author: WOLFE, P. J.,

text:
    Commonwealth v. Stover

      Joseph A. Massa Jr., assistant district attorney, for the Commonwealth.

      Philip Friedman, for defendant.
    October 23, 1990
   WOLFE, P. J.,

Defendant has filed timely post-sentence motions for modification of sentence and application of bail pending appeal to the Superior Court.

Motion to Reduce Sentence

Defendant was sentenced to an aggregate minimum of 14 years to an aggregate maximum of 28 years total incarceration. This sentence was brought upon defendant by reason of his conviction of four counts of involuntary manslaughter, four counts of homicide by vehicle while operating under the influence of alcohol, four counts of homicide by vehicle and two counts of operating while under the influence of alcohol.

Defendant argues that the sentence is excessive and in violation of defendant’s constitutional rights under the Constitution of the Commonwealth of Pennsylvania and the Constitution of the United States. Defendant advances that we failed to give credit to him of his good character, his rehabilitative needs, his relatively young age of 32 years, and his family status as the father of an infant child and three stepchildren, he being their sole source of support.

We disagree with defendant that we neglected to consider his side of the scales of justice in regard to his character, reputation, family status and other mitigating circumstances. Our pre-sentence colloquy at time of sentence does not support defendant’s position now.

The core of the sentence is defendant’s conviction of guilt of operating his vehicle while under the influence of alcohol, the result of which was the death of two minor children and their mid-age grandparents.

Section 3735 of the Vehicle Code addresses homicide by vehicle while driving under influence:

“(a) Offense defined — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

“ (b) Applicability of sentencing guidelines —The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalty of this section.”

We do not consider the sentence excessive. In Commonwealth v. Hernandez, 339 Pa. Super. 32, 488 A.2d 293 (1985), the court held this section constitutional. There, the defendant was convicted of involuntary manslaughter (18 Pa.C.S. §2504(a)); homicide by vehicle (75 Pa.C.S. §3732); homicide by vehicle while driving under the influence (75 Pa.C.S. §3735(a)); driving under the influence while impaired (75 Pa.C.S. §3731(a)(l)); driving under the influence — blood alcohol content exceeding 0.10 percent (75 Pa.C.S. §3731(a)(4)); and, operation of a vehicle with suspended or revoked license (75 Pa.C.S. §1543(a)).

The sentencing court imposed a sentence of three to seven years, for homicide by vehicle while driving under the influence; two and one-half to five years, for the involuntary manslaughter conviction; two and one-half to five years, for the homicide by vehicle conviction; and one to two years, for the driving under the influence while impaired conviction. The appellate court followed its decision in Commonwealth v. Houtz, 496 Pa. 345, 349, 437 A.2d 385, 387 (1981); Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983); and Commonwealth v. Zaengle, 332 Pa. Super. 137, 480 A.2d 1224 (1984), and held the imposition of the sentence of two and one-half years to five years for the involuntary manslaughter conviction, and two and one-half to five years for homicide by vehicle, was in violation of the prohibition against double jeopardy. The court vacated the sentence for homicide by vehicle and judgment of sentence imposed on the other convictions was affirmed. Thus, defendant was sentenced to an aggregate minimum of six and one-half years to an aggregate maximum of 14 years for the death of one victim.

Instantly, section 3735 of the Vehicle Code makes no distinction as to the number of victims whose deaths result by reason of one act of the defendant.

In Commonwealth v. Speelman, 235 Pa. Super. 109, 341 A.2d 138 (1975), the court, following Commonwealth v. McCord, 116 Pa. Super. 480, 176 Atl. 834 (1935), reaffirmed it has long been the law of this Commonwealth “that where more than one death results from a single accident, there is but one injury to the Commonwealth.” The court therefore held the trial court may not impose a sentence on more than one charge of involuntary manslaughter arising from the same accident.

In Speelman, supra, three deaths resulted by reason of the defendant’s operation of his vehicle on the wrong side of the road and while under the influence of alcohol, as his jury found. The court held any attempt to sentence on additional charges of manslaughter is a nullity, citing Commonwealth v. Cox, 209 Pa. Super. 457, 228 A.2d 30 (1967); Commonwealth ex rel. Brockway v. Keenan, 180 Pa. Super. 78, 118 A.2d 255 (1955); Commonwealth v. McCord, supra; Commonwealth v. Ernesto, 93 Pa. Super. 339 (1928).

When section 3735 of the Vehicle Code was enacted, Act no. 182-289, effective January 14, 1983, the legislature therefore was aware of case law that one criminal act begets one sentence, irrespective of the number of victims. In our opinion it was for this reason the legislature made section 3735 a mandatory sentence and clearly addressed “death of another person” and made no distinction as to the number of victims in the one incident. To hold otherwise makes a complete mockery of the law. In our view there is no justice in the imposition of a mandatory minimum sentence of not less than three years on the defendant who happens to cause the death of one victim while operating under the influence, the same minimum three-year sentence on a defendant who causes multiple deaths by the same act, which is to hold the other deaths merge into the one death. The merger is of the act, not the merger of the victims. This is the reasoning of Commonwealth v. Speelman, supra. Instantly, defendant was sentenced only once for the multiple deaths and not consecutively or concurrently on the other charges by reason of merger.

We therefore hold the imposition of the consecutive three-year minimum sentence on each victim was not only proper but mandatory. Courts are not to undo the legislation imposed upon the citizens of this Commonwealth unless the legislation is clearly unconstitutional or in statutory violation of rights. We find none here.

Moreover, defendant was charged to information no. 32 of 1986 with two counts of operating while under the influence of alcohol, sections 3731(a)(1) and 3731(a)(4), blood alcohol content indicating 0.23 percent. Defendant completed the ARD-DUI program, and the charges were dismissed April 3, 1987. It is therefore conclusive defendant was aware of the consequences of his acts and the potential damage that may ensue.

Finally, defendant argues there is no useful purpose in incarcerating an otherwise productive citizen for a period of 14 years when he has a family to support. We could not disagree with this argument if defendant could make the victims whole. Effectively, this argument simply states that because the victims are dead there is no useful purpose to society in an extended incarceration. We do not accept this flawed logic. We recognize the purpose of sentence is to rehabilitate the defendant, protect society from criminal activity, and serve as a deterrent. Here, the legislature has spoken loudly by the mandatory sentence provision which our courts have found constitutional. We have not found, nor have cases been submitted to us, that state we may “merge” the victims’ deaths into fractions to impose a sentence. It is our opinion if this be the law it is for the appellate courts to say so.

Bail

Defendant has made application for bail under rule 4010B(2) of Rules of Criminal Procedure: “Except as provided in section A(l) when the sentence imposed includes imprisonment of two years or more, the defendant shall not have the same right to bail as before verdict, but bail may be allowed in the discretion of the judge.”

Rule 4010C of Rules of Criminal Procedure requires the trial judge to state of record his reasons for refusal of bail.

The Commonwealth argues strongly against bail because of the severity of the damages and because defendant received a fair trial, and there is no merit to the appeal. Clearly, we cannot determine the appeal results; however, we are compelled to agree with the Commonwealth. Even in the best light for defendant he will be compelled to serve a minimum of three and one-half years as the statute provides. Defendant’s main thrust of his defense did not challenge the fact he was operating while under the influence of alcohol, but rather that the laboratory utilized by the Commonwealth was not licensed properly by the Department of Health. Our opinion dismissing post-trial motions addresses this issue and the other issues defendant raises at time of bail argument, and we will not here reiterate. Suffice it to say we are satisfied defendant received a fair trial and are of the opinion defendant should commence the service of his sentence.

For these reasons we enter the following

ORDER

And now, October 23, 1990, defendant’s motion for reduction of sentence and for bail is denied.

       A felony of the third degree carries a minimum of three and one-half years to a maximum of seven years; thus, the aggregate sentence of 14 years for four deaths.


source: Caselaw Access Project

author: TUMOLO, Chairman,

license: Public Domain

text:
    In re Anonymous No. 35 D.B. 88
    Disciplinary Board Docket no. 35 D.B. 88.

      August 28, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TUMOLO, Chairman,

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

PROCEDURAL HISTORY

A complaint was filed against respondent by [A] and [B] in December 1985.

