text:
    Commonwealth v. Smith

      Gerald A. Lord, assistant district attorney, for the Commonwealth.

      Daniel M. Fennick, for defendant.
    February 1, 1991
   HORN, J.,

In this case, defendant was the driver of a Ford Bronco which was involved in an accident at the intersection of Route 30 and Roths Church Road in Jackson Township, York County, Pennsylvania.

This matter initially came before the court on defendant’s iomnibus pretrial motion seeking to suppress evidence relating to the arrest of defendant on the theory that the police officer did not have probable cause to require defendant to submit to a blood alcohol test which revealed a blood alcohol level of 0.232 percent.

Defendant offered the testimony of Dr. Lawrence Guzzardi, a board-certified specialist in emergency medicine and toxicology. Doctor Guzzardi testified that ethyl alcohol has no odor and that any odor from the ingestion of alcoholic beverages arises from the metabolism of grain or hops. The testimony further revealed that near-beer or no-beer such as O’Doules, while having the flavor of hops, does not have an alcohol content. The doctor further testified that a person suffering from head injuries could have slurred speech or an unsteady gait.

The police officer in this case indicated that defendant had slowed and slurred speech, that his eyes were glassy and that he stated to her that he was not injured; however, there was blood coming from his nose. The police officer detected the odor of alcohol, but did not administer field tests because of the possibility of the defendant being injured.

Based upon the totality of the police officer’s observation, she made a determination that he was under the influence of alcohol, placed him under arrest and requested that he submit to a blood test at the York Hospital which he voluntarily agreed to do.

Based upon the totality of the evidence with which the police officer was confronted, it is the opinion of the court that the police officer had probable cause to arrest defendant and to request that he submit to a blood alcohol test; therefore, defendant’s motion to suppress the evidence obtained in this case is refused.

The second issue that arose in the course of this proceeding occurred because defendant had also been arrested for having made a left-hand turn into the lane of travel of Thomas Bechtel causing the accident. A summary citation was issued for violating section 3322 of the Motor Vehicle Code to which the defendant pled guilty on August 18, 1990, and paid a fine.

The defense at the suppression hearing asked the court to dismiss the driving while under the influence prosecution on the grounds of double jeopardy because of the recent decision rendered by the United States Supreme Court in the case of Grady v. Corbin, _ U.S. _, 110 S.Ct. 2084, 109 L.Ed. 2d 548 (1990).

Because the defense has raised a constitutional issue, we shall consider the argument at this time without the necessity of filing a formal petition or motion to dismiss on the grounds of double jeopardy. An analysis of Grady, supra, will indicate that the decision does not significantly change the law in the area of double jeopardy. In Grady, the defendant pled guilty to three motor vehicle violations, namely (1) operating a motor vehicle on a highway in an intoxicated condition, (2) failing to keep to the right of the median and (3) driving at a speed too fast for the weather and road conditions. Later, the county court indicted defendant with reckless manslaughter, criminally negligent homicide and third-degree reckless assault. The prosecutor indicated by bill of particulars that the state would rely on the three violations to which defendant had already pled guilty as the basis for proving the new charges. A reading of Grady, supra, reveals that in order to prove the new misdemeanor charges of reckless manslaughter, criminally negligent homicide or third-degree reckless assault, all of the elements of any one of the original motor vehicle charges to which the defendant had already pled guilty would have to be proven; therefore, one of the complete offenses to which the defendant had already pled guilty was essential in order to prove the new misdemeanor charge.

Justice Brennan, in deciding Grady, supra, held that if to establish an essential element of an offense subsequently charged, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted, the double jeopardy clause would bar the subsequent prosecution.

Grady, supra, clearly provides:

“[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an ‘actual evidence’ or ‘same evidence’ test. The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. See Dowling v. United States, 493 U.S. _ (1990).”

A close reading of Justice Brennan’s decision reveals that if in order to establish an element of the second offense, one would have to prove in its entirety the conduct or all elements of an offense for which the defendant has already been prosecuted or to which he plead guilty, double jeopardy attaches.

Applying this test to the case before the court, the mere act of driving in and of itself is not an offense per se for which a person can be prosecuted. In the case before this court, the element that is essential to be established in order to prove the driving while under the influence is defendant’s intoxication, which has no relationship whatsoever to the offense to which he pled guilty, which is turning left at an intersection and failing to yield the right-of-way. A person can clearly be guilty of failing to yield the right-of-way and not be guilty of driving while under the influence of intoxicants. Because the proof of all elements of the summary offense is not required in order to prove the offense presently charged, we hold that the two offenses in this case are separate and distinct and that the elements of the summary offense need not necessarily be established in order to prove the driving while under the influence charge; therefore, the prosecution established in the Grady, supra, case is not present in the instant case.

Numerous facts go into the proof of making a left turn and failing to yield the right-of-way. Clearly, those elements are not necessary to prove the offense of driving while under the influence. One need not prove making a left turn and failing to yield to prove driving while under the influence. A person can violate the provision of the left-turn offense section 3322 and not be under the influence of alcohol. The mere fact that each statute requires the person to drive a motor vehicle is of no consequence.

Proof of either offense is not an integral element of the other; therefore, the prohibition suggested in Illinois v. Vitale, 447 U.S. 410 (1980), and decided by Grady, supra, is not present in the instant case.

Our Superior Court interpreting Grady, supra, in Commonwealth v. Labelle, 382 Pa. Super. 356, 579 A.2d 1315 (1990), observed:

“However, because appellee entered pleas of guilty to the summary offenses, the record does not disclose the nature of the conduct upon which the Commonwealth would have relied to prove the charges against appellee. Unlike the record before the Supreme Court in Grady v. Corbin, supra, in which the actions upon which the state intended to base the subsequent prosecution were revealed in terms specific enough to enable the court to determine that respondent had already been prosecuted for the same conduct, the record in the case before us is devoid of any evidence clearly establishing the identity of conduct that invokes the Double Jeopardy Clause.
“Therefore, although appellee asserts that the DUI prosecution is barred by the Double Jeopardy Clause, he has failed to demonstrate, either to the trial court or to this court, that his conviction on the reckless driving charge was necessarily based on either his blood alcohol level or the effect of alcohol on his ability to drive.”

The plea-trial sequence approved by the Superior Court in Labelle is not violated in the instant case.

Accordingly, defendant’s motion to dismiss on the grounds of double jeopardy is refused as well as the motion to suppress.

The clerk of courts will give notice of the entry of . this order as required by law.


source: Caselaw Access Project

author: MILLER, J.,

license: Public Domain

text:
    West Manchester Township v. Bair Community Fire Department

      John C. Herrold, for petitioner.

      D. Michael Craley, for respondents.
    December 27, 1990
   MILLER, J.,

This matter comes before the court on a motion for summary judgment filed by respondents. For the reasons set forth herein, we grant respondents’ motion and enter judgment in their favor.

Bair Community Fire Company, respondent, was granted a charter as a non-profit corporation on October 23, 1933, pursuant to a decree of the Court of Common Pleas of York County, Pennsylvania. Paragraph two of that charter reads as follows:

“The purpose for which said corporation is formed is the controlling and extinguishing of fires.”

Paragraph three of the charter reads as follows:

“The place where the business of said corporation is to be transacted is the Village of Bair, in West Manchester Township, York County, Pennsylvania.”

Respondent has operated as a volunteer fire company from the time of its incorporation to the present time. The fire station operated by Bair is in the southwest corner of West Manchester Township, approximately 1,000 feet from the West Manchester Township-Jackson Township municipal boundary and about 2,500 feet from the West Manchester Township-North Codorus Township municipal boundary.

There are three volunteer fire companies within the municipal boundaries of West Manchester Township. Those companies are Lincolnway Fire Company No. 1, Shiloh Fire Company, and Bair Community Fire Company. Prior to January 1,1989, the three fire companies served certain defined areas of West Manchester Township. Bair also responded to fire calls outside of West Manchester Township when requested by other municipalities and fire companies. It is uncertain whether the intermunicipality activity was on a first-call basis.

By ordinance effective January 1, 1989, West Manchester Township enacted an ordinance, which provided in section 5 thereof:

“The authority of Bair to fight fires or to provide fire protection within the confines of West Manchester Township is revoked upon the effective date of this ordinance.” West Manchester Ordinance no. 88-10.

Since that time, Bair has abided by the terms of the ordinance and has not responded to any fire calls within West Manchester Township. However, it has continued to respond to some calls outside West Manchester Township, and has continued to hold fund raising and social activities. In conjunction with its action prohibiting Bair from fighting fires within West Manchester Township, the township cut off the funding which in the past had gone to Bair. During the year 1989, Bair sold some outdated equipment to raise funds, and borrowed the sum of $2,800 from a local bank, which loan was secured by an encumbrance on one of its active pieces of fire equipment. During the year 1989, Bair responded to 12 fire calls, none within West Manchester Township. Bair has no written mutual aid agreements with any other fire companies or municipalities, but does have verbal agreements with certain other fire companies in adjoining municipalities. Since West Manchester Township revoked Bair’s right to fight fires within the township, the members no longer are covered under that municipality’s fireman-related workmen’s compensation policy. In order to maintain its equipment and building, Bair has been drawing upon its checking and/or savings accounts, and has solicited the public in the Bair area for contributions.

On March 2, 1989, West Manchester Township filed a petition in the Orphans’ Court Division of this court, seeking injunctive relief and an order declaring that the charitable purpose for which Bair had been formed has become impossible of fulfillment, and seeking distribution of the assets of the charitable corporation. Bair filed an answer and new matter on March 27, 1989 to which West Manchester Township filed a reply on May 10, 1989. Depositions and affidavits were filed in support of the parties’ positions, and briefs in support of and in opposition to the motion for summary judgment were filed by the parties.

