author: RUFE, J.,

text:
    Commonwealth v. Bellamy
    C.P. of Bucks County,
    no. 4654-2007.

      Karen A. Diaz, for Commonwealth.

      Michael J. Lacson, public defender, for defendant.
    July 3, 2008
   RUFE, J.,

Defendant, Stan Bellamy, has filed an appeal in this matter. Of the seven matters raised in the statement of matters complained of on appeal, two of them pertain to matters addressed before this court during a suppression hearing conducted on September 10-11, 2007.

Prior to our ruling, we made the following findings of fact:

On February 8,2007, approximately 7:25 p.m., Chang Soo Kyung, a businessman and operator of the Coronet Cleaners in the Township of Falls, Bucks County Pennsylvania, had closed his business and was proceeding to the parking lot adjacent to his building to leave for the day. Although his shop was not lighted and there were other businesses that were likewise closed in the area, his parking lot had an overhead light that lighted the parking lot sufficiently for Chang Kyung to be able to see persons coming and going.

As he approached his vehicle, he was confronted and assaulted by an individual, whom he had identified as a black male with a hoodie, a hood over his head, who struck him on the right side of his face and made an effort to seize from Mr. Kyung his car keys. My. Kyung resisted and the assaulter struck him a second time in the face knocking him to the ground. At that time Mr. Kyung surrendered his keys to the attacker, who kicked him in the ribs on the left side, entered the vehicle and drove off.

On February 28, 2007, Mr. Kyung was visited by detectives of the Falls Township Police Department, who submitted to him a photo array containing the pictures of six black men, advising him by means of a written disclaimer that he need not identify anybody; and that if he was not sure, that he should not identify any person on the array. Mr. Kyung examined the photos and systematically eliminated the persons identified as photo numbers 6,5, and 4 on the bottom of the row, and eliminated number 1 by proceeding clockwise from number 6.

Officer Bryan White interrogated the victim, Mr. Kyung, on February 8 at the scene of the assault and obtained a description and assessed the visibility of the parking lot. Officer White obtained a description that the attacker was a black male with thin build and a small amount of facial hair.

Detective Martial Belinsky identified himself as the partner to Detective Corporal John Martin, also of Falls Township Police Department, and that he was familiar with the circumstances of the assault on Mr. Kyung, and as of February 23 there were no leads.

On February 23, 2007, Detective Belinsky received a report of a car parked in the Pennsbuiy Court Apartments parking lot which matched the description of the vehicle taken from Mr. Kyung on February 8. The vehicle was identified as a 2006 Chrysler Pacifica van, silver in color.

Detective Belinsky reported to the Pennsbury Court Apartments in an unmarked car in plain clothes sometime before 3 p.m. on February 23 and began a surveillance of the vehicle. At approximately 4 p.m. a black male wearing a black coat exited the apartment building, proceeded past the vehicle, and then returned to the vehicle and entered it and drove off.

Detective Belinsky was alerted by Nextel Officer Krotz of the Falls Township Police Department and engaged in pursuit of the vehicle. Officer Krotz, likewise, pursued the vehicle. Detective Belinsky identified the route followed by the vehicle in which he was in pursuit and testified that in a certain area within the Borough of Morrisville he lost visual contact with the vehicle. He continued driving around the streets of Morrisville Borough and located the vehicle abandoned on Lynns Court. He relayed his findings to the network on which the Falls Township and Morris-ville Borough police radio was attuned.

Officer Eric Tomko of the Morrisville Borough Police was off duty on the day in question, but was in the police station of Morrisville Borough. He heard the transmissions of the police radio in Morrisville Borough headquarters and proceeded out of uniform in his own personal vehicle armed with his service revolver and police radio to the vicinity adjacent to the Lynns Road or Lynns sections of Morrisville Borough as the case may be.

Officer Tomko testified credibly that he proceeded to that adjacent area on suspicion it was a logical direction for the trespasser to proceed if the trespasser were fleeing the vehicle which had been abandoned on Lynns Court as broadcast by Detective Belinsky. Officer Tomko testified that he observed a black male carrying a backpack climb over a fence and enter into the backyard of a property on Doloro Street in the Borough of Morrisville. He observed the individual approach the door to the house, and he approached the individual and directed him to cease any further movements.

By Officer Tomko’s actions he effectively placed the defendant under arrest. The defendant was charged with receiving stolen property, fleeing and eluding police officers, and two summary offenses in the operation of the vehicle. Those charges were filed on February 23, 2007.