A certified letter of inquiry was sent to respondent on February 14, 1986 outlining the alleged professional misconduct. (See exhibit P-13.) No response was received.

The letter of inquiry was resent by certified mail on June 5, 1987. (See exhibit P-14.)

On September 15, 1987 respondent answered the letter of inquiry. (See Exhibit P-15.)

In response to an investigative proceeding, the respondent voluntarily appeared at the Office of Disciplinary Counsel and executed an affidavit dated November 10, 1987, which in large part admitted his responsibility for the alleged disciplinary violations. (See exhibit P-16.)

Since the respondent both answered the letter of inquiry and executed the affidavit of November 10, 1987, and a supplemental affidavit of January 7, 1988 (see exhibit P-20), there is no question that he had notice of the pending disciplinary inquiry. But, the record shows that even before the filing of the petition for discipline respondent had no certain address where he could be reached.

On April 25, 1988 a petition for discipline was filed. No personal service of this petition upon respondent was achieved. Rather, petitioner’s efforts at service were as follows:

(A) Visiting respondent’s last known address at [ ], to learn that [C] Auto Tags, the former occupant who apparently was receiving the respondent’s mail for him, had moved;

(B) Visiting the new address of [C] Auto Tags at [ ] and speaking with [C], who had been accepting mail for respondent, and who advised that respondent had not picked up his mail for months and was believed to have left town without leaving a forwarding address;

(C) Reviewing motor vehicle records to learn that the last registration address for respondent was [ ];

(D) Reviewing the records of the Pennsylvania Bureau of Motor Vehicles to learn that respondent was neither registered as a licensed driver nor the owner of a vehicle;

(E) Visiting the [ ], from which respondent had moved and left no forwarding address; and,

(F) Reviewing the records of the United States Post Office at the [ ] and [ ] branches to learn that respondent had left no forwarding address from [ ] nor his address at [ ]. (N.T. 12/20/88 at 49-51; exhibit P-26.)

A letter dated May 13, 1988 was sent by regular first-class United States mail to respondent at his last known address for the receipt of mail, which was [ ], requesting that respondent communicate with petitioner concerning a matter of personal importance. (Exhibit P-26.) No response was received.

Petitioner attempted to serve a copy of the petition for discipline upon respondent by forwarding a copy under cover of letter dated June 7, 1988 by regular first class United States mail at his last known address of [ ]. (Exhibit P-27.) The copy of the petition for discipline and accompanying letter dated June 7, 1988, forwarded to respondent by regular first-class United States mail, was returned to petitioner by the post office as “attempted, not known.”

Petitioner also attempted to serve a copy of the petition for discipline upon respondent by forwarding a copy of said petition under cover of letter dated June 7, 1988 and sent to him by certified United States mail, return receipt requested, at his last known address of [ ] (Exhibit P-28.) The copy of the petition for discipline and accompanying letter dated June 7, 1988 forwarded to respondent by certified United States mail was returned to petitioner by the post office marked as “undeliverable as addressed — forwarding order expired,” and “return to sender, no forwarding order on file.”

The record shows numerous other attempts, beyond the requirements of the rules, to serve respondent, all of which proved fruitless. But since the petitioner complied with Rule of Disciplinary Enforcement 212 by addressing the petition for discipline to respondent at the last address he supplied in his registration statement the jurisdictional requirements of notice are satisfied.

A hearing was held on the petition for discipline before Hearing Committee [ ], and was presided over by members [ ] and [ ] since Chairperson [ ] was unavailable.

Respondent did not appear nor in any way participate in the hearing.

Subsequent to the hearing of December 20, 1988, petitioner again tried to locate the respondent both in Pennsylvania and Ohio. All efforts, as set out with particularity in the record, failed. However, the rule on service was more than complied with by the Office of Disciplinary Counsel.

FINDINGS OF FACT

The board finds no reason to disturb, and in fact adopts, the findings of fact made by the hearing committee as follows:

(1) Respondent, [ ], was admitted to practice law in the Commonwealth of Pennsylvania on or about November 1, 1979. (Exhibit P-18.)

(2) The last attorney registration statement filed by respondent was for the year 1986-87 and was endorsed by respondent on March 14, 1987. (Exhibit P-18.)

(3) The business address furnished by respondent in his last attorney registration statement for his office was at [ ] and respondent’s last residential address was [ ]. (Exhibit P-18.)

(4) As of April 28, 1988 respondent was on inactive status with regard to his ability to practice law in the Commonwealth of Pennsylvania pursuant to an order of the Supreme Court of March 29, 1988. (Exhibit P-18.)

(5) Respondent was retained by [A] and [B] on May 30, 1984 to represent them in matters pertaining to the estate of their mother, [D], who had died testate in April 1984. (N.T. 12/20/88 at 17-8, 33; exhibit P-16.)

(6) It was agreed between [A] and [B] and respondent that he would take the actions necessary to conclude their mother’s estate and to assist in handling matters arising out of [D’s] home ownership. (N.T. 12/20/88 at 19-21, 33-4; exhibit P-2.)

(7) [A] and [B] had agreed to pay respondent a fee of $500 for his services regarding the estate and related matters. (N.T. 12/20/88 at 21-2, 34-5; exhibit P-2.)

(8) [A] and [B] made payments to respondent for fees, expenses and costs related to handling the estate, totalling $2,838.52, the last of which payments was made on November 5, 1984. (N.T. 12/20/88 at 22-3, 34-5; exhibit P-8.)

(9) Respondent admits to and acknowledges receipt of the monies paid him by [A] and [B]. (Exhibit P-16.)

(10) In the months between June and October 1984 respondent did take some actions pursuant to his agreement to represent [A] and [B] including the payment of a filing fee with the Register of Wills in the amount of $175. (Exhibit P-39.)

(11) [A] and [B] heard nothing further from respondent after they made the last payment to him on November 5, 1984. (N.T. 12/20/88 at 35.)

(12) Respondent did not file an inventory required by the Pennsylvania Probate, Estates and Fiduciaries Code within three months of [A’s] appointment as personal representative. (N.T. 12/20/88 at 24-5, 35-9, 44; exhibit P-39.)

(13) Respondent did not file the inheritance tax returns within nine months of the death of [D] as required by the Tax Code.

(14) [A] and [B] first learned that there was a problem with the estate when they received a letter dated August 9, 1985 from the Pennsylvania State Department of Revenue stating that no inheritance tax return had been filed for the estate and that [A] could be personally subject to a penalty of 25 percent of the tax or a $1,000 fine for such failure to file. (N.T. 12/20/88 at 23-4, 35-6; exhibit P-9.)

(15) Upon receipt of the letter from the Department of Revenue (exhibit P-9), [A] attempted to locate respondent but was unsuccessful.

(16) With the assistance of the Department of Revenue, [A] completed an inheritance tax return, which was then filed with the Department of Revenue. (N.T. 12/20/88 at 38-9; exhibits P-35 and P-39.)

(17) The inheritance tax return filed by [A] on August 13, 1985 showed that the estate owed a tax in the amount of $1,651.79, without consideration of any interest or penalties that might also be due. (Exhibits P-10, P-35 and P-39.)

(18) [A] and [B] were able to arrange for payment of the inheritance taxes due upon the estate by making monthly payments of $150 for 12 months and an additional payment of $92.22, from September 1985 through to October 1986. (N.T. 12/20/88 at 25-6, 37-40, 45-5; exhibits P-11, P-37, P-38 and P-39.)

(19) The total amount paid by [A] and [B] to the Department of Revenue for the inheritance tax was $1,892.22, which included $240.43 in interest. (N.T. 12/20/88 at 45-6; exhibits P-10, P-11, P-37, P-38 and P-39.)

(20) Another attorney had to be retained to conclude all outstanding matters pertaining to the estate of [D], including transferring title of the estate realty to the heirs. (N.T. 12/20/88 at 43-4.)

(21) After the initial complaint was made to petitioner, a letter of inquiry was sent to respondent and he acknowledged receipt by hand-delivering a response to petitioner’s office. Subsequently, he signed an affidavit in lieu of an investigatory hearing. (Exhibit P-15.)

(22) [A] and [B] filed a claim against respondent with the Pennsylvania Client Security Fund on January 24, 1986, and were compensated in the amount of $2,138.58. (N.T. 12/20/88 at 53-4; exhibit P-12.)