Volunteer fire companies are an integral and necessary part of American society. From colonial times when Benjamin Franklin organized a volunteer company in Philadelphia, men, and, more recently women, have given of their time and efforts to protect the lives and property of their neighbors by banding together to fight fires and to perform other emergency services. Advances in communications, highways, equipment and technology, have made it easier for fire companies to cover a larger area than they could have covered only one generation ago. When there are a number of volunteer fire companies within a municipality, as is the case here, rivalries among the companies are not unheard of, nor is it uncommon for a municipality such as West Manchester Township to concentrate its resources in one or more of the volunteer fire companies within its municipal boundaries. To a degree, then, Bair Community Fire Company and the citizens of West Manchester Township living in the vicinity of Bair, are caught in the middle of a battle which includes political as well as fiscal and administrative considerations.

Rule 3.1 of the Supreme Court Orphans’ Court Rules and Pa.R.C.P. 1035 allow summary judgment to be granted in Orphans’ Court matters when the pleadings, depositions and affidavits considered together reveal that there is no genuine issue of any material fact, and that the moving party is entitled to judgment as a matter of law.

West Manchester Township first asks the court to enjoin Bair from diverting the assets of the charitable corporation from the purposes for which they were donated. It is well settled law in this Commonwealth that volunteer fire companies are incorporated for charitable purposes and therefore property owned by a volunteer fire company constitutes a charitable trust, with the officers and directors of the company functioning as trustees of that trust. Bethlehem Borough v. Perseverance Fire Co., 81 Pa. 445 (1876); Lacy Park Volunteer Fire Company No. 1 v. Board of Supervisors, 27 Pa. Commw. 54, 365 A.2d 880 (1976).

The issue of the township’s standing was not raised, and we conclude, for the purposes of this proceeding, that West Manchester Township has the general power to provide for fire protection within the township. This general regulatory power is sufficient to afford standing to seek the relief asserted by the township.

The petition avers in a number of paragraphs that West Manchester Township “believes” that respondents “intend to sell or otherwise dispose of the assets of the respondent” without obtaining court approval or specifying the disposition of the property as required by law. Our review of the pleadings, affidavits, and depositions show no factual basis for this allegation. It is true that certain equipment has been sold by Bair during the past year and that Bair has borrowed funds on the security of its fire fighting equipment. However, the law is clear that a charitable corporation may in good faith sell or dispose of trust assets without judicial supervision or approval so long as the proceeds of the sale are used either for purposes consistent with the corporations’s charter, or for the purchase of new fire apparatus. Bethlehem Borough v. Perseverance Fire Co., supra; Jim Thorpe Borough v. Hoffman, 12 D.&C. 3d 296 (1979). There is nothing in the record which would in any way indicate that Bair is improperly diverting either its assets or the proceeds of those assets from the charitable purpose or purposes from which the corporation was chartered, nor is there anything in the record which would move the court to enjoin Bair from transferring any of its assets without first having obtained court approval and specifying the disposition of the property. Of course, if in the future it would appear that Bair was disposing of its assets in a manner which required court approval, or began to divert those assets from the charitable purposes of the corporation, then the court would exercise its authority to prohibit such a diversion or transfer. At this point, however, we are satisfied that the record does not raise any material issues which would justify the court in granting injunctive relief.

West Manchester Township also asks the court to enjoin Bair from providing firefighting services outside of the Village of Bair and outside the confines of West Manchester Township. We see nothing in the charter of the fire company that would justify the granting of such an injunction at this time. The purpose for which the corporation was originally formed was the controlling and extinguishing of fires. Although in the next paragraph, the place of business of the corporation was stated to be the Village of Bair, in West Manchester Township, York County, Pennsylvania, this in our opinion does not restrict the fire company to fighting fires solely within that village. In fact, until January 1, 1989, Bair routinely and on a regular basis fought fires within a significant portion of West Manchester Township outside of the Village of Bair. This was done with the approval of and with funding provided by West Manchester Township. Upon the state of the record, we will refuse the injunctive relief sought by the township in this regard.

The township asks the court to enter an order declaring the charitable purpose for which Bair was formed to have become impossible of fulfillment and asks further that the assets of Bair be distributed in a manner as nearly as possible to fulfill the stated purpose of the charitable corporation. The depositions of the president and the fire chief of Bair Community Fire Company show that the corporation stands ready and willing to provide firefighting services as and when requested. The fact that West Manchester Township has forbidden Bair to fight fires within the township does not mean, as a matter of law, that the charitable purpose for which Bair was incorporated has become impossible of fulfillment. We recognize that the political realities of the. situation may make it difficult for Bair to function as an operating fire company, at least within West Manchester Township. But that is not to say that it is impossible for Bair to function in some other manner consistent with the charter, or to offer firefighting services in adjoining municipalities if requested. In coming to this conclusion, we refer to the factual situation in the case of Lacey Park, supra. There, Lacey Park’s equipment was apparently lying completely idle, unlike the present situation where Bair’s equipment is being used to some degree. In Lacey Park, the Commonwealth Court reversed a decree nisi which would have effectively terminated the trust and required the transfer of assets to the municipality, holding in part:

“The appellant non-profit corporation owns the equipment and the real estate and until such time as the members decide the future of the corporation and the property, it is premature for the lower court to consider the distribution of the property.” Lacey Park, supra.

We conclude, from our examination of the record, which includes the pleadings, affidavits and depositions, that no genuine issue of material fact is presented, and that there is no. basis for the court to issue injunctive relief. We are satisfied that respondents are entitled to summary judgment as a matter of law. Accordingly, we enter the following

ORDER AND DECREE

And now, December 27, 1990, we (1) refuse the injunctive relief sought by petitioner, (2) enter summary judgment in favor of respondents and against petitioner and (3) dismiss the petition.


author: ACKERMAN, J.,

text:
    Bennett v. Lindberg

      Mark S. Galper, for plaintiff.

      Jeffrey W Whiteko, for defendants.
    November 6, 1990
   ACKERMAN, J.,

Is plaintiff, Frank J. Bennett, entitled to an accounting of partnership assets as of December 31, 1986?

FINDINGS OF FACT

(1) In January 1985, plaintiff and defendants formed a partnership known as Fayette Interiors Systems. The partnership was in the business of performing interior and exterior finishing in the construction of buildings and homes, including work with stucco, plaster and dry wall, and similar type of construction work, as well as some general contracting.

(2) At no time either prior to or during the existence of the partnership did the partners enter into a written partnership agreement. Instead, the parties acted pursuant to an oral agreement and oral understanding as to the nature and terms of their partnership.

(3) It was agreed by and between the parties that they would each have a one-third ownership interest in the partnership, and that each of them would be compensated equally during the operation of the partnership business.

(4) The partnership operated for period of approximately two years during which time the partnership contracted to perform various jobs and was paid for those jobs.

(5) During the operation of the partnership, the partnership books and records were maintained by defendant Thomas C. Shetterly, who maintained the partnership checking account with the assistance of his wife, who was at various times an employee of the partnership.

(6) The checking account books and records were kept at the home of defendant Thomas C. Shetterly. Generally, either Thomas Shetterly or his wife would write out checks from the partnership account to pay for bills and invoices for which the partnership was liable and also generally made out the checks to each of the partners for their compensation and for reimbursement for amounts advanced by the partners in the operation of the partnership business.

(7) During the existence of the partnership, the partners maintained a checking account at Gallatin National Bank, account no. 34-71094, in the name of Fayette Interiors Systems, which account was opened on January 28, 1985.

(8) During the existence and operation of the partnership, the partnership acquired various tools, supplies, equipment, vehicles and other assets which were assets of the partnership.

(9) In November 1986, plaintiff notified defendants that he wished to cease his relationship with the partnership, and that he would continue to work with the partnership and remain as a partner until December 31, 1986, to assist the partnership in completing various jobs which had been awarded to the partnership. Defendants agreed and plaintiff continued as a partner and to work for the partnership through December 31, 1986.

(10) As of December 31, 1986, the partnership had assets and accounts receivable, including, but not limited to the partnership checking account; a 1986 Ford F-150 truck which was half-owned by the partnership and half-owned by defendant Jay A. Lindberg; a 1986 Ford truck, which was owned by the partnership and which was purchased from Davies and Tregembo Ford Inc. in November 1986; various and miscellaneous tools and equipment which had been purchased by the partnership with partnership funds or which had been donated to the partnership at various times by the partners; various accounts receivables for amounts due and owing to the partnership by various persons or entities for work performed by Fayette Interiors Systems between January 1, 1985, and December 31, 1986, for which the partnership had not been paid or had not been paid in full.

(11) The business of Fayette Interiors Systems continued to be operated by the defendants after December 31, 1986, who continued to receive funds for work performed prior to December 31, 1986, and continued to use partnership assets to operate the business.

(12) Defendants have not rendered an accounting to plaintiff nor has there been a liquidation of partnership assets or a distribution of profits, nor have there been any other acts taken to wind up the affairs of the partnership, or to dissolve the partnership.

CONCLUSIONS OF LAW

(1) The partnership known as Fayette Interiors Systems was dissolved as of December 31, 1986, by operation of law, when plaintiff left the business.

(2) Plaintiff is entitled to an accounting from defendants with regard to partnership assets, debts and liabilities.

DISCUSSION

The dissolution of partnerships and the right of a partner to an accounting are governed by statute. The Partnership Code provides that dissolution will occur when any or all of the partners express a will to dissolve the partnership. 15 Pa.C.S. §8353. In fact, dissolution is defined as “the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on, as distinguished from the winding up, of the business.” 15 Pa.C.S. §8351. This partnership, which operated as Fayette Interior Systems, was dissolved December 31, 1986, when the plaintiff left the business.