Corporal John Martin of the Falls Township Police Department, to whom the assault case was originally assigned, compiled a photo array using resources made available wherein all of the persons included in the photo array were black males with a certain portion of facial hair and medium build. The photo array, once compiled, was placed on a single sheet and was exhibited to the victim at his place of business, Coronet Cleaners.

The victim, Mr. Kyung, made a positive identification of the defendant by systematically eliminating four of the defendants, pointing to each one individually and saying not him as to each of the four defendants that he eliminated. Upon coming to the defendant’s photo in the array, the fifth person to whom Mr. Kyung devoted his attention, he identified him and said him.

The photo array was conducted on February 28, notwithstanding that the criminal charges for receiving stolen property, fleeing and eluding, and the summary offenses had been filed on February 23 by Officer Krotz and the public defender had entered an appearance for the defendant in connection with those February 23 charges. The entry of appearance was made effective on February 26 when the public defender appeared before Judge Heckler of this court seeking a bail reduction. It is noted that the reduction was approved to $40,000, 10 percent.

As a result of the positive identification of the defendant, the criminal charges lodged on February 23,2007, were withdrawn and new charges were filed incorporating the charges which had been filed on February 23 and new charges of robbery.

The matters raised are as follows:

“(2) Appellant believes and therefore avers that the court erred in denying a defense motion to suppress where, at the time of the stop, the officer lacked reasonable suspicion or probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution and the enhanced protections under Article I, Section, 8 of the Pennsylvania Constitution.

“(3) Appellant believes and therefore avers that the court erred in denying a defense motion to suppress the photo line-up and subsequent in-court identification in violation of the Sixth Amendment to the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution.”

We will first address the suggestion that the court erred in denying the motion to suppress as to whether Officer Tomko had probable cause to stop defendant.

The crucial test in determining the presence of probable cause is whether the facts and circumstances known to the police would warrant a person of reasonable caution in believing the suspect has committed or is committing a crime. Commonwealth v. Blassingale, 398 Pa. Super. 379, 393, 581 A.2d 183, 189 (1990) citing Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979).

The evidence discloses that Officer Tomko, from listening to police broadcasts, was aware that an individual operating the Chrysler Pacifica was the subject of a police pursuit. We found that Officer Tomko heard a series of police transmissions, and that subsequently he observed defendant fleeing from the vicinity where the Pacifica had been abandoned. We also found that Officer Belinsky arrived on the scene and positively identified defendant as the person he saw leave the Pennsbury Court Apartments and enter the Pacifica. This combination of information constituted sufficient probable cause to place defendant under arrest. Officer Tomko testified the distance from where the vehicle was abandoned and the address where he saw the defendant climb over the fence is 100 yards, 150 yards approximately. (N.T. 9/10/07, p. 109:17.) In contrast we did not find defendant credible in his testimony that he did not climb over a fence but was standing in the driveway talking, having just closed the door of the house at 538 Doloro, where friends of his live. (N.T. 9/10/87, pp. 149-50.)

We also noted the importance of the fact that during the course of cruising and searching for the vehicle, Officer Belinsky testified that he was specifically on the lookout for a pedestrian, and no other pedestrians were observed in the area of the Pennsbury Court Apartments and Morrisville Borough. (N.T. 9/10/07, p. 72:18-25.)

It is the prerogative of the fact-finder to believe all, part, or none of the evidence presented. Commonwealth v. Lyons, 382 Pa. Super. 438, 555 A.2d 920 (1989). We found the evidence presented sufficient to establish probable cause and justify Officer Tomko’s stop of defendant based on the police broadcasts, coupled with Officer Belinksy’s further identification of defendant as the individual seen earlier getting into the vehicle. Defendant’s assertion that probable cause did not exist for the stop and arrest is without merit.

Appellant further contends that this court erred in denying the suppression of the photo line-up and subsequent in-court identification. Based on counsel’s argument at the hearing, the issues raised here are that defendant was represented by counsel as of February 26,2007, and therefore, the photo identification, which occurred on February 28, 2007, without defense counsel present violated defendant’s right to counsel; and furthermore, that there was no independent basis for the in-court identification aside from the photo array. Defendant points to the victim being assaulted by an unknown perpetrator, it being dark outside, victim’s glasses becoming crooked on his face after being punched, and victim’s description to police being vague as to assailant’s physical frame, distinguishing facial characteristics, or facial hair. (N.T. 9/10/07, pp. 158-59.) And, thus the in-court identification based on the photo array, alleged to be in violation of defendant’s rights, should likewise have been suppressed.