(23) Under cover of letter dated September 25, 1987 and hand-delivered to the office of the Client Security Fund, respondent made restitution by cashier’s check in the amount of $2,138.58. (N.T. 12/20/88 at 57.)

(24) In his affidavit on November 10, 1987, respondent admitted to the following:

(A) That he was retained in May 1984 by [A] and [B]to represent them in a matter concerning the estate of their mother;

(B) That over a period of time [A] and [B] paid respondent the sum of $2,138.58 for the purposes of paying taxes owed by the estate;

(C) That respondent could not locate any records of his representation of [A] and [B] or the estate of [D];

(D) That during the period of May 1984 through November 1987, respondent did not maintain any bank account for the purpose of escrowing or holding the client funds;

(E) That respondent has no recollection as to the whereabouts of the funds nor does he know what happened to the monies paid by [A] regarding his representation of [A] and [B] in the estate matter. (Exhibit P-16.)

(25) Respondent did not deposit the money paid him by [A] and [B] to be used to pay taxes and other expenses associated with the handling of the estate, in any bank or financial institution account designated for purposes of escrow. (Exhibit P-16.)

(26) The petition for discipline was filed in this matter on April 25, 1988. (Exhibit P-28.)

(27) Petitioner made extensive efforts to effectuate personal service of the petition for discipline upon respondent, but when these efforts failed, service was made by certified letter to respondent’s last known address and by sending a copy by regular mail. (N.T. 12/20/88 at 49-51; exhibit P-26.)

(28) Petitioner has complied with the requirements of Pennsylvania Rule of Disciplinary Enforcement 212 for effectuating substituted service upon respondent. That rule states: In the event a respondent-attorney cannot be located and personally served with notices required under these rules, such notices may be served upon the respondent-attorney by addressing them to the address furnished by the respondent-attorney in the last registration statement filed by such person in accordance with Enforcement Rule 219(d).

(29) Additional efforts were made to notify and advise respondent of the hearing but to no avail.

(30) Respondent commingled the sum of $2,338.58 paid him by [A] and [B] for the purpose of paying taxes and other expenses related to the handling of their estate matter.

(31) Respondent failed to maintain an identifiable bank account at any financial institution for the purpose of holding client funds.

(32) As a result of the acts or omissions by respondent, [A] and [B] have had to expend the additional sum of $1,090.43 in order to conclude the matters for which respondent had been retained. (N.T. 12/20/88 at 45-6.)

CONCLUSIONS OF LAW

The board finds that based on the facts, respondent is liable for violation of the following Disciplinary Rules of the Code of Professional Responsibility:

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

(B) D.R. 1-102(A)(6), which prohibits an attorney frorfi engaging in conduct which adversely reflects on his fitness to practice law;

(C) D.R. 6-101(A)(3), which prohibits an attorney from neglecting a legal matter entrusted to him;

(D) D.R. 7-101(A)(l), which prohibits an attorney from intentionally failing to seek the lawful objectives of a client through reasonably available means permitted by law and disciplinary rules;

(E) D.R. 7-101(A)(2), which prohibits an attorney from intentionally failing to carry out a contract of employment entered into with a client for professional services;

(F) D.R. 7-101(A)(3), which prohibits an attorney from intentionally prejudicing or damaging a client during the course of the professional relationship;

(G) D.R. 9-102(A), which requires that all funds of clients paid to an attorney, except for advances for costs and expenses, be kept in identifiable bank accounts in the state in which the attorneys5 office is located, and that no funds belonging to the attorney shall be deposited therein except for funds sufficient to pay bank charges and funds belonging in part to the client and in part to the attorney; and,

(H) D.R. 9-102(B)(4), which requires an attorney to promptly pay or deliver to a client as requested by the client funds, securities, or other properties in the lawyer’s possession which the client is entitled receive.

The board finds that there is no appropriate evidence to support a violation of the following charges, and finds that they should be dismissed:

(A) D.R. 2-110(A)(2), which prohibits an attorney from withdrawing from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with the applicable laws and rules;

(B) D.R. 2-110(A)(3), which requires an attorney who withdraws from employment to refund promptly any part of a fee paid in advance that has not been earned.

DISCUSSION

Simply taking respondent’s admissions in his affidavits, he received the client’s funds which were directed for specific disposition to third parties, and the disposition was never made. Further, by his affidavits and reply letter to disciplinary counsel the respondent admits he cannot account for the funds. Obviously, this conduct constitutes an unlawful removal of money that does not belong to the attorney, an unlawful failure to segregate that money, and an unlawful inability to account for the funds. See Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983), and Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982).

This conduct reflects adversely on respondent’s fitness to practice law. Office of Disciplinary Counsel v. Ewing, 496 Pa. 35, 436 A.2d 139 (1981).

Although the record demonstrates some actions early on in resolving this estate matter, nothing was done after November 1984. The complainants were notified by the Inheritance Tax Department, and thereafter moved to resolve their own legal problems, even though they had paid the respondent to accomplish the same. Needless to say, there is a violation of the rules prohibiting neglect of a client’s legal matter. With respondent failing to appear to present any excuse, we must agree that petitioner met its burden also with regard to intentionally failing to carry out the employment contract and seek the client’s lawful objectives.

Precedent repeatedly shows that whenever there is an unauthorized removal of client funds by the attorney, there will be some form of public discipline recommended, which will vary depending on the aggravating or mitigating circumstances. See In re Anonymous No. 132 D.B. 88, 7 D.&C. 4th 331 (1990), and the authorities cited therein. Mitigation is shown in the repayment to the Pennsylvania Client Security Fund of the client losses. However, substantial aggravation is found in the respondent making himself unavailable in the jurisdiction to which he is admitted to practice law, when he knew that serious allegations of professional misconduct were alleged against him. We can only conclude that respondent has consciously failed to do anything on his own to preserve his license.

Accordingly, when combining the serious disciplinary infractions proved, with respondent’s own failure to participate in the process necessary to properly assess his present standing to practice law, the board will recommend that respondent be disbarred.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent be disbarred. It is further recommended that the costs of these proceedings be imposed upon the respondent.

Ms. Heh and Mr. Eckell did not participate in the adjudication of this matter.

ORDER

And now, December 12, 1990, upon consideration of the report and recommendation of the Disciplinary Board dated August 28, 1990, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of five years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Justice McDermott did not participate in this matter.

Mr. Justice Larsen dissents and would enter an order of disbarment.


author: O’BRIEN, J.,

text:
    Romagano v. Redmond

      Janet Marsh Shay, for plaintiffs.

      W. Andrew Worthington, for defendants.

      W. Brian Golden, for third-party defendant.

      November 27, 1990
   O’BRIEN, J.,

On February 27, 1989, plaintiffs Joseph S. Romagano and his wife Elizabeth Romagano purchased a parcel of real estate from defendants John K. Redmond and his wife Angel Redmond, described as Lot 64, Block A-64, Section 11, Arrowhead Lakes, Coolbaugh Township, Monroe County, Pennsylvania. The Sellers’s agent in the transaction was co-defendant Liberty Real Estate. Plaintiffs procured the services of third-party defendant Mountain Area Abstract Inc. to conduct the closing and provide title insurance.

On May 23, 1989, plaintiffs learned for the first time that the property was designated as wetlands, barring the construction of a residential dwelling. Plaintiff alleges defendants Redmond and Liberty Real Estate knew of their intention to construct a dwelling on the property, and their failure to disclose the wetlands designation amounted to willful/ negligent non-disclosure on the part of defendants of a material condition.

Subsequently, defendant John K. Redmond et ux. filed a third-party complaint joining Mountain Area Abstract Inc. as a defendant, premised upon a breach of the duty of good faith and fair dealing. On September 27, 1990, third-party defendant Mountain Area Abstract Inc. filed preliminary objections to the third-party complaint in the nature of a demurrer and alleging a lack of standing. Following submission of briefs and oral argument on November 5, 1990, the preliminary objections are now before us for disposition.

