are all employed by J&S.1

A small and indeed insignificant part of the J&S operation involves producing garment samples which are designed, cut, and produced by J&S.

On December 3, 1975, plaintiff enacted its Business Privilege Tax Ordinance under and pursuant to The Local Tax Enabling Act, 53 P.S. §§6901 et seq. (1965), as amended. Section 6902 (4) of this act provides:

“Such local authorities shall not have authority by virtue of this act:
(4) To levy, assess and collect a tax ... on any privilege, act or transaction related to the business of manufacturing, the production, preparation or processing of minerals, timber and natural resources, or farm products, by manufacturers, by producers and by farmers with respect to the goods,, articles and products of their own manufacture, production or growth ...” (emphasis supplied)

Consistent with said provision an exemption is contained in the ordinance “on goods, articles, and products or on by-products of manufacture. . .” Ordinance §III.C.(5). J&S maintains that it is engaged in manufacturing and exempt from the business privilege tax. Neither the act nor the ordinance, however, defines “manufacturing.” We must determine whether J&S is engaged in “manufacturing” thereby rendering J&S exempt from the business privilege tax. City of Pittsburgh v. Tucker, 74 Pa. Commw. 290, 459 A.2d 1333, aff'd 504 Pa. 580, 475 A.2d 1318 (1983).

“In determining what is manufacturing we must look not only to the definitions, but we must give consideration to the generally accepted use of the word.” Hazen Engineering Co. v. Pittsburgh, 189 Pa. Super. 529, 151 A.2d 855 (1959). In Bindex Corp. v. City of Pittsburgh, 504 Pa. 584, 475 A.2d 1320 (1984), the court held that a book bindery qualified for the manufacturing exemption. The court stated that the term “manufacturing” as used in the exemption provision, means the transformation of material or things into something different from that received. The difference cannot be a superficial change that does not alter or change the things. The essential requirement is that the basic materials or goods be given a new identity by the current producer. The identity must be the product of skill and labor and must be easily traced to the producer.

J&S receives cut raw fabric. It sews bars, fuses, and sews the fabric, inserts zippers, buttons, belt loops, and other materials, finally presses the garment, and eventually produces the final product consisting of an article of clothing. Through the skill and labor of its employees, J&S takes essentially raw materials and processes those materials into that which was intended to be the product, namely a garment. The items which J&S initially receives consist of cloth and other materials. The final product does not resemble the original constituent materials.

In Norris Brothers v. Commonwealth, 27 Pa. 494 (1856), the court stated:

“But what is manufacturing? It is making. To make in the mechanical sense does not signify to create out of nothing; for that surpasses all human power. It does not often mean the production of a new article out of materials entirely raw. It generally consists in giving new shapes, new qualities, or new combinations to matter which has already gone through some other artificial process.”

Plaintiff cites Philadelphia School District v. Parent Metal Products Inc., 402 Pa. 361, 167 A.2d 257 (1961) in support of its position. However, in Parent Metal each of the component parts was manufactured specifically for Parent Metal by subcontractors who provided the parts to Parent Metal. The court correctly identified the operation as producing “a product transformed from prefabricated units into an assembled whole.” In J&S, the component parts utilized are not “prefabricated.”

In the companion case to Parent Metal, Philadelphia School District v. Rosenberg, 402 Pa. 365, 167 A.2d 259 (1961), the court determined the operation to be manufacturing. The facts in Rosenberg were summarized by the court as follows:

“The appellee is in the business of selling men’s clothing at wholesale prices. The record sustains the following facts: Appellee buys woolen piece goods, bindings, edgings, linings, buttons and trimmings which are fit for the making of men’s suits and sport coats. These goods and items are all manufactured by others. After examining and determining the suitability of the woolens for men’s garments, appellee sends the cloth that is satisfactory to an independent contractor for sponging, the usual practice in the garment industry. Upon its return, he arranges the cloth so as to eliminate shadows and mismatching. He designs the patterns for the garments, cuts the cloth to confirm thereto and eliminates defects which would prevent the sale of the completed garment. He assembles the cut-to-pattern materials and marks them as to size and model. Then each of the coats consisting of over one hundred pieces and each of the trousers consisting of about sixty pieces are sent to two independent contractors to be sewn together by machine. The appellee exercises constant, close supervision over the sewing process. The plant wherein the coats are sewn together, and which is used exclusively for the appellee’s business is owned by the individual appellee and his brother, as a joint enterprise. The completed garments are returned to him for distribution and sale.”
In Rosenberg the pieces were cut by Rosenberg and sent with the other constituent materials to an independent contractor to be sewn. In holding that the said activities to be manufacturing, the court recognized that “[t]he fact that the goods are sewn together by others is not, in itself, determinative of the issue. One or more persons can be engaged in the manufacturing of the same, single article.”

Plaintiff maintains that J&S is engaged in “assembling” and not exempt from the tax.

The evidence establishes that J&S does more than put together or assemble pieces which, have been pre-designed and cut as with an erector set or a bicycle from Sears. J&S takes materials and transforms them into a garment which is then ready to function in a particular manner. Plaintiff urges that Parent Metal and Kimberton Co. v. Commonwealth, 130 Pa. Commw. 408, 520 A.2d 904 (1987) (embroidery insignia on sportswear) should control. Defendant however relies upon Bindex and Rosenberg. In addition, defendant cites Williamsport v. Sun-Gazette, 123 Pa. Commw. 335, 553 A.2d 525 (1989).

Ih the resolution of the issue we go to ancient and present definitions of the term “manufacturing.” As already indicated, it generally consists in giving new shapes, new qualities, or new combinations to matter which has already gone through some other artificial process. And whether or not an article is a manufactured product depends upon whether or not it has gone through a substantial transformation in form, qualities, and adaptability in use from the original material, so that a new article or creation has emerged.

Plaintiff contends that J&S does not design and cut the material from the pattern. However, we do not perceive this function to exclude J&S as engaged in manufacturing. J&S applies its own essential and different materials necessitating distinct work skills so that a new article or creation emerges.

We find as a fact that J&S at all times relevant herein has been and is engaged in “manufacturing,” and conclude as a matter of law that J&S is exempt from taxation under the business privilege tax.

DECREE NISI

And now, June 28,1989, it is ordered and decreed in this action for declaratory judgment that defendant J&S Sportswear Inc., at all times relevant herein, has been and is engaged in “manufacturing,” and that J&S Sportswear Inc. is exempt from the business privilege tax of plaintiff, City of Reading.

In the event that post-trial motions are not filed within 10 days after notice of this adjudication and decree nisi, the prothonotary shall upon praecipe of a party enter this decree nisi as the final decree.

OPINION

EDENHARTER, S.J.,

November 15, 1989 — Plaintiff, City of Reading, instituted this action for declaratory judgment against defendant, J&S Sportswear Inc., seeking a declaration that it could levy, assess, and collect its business privilege tax on the income of J&S derived from its activities related to production of apparel for women. The issue is whether or not J&S is engaged in “manufacturing” and thereby exempt from taxation under the business privilege tax.

On June 28, 1989 the court entered an adjudication and decree nisi wherein it was held that J&S is engaged in “manufacturing,” and is exempt from the business privilege tax of plaintiff. Plaintiff filed a motion for post-trial relief in the nature of a motion to direct the entry of judgment in fávor of plaintiff. The basic issue is whether or not J&S is engaged in “manufacturing.” Plaintiff urges that J&S is engaged in “assembling” garments.

Upon review of the record and after argument held we conclude that J&S is engaged in “manufacturing” for the reasons set forth in the adjudication which is incorporated herein by reference and made a part hereof.

Plaintiffs motion for post-trial relief should be dismissed; and the decree nisi entered as the final decree.

ORDER

And now, November 15, 1989, upon consideration of plaintiffs motion for post-trial relief, and after argument held thereon, it is ordered that plaintiffs motion for post-trial relief be and hereby is dismissed; and it is further ordered that the decree nisi entered on June 28, 1989 be and hereby is entered as the final decree.