With regard to the suggestiveness of an identification procedure, the Pennsylvania Superior Court has consistently held that only if the totality of circumstances shows that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification will the evidence be suppressed. Blassingale, supra, (citations omitted)

At the hearing we found as follows:

“As to the photo array, we find that Mr. Kyung was not the subject of an unduly suggestive identification. In the first instance, we note that the array was of six individuals. All six were of black males. None of the six were exposed to a particular suggestion that the individual was a prisoner or was in custody. All six had small elements of facial hair, including either a thin mustache or a goatee.

“We note that the victim was made aware that he did not have to identify anyone, and we refer to the photographic line-up procedure reviewed with the victim prior to the examination of the photos. We find the photo array in itself to be non-prejudicial.” (N.T. 9/11/07, pp. 10-11.)

Although Appellant presented testimony of a pock mark on his nose and a scar above each eye (N.T. 9/10/07, p. 144), based on both the court’s own consideration of appellant’s appearance (N.T. 9/10/07, p. 152), as well as the precedential law in this area, even if the other photographs in the array did not include the exact facial markings, that would not establish suggestiveness in the array. We found appellant’s reference to these markings unpersuasive.

Appellant further asserts that he was improperly denied the right to have counsel present when the photographic array was viewed by the victim. In Pennsylvania, the right to counsel does not attach when the suspect is in custody for a different offense than that for which the array has been compiled. Commonwealth v. McKnight, 311 Pa. Super. 370, 457 A.2d 931 (1983).

In the instant case, as in Blassingale, when the victim of the instant case was shown the photo array, appellant was in custody on separate charges, thus, there was no right to counsel. Similarly, we found here:

“As the right of counsel of the defendant to be present before a photo array is exhibited, that right is acknowledged. However, on February 28, 2007, when a photo array was exhibited to the victim, the defendant had been charged with receiving stolen property, fleeing and eluding police officers, none of which were the subject of the investigation of the robbery; and therefore, the public defender was not and could not be representing the defendant as to the robbeiy charges. The defendant’s rights, therefore, were not violated as he had not been charged with the offense then being investigated.

“Further, we would say that even if the charges were blended, that the exhibition of the photo array by the Falls Township Police Department to the victim, Mr. Kyung, was non-prejudicial, was inadvertent, and not a knowing and intentional violation of the defendant’s rights; and therefore, was a harmless error.” (N.T. 9/11/07, p. 12.)

We do not find the photo identification to have been suggestive, manipulative or tainted in any way, thus we disagree with counsel’s argument that any subsequent in-court identification would follow as also violative of defendant’s rights. (N.T. 9/10/07, p. 158.)

The factors considered in determining whether a victim had an independent basis for an in-court identification include, “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Commonwealth v. Sanders, 380 Pa. Super. 78, 91, 551 A.2d 239, 245 (1988). (citations omitted) This court was convinced of victim’s independent, in-court identification.

“The victim’s identification of the defendant in open court was positive and assertive and is likewise, admissible at trial. We note, in particular, that Mr. Kyung identified the defendant in open court and in doing so took the unusual and unique step of standing up and pointing at the defendant upon identifying him. His identification was neither halting or uncertain in anywise (sic).” (N.T. 9/11/07, pp.12-13.)

At the conclusion of the suppression hearing we determined the arrest of the defendant by Officer Tomko was based on probable cause, that the photo array was not suggestive in any way, and that defendant’s rights to counsel were not violated by the conduct of the array on February 28,2007. Therefore, we denied the motions to suppress, before this court, in the instant matter.

      . One matter in the statement of matters complained of on appeal pertains to a defense petition for a line-up, conducted on June 1,2007, before the Honorable Albert J. Cepparulo of this court. The remaining issues are relevant to the subsequent jury trial and sentencing, before the Honorable David W. Heckler, also of this court.

      . In Blassingale, supra, appellant possessed a glass eye, and the other individuals in the array did not. The fact that there were other individuals in the array with unusual eye characteristics was found sufficient to eliminate any suggestiveness in the array.


source: Caselaw Access Project

author: HODGSON, P.J.,

license: Public Domain

text:
    Commonwealth v. China

      C.P. of Montgomery County,
    no. 1612-2007.

      Brian Tiley and Steven Bunn, assistant district attorneys, for Commonwealth.

      Garrett D. Page, for defendant.
    September 25, 2008
   HODGSON, P.J.,

The defendant, Brihiem Jamal China, appeals to the Superior Court from the judgment of sentence entered on July 21, 2008.