A demurrer tests the legal sufficiency of the pleadings. A demurrer alleges that, upon the facts pleaded, the law will not permit the plaintiff recovery. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 291, 259 A.2d 443, 449 (1969); Com monwealth of Pennsylvania, Department of Environmental Resources v. Peggs Run Coal Company, 55 Pa. Commw. 312, 319, 423 A.2d 765, 768 (1980). If it is clear and free from doubt that the pleader will be unable to establish a right to relief, a demurrer will be granted. Firing v. Kephart, 466 Pa. 560, 463, 353 A.2d 833, 835 (1976).

Preliminary objections in the nature of a demurrer admit as true all facts which are well-pleaded, material and relevant and such inferences which are reasonably deducible from such facts. Firing, 466 Pa. at 563, 353 A.2d at 834; Schott, 436 Pa. at 291, 259 A.2d at 448; Todd v. Shelly, 384 Pa. 423, 428, 120 A.2d 906, 909 (1956); Daniel Adams Associates Inc. v. Rimbach Publishing Inc., 287 Pa. Super. 74, 76, 429 A.2d 726, 727 (1981); Indian Mountain Lake Civic Association v. Coyle, 283 Pa. Super. 307, 348, 424 A.2d 943, 944 (1981). Conclusions of law, inferences unwarranted by the admitted facts, argumentative allegations and expressions of opinion are not to be considered in a demurrer. Firing, 466 Pa. at 563, 353 A.2d at 834.

The third-party complaint alleges, inter alia, as follows:

“(4) Upon information and belief, plaintiffs contracted with third-party defendant, Mountain Area Abstract Inc., to perform all necessary duties of settlement on the property.

“(5) Upon information and belief, third-party defendant, Mountain Area Abstract Inc., held itself out as an expert in the performance of settlements of real property transactions.

“(6) Upon information and belief, third-party defendant, Mountain Area Abstract Inc., prepared the settlement sheet for the transaction, wrote and disbursed checks out of its accounts for said settlement, prepared the deed of conveyance, searched the title on the property, issued plaintiffs a title insurance policy on the property and generally advised plaintiffs upon all matters related to plaintiffs’ purchase of the property.

“(7) Upon information and belief, third-party defendant Mountain Area Abstract Inc., performed all duties commonly performed by abstract companies, as well as all duties commonly performed by attorneys at law.

“(8) Upon information and belief, plaintiffs were not experts in the purchase of real property.

“(9) Upon information and belief, plaintiffs reasonably relied upon third-party defendant, Mountain Area Abstract Inc., to perform all settlement duties necessary for plaintiffs to acquire and use the property.”

In Garbish v. Malvery, 358 Pa. Super. 282, 517 A.2d 547 (1986), the court found an implied principal/agent relationship was established where a mortgagee bank retained funds of the mortgagor for the construction of a residence on behalf of the mortgagor homeowner. In finding an agency relationship, the court looked to such factors as: the mortgagee bank’s demand of the balance of the contract price and retention of the proceeds of the construction loan to distribute; the mortgagee bank’s assertion that it was an expert in distributing construction funds; a refusal on the part of the mortgagee bank to allow the mortgagor homeowner any control over the distribution of funds; and finally, a failure to provide notice of how the money was being distributed.

In Dercoli v. Pa. National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989), a breach of the duty of fair dealing and good faith was found by our Supreme Court where an insurance company advised and counseled an insured that she would receive all benefits to which she was entitled, and failed to advise her of a change in the law which would allow her to seek additional liability damages. Appellant Dorothea Dercoli was severely injured in an auto accident in which her driver husband was killed. Subsequently, the defense of inter-spousal immunity was abolished giving the appellant the apparent right to damages against her deceased husband’s estate, which ultimately would be payable under the liability provisions of the policies that insured the decedent. Id. In finding for the appellant, the court held that an insurer who undertakes to advise and counsel the insured in the insured’s claim for benefits has a duty to inform the insured of all benefits and coverage that may be available, and of any potential adverse interest pertaining to the insurer’s liability under the applicable policy. By failing to inform the appellant of the change in the law, the appellee insurance company in Dercoli breached its duty of fair dealing and good faith.

In view of the dearth of Pennsylvania authority regarding the duties and liabilities imposed on abstract companies, counsel for John K. Redmond et ux. rely on the above-quoted authority to establish a cause of action. Counsel argues that the allegations in their complaint establish the existence of a principal/agent relationship between the plaintiffs and the abstract company and a breach of the abstract companies’ duty to the plaintiffs of fair dealing and good faith. Whether or not the evidence in this proceeding developed in discovery or at trial will establish the allegations of the complaint is not yet known. However, where the abstract company voluntarily undertook to provide assistance and advice to the plaintiff purchasers' and may have advised against retaining independent legal counsel, establishment of a duty of fair dealing and good faith, or a breach thereof, is indeed possible.

In view of the myriad complications attendant to a modern real estate transaction, including the wetlands issue, those who hold themselves out to handle such transactions clearly owe a duty to their clients. This duty should include notice of the pitfalls which the abstract company is not capable of addressing, including the wetlands issue. In light of the procedural posture of this case at the demurrer stage, we must afford the Redmonds the opportunity to proceed with their claim. Further, since the purpose of the rule allowing joinder of additional defendants is to preclude a multiplicity of suits, we also find additional defendants’ assertion of lack of standing to be without merit.

ORDER

And now, November 22, 1990, it is ordered as follows:

(1) The preliminary objections of Mountain Area Abstract Inc. to the third-party complaint of John K. Redmond and Angel Marie Redmond are dismissed.

(2) Mountain Area Abstract Inc. is granted a period of 20 days within which to file an answer to the aforesaid complaint.


author: SCHERER, J.,

text:
    Horneman v. Hills Department Store

      John F. Becker, for plaintiffs.

      Amy S. Cunningham, for defendant.
    July 9, 1990
   SCHERER, J.,

This matter comes before the court upon preliminary objections, filed by plaintiffs and additional defendant, to defendant’s new matter, new matter under 2252(d), and complaint to join an additional defendant.

While shopping with his mother, the minor plaintiff, Matthew Horneman, allegedly pulled a clothing rack down on himself resulting in various injuries. Plaintiffs, the minor and his father, have brought suit against the defendant department store.

Defendant store has joined the father, John Hor-neman, as an additional defendant pursuant to Pa.R.C.P. 2252(d). Defendant store alleges that the plaintiff father is liable to the minor plaintiff or, in the alternative, is liable to the defendant store, for failure to train and instruct the minor, and for negligent entrustment of the minor child to the mother.

Plaintiff father raises an objection to defendant’s new matter under 2252(d) in the nature of a motion to strike paragraphs 20 to 26 or in the alternative, a demurrer for failure to state a cause of action. Defendant store asserts that plaintiff father was negligent in entrusting the minor plaintiff to the custody of the child’s mother, Darcy Horneman. Plaintiff father argues that he was not present when the alleged injuries occurred, and that a cause of action does not exist for a father’s negligent entrustment of the child to the care and supervision of the mother.

A demurrer can only be sustained where the complaint is clearly insufficient to establish a right to relief. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985):

“Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of the demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.” Id. (citations omitted)

Parents have a duty to exercise reasonable care to protect their children and to keep them from danger. Miller v. Leljedal, 71 Pa. Commw. 572, 455 A.2d 256 (1983). Defendant’s position is that this level of care, owed by the father to his three-year-old son, necessarily entailed the father’s assurance that the child would not be subjected to inadequate supervision.

In Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971), a case similar to the present matter, a minor child was injured as a result of negligent operation of a motor vehicle. The defendant filed an amended answer and new matter joining the minor’s father as an additional defendant and alleged that the father failed to supervise the child and failed to provide for the child’s safety. The father filed preliminary objections on the grounds that the facts stated were not sufficient to state a cause of action against him.

The Reardon court held that the defendant’s new matter failed to set forth sufficient facts to establish the negligence of the father. Specifically, the Pennsylvania Supreme Court stated that the defendant did not allege that the father knowingly permitted the child to cross the street at a place of danger and did not allege that the child suffered from any incapacity or was other than a normal child.

Defendant department store argues that, unlike the defendant in Reardon, it has alleged the knowledge of the father in subjecting the child to the risk of inadequate supervision in breach of the father’s duty of care and protection. Defendant asserts:

“(22) On or about June 16, 1988, John Horneman entrusted the minor plaintiff, Matthew J. Horne-man, to the custody of his wife and the mother of Matthew J. Horneman, Darcy Horneman.