Further, the Partnership Code provides:

“The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business at the date of dissolution in the absence of any agreement to the contrary.” 15 Pa.C.S. §8365.

There being no proof of any agreement to the contrary, plaintiff’s right to an accounting is absolute. Defendants’ argument that plaintiff has lost his right to an accounting because of his poor performance as a partner, or because he did not seek to enforce the right earlier, is not supported by case law or the code.

ORDER

And now, November 6, 1990, pursuant to Pennsylvania Rule of Civil Procedure 1530(b), defendants are directed to file an account with the court by January 15, 1991.


author:
BROWN, Member,
     NIX, Chief Justice

text:
    In re Anonymous No. 88 D.B. 86
    Disciplinary Board Docket no. 88 D.B. 86.
    September 25, 1987
   To the Honorable Chief Justice and Justices of the Supreme Court:

BROWN, Member,

Pursuant to the Pennsylvania Rules of Disciplinary Enforcement and the order of the Supreme Court of Pennsylvania, the following report is hereby filed by the Disciplinary Board of the Supreme Court.

HISTORY OF PROCEEDINGS

By order dated May 21, 1987, His Honor, Robert N.C. Nix Jr., Chief Justice of the Commonwealth of Pennsylvania, transferred respondent, [ ], to “inactive status pursuant to Rule 301(e) Pa.R.D.E. for an indefinite period and until further order of the court.” The Disciplinary Board was directed to appoint a qualified medical expert to examine respondent and report his/her findings and diagnosis to the board on the issue of whether or not respondent is suffering from a disabling condition which incapacitates him from continuing the practice of law and/or renders him incapable of preparing an adequate defense to the allegations of professional misconduct pending against him in disciplinary proceedings docketed at 88 D.B. 86. The Board was directed to prepare a report and recommendation to the court following receipt of the examining physician’s report. Attached hereto as exhibit “A” is a copy of the court’s order.

The chairman of the Disciplinary Board, James C. Schwartzman, Esq., by order dated June 5, 1987, appointed [A], [ ], as the examining physician and appointed the undersigned as reviewing member for the board. See exhibit “B” attached hereto.

[A] examined respondent and submitted a report dated June 24, 1987 which, inter alia, concluded that he did “not find any substantiation for the respondent’s claim that his chronic medical problems preclude him from preparing an adequate defense to allegation.” He also did “not find him disabled to perform part-time sedentary work.” However, he did note that his conclusions were predicated upon an incomplete data base as records relating to respondent’s cardiac condition were not available to him. See exhibit “C” attached hereto. Counsel was given the opportunity to review the report and file appropriate motions. Counsel for respondent replied by noting that on June 30, 1987, respondent was confined to the intensive care unit of [B] Hospital, [ ] for a heart condition and had been confined there on prior occasions. Inasmuch as the records of these confinements were not made available to [A], respondent requested a hearing.

By agreement of counsel, the reviewing member entered an order directing respondent’s counsel to secure the subsequent and current records of respondent’s hospitalization and any other records which might relate upon the issue and submit same to [A]. Counsel for respondent promptly complied and [A] issued report in which he concluded that because of respondent’s precarious cardiac condition, respondent is currently medically unable to participate in his defense and is precluded from the practice of law. See exhibit “D” attached hereto.

This information was shared with all counsel and by letter dated August 12, 1987, Office of Disciplinary Counsel concurred that “the Board should report to the court, in response to its May 21, 1987 order, that [respondent]: (1) is incapacitated from continuing to practice law by reason of illness; and (2) should be continued on inactive status until further order of the court.” Attached as exhibit “E” is Disciplinary Counsel’s letter of concurrence.

RECOMMENDATION

By virtue of the foregoing, it is respectfully submitted that the board recommends that the court continue respondent on inactive status until further order of court.

ORDER

And now, March 31, 1988, upon consideration of the report and recommendation of the Disciplinary Board dated September 25, 1987, it is hereby ordered that respondent, [ ], shall remain on inactive status pursuant to Rule 301(e), Pa.R.D.E., for an indefinite period and until further order of this court. The disciplinary proceedings (file no. [ ] ) against the respondent, docketed at no. 88 D.B. 86, are to be held in abeyance, except for the perpetuation of testimony.

Exhibit A

ORDER

NIX, Chief Justice

And now, May 21, 1987, upon consideration of the certificate of the respondent, [ ], that he is suffering from disabling conditions which incapacitate him from continuing the practice of law, and make it impossible for him to prepare an adequate defense to allegations of professional misconduct brought against him in connection with Disciplinary Board file [ ], it is hereby ordered that:

(1) Respondent, [ ], is immediately transferred to inactive status pursuant to Rule 301(e), Pa.R.D.E. for an indefinite period and until further order of this court.

(2) The Disciplinary Board appoint a qualified medical expert or experts as the board considers necessary to examine the respondent and report their findings and diagnoses to the board.

(3) The respondent submit himself to the appointed medical expert or experts at the times and places designated by said experts or the Disciplinary Board for an examination or examinations to provide a basis for determining whether respondent is incapacitated from continuing to practice law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants.

(4) The board shall prepare a report and recommendation to the court following examination.

(5) The disciplinary proceedings on the petition for discipline against the respondent docketed at 88 D.B. 86 are to be held in abeyance pending further definitive action pursuant to this order, except for the perpetuation of testimony.

Exhibit B

ORDER

And now, June 5, 1987, pursuant to the order of the Supreme Court of Pennsylvania dated May 21, 1987:

(A) [A], M.D., [ ], is hereby appointed to examine [respondent] to provide an up-to-date evaluation of respondent’s fitness to practice law. Such evaluation should consider whether the respondent “is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants. . .” (Rule 301(b), Pa.R.D.E.) and ability to prepare an adequate defense to charges contained in Disciplinary Board file no. [ ]. A report of his findings shall be submitted by July 1, 1987 to Byrd R. Brown, Esq., 515 Court Place, Pittsburgh, Pennsylvania 15219, a member of the Disciplinary Board, appointed as a reviewing member for the purpose of initially receiving such report.

(B) [Respondent] is directed to make himself available for examination by [A] at his office at 1:30 p.m. on June 23, 1987 and on such other dates as required by [A].

Exhibit C

Re: [Respondent]

To Whom It May Concern:

Enclosed is my detailed history and physical examination of [respondent] at your request. Although he has several chronic medical conditions, I feel he is quite capable of preparing an adequate defense, and I see no cause for the designation of disability for his sedentary type work. He currently attends his office between nine and 16 hours per week and continues to conduct a limited practice, despite his medical conditions.

I do not find any substantiation for the respondent’s claim that his chronic medical problems preclude him from preparing an adequate defense to allegation. I also do not find him disabled to perform part-time sedentary work.

Sincerely, [A], M.D.

General History:

[Respondent]

Age: 78

Drugs: Aldomet; Pilocar Eyedrops

Chief Complaint:

[Respondent] is a 78-year-old lawyer referred to my office by the Disciplinary Board of the Supreme Court of Pennsylvania for evaluation of his medical condition in light of his claim of disability to work, and to adequately prepare defense against allegations brought before the Disciplinary Board.

[Respondent’s] official statement of disability states that his physical condition makes it impossible to prepare adequate defense and asserts that he is incapacitated for the practice of law. Statements from his prior physicians include congestive heart failure, previous severe cervical radiculopathy with residual pain and muscle atrophy and weakness. The letter from Doctor [C] also includes the mention of frequent necessity for narcotics required by constant pain and that the pain and narcotics impaired his ability to concentrate. The statement by Doctor [D] alludes to cardiac disability primarily. There are no records available to me on the particulars of his cardiac condition, specifically no discharge summary or records from his [B] Hospital admission one year ago during which he had treatment for congestive heart failure and a pacemaker. There are physicians’ letters substantiating that he has had at least two prior myocardial infarctions (a letter from his neurosurgeon) one of which occurred immediately after right hemicolectomy for bowel cancer in 1986. He also had an in-hospital consultation in November of 1985 which suggested angina precipitated by the patient’s abrupt discontinuation of beta blockers.

When asked at this interview what prevents him from preparing a defense and from continuing his practice, he states that he cannot sit for long periods because of agitation and loosing [sic] his trend of thought and because of decreased memory. He has noted increased forgetfulness in recent months and years. Secondly, he states he is in a state of constant suffering with pains in several areas including the calves, feet, shoulders, and hands, as well as frequent headaches. He also states that his ambulation is limited to about one block on the level at which point he becomes short of breath. He has occasional left lower interior chest discomfort which is promptly relieved with nitroglycerin and claims to be taking up to 10 nitroglycerin per week. It should be noted that he is not currently taking an anti-anginal medications on a regular basis, and this condition is somewhat incongruous.

It should be noted that despite his several medical problems, and considering his limited mobility, he spends approximately three to four days per week in the office for three to four hours at a time for a total of nine to 16 hours per week on the average. He states “I don’t get much work done.” His last appearance in court was April of 1987. He states that he is only able to handle the simplest of cases and work at his job but does continue to run a limited practice.

In his activities of daily living he is independent in ambulation and in self care for the most part. He states that his wife must help him button and unbutton his shirts at certain times because of diminished fine motor control in his hands. He states that his writing has somewhat deteriorated but that his handwriting is still legible.

Although he is on Aldomet three times daily and Halcion for sleep, he states that he discontinued Fiorinal several weeks ago but is very vague as to the date. At one time he said he took up to three Fiorinal per day and later he stated that his same use of Fiorinal was very occasional. He denied any narcotic analgesic need whatsoever and denied ever taking any in the past. When asked about the information contained in Doctor [C’s] letter of his frequent narcotic analgesic requirement, he states that he may had some of these in the past with a Codeine-containing compound but that this recollection is very vague and he claims to have had none of these kinds of medications in the past year or so.