FACTS AND PROCEDURAL HISTORY

The instant case arises from a series of events that occurred on February 6, 2007. On that date, Detective Todd Richard, of the Pottstown Police Department, received a tip from a confidential informant that defendant, for whom there was an active felony arrest warrant, could be found at a Motel 6 near Shoemaker Road. After arriving at this location, Richard and Detective Rathgeb spoke with the hotel manager. Upon being shown a photograph of defendant, the manager positively identified him as a recent guest. Further conversation revealed that approximately one hour earlier, defendant had been forced to vacate the premises because the odor of burning marijuana was emanating from his room.

Concluding that defendant must have relocated to the nearest hotel, Richard and Rathgeb proceeded to the Quality Inn, approximately one mile away from Motel 6. Upon arriving at the Quality Inn, they spoke with the hotel manager who informed them that a young woman, accompanied by an African American male, had rented a room within the past 30 minutes. The manager identified defendant from a photograph and stated that he was the individual who arrived with the young woman.

After 30 minutes of surveillance, Richard, along with Officer Ed Kropp Jr. and Officer Frank Glaser, approached the hotel room in which defendant was believed to be. An odor of burning marijuana was detected as they knocked on the door. It was opened by an unidentified man who immediately disclosed to the uniformed officers that someone was in the shower. Acting on this assertion, Richard entered the bathroom and observed defendant undressed and in the shower. A pair of khaki pants was on the floor about one to two feet away from the shower stall. Defendant exited the shower and after being handed a towel by Richard, was informed that he was under arrest pursuant to an active warrant.

Soon after, defendant requested that he be permitted to put his pants on. Complying with defendant’s request, Richard said “yes,” but before handing the pants to defendant, Richard grabbed them and checked the pockets. A check of the pockets yielded a black plastic bag containing a white rock-like substance believed to be crack-cocaine. Additionally, eight smaller baggies containing a white rock-like substance were found along with a razor blade, a small amount of marijuana and approximately 50 empty blue baggies. In the front pant pocket Richard uncovered $965. Immediately thereafter, defendant denied ownership of the pants claiming they belonged to the female that had been there earlier. After being asked what was in the black plastic bag, defendant responded “crack.” A field test of the suspected crack-cocaine proved positive.

Before leaving the hotel room, Richard discovered two small portions of a marijuana cigarette lying on top of a dresser. Thereafter, Officer Taylor secured the room while a search warrant was obtained. Upon obtaining and executing said warrant the following items were seized: a total of $1,314, 18 grams of suspected cocaine and a small amount of marijuana.

Defendant was subsequently charged with criminal conspiracy, possession with intent to deliver and possession of drug paraphernalia. A suppression hearing was held on December 19, 2007. On December 28, 2007, upon consideration of defendant’s motion to suppress, this court denied said motion. A jury trial was held commencing April 28, 2008. On April 29, 2008 the jury convicted defendant of possession with intent to deliver and possession of drug paraphernalia. Sentencing commenced on July 21,2008, at which point, defendant was sentenced to five-10 years incarceration with one-year probation. On August 15, 2008, defendant appealed to the Pennsylvania Superior Court from the judgment of sentence and filed a concise statement of matters complained of with this court on September 10, 2008 in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

LEGAL DISCUSSION

Defendant raises two arguments on appeal. First, he argues that the drugs and paraphernalia seized from his pants’ pockets were products of an illegal search. Specifically, defendant contends that Detective Richard, by reaching into the pockets, exceeded the scope of a lawful search incident to arrest since the pants were not within defendant’s immediate control at the time. Additionally, defendant avers that the drugs and paraphernalia found subsequent to the search of his pants’ pockets were fruit of the poisonous tree and, as such, should have been suppressed at trial.

Addressing defendant’s first argument, this court concludes that Detective Richard’s search of the pants’ pockets was constitutionally proper. Pursuant to a lawfully conducted arrest, an arresting officer may search the arrestee’s person and the area “within his immediate control,” meaning the area within which he might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752 (1969). The two historical rationales for the search incident to arrest exception to the warrant requirement are (1) the need to disarm the suspect in order to take him into custody and (2) the need to preserve evidence for later use at trial. See Knowles v. Iowa, 525 U.S. 113, 116 (1998).

The constitutionality of a search incident to arrest turns on whether the place searched was within the arrestee’s immediate control, or “wingspan.” In the instant case, defendant’s pants were within his immediate control since they were approximately one to two feet away from where he was standing at the time of the arrest. Furthermore, defendant had asked to wear them before he left the bathroom. Under these circumstances, Detective Richard’s search of defendant’s pants was constitutionally proper as defendant could have easily gained access to a weapon or evidence concealed in the pockets.