“(23) If the minor plaintiff was damaged as alleged in the plaintiff’s complaint, said damages and injuries are the direct and proximate result of the negligence of John Horneman in entrusting the minor, Matthew J. Horneman, to the care, control, and custody of Darcy Horneman when he knew, or in the exercise of reasonable attention and care should have known that Darcy Horneman would not pay proper attention to the whereabouts and conduct of Matthew J. Horneman while, at the Hills Store on June 16, 1988.” Defendant’s new matter under 2252(d).

Defendant store’s allegations do not state a cause of action against the father for “negligent entrustment.” The court recognizes that parents have a duty to exercise reasonable care to protect their children and to keep them from danger. However, from the facts averred in defendant store’s new matter, the court cannot conclude that the parent’s duty to protect his child and to exercise reasonable care requires an absent parent to know that the child, who is shopping with the other parent, is in danger.

Defendant store attempts to make an absent parent liable for the other parent’s alleged breach of duty. Defendant store’s new matter fails to allege that the father knowingly permitted the child to go to a place of danger. Defendant store also does not aver that the mother suffered from some incapacity or was other than a normal person and would not exercise reasonable care as a parent. The facts alleged are not sufficient to state a cause of action against the plaintiff father.

Additionally, in Burton v. Althoff, 64 D.&C. 2d 366 (1973), the court stated that the rule of imputed negligence in parent-child situations will apply only where there is a master-servant relationship or a joint venture which, by law, makes the parent vicariously liable for the acts of the other parent or a child of the parent. In the present case, defendant’s answer does not assert a master-servant relationship or a joint venture between the parents.

Plaintiff father also argues that the failure to teach and to instruct a child is not a cause of action as stated in defendant’s new matter under 2252(d). Plaintiff’s objection is in the nature of a motion to strike or in the alternative, a demurrer for failure to state a cause of action.

Preliminary objections, in the nature of a motion to strike or, in the alternative, a demurrer for failure to state a cause of action, are also raised in regard to paragraphs 7(a) and (b) of the defendant’s complaint to join additional defendant Darcy Horneman.

Defendant store claims that the parents were negligent for failing to teach their child not to reach up and pull things down from above him. Plaintiff argues that because a minor under the age of seven cannot be held negligent it is therefore impossible to train and instruct a child of seven years or younger. Defendant store responds that a reasonably prudent parent must take precautions and make an effort to instruct the child as to proper behavior in a department store.

■ In defendant’s new matter under 2252(d), defendant store alleges the following facts as to the plaintiff father’s liability:

“(24) If the minor plaintiff was damaged as alleged in plaintiff’s complaint, which the defendant denies, all of said injuries and damages were the direct and proximate result of the failure of John Horneman to teach and instruct the minor plaintiff not to reach up and grab objects above his head, thereby causing them to fall on him.” (emphasis supplied)

Defendant store alleges the following as to the mother’s liability for failing to train and to instruct:

“(a) In failing to properly train and instruct her minor son as to proper behavior in a department store;

“(b) In failing to properly train and instruct her minor son not to pull on items above his head as they may fall on his head. . .” Defendant’s complaint to join additional defendant Darcy Horneman, paragraph 7. (emphasis supplied)

Neither parties’ brief addresses the validity of the allegation that the plaintiff father failed to teach and to instruct the three-year-old child. No Pennsylvania case has been located in which a court has recognized a cause of action for failure of a parent to teach and to instruct. To support its position, defendant store relies on Styer v. City of Reading, 360 Pa. 212, 61 A.2d 382 (1948). The Pennsylvania Supreme Court stated “children must be expected to act on immature judgment, childish instincts and impulses; others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly.” Styer, supra.

Defendant store claims that a three-year-old child can be taught not to pull down clothing from a rack and that the parents are negligent for failing to do so. However, although a child has been previously told/taught not to touch something, one may still expect a child to “act on immature judgment, childish instincts, and impulses.” Plaintiff father was not present at the time of the incident and therefore, unable to take precaution against “childish instincts and impulses.”

It is not clear as to whether the above averments indicate the parents generally failed to teach/train their child not to reach up and grab objects or whether the defendant store’s assertion is to mean that the parents failed, at the time of the incident, to supervise and instruct the child not to pull, touch, etc. Under either interpretation, paragraph 24 of defendant’s new matter under 2252(d), does not set forth a cause of action against the absent plaintiff father.

In regard to the assertions in paragraph 7(a) and (b) of defendant’s complaint to join additional defendant, Darcy Horneman, the mother, may be negligent for failing to instruct the child, at the time of the incident, not to touch, wander, etc. Such an assertion points to an alleged lack of care in the mother’s duty to supervise the child and protect him from harm. However, it is not reasonable to assert that in general, the mother had not properly trained/ taught the three-year-old child in consideration of “childish instincts and impulses.” Paragraph 7(a) and (b) are not clear and defendant store will have the opportunity to amend the paragraphs.

Additional defendant mother also has raised a preliminary objection to paragraph 7(e) of defendant’s complaint to join additional defendant, Darcy Horneman, which states as follows:

“(e) In taking the three-year-old boy to Hills Department Store on June 16, 1988, when she knew or should have known that her attention would be directed towards purchasing a bathing suit and conversing with her friend, Grace Beers, and not towards the supervision and care of her son.”

Additional defendant mother objects on the grounds that the averment suggests it is negligent to take a child shopping.

Defendant Hills responds that paragraph 7(e) is not “requesting an application of the doctrine of res ipsa loquitur to all cases where a mother takes her child to a store, resulting in the child’s injury.” (Defendant’s reply brief in response to plaintiff’s preliminary objections at 13.) Defendant Hills argues that paragraph 7(e) asserts the breach of the mother’s duty of care and protection to the child and therefore, states a claim upon which relief can be granted. Defendant Hills’ position is that the mother was bound to take precautions when she knew or should have known that she would be unable to properly supervise the child.

Additional defendant mother admits that a negligence cause of action may be asserted against the mother for failure to supervise the child. Paragraph 7(e) is sufficient in the context of paragraphs 7(c), (d), (f), and (g).

Plaintiff father has also raised an objection in the nature of a motion to strike paragraph 20 of defendant’s new matter or in the alternative, a demurrer for failure to state a defense. Defendant store raises the defense of comparative negligence under new matter, paragraph 20.

A child under seven years of age is incapable of negligence as a matter of law. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957). Plaintiff father argues that therefore, he is also incapable of negligence because his claim is derivative from the claim of the child.

In accordance with above discussion, defendant Hills has failed to state a claim for negligence against the plaintiff father under the new matter under 2252(d) and therefore, the defense of comparative negligence is not applicable. The issue presented by the plaintiff father is not now before the court.

The facts do not support a cause of action against the plaintiff father for negligence; the law does not support recovery against the absent father. Further, there is no indication that an amendment will cure the defects of defendant store’s new matter under 2252(d).

The court will enter the following

ORDER OF COURT

And now, July 9, 1990, the preliminary objections of plaintiffs and of the additional defendant are granted in part and denied in part.

The demurrer of plaintiff John Horneman is granted as to defendant’s new matter under 2252(d), paragraphs 20 through 26.

The motion to strike of plaintiff John Horneman is granted as to defendant’s new matter, paragraph 20.

The demurrer of additional defendant, Darcy Hor-neman, to defendant’s complaint to join an additional defendant, paragraphs 7(a) and (b) is sustained with leave for the defendant to amend in accordance with this opinion.

The demurrer of the additional defendant, Darcy Horneman, to defendant’s complaint to join an additional defendant, paragraph 7(c), is denied.


author: SCHAEFFER, P.J.,

text:
    Kochel v. Berks County

      Anthony B. Reardon III, for plaintiffs.

      William E. Benner Jr., for defendant Berks County.

      Lawrence F. Stengel, for defendant Borough of Birdsboro.
    November 16, 1990
   SCHAEFFER, P.J.,

This matter is plaintiffs’ appeal from this court’s order granting both defendants’ motions for summary judgment. We begin this opinion with a discussion of the factual background behind the parties’ dispute.