The electrocardiogram shows biventricular hypertrophy, normal sinus rhythm, and left axis deviation.

Problems:

(1) Cervical radiculopathy with muscle atrophy right hand.

(2) History of CHF, currently well compensated, not on medications.

(3) Hypertension — Treated

(4) Glaucoma — Treated

(5) Generalized bradykinegia. This may be his slowness of movement which was, maybe due to his advanced age and generalized weakness and frailty. I don’t see any findings for Parkinson’s disease. There may be also an element of secondary gain.

(7) [sic] Incomplete data base, especially the cardiac records.

Although [respondent] has several serious medical problems, he is currently well compensated and stable. He has been well compensated and stable for the past year. I do not have any hard findings for dementia or overt psychiatric disease. He does have some somatic symptoms without unidentifiable organic pathology, especially referable to the legs. It is not clear to me whether his limitation of exertion is due to cardiac or pulmonary condition, but his cardiogram is grossly abnormal and it is quite conceivable that he is limited by chronic congestive heart failure. It is quite curious to me that he is not on any medications for congestive heart failure or angina even though his medical records state that he had both, and that he has been under good medical care.

Despite his medical illnesses, he continues to be able to conduct a limited law practice in some fashion. He seems mentally clear and is able to perform adequate abstract thought processes. His responses and judgments seem intact as far as can be ascertained during this interview. There are several inconsistencies in his medication history, the most glaring of which is his adamant denial of narcotic analgesics and one physician’s mention of chronic need of these medications.

Despite the patients stable chronic illnesses, he is functionally able to take a taxicab and go to his office to practice law in some limited fashion nine to 16 hours per week. In my judgment, he is fully capable and able to respond to the allegations before the Disciplinary Board. His current mental and physical state does not preclude him from preparing an adequate defense.

Because he denies any narcotic and because he claims to have discontinued chronic use of his Fiorinal, I do not have any reason to substantiate his claim of disability. His own continuation and conduct of limited law practice up to the current time seems to make his current claim of disability incredible and closely conjoined to the inappropriate claim of inability to prepare defense against charges.

Exhibit D

Re: [Respondent]

To Whom It May Concern:

I have reviewed the chart from [respondent’s] [B] Hospital admission September 20, 1986 and his recent readmission June 30, 1987. This clarifies that he has hypertensive cardiovascular disease including a prior episode of acute pulmonary edema and well-documented second degree (Mobitz type II) AV block requiring a pacemaker which was inserted September 22, 1986.

He had been well compensated clinically during the past several months, but on June 30 he became more short of breath due to fluid accumulation in the lungs from his chronic congestive heart failure.

Even though he improved up to his time of discharge July 6, 1987, his heart size remained enlarged and it is more clear now that he is in a more precarious cardiac situation than could be previously appreciated without the benefit of these records.

I, of course, have not had the opportunity to re-examine him, but certainly, as stated by Dr. [D], that as of July 7, 1987, he was in a medical condition which would preclude his continued legal practice. It is certainly true that within the next month, he should not return to work or to any stressful situations as these could precipitate yet another episode of heart failure. I would also judge from his records that he is currently medically unable to participate in his preparation of a legal defense in response to the allegations pending against him at the Disciplinary Board.

It is impossible to say whether he will continue to be unable to prepare a defense in the future, but I would say that these activities are certainly precluded within the next month at least.

Sincerely,

[A], M.D.

Exhibit E

Dear Mr. [ ]:

[A’s] report of July 27 is based upon his June 24 examination of [respondent], and review of records of the hospitalization in September of 1986, as well as the one beginning June 30, 1987, without subsequent examination by [A] since that last confinement.

[A’s] current assessment is that, because of his “precarious cardiac condition,” [respondent] is currently “medically unable” to participate in his defense, and is precluded from practice, in that he “should not return to work or to any stressful situation,” “within the next month. ”

Such assessment by the board-appointed examiner appears reasonably to confirm that [respondent] is currently “incapacitated from continuing to practice law by reason of . . . illness,” which was the issue raised by the Supreme Court order of May 21, 1987. Further, it also answers, at least for the time being, the additional question as to his ability to “prepare an adequate defense,” which issue was included in the board order of June 5.

Accordingly, it appears that the board should report to the court, in response to its May 21, 1987 order, that [respondent] (1) is incapacitated from continuing to practice law by reason of illness and (2) should be continued on inactive status until further order of the court.

Respectfully submitted,

[E], Assistant Disciplinary Counsel


author: MELLENBERG, J., and YOUNG, J.,

text:
    Commonwealth v. Curcio

      Jacqueline C. Paradis, assistant district attorney, for the Commonwealth.

      Aaron M. Matte, for defendant.
    January 29, 1991
   MELLENBERG, J., and YOUNG, J.,

Defendant, Ann Curcio, was charged by information filed September 30, 1987, with one count of endangering the welfare of a child in contravention of 18 Pa.C.S. §4304. Defendant proceeded to a jury trial before the Honorable Maxwell E. Davison on February 27, 1989. The jury returned a verdict of guilty on the charge of recklessly endangering the welfare of a child on March 2, 1989.

Defendant timely filed a motion in arrest of judgment and a motion for a new trial which are before this court. In support of defendant’s motion in arrest of judgment, defendant alleges that the evidence was insufficient to sustain a conviction, that the verdict was contrary to the evidence, that the verdict was contrary to the weight of the evidence, and that the verdict was contrary to the law. Of the foregoing allegations, the only one that is appropriate in support of a motion in arrest of judgment is the allegation that the evidence was insufficient to sustain a conviction. Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d 1140 (1987); app. den. 516 Pa. 640, 533 A.2d 712 (1987). The remaining allegations all properly support a motion for a new trial. Commonwealth v. Holmes, 315 Pa. Super. 256, 260, 461 A.2d 1268, 1271 (1983); see also, Commonwealth v. MacSherry, 371 Pa. Super. 164, 537 A.2d 871 (1988); Commonwealth v. Ashford, 227 Pa. Super. 351, 322 A.2d 722 (1974). Defense counsel withdrew his motion for new trial at oral argument and advanced only defendant’s motion in arrest of judgment. Thus, the only proper allegation of . error assigned by defendant in support of her motion in arrest of judgment is that the evidence was insufficient to support a conviction as the remaining assignments by defendant are all appropriately raised as grounds for a new trial. Therefore, the court is not required to address whether the verdict was contrary to the evidence, whether the verdict was contrary to the weight of the evidence, or whether the verdict was contrary to the law.

The sufficiency of evidence on a motion for arrest of judgment must be evaluated upon the entire trial record. All evidence must be read in light most favorable to the Commonwealth, and the Commonwealth is entitled to all reasonable inferences arising therefrom. Commonwealth v. Harrison, 290 Pa. Super. 389, 434 A.2d 808 (1981); Commonwealth v. Alverado, 333 Pa. Super. 63, 481 A.2d 1223 (1984).

The facts as established at trial are as follows. On April 28, 1987, at 8:23 p.m., 6-week-old Benjamin Curcio was pronounced dead at the Allentown General Hospital. (N.T. at 107.) Benjamin Curcio was the infant son of defendant, Ann Curcio, and her husband, Philip Curcio.

The infant’s body was examined by then deputy coroner Wayne Snyder while at the hospital. (N.T. at 181-2.) Deputy coroner Snyder testified that 16 bruises were visible on the baby’s body over the stomach, arms, and shoulder. (N.T. at 200.) In order to determine the facts and circumstances surrounding the case, the investigating police officer, Detective Sergeant Carl Balliet, interviewed the Curcios at the hospital. Detective Balliet testified that defendant could give no explanation for the occurrence of the. bruises at that initial interview. (N.T. at 188.)

At an interview later that same evening with Detective Balliet, defendant stated that about one week prior to the infant’s death defendant had noticed a cracking sound in the baby’s chest every time the child breathed. (N.T. at 202.) Defendant also related an incident to the detective in which she revealed that the baby had fallen off his father’s lap onto a carpeted floor. (N.T. at 202.) Defendant also told Detective Balliet that she had noticed her child throwing up a lot. (N.T. at 203.)

On April 29, 1987, Dr. Isidore Mihalakis, a forensic pathologist, conducted an autopsy of the infant. (N.T. at 101.) Dr. Mihalakis’ examination resulted in the finding of a bruise on the infant’s left forehead, bruises across the bridge of the nose and eyelids, two sets of bruises between the rib cage and navel, bruising on the infant’s left side, four sets of bruises between the navel and rib cage, bruising on the back of the left arm, two areas of bruising on the back of the left forearm, and a bruise on the back of the right arm. (N.T. at 111-5.) An internal examination of the infant revealed two separate and distinct skull fractures, a subdural hematoma, multiple rib fractures, and a mouth ulceration. (N.T. at 130-2, 145.)

Dr. Mihalakis concluded that the cause of death was an acute subdural hematoma due to a closed head injury caused by shaking or blunt impact to the skull and that the manner of death was homicide, the result of child abuse. (N.T. at 148-9.)

On May 1, 1987, Detective Balliet conducted a second interview with defendant. (N.T. at 205.) At this interview, defendant told Detective Balliet that she believed the baby was injured by her younger son approximately two and one-half weeks prior to the infant’s death. (N.T. at 206.) Defendant further stated that about three weeks prior to the infant’s death the infant did fall from his father’s lap approximately three and one-half feet. (N.T. at 207.) At this interview, defendant also stated that her husband became irritated when the infant cried or threw up; in order to deal with these type of situations, defendant stated that her husband would simply sit down and pray to the Lord. (N.T. at 209.)