Defendant’s reliance on Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261 (2001) is misplaced. In Taylor, the Pennsylvania Supreme Court suppressed evidence seized from a search of two coats that were located approximately 10 feet away from where defendant was standing at the time of his arrest. The court held that the coats were not within the defendant’s immediate control. Additionally, the court emphasized that the police had already secured the scene prior to searching the coats, patted down Taylor’s clothing for weapons and placed him in handcuffs. Id.

The instant case is distinguishable from Taylor in several respects. First, at the time of the search of the pants’ pockets, the scene had not been secured. Additionally, the defendant’s hands were free as he had not yet been placed in handcuffs. Finally, unlike the coats in Taylor that were 10 feet away from where the defendant was standing, in the instant case, the pants were only one to two feet away from defendant’s reach. The pants were clearly within defendant’s immediate control, and as such, Richard’s search of them was justified as a search incident to arrest.

Additionally, Commonwealth v. Rota, 222 Pa. Super. 163, 292 A.2d 496 (1972), a case on which the defendant relies, is irrelevant to the matter before this court. In Rota, the court admitted evidence obtained from a warrantless search of the defendant’s coat on the basis that he had, prior to being placed under arrest, reached for and attempted to use a revolver. Id. Defendant argues that, unlike the defendant in Rota, he did not lunge for his pants or give the arresting officer any indication that he was dangerous. On this basis, defendant argues that there was no reason for Richard to effectuate a search of his pants.

As the Pennsylvania Superior Court explained in Commonwealth v. Rickabaugh, 706 A.2d 826, 836 (Pa. Super. 1997), a search incident to a law&l arrest is one of the well recognized exceptions to the warrant requirement and “does not depend upon whether there is any indication that the person possesses weapons or evidence as the fact of a lawful arrest standing alone, authorizes a search.” As such, the act of lunging or reaching is not a prerequisite to conduct a search incident to arrest. It is irrelevant whether or not defendant attempted to gain access to a weapon. A search of the area within an arrestee’s immediate control is per se constitutionally authorized.

Regarding defendant’s second argument, this court finds that the subsequent seizure of the drugs and paraphernalia was constitutionally valid. The two partially smoked marijuana cigarettes found on top of the dresser were properly seized pursuant to the plain view doctrine, which allows lawfully present law enforcement officers to seize objects, indicative of criminal activity, in plain view. Under both the Fourth Amendment of the United States Constitution, and Article I Section 8 of the Pennsylvania Constitution, the plain view exception requires a determination of whether the police had a lawful right of access to the object. See Commonwealth v. Dean, 940 A.2d 514 (Pa. Super. 2008). The historical rationale for the plain view doctrine is that if “an article is... in plain view, neither its observation nor its seizure would involve any [violations] of privacy.” Commonwealth v. McCree, 592 Pa. 238, 247, 924 A.2d 621, 627 (2007), citing Horton v. California, 496 U.S. 128 (1990).

In the instant case, the two partially smoked marijuana cigarettes were in plain view lying unconcealed on top of the hotel’s dresser. Furthermore, Richard, Kropp and Glaser were lawfully present when they came across the marijuana cigarettes. They arrived at the hotel room with an active felony arrest warrant and gained lawful entry to the hotel room after knocking on the door and being let in by defendant’s unidentified companion. Once inside, they noticed the two partially smoked marijuana cigarettes on the dresser. These facts establish that the two partially smoked marijuana cigarettes were properly seized under the plain view exception to the warrant requirement.

Finally, the remaining items seized, specifically the $1,314, 18 grams of suspected cocaine and a small amount of marijuana, were all removed pursuant to a valid search warrant. A search warrant is properly issued when a neutral and detached magistrate concludes from facts presented to him that there is reasonable cause for issuing the warrant. See Commonwealth v. Sharp, 453 Pa. Super. 349, 683 A.2d 1219 (1996). In the instant case, there was reasonable cause for issuing the warrant, namely, the discovery of two partially smoked marijuana cigarettes sitting in plain view, an odor of marijuana emanating from under the door and the seizure of the drugs and paraphernalia from defendant’s pants’ pocket pursuant to a search incident to arrest. On these facts it was reasonable to believe that more drugs and or paraphernalia were in the room. As such, all the drugs and drug paraphernalia discovered subsequently were legally obtained pursuant to a valid search warrant and thus, not fruit of the poisonous tree.

CONCLUSION

Upon consideration of the foregoing discussion, the undersigned respectfully submits that the defendant’s conviction and sentence should be affirmed.