On July 28, 1989, plaintiffs, Earl Kochel Jr. and Janice L. Kochel, commenced this action by filing a complaint against defendants Berks County and the Borough of Birdsboro. In their complaint, plaintiffs allege that Earl Kochel Jr. sustained physical injuries when he was present in the district justice courtroom to attend a hearing, and the folding metal chair in which he was sitting collapsed, causing him to fall to the floor.

On November 2, 1989, Borough of Birdsboro filed an answer containing new matter in which it raised the issue of governmental immunity and brought a cross-claim against Berks County. Berks County filed its reply to Borough of Birdsboro’s new matter on December 11, 1989, and plaintiffs filed their response on January 10, 1990. On September 8, 1989, Berks County filed an answer and new matter in which it also raised the issue of governmental immunity and brought a cross-claim against the other defendant, the Borough of Birdsboro. On November 21, 1989, Borough of Birdsboro filed a reply to Berks County’s new matter, and on October 17, 1989, plaintiffs filed their responsive pleading.

On August 10, 1990, the Borough of Birdsboro filed a motion for summary judgment, which plaintiffs answered on September 24, 1990. On September 27, 1990, Berks County filed its motion for summary judgment. Both defendants’ motions were based on the argument that plaintiffs’ action was barred by the defense of governmental immunity, as set forth in the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq.

All three parties filed briefs in this matter. On October 1, 1990, the court heard oral arguments on the motions for summary judgment. On October 4, 1990, this court entered an order which granted both motions. Plaintiffs now appeal from the October 4, 1990 order.

ISSUE

Did the court err in granting both defendants’ motions for summary judgment on the basis that the doctrine of governmental immunity, as set forth in 42 Pa.C.S. §8541 et seq., bars the plaintiffs’ action?

DISCUSSION

Plaintiffs argue that this court erred in granting defendants’ motions for summary judgment. We disagree.

Title 42 Pa.C.S. §8541 states the applicable rule of law on the governmental immunity defense, as follows:

“§8541. Governmental immunity generally

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

The exceptions to the governmental immunity defense are then found in 42 Pa.C.S. §8542, which provides, as follows:

“§8542. Exceptions to governmental immunity

“(a) Liability imposed — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of the acts set forth in subsection (b):

“(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

“(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts’ shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.”

The acts which may impose liability on a local agency are found in subsection (b) of section 8542. We turn now to those acts which may possibly apply to the plaintiffs’ action and would therefore permit liability to be imposed on either defendant.

The first exception to the governmental immunity defense which arguably applies to the case at bar is in the care, custody or control of personal property found under 42 Pa.C.S. §8542(b)(2). This provision states, as follows:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

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

We find that the “care, custody or control of personal property” exception to the governmental immunity defense does not apply to the case at bar. In this action, there is no personal property of plaintiffs alleged to be in the care, custody or control of either defendant. Furthermore, plaintiffs allege personal injury damages, not property losses, and property losses are the only damages recoverable under this section. The personal property exception to governmental immunity under 42 Pa.C.S. §8542(b)(2), therefore, will not serve to permit plaintiffs to bring this action.

Plaintiffs argue that the real property exception to the governmental immunity defense set forth in 42 Pa.C.S. §8542(b)(3) is applicable to the case at bar. The basis of this argument is that Earl Kochel Jr. sustained his injury while using the real property in the manner for which it was intended, that is, as a courtroom, and that it was foreseeable that he could be injured by falling off a chair. We do not agree that the real property exception under 42 Pa.C.S. §8542(b)(3) applies to this case. 42 Pa.C.S. §8542(b)(3) states:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

“(3) Real property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, ‘real property’ shall not include:

“(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;

“(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way;

“(iii) streets; or “(iv) sidewalks.”

We first note that the real property exception to the governmental immunity defense is to be narrowly construed. Merritt v. Board of Educ., School District of Philadelphia, 99 Pa. Commw. 178, 513 A.2d 504 (1986), appeal denied 531 A.2d 781; Houston v. Central Bucks School Authority, 119 Pa. Commw. 48, 546 A.2d 1286 (1988). The statute by its own terms applies to the “care, custody or control of real property in the possession of the local agency.” In the case at bar, the instrumentality which allegedly caused the plaintiff’s injury was not real property, but a metal folding chair, which was a movable piece of personal property.

The conclusion that movable pieces of personal property are not included in the definition of “real property” under 42 Pa.C.S. §8542(b)(3) is evident in the decision of Brown v. Quaker Valley School District, 86 Pa. Commw. 496, 486 A.2d 526 (1984). In Brown, a high school student could not bring an action against the school district and physical education instructor for injuries she sustained in gym class while using the springboard and vaulting horse. The court held that the term “real property” under 42 Pa.C.S. §8542(b)(3) did not include the springboard and vaulting horse, which were not permanently placed at the school, and therefore not fixtures, nor essential for its operations. See also Gore v. Bethlehem Area School District, 113 Pa. Commw. 394, 537 A.2d 913 (1988).

In short, as the exceptions to governmental immunity do not apply, plaintiffs’ action is barred by this defense. This court then properly entered summary judgment pursuant to Pa.R.C.P. 1035(a), which states:

“(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.”

CONCLUSION

The decision of this court to grant both defendants’ motions for summary judgment was proper and should, therefore, be affirmed.

      . Plaintiffs complaint, July 28, 1989, at paragraphs 8, 10, 17-24.

      . Plaintiff’s brief of argument, September 2, 1990, at 4.


author: WOLFE, P.J.,

text:
    Commonwealth v. Jackson

      Maureen Flynn, assistant district attorney, for the Commonwealth.

      Barry L. Smith, for defendant.
    November 9, 1990
   WOLFE, P.J.,

For disposition is defendant’s pretrial motion to suppress evidence, to wit, the blood alcohol content results of 0.126 percent after defendant’s blood was extracted and tested by the Warren General Hospital following a one-car accident on June 8, 1990.

The facts as disclosed by the suppression hearing are not in dispute.

On June 8, 1990, Officer Gerald Falconer of the Conewango Township Police Department investigated a one-car collision near the Warren State Hospital on North State Street in North Warren. He stated the accident occurred at approximately 12:03 a.m., and when he arrived at the scene the fire department was spraying a vehicle which was under conflagration with very extensive damage, in that it was determined by the markings on the roadway it had failed to negotiate a curve and struck a tree. The record is silent as to the vehicle striking the tree; however, the preliminary hearing testimony of July 17, 1990, (transcript at 13) concludes the car was against a tree on the bank of the creek, and the back end of the car was sticking out into State Street and the whole hood of the car was on fire. The officer stated the deceased passenger was lying outside of the car with a Michelob bottle lying next to his foot on the roadway. He attempted to examine the interior of the car and thought there was another beer bottle on the inside of the vehicle but could not make that conclusion as there was a lot of steam and smoke coming from the vehicle. The officer determined defendant was the operator of the vehicle after he spoke to two doctors, psychiatrists who lived on the hospital grounds and had removed defendant from behind the steering wheel.

The officer contacted the Sheriff’s Department and requested it contact the hospital and advise the hospital he would be en route and would request a blood alcohol analysis. When the officer arrived defendant was in surgery, and it was impossible to talk to him.

On the issue of probable cause to obtain a blood alcohol result, the officer, in cross-examination, stated:

“Q: What at the scene did you rely on as the basis for that request?

“A: Mostly from the magnitude of the accident, the multiple violations and the way the accident occurred at such a high rate of speed, the loss of control of the vehicle, the erratic driving, there is a very — this is a very erratic accident the way this occurred. He went into a curve two or three times, in my opinion, as fast [sic] as he should have. He slid sideways across the road leaving side slip marks, not because he lost control, because the vehicle, itself, was sliding sideways. Very severe impact would indicate the high rate of speed and just from past experience with these types of accidents.”

Dr. Albert Doyle, M.D., employed at the hospital, was on duty in the emergency room and testified he initially treated defendant upon his arrival, that he was not requested to perform a blood alcohol test, but he did a blood alcohol test because, in his opinion, this was a trauma case, and the hospital always does such a test when there is a car accident and there is violent trauma to a person. Dr. Doyle further testified the blood alcohol test was a standard procedure in trauma cases. This witness stated on August 4 he added an addendum to his medical chart at the request of his superior, Dr. McGill, who had called him and wanted the witness to put “some note on there stating why I ordered the blood alcohol level.” The witness concluded that he ordered blood extraction for medical reasons, and the police did not ask for it.