On May 5, 1987, Detective Balliet conducted another interview with defendant. (N.T. at 214.) Defendant stated that she had seen her husband pinch Benjamin twice in anger and that she noticed different bruises on the face and stomach area. (N.T. at 214.) Defendant admitted she had seen her husband throw the baby onto a bed in anger and that her husband would cover the baby’s head with a blanket so that the carbon dioxide he was breathing would make the baby pass out. (N.T. at 214-6.) Defendant stated she had seen her husband throw the baby on the table from about two or three inches off the table. (N.T. at 216.) Also, defendant admitted she had seen her husband strike the baby’s face with a spoon in anger and admitted that she had seen her husband squeeze the baby’s stomach approximately twice a week to expel gas. (N.T. at 217-9.) Finally, in a written statement defendant noted that her husband couldn’t stand the baby’s crying and that her husband had told her, the last week before the infant’s death, he couldn’t handle the child anymore. (N.T. at 222.) Detective Balliet testified that the husband, Philip Curcio, was alone with the infant when the child sustained the life-ending injuries. (N.T. at 234.)

Defendant presented the testimony of two doctors who were affiliated with Sacred Heart Hospital. Dr. Kenneth Trescott testified that he first saw the baby at the time of birth on March 17, 1987, and everything appeared normal. (N.T. at 266.) Dr. Trescott testified that he saw the child again on April 7, 1987; the doctor stated that he found no bumps, bruises, marks nor anything abnormal. (N.T. at 270.) On April 10, 1987, Dr. Trescott again examined the baby and testified that on that date he saw nothing suspicious pertaining to the baby’s health. (N.T. at 275.) Dr. Trescott testified on cross-examination that defendant did not inform him regarding the manner in which her husband or another caretaker handled the child. (N.T. at 282-3.)

Defendant also called Dr. Richard D. Baylor to testify. Dr. Baylor stated that he had examined the infant on April 21, 1987. He also testified that he could recall no findings that were abnormal and that he saw no signs of hitting, punching or any signs of force used on the baby’s body. (N.T. at 293-4.) Dr. Baylor similarly testified that defendant did not relate any concerns pertaining to the condition of the infant on April 21, nor did she express concerns about the manner in which her child was being treated by her husband. (N.T. at 297-300.)

The defendant was charged with violating ’ 18 Pa.C.S. §4304, entitled Endangering the Welfare of a Child, which provides:

“A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the first degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support.”

The Supreme Court has said that section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. Commonwealth v. Taylor, 324 Pa. Super. 420, 426, 471 A.2d 1228, 1231 (1984). Section 4304 is to be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. Id., citing Commonwealth v. Mack, 467 Pa. Super. 613, 618, 359 A.2d 770, 772 (1976). In order to sustain criminal culpability under Section 4304 the following requirements must be met: (1) a duty of care, protection, or support must exist in law; (2) the actor must knowingly endanger the welfare of the child by violating that duty; and, (3) the actor must be a parent, guardian, or other person supervising the welfare of the child. Taylor at 426, 471 A.2d at 1230, quoting Model Penal Code §230.4 (Official Draft and Revised Comments, 1980).

The issues in the case at bar center upon the extent of the duty of care a parent owes her child and whether that duty, instantly, was knowingly violated. In general, parents have a responsibility to advance the physical, mental, and emotional health of their children, and extreme acts or grave omissions which adversely affect the child may come within the scope of section 4304. Commonwealth v. Ogin, 373 Pa. Super. 116, 123, 540 A.2d 549, 553 (1988); Commonwealth v. Cardwell, 357 Pa. Super. 38, 515 A.2d 311 (1986), app. den. 515 Pa. 573, 527 A.2d 535 (1987). At the very least, the parent must act to avert a child’s untimely death. Commonwealth v. Barnhart, 345 Pa. Super. 10, 18, 497 A.2d 616, 621 (1985), app. den. 517 Pa. 620, 538 A.2d 874 (1988), cert. den. 109 S.Ct. 55 (1988).

In Commonwealth v. Howard, 265 Pa. Super. 535, 402 A.2d 674 (1979), the Superior Court held that evidence was sufficient to prove that a defendant’s failure to protect a child was a direct cause of death and that such failure was reckless or grossly negligent and could serve as the basis of criminal culpability under 18 Pa.C.S. §2504. The court stated that even if no injuries were apparent at any time, the breach of duty here is not the failure to seek medical attention but the failure to do anything to protect the child from another’s savagery. When a parent sees her helpless child being beaten and abused over a period of time, she is not permitted to sit back and wait until the child is in obvious need of medical attention. The duty is to prevent the harm. Howard at 538 n.2, 402 A.2d at 676 n.2. We find, as did the court in Commonwealth v. Cardwell, supra, the Howard case to be instructive. Where there is a duty of care and where there is sufficient evidence that the parent knows that action is required to fulfill his or her parental duty, then a failure to act may be a knowing failure of the parent’s duty of care. Commonwealth v. Cardwell, 357 Pa. Super. at 46, 515 A.2d at 314.

In sum, the evidence presented at trial must establish that a duty exists and that a parent or guardian has knowingly violated that duty and such violation endangers the well-being of the child. In the present case, we believe the evidence presented at trial clearly is sufficient to support a finding by the jury of criminal culpability under section 4304. Defendant was the mother of the deceased infant. The mother had a duty to protect her infant child; in this case, as compared to aforecited cases, a mother’s duty to her child is even more obvious because the 6-week-old victim necessarily is dependent upon his parents for survival.

The only remaining question is whether defendant “knowingly” violated that duty. We believe that there was sufficient evidence for the jury to find that she did. In the present case, defendant confessed that she had been aware that her husband was unable to handle the child and that he frequently became frustrated when required to do so. She confessed to knowledge that her husband had permitted the child to fall off his lap, that her husband had been squeezing the infant to effectuate the expulsion of gas by the infant, and that in general her husband was exceedingly frustrated when caring for the child. Despite this forewarning, defendant permitted her infant to be in the sole custody of her husband on the night of the infant’s death. We believe the evidence shows that in doing so, after witnessing the acts of abuse, a jury could properly find defendant criminally breached her parental duty of care to her infant son.

We point out that our holding in this particular case is based strictly upon the testimony as to defendant’s prior knowledge and the testimony pertaining to defendant’s subsequent behavior. We are mindful that the criminal law should not be allowed to reach out in response to public outcry against child abuse and criminalize a parent who in good faith has attempted but failed to confront successfully the terrible dilemma of being required to live in a family relationship with both an abused child and the abuser. Cardwell at 49-50, 515 A.2d at 317 (Wieand, J., concurring). In this particular instance, though, we believe the evidence has sufficiently established, and as the jury so found, that defendant did not make a good-faith attempt to protect her infant son.

For the foregoing reasons, we deny defendant’s post-trial motion in arrest of judgment.

ORDER

And now, January 29,1991, upon consideration of defendant’s post-trial motions, oral argument and the briefs of counsel, it is ordered that defendant’s post-trial motions are denied and defendant shall appear for sentencing before the Honorable Robert K. Young, on Friday, March 1, 1991, in Courtroom 5-A, Lehigh County Courthouse, Allentown, Pennsylvania. The Lehigh County Adult Probation Department is hereby directed to prepare a long-form presentence investigation report prior to the date of sentencing.

      . Judge Davison subsequently resigned from the Lehigh County bench.

      . At oral argument on December 12, 1990, defense counsel acknowledged that he was withdrawing his motion for new trial. Further, said motion was not briefed by counsel, and we are in agreement with defense counsel that the motion was without merit.

      . In reviewing the challenge to the sufficiency of the evidence, we effectively will discuss and dispose of these contentions although we have deemed them technically withdrawn.


author:
PRATT, J.
     PRATT, J.,

text:
    Commonwealth v. McFarland

      Thomas W. Minett and J. Craig Cox, assistant district attorneys, for the Commonwealth.

      Phillip L. Clark Jr., for defendant.
    April 1, 1991
   PRATT, J.

Following a trial by jury, defendant Jeffrey McFarland was convicted of second-degree murder, 18 Pa.C.S. §2502(b); theft by unlawful taking, 18 Pa.C.S. §3921; burglary, 18 Pa.C.S. §3502; and two counts of robbery, 18 Pa.C.S. §3701. During the course of the sentencing proceeding, this court considered the doctrine of merger as it applies to sentencing and held:

“[T]he convictions of the two counts of robbery merge with each other. The crime of theft by unlawful taking merges with not only the robbery but also with burglary. And . . . the two counts of robbery and theft merge with the murder two.” Sentence proceeding at 15-6.

So the charges remaining for sentencing purposes were second-degree murder and burglary. Id. at 17. For second-degree murder, Jeffrey McFarland received a sentence of life imprisonment; for the burglary, the sentence was for a period of six and one-half to 13 years, to be served consecutive to the sentence imposed for second-degree murder. Id. at 17-8.

Before the court now is the defendant’s motion to modify sentence. Counsel have stipulated that the two issues of the motion are: (1) whether all the lesser offenses (burglary being the only remaining lesser offense) merge into the offense of murder of the second degree, and (2) whether defendant has received the appropriate credit for time served. Defendant’s motion to modify sentence at 2.

At this juncture the court will only address the issue having to do with the merger of the offenses. The issue concerning credit for time served will be addressed by the court at a later time. By stipulation of counsel, when adjudicated, both issues will be decided by the court upon the record without a hearing.

As to defendant’s argument that the offenses of second-degree murder and burglary merge, we must disagree. Offenses may merge where one crime necessarily involves another offense. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Olson, 247 Pa. Super. 513, 372 A.2d 1207 (1977). “[F]or one crime to necessarily involve another, the essential elements of one must be the essential elements of the other.” Commonwealth v. Eberts, 282 Pa. Super. 354, 355, 422 A.2d 1154, 1155 (1980). This means “the two crimes were so intimately bound up in the same wrongful act that as a practical matter proof of one crime necessarily proves the other, so that they must be treated as the same offense.” Commonwealth v. Williams, 344 Pa. Super. 108, 125, 496 A.2d 31, 40 (1985). Stated conversely, “where one statutory provision required proof of a fact which another does not, an act which is a violation of both provisions will constitute two separate offenses which do not merge.” Commonwealth v. White, 341 Pa. Super. 261, 265, 491 A.2d 252, 254 (1985).