      . Counts 1, 2, 3 and 5 were nol prossed at the request of the assistant district attorney.


author: PARISI, J,

text:
    Commonwealth v. Parker

      C.P. of Berks County,
    no. CP-06-CR-2415-2007.

      Igor Litvinov and Adrian Shchuka, for Commonwealth.

      Jay M. Nigrini, for defendant.
    September 24, 2008
   PARISI, J,

On May 30,2008, a jury convicted Shawn Michael Parker (defendant) of delivery of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. 35 P.S. §§780-113(a)(30), 780-113(a)( 16), 780-113(a)(32). On July 25,2008, he received a sentence of 27 months to 10 years of incarceration concurrent to a sentence in a separate docket. The defendant filed a timely appeal on July 28,2008 and raises a single issue on appeal:

“Whether the trial court erred in denying [the defendant’s] motion to disclose the identity of the Commonwealth’s confidential informant[.]” Concise statement of errors complained of on appeal.

FACTUAL BACKGROUND

The denial of the defendant’s motion to disclose the identity of informant came after an April 23,2008 hearing. At the hearing, the testimony of the two witnesses, Pennsylvania State Trooper Charity Farrell and the defendant, differed widely.

Trooper Farrell s Testimony

Trooper Farrell testified that she drove with a female confidential informant to the defendant’s residence at 305 McKnight Street, Reading, Pennsylvania. While Trooper Farrell remained in the vehicle, the confidential informant went to the defendant’s door and knocked. Trooper Farrell had given her $100 in marked and recorded currency. Nobody answered the door, but a black male came out of a tan sedan parked nearby and approached the confidential informant. After a brief conversation, the male used his key to open the door to the defendant’s residence. Fie and the confidential informant entered. After about a minute, the confidential informant came out and told Trooper Farrell she could join them inside. They entered the defendant’s residence and met the defendant. The other black male was also present. The confidential informant gave the defendant the $100 and asked for drugs. The defendant said that he did not have enough drugs on hand to fulfill the women’s request and that it would take a little while for him to get more. When Trooper Farrell told him they could wait, the defendant entered into a discussion with the other black male as to who would go to obtain more drugs. The other black male then left the residence, got into a tan sedan, and drove away. The defendant and the two women waited for about ten minutes for the man to return. The women engaged the defendant in a little small talk, but mostly they spoke to one another. They did not discuss the topics of sex or “partying.” When the tan sedan returned, the defendant stepped outside, got in the car briefly with the black male, and then returned with about four baggies containing cocaine. He asked if he could keep one of the baggies for himself, and Trooper Farrell agreed. After the defendant gave Trooper Farrell eight baggies of cocaine, including the ones he had retrieved from the black male in the tan sedan, Trooper Farrell and the confidential informant left.

The Defendant’s Testimony

According to the defendant, after Trooper Farrell and the confidential informant parked outside, the confidential informant came to his house and initially offered sex for drugs. The defendant testified he regularly trades drugs for sex, such that women frequently come to his residence and engage in such transactions. In fact, because the defendant previously provided drugs to the confidential informant, he was confident that he had engaged in sexual activity with her, though he could not remember her identity. The defendant told the confidential informant that he was more interested in having sex with Trooper Farrell, whom he could see waiting in the car. The confidential informant then told him that that was why she brought Trooper Farrell, and that Trooper Farrell would have sex with him for drugs. The defendant agreed, and the confidential informant went to retrieve Trooper Farrell. When the two returned, Trooper Farrell asked for drugs, and the black male left to obtain them. The defendant said that the black male had come with the confidential informant, though it was unclear from the testimony when he arrived. The defendant said he has only met the black male on two occasions and does not know his name. No specific amount of drugs was requested in exchange for sex. The defendant asked the black male for drugs, and the black male left to obtain them. After the black male returned with drugs, the defendant gave the drugs to Trooper Farrell, thinking that he would have sex with her. Instead, she claimed that her husband needed his truck back and so she and the confidential informant left.

DISCUSSION

Resolution of discovery issues, including discovery of the identity of a confidential informant, are within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Commonwealth v. Roebuck, 545 Pa. 471, 476-77, 681 A.2d 1279, 1282 (1996); Pa.R.Crim.P. 573(B)(2)(a)(i). Pennsylvania courts have recognized the Commonwealth’s qualified privilege to maintain the confidentiality of an informant in order to preserve the public interest in effective law enforcement. Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1227 (1977). Before an informant’s identity may be revealed, the defendant must establish that the information sought is material to the preparation of the defense and that the request is reasonable. Pa.R.Crim.P. 573(B)(2)(a)(i). To establish that a confidential informant’s testimony is material, “the record should at least suggest a reasonable possibility that the information might be helpful, so that it would be unfair to withhold it.” Herron, 475 Pa. at 467, 380 A.2d at 1230.