Dr. Charles MacKenzie, M.D., the surgeon, testified he attended defendant, and that he knew that the blood extraction had been made as it was part of the trauma profile on multiple-injury cases. This witness stated the blood results are useful in a question of a head injury before the patient is put to sleep for any changes that may occur to determine if they are due to trauma inside the head or from some chemical problem.

Witness Hope Weckerly testified as a medical technologist in the laboratory that Dr. Doyle orally requested a trauma panel which consists, inter alia, of blood alcohol content. She stated it was not unusual to receive verbal orders of this nature during the course of examination.

Dr. Douglas McGill, M.D., testified he is the Director of Emergency Services, and after receiving a letter from Mr. Smith he inquired of Dr. Doyle if he had ordered a blood alcohol level examination and after an affirmative response suggested Dr. Doyle indicate on the record such order.

This witness testified why the addendum was requested:

“Well, the subject of your letter concerning the blood alcohol was brought to my attention because the staff was concerned that there was no order for blood alcohol. On the one hand I felt that there didn’t have to be an order for the blood alcohol, but Miss Jackaluka, our medical records person, felt that if Dr. Doyle could remember ordering such a blood alcohol level it could be contributory to the record to add and so asked him if he remembered it and he said he did and related to Miss Jackaluka’s advice which .seemed reasonable to me.”

Dr. McGill recognized at the time he requested the addendum that defendant was involved in criminal proceedings.

Finally, the Commonwealth and defense stipulated to admit to the record the preliminary hearing transcript.

Initially, we conclude the Commonwealth had no probable cause to request a blood alcohol test. There is no evidence either directly or by inference from any witness that could formulate probable cause the defendant was operating a vehicle while under the influence of alcohol at the time of the occurrence. Indeed, the Commonwealth does not disagree with this and has in its brief argument stated categorically:

“The Commonwealth respectfully contends that the blood alcohol test was properly drawn for medical reasons and not at the request of law enforcement. Without the requisite agency relationship of the Warren General Hospital personnel to a law enforcement agency, the blood test performed on Timothy Jackson falls outside- the scope of the Fourth Amendment protection.”

Notwithstanding, the teaching of Commonwealth v. Danforth, 395 Pa. Super. 1, 576 A.2d 1013 (1990), the severity of an accident is insufficient probable cause to request and perfect a blood test. Here, Officer Falconer did not observe defendant operating the vehicle, did not talk to him at the scene or at the hospital, and concluded a blood alcohol examination was a closed issue because he could not secure defendant’s consent. This leaves only for consideration if the blood alcohol test results should be available to the Commonwealth in that it was allegedly extracted for medical purposes only.

The law in this area is well settled as written in Commonwealth v. Borecky, 277 Pa. Super. 244, 419 A.2d 753 (1980). There the court established and reaffirmed Fourth Amendment prohibitions against illegal search and seizures are not applicable to private citizens:

“It is firmly established that the Fourth Amendment’s prohibition against illegal search and seizures applies only to the actions of governmental authorities and is inapplicable to the conduct of private parties. See, e.g. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973). However, it is equally well-settled that the evidence gathered through a search by a private individual must come to the state upon a ‘silver platter’ and not as a result of any instigation by state authorities or participation by them in the illegal activities. Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 250, 71 L.Ed 520 (1927). The critical factor, as the United States Supreme Court has stated, ‘is whether (the private individual) in light of all of the circumstances of the case, must be regarded as having acted as an “instrument” or agent of the state . . ..’ Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971).” To the same effect is the teaching of Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1973).

Instantly, Officer Falconer testified at the preliminary hearing held July 17, 1990, (transcript at 43) that he had “called ahead and requested a blood test, and when I got there they said I couldn’t talk to him, so he couldn’t sign the forms and couldn’t get a blood test.” Thereafter, the Commonwealth secured the results of the blood test via a court order directed to the hospital for its records. Further, the officer stated he had “radioed the Sheriff’s Office and requested that they do a blood test, but when I arrived there I was unable to speak to him and he was unable to sign the form. The Sheriff’s Office was supposed to call and request that.” (Transcript at 44.) His testimony continues that his reason for calling for a blood extraction is that he saw beer bottles at the scene, not being able to identify if there were one or two because of the steam and smoke. The officer categorically stated it was by reason of the one beer bottle on the road that he ordered the blood test. (Transcript at 44, 45.) Additionally, the same record shows the sheriff had advised Officer Falconer on the radio that the hospital had been notified to do the blood test. It was the officer’s opinion the blood extraction was not for his benefit as there were no consent forms signed by defendant.

Finally, Officer Falconer stated (transcript at 49) he talked to Dr. MacKenzie. “I said I was needing some information from him and I was concerned about doing a blood alcohol test, and he said, ‘We drew one to find out before we treat him any further.’ ”

On the basis of this testimony from the investigating and arresting officer, we have no reservations in concluding the hospital personnel were informed by the officer that he desired a blood extraction. An attempt to reconcile Dr. Doyle’s testimony with that of Officer Falconer is not clear, but sufficient to make this conclusion. Dr. Doyle testified on cross-examination at the suppression hearing (transcript at 25) he could not remember getting a request from the Sheriff’s Department for a blood alcohol test. Notwithstanding the hospital routinely orders a “trauma panel” profile which includes a blood alcohol extraction, this is done for precautionary purposes, according to Dr. MacKenzie’s testimony. Here, there is no evidence the extraction was necessary by reason of the injuries defendant received or was utilized in any way in surgery.

If the third party must deliver the evidence to the Commonwealth on a “silver platter,” it should be apparent here the platter is tainted. It is also clear Officer Falconer instigated the extraction request. Constitutional rights may be circumvented when hospital personnel are aware the police desire any incriminating evidence, notwithstanding the accused has given no consent to deliver the evidence to the Commonwealth, all under the guise of medical precaution. The court found in Commonwealth v. Cieri, 346 Pa. Super. 77, 499 A.2d 317 (1985), that the hospital personnel withdrew defendant’s blood for the purpose of treating him for injuries sustained during the accident. “The procedure was routine, and was performed before any hospital personnel learned that the police had requested a blood sample. Had nothing further occurred, therefore, the withdrawal of appellant’s blood would have been a ‘private’ search, not implicating appellant’s Fourth Amendment rights.” (emphasis supplied)

Moreover, the hospital, after receiving the letter from Attorney Smith requesting hospital records, requested Dr. Doyle to supplement his record by indicating he ordered the trauma panel. Obviously, this is suspect and compromises defendant’s right of privacy.

Officer Falconer could not formulate any probable cause defendant was operating while under the influence by reason of his investigation at the scene of the accident, nor was he able to do so thereafter at the hospital in that he did not speak with defendant, nor did any hospital personnel detect any use of alcohol from defendant. The blood extraction came into possession of the Commonwealth by reason of the hospital’s extraction which was not in fact used for medical treatment.

Constitutional rights would be totally neutralized if hospitals are permitted to deliver incriminating evidence to the Commonwealth indiscriminately simply by a procedural policy as here which the Commonwealth ratifies and thus makes the hospital its agent. There would be no need for the Commonwealth to formulate probable cause any crime has been committed whatsoever if this were the case. An injured party has the right of expectation that he will be delivered either consciously or unconsciously to a hospital where his rights of privacy will be protected. Moreover, this record is barren since defendant was unable to communicate with the officer, even if he had wanted to, in that the officer was informed by Dr. MacKenzie he could not see defendant. Thus, defendant had no opportunity to explain his position to the officer to again give the Commonwealth an independent means of determining probable cause.

Finally, it is acknowledged defendant was never placed under arrest by Officer Falconer, defendant did not give his consent to the hospital to extract his blood for alcohol content, and did not consent to the delivery of the alcohol content data to the police by the hospital; it is a serious question if the hospital personnel had knowledge the police requested the blood extraction, and as stated, the Commonwealth admits there was no probable cause to conclude defendant was operating while under the influence.

For these reasons we enter the following

ORDER

And now, November 9, 1990, defendant’s motion for suppression is granted.