However, “even if the two crimes ‘necessarily involve one another’ they do not merge ‘if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest.” Commonwealth v. Sparks, 351 Pa. Super. 320, 324, 505 A.2d 1002, 1004 (1986). So for offenses to merge, we must “determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil.” Commonwealth v. Williams, 344 Pa. Super. 108, 127, 496 A.2d 31, 41-2 (1985). What comes of all this is a two-prong test which ought to be applied with a large dose of common sense. Commonwealth v. Williams, 368 Pa. Super. 315, 534 A.2d 101 (1987).

In attempting to apply the two-prong test with common sense, we find defendant’s case failing both parts of the test. His case fails the first part of the test because the statutory elements of burglary and second-degree murder are entirely distinct. A valid burglary conviction requires the defendant to have entered a certain, occupied place which was not open to the public and to have entered with the intent to commit a crime in that place. 18 Pa.C.S. §3502. Second-degree murder, on the other hand, requires that a victim died at the hand of the defendant (or an accomplice) while that person was in the course of the commission of a felony (or attempting to escape from the scene of the felony), and the killing must have been done in furtherance of the felony and with malice. 18 Pa.C.S. §2502(b). The court feels the elements of these crimes are so patently different that to discuss their differences would be to squander the energy of the court and to insult the intelligence of the reader.

As we stated earlier, defendant’s case also fails the second prong of the test. This is true because these two statutory proscriptions are directed toward protection from very distinct evils and they do not seek to safeguard the same interest. The gravamen of the proscription against burglary is to protect occupants of buildings from being terrorized by unlawful intrusions by uninvited dangerous individuals. Pa.S.S.J.I. (Crim.) 15.3502. The illegality of second-degree murder has evolved from the idea that life should not be allowed to be made less secure by defendants attempting to use violence to advance their other criminal pursuits or to make good their escapes from such pursuits. Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970). These interests are nearly as patently diverse as those between any other two criminal statutes.

While we have found no Pennsylvania case which squarely presented this issue to a court, we have uncovered something very near. In Commonwealth v. Garnett, the defendant did not attack the illegality of the sentence due to.merger of the offenses, but, as illegality of the sentence can never be waived, the Superior Court raised the issue on its own accord. Commonwealth v. Garnett, 336 Pa. Super. 313, 485 A.2d 821 (1984). Under the facts of that case, the court found the charges for recklessly endangering another person and risking and causing a catastrophe merged into an arson offense, leaving convictions for arson, burglary and second-degree murder remaining. Id. While a question of possible merger of the burglary and second-degree murder was not specifically raised or addressed, it is inconceivable to us that the Superior Court could have raised the issue of merger of offenses for sentencing purposes on its own initiative and then not have carried the matter to its logical conclusion.

Consequently, we have come to the conclusion that defendant’s merger contentions are incorrect both by our own application of the proper test and by our observations of the actions of the Superior Court. Accordingly, we will duly deny this aspect of defendant’s prayer for relief.

ORDER OF COURT

PRATT, J.,

April 1, 1991 — For the reasons contained in the [preceding] opinion, the court disposes of defendant’s motion to modify sentence relative to the merger of offenses and, to that extent, denies the motion.

The court defers the remaining issue raised by the motion concerning credit for time served to allow counsel for both sides to resolve the matter or stipulate as to factual matters, upon which the court may then dispose of the motion in its entirety.

Counsel of record are directed to forthwith meet and attempt to resolve the issues of credit for time served and inform the court of any disposition thereof.


author: STEFAN, J.,

text:
    Greenberg Estate

      Albert Momjian, for Maxine W. Greenberg.

      Arthur L. Jenkins Jr., for Sigmund R. Greenberg.
    March 15, 1991
   STEFAN, J.,

On September 17, 1990, Sigmund R. Greenberg, parent and natural guardian of Evan J. Greenberg, a minor, filed a petition for citation for a rule to show cause why Maxine W. Greenberg should not be surcharged and removed as custodian of property of Evan Green-berg under the Pennsylvania Uniform Gifts to Minors Act, 20 Pa.C.S. §5301 et seq. On October 19, 1990, Maxine Greenberg, Evan’s mother, filed an answer to the petition for citation alleging, inter alia, all of the expenditures from Evan’s custodial property were made for her son’s benefit, support, maintenance and education. Evan’s parents are divorced and he resides with his mother.

On November 24, 1990, Evan turned 18 years of age. Thereafter, Mrs. Greenberg submitted an accounting. Evan obtained his own attorney, and subsequently submitted a written ratification of the sums spent by his mother, and a request that she be retained as the custodian.

The sole issue before the court is whether an 18-year-old can ratify the acts of a custodian under the UGMA, when that statute, in section 5302, defines a minor as “a person who has not attained the age of 21 years.”

The UGMA gives the custodian extremely broad discretion in expending the custodial property. Section 5305(b) provides:

“The custodian shall pay over to the minor for expenditure by him or expend for the minor’s benefit so much of or all the custodial property as the custodian deems advisable for the support, maintenance, education and benefit of the minor, in the manner, at the time or times, and to the extent that the custodian, in his discretion, deems suitable and proper, with or without court order, with or without regard to the duty of himself or of any other person to support the minor, or his ability to do so, and with or without regard to any other income or property of the minor, which may be applicable or available for any such purpose.”

As this and other sections of the UGMA show, the act permits total depletion of the custodial assets before the minor reaches the age of 21 years, at which time distribution of any remaining assets is mandatory. This feature of UGMA accounts is in sharp contrast to minors’ estates, where the principal is jealously guarded until the guardianship is terminated, and may be invaded only with prior court approval. (Section 5164 of the Probate, Estates and Fiduciaries Code).

Although the UGMA defines a donee as a minor until the age of 21, the act deems an 18-year-old eligible to be a donor of custodial property, and capable of exercising the discretion necessary to serve as custodian of the funds of another. (Section 5303.) From this incongruity, it appears that the attainment of the age of 21 years does not trigger the acquisition of the rights of adulthood; rather, this event signals the termination of the UGMA custodial relationship. Accordingly, the court holds that an 18-year-old has the right to approve the acts of a custodian of UGMA assets.

Instantly, Evan Greenberg received a full accounting of the expenditures from his custodial property. He executed a ratification of same, with the advice of independent counsel. At the time of hearing and argument before the undersigned, he demonstrated a complete understanding and acceptance of the custodian’s actions.

In light of the foregoing, the following order is appropriate.

ORDER

And now, March 15, 1991, after argument and consideration of memoranda of law, the petition for removal of Maxine W. Greenberg as custodian for Evan J. Greenberg, a minor, is denied.


author: CASSIMATIS, J.,

text:
    Standard Concrete Products Co. v. Advanced Industrial Services Inc.

      Thomas R. Davies, for plaintiff.

      Michael W. Flannelly, for defendant.
    February 7, 1991
   CASSIMATIS, J.,

This matter is before the court pursuant to preliminary objections in the form of a motion to strike filed by plaintiff, Standard Concrete Products Company, to the counterclaim of defendant, Advanced Industrial Services Inc. For the reasons set forth below, the preliminary objections of plaintiff are granted and defendant’s counterclaim is dismissed.

Between approximately May 15, 1989 and October 18, 1989, plaintiff supplied to defendant various goods and materials in the nature of building supplies. On January 23, 1990, plaintiff filed an assump-sit action for goods, services and materials furnished to defendant by plaintiff in District Justice Court 19-2-02, Dallastown, Pennsylvania. Defendant then filed a counterclaim against plaintiff for installation services rendered which was consolidated with plaintiff’s claim against defendant.

On July 13, 1990, District Justice John W. LaFean entered judgment for plaintiff and against defendant on plaintiff’s original complaint. Also on the same date, District Justice LaFean entered judgment for plaintiff and against defendant on the defendant’s counterclaim. On July 24, 1990, defendant filed a notice of appeal from District Justice LaFean’s judgment on plaintiff’s claim against defendant along with a praecipe to enter rule to file complaint and rule to file. Plaintiff filed its complaint on August 13, 1990 and defendant its answer and counterclaim on August 31, 1990.

Plaintiff argues that defendant’s failure to timely appeal its claim against plaintiff precludes defendant from raising that claim in the nature of a counterclaim against plaintiff.

The pertinent sections regarding appellate proceedings with respect to judgments and other decisions of district justices in civil matters reads as follows:

“Rule 1001. Definitions”
“As used in this chapter:
“(1) ‘Judgment’ means a judgment rendered by a district justice under Rule 319, 322 or 514.
“(2) ‘Appeal’ means an appeal from a judgment to the court of common pleas.
“(6) ‘Claimant’ includes a defendant with respect to a defendant’s cross-complaint in the action before the district justice.
“(7) ‘Defendant’ includes a plaintiff with respect to the defendant’s cross-complaint in the action before the district justice.
“Rule 1002. Time and Method of Appeal”
“A party aggrieved by a judgment may appeal therefrom within 30 days after the date of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the state court administrator.
“Involving Cross-Complaints”
“A. If the appellant was the claimant in the action before the district justice, he shall file a complaint within 20 days after filing his notice of appeal.
“B. If the appellant was the defendant in the action before the district justice, he shall file with his notice of appeal a praecipe requesting the prothono-tary to enter a rule as of course upon the appellee to file a complaint within 20 days after service of the rule or suffer entry of a judgment of non pros.
“C. When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. [Note: However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002, with the time extension allowed by subdivision C if he intends to. appeal from the judgment on his complaint. . .] If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within 30 days after the date on which the appellant served a copy of his notice of appeal upon the appellee.” See also, National Environmental Control Corporation v. Colavita, 37 D.&C. 3d 355 (1985).