Here, in spite of the defendant’s asserted entrapment defense, no such reasonable possibility has been suggested. The defendant’s testimony, even if completely corroborated by the confidential informant, would not establish an entrapment defense. The defendant argues that the confidential informant’s actions created a substantial risk that an average person not already inclined to deliver drugs would have been induced to do so. This argument is initially unconvincing simply because there is no reason to believe that people are more motivated to criminal behavior by random offers of sex than by money. In fact, this court could find no precedent classifying an offer of sex as entrapment. But see Commonwealth v. Thompson, 335 Pa. Super. 332, 484 A.2d 159 (1984) (finding entrapment as a matter of law where a young, attractive undercover officer repeatedly requested drugs from the defendant while feigning romantic interest over several months). The defendant’s argument is weakened further by his admission to habitually trading drugs for sex to the extent that he was unable to recall the confidential informant’s identity in spite of his claim to have slept with her. Therefore, if the confidential informant happened to verify the defendant’s account, it would merely suggest that the police used the defendant’s standard currency as an enticement. For the police to make an offer of what amounts to the “going rate” for drugs does not create a substantial risk that someone not already inclined to commit a drug transaction will do so. 18 Pa.C.S. §305(a)(2). Finally, the only evidence remotely corroborating the defendant’s self-serving account of the exchange was Trooper Farrell’s testimony that a one-minute conversation between the confidential informant and the occupants of the defendant’s home took place out of her presence. This lack of corroboration weighs strongly against the revelation of the informant’s identity. See Commonwealth v. Eicher, 413 Pa. Super. 235, 256, 605 A.2d 337, 348 (1992) (citing Commonwealth v. Mickens, 409 Pa. Super. 266, 597 A.2d 1196 (1991) and Commonwealth v. Jackson, 409 Pa. Super. 568, 598 A.2d 568 (1991)). In light of the facts and applicable law, the defendant cannot claim a reasonable possibility that the testimony of the confidential informant would exonerate him. Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citing Roebuck, 545 Pa. at 478, 681 A.2d at 1283). Therefore, this court rightly denied his motion to disclose the identity of informant.

For the foregoing reasons, it is respectfully requested that the defendant’s appeal be denied.


author: RUEST, J.,

text:
    Morris v. Meyers
    C.P. of Centre County,
    no. 2003-1247.

      Warren Morris, pro se.

      Timothy I. Mark, for defendants.
    October 10, 2008
   RUEST, J.,

Presently before the court are the preliminary objections of defendants Robert W. Meyers, Terry L. Whitman, Franklin J. Tennis and Jack M. Allar. Plaintiff and defendants submitted briefs. Upon consideration of the briefs, arguments, and relevant case law, the court determines defendants’ preliminary objections are sustained in part and overruled in part.

BACKGROUND

On May 15,2003, plaintiff filed his original complaint in which he complained of violations of his constitutional rights by the above-listed defendants. He alleged the defendants were liable for placing him in the same cell as a prisoner allegedly known to be violent. Plaintiff filed an amended complaint on March 1,2003, followed by a second amended complaint on April 14,2004, adding several medical staff as defendants. On May 6,2004, defendants filed a motion for stay of discovery, which was granted by the court on May 13, 2004. On June 3, 2004, plaintiff filed a third amended complaint, in which he claimed the medical defendants failed to provide him medical care for the injuries he suffered from the attack in his cell. The remaining defendants from the department of corrections (defendants) filed preliminary objections on September 20,2004. A brief was filed contemporaneously with the preliminary objections. The court granted the medical defendants’ motion for summary judgment on September 8,2006, finding plaintiff failed to exhaust administrative remedies. After numerous extensions of time, plaintiff filed his brief in response to the defendants’ preliminary objections on July 2, 2008.

DISCUSSION

Defendants object to Counts I, II, and IV of plaintiff’s complaint. The court will disregard the objections raised to Count III as moot as Count III was previously disposed of by this court in a September 8, 2006 opinion and order granting the medical defendants’ motion for summary judgment. Defendants’preliminary objections fall under three areas: lack of jurisdiction, Pa.R.C.P. 1028(a)(1); failure to conform to rule or law, Pa.R.C.P. 1028(a)(2); and failure to state a claim, Pa.R.C.P. 1028(a)(4).