       This is in reference to Barry L. Smith, Esquire, counsel for defendant.


author: SCOTT, J.,

text:
    Mease v. Pennsylvania State Police

      Joanne W. Rathgeber, for plaintiff.

      Alton G. Grube, deputy attorney generalfor Pennsylvania State Police, Teodoro Huertas and Jacqueline G. Butler.
    December 13, 1990
   SCOTT, J.,

Melodie Mease, in her individual capacity as a plaintiff, appeals our order of October 31, 1990 to the Superior Court, sustaining the preliminary objections of defendants.

Melodie Mease, as the administratrix of the estate of Ernest Carl Mease Jr., deceased, and on her own behalf, filed a complaint against the Commonwealth of Pennsylvania, the Pennsylvania State Police, Trooper Teodoro Huertas and Trooper Jacqueline G. Butler as a result of an incident that took place on August 5, 1988. While attempting to apprehend a suspected felon on a bench warrant, defendant Huertas’ gun discharged and plaintiff’s decedent was shot and killed behind Quakertown Farmer’s Market. Count I of plaintiff’s complaint is entitled wrongful death and count II is entitled survival action. The damages clause of the complaint requests four types of damages, which include not only survival and wrongful death damages, but also compensatory damages for plaintiff Mease, in her own right, and attorney’s fees, interest and costs.

Defendant, the Commonwealth of Pennsylvania, filed preliminary objections to plaintiff’s complaint asserting that Melodie Mease, in her own right, is not a proper party plaintiff and requesting the court to dismiss Melodie Mease from the action. Additionally, defendants assert that the complaint fails to state a cause of action for a claim against defendants for fees and, accordingly, the request for attorney’s fees should be stricken.

Our order of October 31, 1990 sustained the preliminary objections and dismissed Melodie Mease, in her own right, as a plaintiff in this action. Thereafter, the plaintiff instituted this appeal.

The issue in this case is controlled by the precedent set in Slaseman v. Myers, 309 Pa. Super. 537, 455 A.2d 1213 (1983) and reiterated in Linebaugh v. Lehr, 351 Pa. Super. 135, 505 A.2d 303 (1986).

In Slaseman, the decedent was killed when the motorcycle he was riding was struck by the defendant’s automobile. The court in Slaseman ruled that under the wrongful death act the widow or family is entitled to compensation for the loss of the contrir butions decedent would have made to such items as food, clothing, medical care, education, entertainment, gifts and recreation. The widow is also entitled to the pecuniary value of the services, society and comfort she would have received from the decedent. Slaseman, citing Spanfer v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 485, 153 A.2d 490, 492 (1959).

In Linebaugh v. Lehr, 351 Pa. Super. 135, 505 A.2d 303 (1986), the decedent was killed when the bicycle on which he was riding was hit by an automobile driven by the decedent. The issue in Lehr was whether the decedent’s widow had a separate cause of action for loss of consortium in addition to her right to recover for wrongful death. The court held that no separate cause of action exists for loss of consortium if a suit has been brought for wrongful death. It is clear, therefore, that to allow a surviving spouse to maintain a separate cause of action for loss of consortium in addition to the action brought on behalf of the deceased spouse under the wrongful death action would permit a double recovery for the same death.

Accordingly, in the instant case, the surviving spouse’s additional claim for loss of consortium was dismissed.


author: KUHN, J.,

text:
    Vasile v. Conley

      Peter E. Baer, for plaintiff.

      Stephen K. Portko, for defendant.

      William E. Naugle, in propria persona.
    December 7, 1990
   KUHN, J.,

Plaintiff filed a complaint against Robert H. Conley, d/b/a York Springs Auto Auction, and William E. Naugle, d/b/a Naugle Auto & Trucking, alleging violation of Pennsylvania and federal statutes regarding disclosure of accurate odometer readings in the transfer of used cars. The complaint states that on February 26, 1990, plaintiff purchased a 1980 Volkswagen at the York Springs Auto Auction. The car was owned by William E. Naugle. York Springs Auto Auction allegedly acted as agent for the seller in the sale and transfer of title to plaintiff.

On an auction sales form, Naugle listed the odometer reading as 45,715 miles in excess of the vehicle’s mechanical limits and as 45,715 on the application for assignment of title. The mechanical limits of the vehicle’s odometer is 999,999 miles. As a result of the discrepancy, the Commonwealth would not issue plaintiff a title for the vehicle.

Defendant, Robert H. Conley, filed preliminary objections in the nature of a demurrer and for a more specific pleading. Essentially, Conley argues that as auctioneer he has no responsibility under the odometer disclosure statutes.

When considering preliminary objections in the nature of a demurrer, the court must accept as true all well-pled facts in the complaint, as well as all inferences reasonably deducible therefrom, and only sustain the objection when the case is clear and free of doubt. Harner v. The Gettysburg Times, 32 Adams L.J. 7, 7-8 (1990).

Title 75 Pa.C.S. §7134 requires a transferor of a motor vehicle to furnish a transferee a written statement containing the odometer reading at the time of transfer. One who, with the intent to defraud, violates this provision is civilly liable. 75 Pa.C.S. §7138(a). A “transferor” is one “who transfers his ownership in a motor vehicle by sale. . .”75 Pa.C.S. §7131.

The documents of record clearly show that Nau-gle was the “transferor” and not Conley. Liability under the statute is imposed only upon the transfe-ror. Therefore, the demurrer will be granted as to alleged violation of the Pennsylvania legislation.4

The Motor Vehicle Information and Cost Savings Act, 15 U.S.C. §1981 et seq., also provides odometer disclosure requirements. Pursuant to 15 U.S.C. §1988 regulations were developed requiring a trans-feror to give written disclosure of odometer information to a transferee in connection with the transfer of ownership of a motor vehicle. Those regulations are set forth in 49 C.F.R. §580.1 et seq. Therein “transferor” is “any person who transfers his ownership or any person who, as agent, transfers the ownership of another, in a motor vehicle by sale. . .” 49 C.F.R. §580.3. Civil liability arises for any person who, with the intent to defraud, violates the disclosure requirements. Basically, a transferor is required to disclose the odometer reading at the time of transfer of ownership. 49 C.F.R. §580.5.

The obvious difference between the Pennsylvania and federal legislation is the inclusion of “agent” within the definition of “transferor,” otherwise the cause of action under the federal statute would be resolved in the same manner as the cause of action under the Pennsylvania statute. Plaintiff alleges that Conley acted as “agent” for Naugle in the sale and transfer of title. Therefore, it would be inappropriate to sustain a demurrer at this time with that factual issue to be resolved.4

Conley argues, and we agree, that an auctioneer who did not own the vehicle is not a transferor under the regulations and, therefore, not responsible for non-disclosure. Industrial Indent. v. Arena Auto Auction, 638 F.Supp. 1030 (D. Minn. 1986). While the documentation of record suggests that Conley was an auctioneer and not plaintiffs “agent,” in ruling upon a demurrer the court must resolve all inferences in favor of the plaintiff. The complaint having described Conley as Naugle’s agent we are inclined to deny the demurrer so a better factual background may be developed.

However, liability only arises under 15 U.S.C. §1989 when the disclosure requirements are violated with the intent to defraud. Pa.R.C.P. 1019(b) requires that fraud be pled with particularity. The complaint sub judice is substantially deficient in this regard.

ORDER OF COURT

And now, December 7, 1990, the demurrer of defendant, Robert H. Conley, d/b/a York Springs Auto Auction, is granted as to relief being sought under 75 Pa.C.S. §§7134 and 7138(a) but denied as to the relief being sought under 15 U.S.C. §1981 et seq. The motion for more specific pleading is granted.

Plaintiff is granted 20 days from date of mailing of this order to file an amended complaint.

      . Defendant has not raised the issue of exemption under 49 C.F.R. §580.6, therefore, we will not address that point; however, we note that a transferor is not required to disclose the odometer mileage of a vehicle which is 10 years old or older. This 1980 Volkswagen was sold February 26, 1990.

      . Plaintiff’s brief contains numerous factual allegations not contained in the complaint which are, therefore, ignored by this court.

      . Without having to rule upon the significance of the following language, we note that the sales form provides in conspicuous print that “York Springs Auto Auction assumes no responsibility nor guarantees the accuracy of odometer reading on any consigned vehicles.”