The appeal filed by defendant included a praecipe to enter rule to file the complaint. Applying Rule 1004(B), defendant has appealed the judgment of the district justice in the case against it as defendant. No separate appeal was taken by defendant on its counterclaim and the judgment entered against it by the district justice.

Defendant argues that Pennsylvania Rule of Civil Procedure 1031 clearly controls when a counterclaim may be filed. (“The defendant may set forth in the answer under the heading counterclaim’ any cause of action heretofore asserted in assumpsit or trespass which he has against the plaintiff at the time of filing the answer.”) However, because judgment was entered against defendant on his counterclaim by a district justice and no appeal was filed, the cause of action no longer exists upon which a counterclaim can be asserted.

Accordingly, plaintiff’s preliminary objections are granted and defendant’s counterclaim is dismissed.

ORDER

And now, February 7, 1991, upon consideration of the preliminary objections of plaintiff, Standard Concrete Products Co., it is ordered that defendant’s counterclaim be stricken and dismissed.

The prothonotary is directed to provide notice of the entry of this opinion and order as required by law.

       The proper manner by which to raise the challenge here asserted would have been a preliminary objection in the nature of a motion to strike for lack of conformity to law or rule of court. See Pa.R.C.P. 1017(b)(2). Commonwealth of Pennsylvania ex rel. Milk Marketing Board and on behalf of 25 Pennsylvania Milk Producers v. Sunnybrook Dairies Inc. et al., 32 Pa. Commw. 313, 316, 379 A.2d 330, 332 (1977).


author: FARINA, J.,

text:
    Steinbacher v. American States Insurance Company

      Joel D. Smith, for plaintiff.

      Mark E. Lovett, for defendant.
    December 5, 1990
   FARINA, J.,

In this action plaintiff, Lisa Steinbacher, was injured as a result of an auto collision between her vehicle and a vehicle being operated by defendant John Page Jr. The Page vehicle, a 1974 Pontiac Firebird, owned by defendant John Page Sr., was not listed as a scheduled vehicle on defendant Page Senior’s auto insurance policy with defendant American States Insurance Company, and had been acquired before defendant Page Senior took out the policy with American States. Plaintiff’s action, inter alia, seeks declaratory relief that defendant American States owes coverage to defendants Page regarding the accident to which American States responds that coverage is excluded under the policy. Before the court are plaintiff’s and defendant American States’ cross-motions for summary judgment on the coverage issue.

Summary judgment should be granted only in cases that are clear and free from doubt. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). The standard is well established: viewing the record in the light most favorable to the non-moving party and resolving any doubts against the movant, summary judgment is appropriate only where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; Craddock v. Gross, 350 Pa. Super. 575, 504 A.2d 1300 (1986); Pennsylvania Funeral Directors Assn. v. Commonwealth, State Board of Funeral Directors, 90 Pa. Commw. 175, 494 A.2d 67 (1985).

If only the above facts were involved, the issue would be readily resolved. Under the policy, coverage is extended to covered persons operating both covered vehicles and non-covered vehicles, provided the non-covered vehicle is not owned by the covered person operating the vehicle in the accident for which coverage is sought.

Defendant Page Junior, as a member of Page Senior’s family, is a covered person. The 1974 Pontiac Firebird, since not listed on the schedule of declarations, is not a covered vehicle. Thus the sections of the policy providing coverage for covered persons operating covered vehicles is inapplicable and provides no coverage to the Pages. However, the provision exlending coverage to covered persons operating any vehicle not owned by the covered person is applicable to extend coverage to defendant Page Junior but not to Page Senior since the latter owns the vehicle. We will grant American States’ motion as to Page Senior.

As to Page Junior, the coverage issue becomes complicated by the presence of policy exclusions 10 and 11. The exclusions provide:

“We do not provide Liability Coverage:
“(10) For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.
“(11) For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by or furnished or available for the regular use of any family member. However, if your covered auto is a family car, this exclusion does not apply to you.” (emphasis supplied)

Simply stated, we view exclusion 10 as excluding from coverage any non-covered vehicle owned by the policyholder. Exclusion 11 excludes from coverage any vehicle owned by a family member. Read together the exclusions eliminate coverage for any covered person for the use of any vehicle owned by the policyholder or by his/her resident family member. Since the Firebird was owned by the policyholder Page Senior and not listed on the schedule of declarations, coverage for operation by the resident family member, Page Junior, is excluded.

Plaintiff reads the exclusions differently. Her interpretation makes material who is operating the vehicle at the time of an accident. Thus, she contends: Exclusion 10 Only applies to a vehicle operated by the policyholder and does not apply to a vehicle operated by a family member; exclusion 11 only applied to a vehicle operated and owned by the family member. Where plaintiff errs is that nothing in exclusions 10 or 11 suggests any such limitation. Read together with the exclusion preamble, exclusions 10 and 11 are properly paraphrased as follows: We do not provide liability coverage for the use of any non-scheduled vehicle owned by the policyholder or a resident member of his/her family.

For plaintiff to prevail, the exclusions would have to be capable of being construed to exclude coverage only as to no. 10, for the policyholder’s use of a non-scheduled vehicle owned by him, and as to no. 11, for a resident family member’s use of a vehicle owned by the family member. The significant difference in construction is that who is operating or using the vehicle is made material by plaintiff’s construction. However, the policy exclusions clearly do not depend in any way on who is using the vehicle and to so construe them would torture their plain meaning. The exclusions are applicable to exclude coverage for use of a vehicle by any covered person where the non-scheduled vehicle is owned by the policyholder (exclusion 10) or the resident family member (exclusion 11).

We therefore hold that since the 1974 Pontiac Firebird was owned by the policyholder, defendant Page Senior, and was not a covered auto scheduled on the policy declarations, its involvement in the auto collision with plaintiff at a time when it was being operated by defendant Page Junior, a resident member of the policyholder family, operates to implicate exclusion 10 of the policy and exclude coverage to defendant Page Junior. Exclusion 11 is inapplicable to Page Junior because coverage has been excluded by exclusion 10, and neither exclusion is applicable to Page Senior because the coverage provisions of Part A of the policy do not apply to him since he is the owner of the Firebird which is a non-covered vehicle. See page 327, supra.

Accordingly, we enter the following

ORDER

And now, December 5, 1990, the motion for summary judgment of plaintiff Lisa Steinbacher, is denied and the cross-motion for summary judgment of defendant American States Insurance Company is granted. The court hereby enters a declaratory judgment that defendant American States Insurance Company does not owe coverage to defendants John Page Jr. and John Page Sr. under the subject auto liability insurance policy for the accident of August 11, 1986, between defendant John Page Jr. and plaintiff.

      . See policy Part A, Liability Coverage.

      . Although plaintiff attempts to argue otherwise, we find the plain meaning of the exclusions such that the phrase “owned by you or furnished or available for your regular use” (exclusion 10), and the similar phrase of “owned by . . . any family member” (exclusion 11), to be such that the words “owned,” “furnished” or “available” for regular use, being in the disjunctive, operate to dictate that once “owned” becomes applicable, the other possibilities of furnished or available for regular use are not. Thus we do not concern ourselves with whether the vehicle was furnished or available for Page Junior’s or Page Senior’s regular use.

      . See emphasized language of exclusions 10 and 11 at 327, supra.


author: CAIAZZA, J.,

text:
    Commonwealth v. Brunish

      William Panella, assistant district attorney, for the Commonwealth.

      Larry Kelly and Charles Sapierna, for defendant.
    December 18, 1990
   CAIAZZA, J.,

We have before us for consideration defendant’s appeal from summary criminal conviction.

On October 6, 1989, defendant, Christopher P. Brunish, was charged with violating section 6308 of the Crimes Code, 18 Pa.C.S. §6308, entitled “Purchase, consumption, possession or transportation of liquor or malt or brewed beverages.” The charge arose from defendant’s alleged possession of three 12-fluid-ounce cans of “Milwaukee’s Best Light Beer.”

On December 28, 1989, District Justice James A. Reed found defendant guilty of the charged offense and sentenced defendant to pay a $100 fine and court costs.

On January 15, 1990, defendant filed the instant appeal from summary criminal conviction. On October 30, 1990, this court conducted a hearing de novo pursuant to the provisions of Pa.R.Crim.P. 86 (f)-

The statute at issue here provides in relevant part as follows:

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

The sole issue which appears before us for resolution is whether the Commonwealth has sufficiently proven that Milwaukee’s Best Light Beer is a malt or brewed beverage as defined by the statute.

Section 6310.6 of the Crimes Code, 18 Pa.C.S. §6310.6, defines a malt or brewed beverage in the following manner:

“ ‘Malt or brewed beverages.’ Any beer, lager beer, ale, porter or similar fermented malt beverage containing 0.5 percent or more of alcohol by volume, by whatever name such beverage may be called.”

At the hearing de novo, the Commonwealth did not introduce into evidence any testimony or documentation which established in the record that the confiscated beverage contained 0.5 percent or more of alcohol by volume. Nor did the can itself (Commonwealth’s exhibit 1) contain any notation which identified the amount of alcohol by volume contained within the beverage. Parenthetically, the Pennsylvania Liquor Code prohibits the alcoholic strength to appear on a label of a malt or brewed beverage. See section 4-493(7) of the Liquor Code, 47 P.S. §4-493(7).

The amount of alcohol which the definitional statute requires to be contained within the malt or brewed beverage itself is fundamentally diminutive. Even beer which contains 3.2 percent of alcohol by volume is commonly considered to be a beverage which has within its ingredients a comparatively minimal amount of alcohol. Considering the minuscule requirements of the definitional statute relating to the alcoholic content of a malt or brewed beverage, the court will take judicial notice that the content of any beverage which is identified as alcoholic contains within its ingredients at least 0.5 percent of alcohol by volume.

Consequently, the court finds the defendant guilty of violating section 6308(a) of the Crimes Code, 18 Pa.C.S. §6308(a), and sentences defendant to pay a fine of $100; he shall also pay all associated costs.

ORDER OF COURT

Now, December 18, 1990, in accordance with the provisions of the appended memorandum opinion, the court finds defendant, Christopher P. Brunish, guilty of violating section 6308(a) of the Crimes Code, 18 Pa.C.S. §6308(a), and hereby sentences defendant to pay a fine of $100 and all associated costs.

       Here, a notation on the can under the heading “Government Warning” identifies the beverage as one which contains alcohol.


author: HESS, J.

text:
    Commonwealth v. One 1973 Mercedes Benz Sedan

      Johnna Deify, assistant district attorney, for the Commonwealth.

      Allen Welch, for defendant.
    November 21, 1990
   HESS, J.

The Commonwealth has filed a notice of appeal from our order of court entered in this matter on August 24, 1990. In this case, we have granted the petition of the Commonwealth to forfeit one 1973 Mercedes Benz Sedan but have denied their petition to forfeit more than $12,000 in cash. This is a case where relatively small quantities of controlled substances were found in the Mercedes Benz Sedan but not in the immediate vicinity of the money. The money was oddly packaged but, otherwise, the question is whether it was traceable to an exchange of controlled substances or was intended to be used for the purchase of controlled substances is at best the subject of the purest conjecture. The claimant and another witness testified that the cash came to the defendant as the result of his sale of a bulldozer.

Following the lodging of this appeal, we served upon the Commonwealth a notice to file a statement of matters complained of on appeal. The issue has been framed by the District Attorney as follows:

“Whether the trial court erred by failing to consider the narcotics dog indication and the method the money was packaged together as evidence to overcome the Commonwealth’s burden by a preponderance of evidence that the money was furnished or intended to be furnished in exchange for a controlled substance?” (emphasis supplied) •

We construe the Commonwealth’s contention to mean that we erred in failing to conclude from the indication of the narcotics dog and the packaging of the money, that the Commonwealth had met its burden that the money was furnished or intended to be furnished in exchange for a controlled substance.

This question, of course, ignores the fact that even where the Commonwealth meets its burden the claimant may, notwithstanding, prove that the property was not unlawfully possessed by him. 42 Pa.C.S. §6802(j)(3). In this case, the claimant, Kirk Backstrom, testified that the money found in his car was the proceeds of the sale of a bulldozer to an acquaintance of his, Mr. Joseph Brady. Mr. Brady, himself testified, indicating that he had, indeed, purchased the bulldozer from Mr. Backstrom, paying $13,000 in cash. Both Backstrom and Brady testified that their transaction had taken place several days before Mr. Backstrom’s car was searched on January 6, 1990. On that day, when Mr. Back-strom was first confronted by the police with respect to the money, he insisted that he had received it from Mr. Brady in exchange for the bulldozer. While we found certain details of Backstrom’s testimony to be suspicious, we found his testimony concerning the sale of the bulldozer, corroborated by Mr. Brady, to be credible. We did so, in part, because there was no other explanation on the record.

We address the question posed by the Commonwealth, which is whether the packaging of the money together with the narcotics dog indication are sufficient to meet the Commonwealth’s burden of proving, by a preponderance of the evidence, that the money was furnished or intended to be furnished in exchange for a controlled substance. We do this, keeping in mind that, in reality,, it is virtually impossible to separate out the claimant’s explanation from the other proofs of the case. At any rate, to conduct our analysis, a more detailed review of the facts is required.

As we have noted, this forfeiture proceeding arose out of events that occurred on January 6, 1990. Patrolman James L. Peterson of the North Middleton Township Police Department was on routine patrol when he observed a vehicle in a pull-off area of Route 944. For reasons not entirely clear, the officer approached the vehicle, in which Mr. Backstrom was the only occupant. The officer asked Backstrom whether there “was a problem.” Backstrom indicated that he had just had a fight with his wife and was upset. At that point, Patrolman Mark Springer of the Middlesex Township Police pulled up to the scene, walked up to the passenger side of the vehicle, where he observed a spoon which appeared to have a cocaine-like substance on it. Mr. Backstrom was then removed from the car and the entire vehicle was searched. In the vehicle, the patrolmen located a quantity of marijuana and some cocaine along with a large amount of money in a paper bag. The bag, with the money, was found underneath the passenger’s seat. The packaging of the money was odd indeed. Mixed denominations of bills were packaged in small plastic bags which later were discovered to be baby bottle inserts.

The controlled substances were found elsewhere in the car. Specifically, in the driver’s side door there was a pocket and within the pocket a paper towel roll. Within the paper towel roll, rolled up in one paper towel, was a bag of marijuana.,Also with the marijuana was a small baggie of cocaine and a piece of cooked, free-base cocaine. There were no controlled substances in the bag containing the money. There was, thus, no contention by the Commonwealth that the money was “in close proximity to controlled substances” so as to raise a rebuttable presumption that same were proceeds derived from the sale of controlled substances in accordance with 42 Pa.C.S. §6801(a)(6)(ii).

Following its seizure, the money was placed in a paper bag which, in turn, was located in a room which had been pre-checked for narcotics odors with negative results. The room was then searched by Woody, a three-year-old male golden retriever, trained in the location of narcotics odors. The response of the dog to the bag containing the money indicated that at least some of the cash had an odor of a controlled substance.

There is no question that the storage of large sums of money in baby bottle liners is somewhat unorthodox. As we have noted above, however, Mr. Back-strom accounted for his possession of the money and indicated, in any event, that he had no bank account and that all of his dealings were in cash. While there was Commonwealth testimony, from a Trooper Taylor, that during drug raids packaged sums of money are sometimes found, it is not necessarily packaged in baby bottle liners and in any event is usually packaged in specific amounts. In this case, the testimony of the Commonwealth was that the amounts of the various bags were mixed and non-specific.

Even though forfeiture proceedings are but quasi-criminal in character and do not require the full panoply of rights due a defendant in criminal proceedings, nonetheless the Commonwealth is required to prove the material allegations by a preponderance of the evidence. Commonwealth v. Tate, 371 Pa. Super. 611, 538 A.2d 903 (1988). While there is testimony in this case that Mr. Backstrom used drugs in January 1990, no testimony was adduced at our hearing of August 13, 1990, which would indicate that he was a dealer. Even assuming that some of the money was intended to be furnished in exchange for a controlled substance, we have no way of knowing whether the amount so intended was $100 or $1,000 or $10,000. In short, the packaging of the money in this case in insufficient to establish that, more likely than not, any specific sum was furnished or intended to be furnished in exchange for a controlled substance.

The question then becomes whether the fact that some of the money emitted the odor of a controlled substance adds anything to the conclusion that it is subject to forfeiture. We believe not, for the reasons explained by Judge Dowling in Commonwealth v. $2,275 U.S. Currency, 4 D.&C. 4th 212 (1989). Because we cannot say it better than he does, we quote liberally from his opinion:

“We are here introduced to the Prussian version of ‘Lassie,’ a purebred male Weimaraner, named ‘Baron Von Schittler.’ His curriculum vita is impressive. He is a graduate of the Narcotic Detector Dog School of the Bureau of Training and Education, Pennsylvania State Police Academy, where he maintained a 97-percent proficiency rating. During the year 1988, Baron was responsible for the confiscation of nearly three million dollars worth of drugs, cash, and property. At the Pennsylvania State Police Canine Association Police Dog Competition held at Hamburg, Pennsylvania on May 8, 1988, he was adjudged ‘top dog.’ He has been awarded the degree of Police Narcotic Dog (PND) by the Police K-9 Association of America. While he has not authored any articles or spoken at any prestigious gatherings, it is reliably rumored that T.V. and movie contracts are in the offering. This Rin Tin Tin of the 1980s is the chief character in the above case, for it was Baron who sniffed Mr. Hicks’ roll. . . .
“In its brief, the Commonwealth emphasizes that Baron’s "alert’ to the money means that at some time the money was in proximity to drugs and that, like stolen property, once such a status is established, it is subject to forfeiture. Thus, the Commonwealth argues that, from that point in time, no valid property right can come into evidence. This contention has a certain surface appeal for, in fact, no one knows how long the "scent of evil’ can remain; despite the expression, money can’t really be "laundered.’ However, if we carry the argument to its logical end, its delusive character is demonstrated. If, for example, the prosecuting attorney were to cash his paycheck at a local bank, and one of the bills received had at some time been tucked away in a bale of marijuana or stashed with cocaine packets, and if, as he left the bank, "Baron’ came loping by and was ‘alerted,’ his hard-earned pay would be subject to forfeiture. Then there is the greengrocer whose store is in a high-drug area, and who might be unable to keep any cash which was not tainted with a baneful odor. We could go on and on, but res ipsa loquitur. . . .
""So, Oswald can keep his $2,275 and, if any remains after counsel fees, invest it in United States bonds or give it to his favorite charity.” 4 D.&C. 4th at 212-3, 216, 217.

Similarly, we conclude that Kirk can keep his $12,198, but make no suggestions as to how he should spend it.

      . Thus, making it subject to forfeiture pursuant to 42 Pa.C.S. §6801(a)(6)(i)(A) and (B).

      . We can find no appellate cases suggesting that post-trial motions are required in forfeiture cases, though it strikes us that the vastly preferable procedure is to permit the trial court to address alleged error prior to the taking of an appeal.

      . No argument has been made that the search transgressed constitutional limitations.