I .Jurisdiction, Pa.R.C.P. 1028(a)(1)

Defendants raise an objection that the statute of limitations expired. This is improper as a preliminary objection. Preliminary objections are limited to the grounds listed in Pa.R.C.P. 1028. As they raise objections specifically excluded under Rule 1028, defendants’objection relative to statute of limitations is overruled. Under Pa.R.C.P. 1030, statute of limitations must be pled in a responsive pleading under the heading new matter.

Plaintiff’s lawsuit is prison conditions litigation, and as such is governed by the Prison Litigation Reform Act (PLRA). Under the PLRA, the court may dismiss a complaint pursuant to 42 Pa.C.S. §6602(e)(2) if, upon review, the prison conditions litigation is frivolous or malicious, or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which if asserted, would preclude the relief. The PLRA also provides several limitations on remedies at section 6603:

“(a) Limitations on remedies for federal claims.

“Prison conditions litigation filed in or remanded to a court of this Commonwealth alleging in whole or in part a violation of federal law shall be subject to any limitations on remedies established by federal law or federal courts with respect to federal claims.

“(b) Limitations on remedies under Pennsylvania law.

“Prison conditions litigation arising in whole or in part due to an allegation of a violation of Pennsylvania law shall be subject to the limitations set forth in this act with respect to those claims arising under Pennsylvania law.” 42 Pa.C.S. §6603.

This court has concurrent subject matter jurisdiction with federal courts over claims filed under 42 U.S.C. §1983 (section 1983). Commonwealth ex rel. Saunders v. Creamer, 464 Pa. 2, 345 A.2d 702 (1975). When a section 1983 action is brought in state court to enforce federal law, the rights of, and defenses to, a federal cause of action are defined by federal law. Howlett v. Rose, 496 U.S. 356 (1990). The PLRA provides that prison conditions litigation filed in state court raising section 1983 claims is subject to any limitations on remedies established by federal law or federal courts with respect to the federal claims. 42 Pa.C.S. §6603(a).

The PLRA also requires the court to undertake a review of the prison conditions litigation, subjecting the federal claims to scrutiny in accordance with section 6603(a). If any of the four enumerated alternative reasons are met, the court shall dismiss the litigation. 42 Pa.C.S. §6602(e) (2). The four reasons are: if the prison conditions litigation is (1) frivolous; (2) malicious; (3) fails to state a claim upon which relief may be granted; or (4) the defendant is entitled to assert a valid affirmative defense, including immunity, which if asserted, would preclude relief.

II. Failure To Conform to Rule of Law, Pa.RC.P 1028(a)(2)

Defendants raise the affirmative defense that plaintiff has failed to exhaust his administrative remedies prior to filing this lawsuit. As an affirmative defense, the failure to exhaust available administrative remedies must be pleaded and proven by the defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). This affirmative defense must be pled as a responsive pleading in accordance with Pa.R.C.P. 1030 under the heading new matter. As such, it is improper as a preliminary objection and is therefore overruled.

III. Failure To State a Claim, Pa.R.C.P. 1028(a)(4)

Defendants maintain plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has made several claims, and defendants maintain each is insufficient and should be dismissed.

A. Conspiracy

Plaintiff alleges defendants Meyers, Whitman, Tennis and Aliar conspired to deprive him of treatment. To set forth a cognizable conspiracy claim, a plaintiff cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1377 (3d Cir. 1992); Rose v. Bartle, 871 F.2d 331, 336 (3d Cir. 1989); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). The ThirdFederal Circuit Court of Appeals has further noted that “[a] conspiracy claim must contain supportive factual allegations.” Rose, 871 F.2d at 366. In addition, “[t]o plead conspiracy adequately, a plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose.” Shearin v. E.F. Hutton Group Inc., 885 F.2d 1162, 1166 (3d Cir. 1989).

It is well-settled that a conspiracy is an agreement or concerted action between individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. Plaintiff must, therefore, allege with particularity and present material facts which show that the supposed conspirators reached some agreement or plotted, planned, and conspired together to deprive plaintiff of a protected federal right. See id.; see also, Rose, 871 F.2d at 366; Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539 (E.D. Pa. 1982). Additionally, where a civil rights conspiracy is alleged, as is in the case at bar, there must be some specific facts in the complaint which tend to show a meeting of the minds and some concerted activity on the part of the alleged conspirators. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). These facts must be more than subjective suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991).

Plaintiff has alleged no facts in the complaint which would suggest there was an agreement between the defendants to violate plaintiff’s civil rights. Plaintiff does allege that each of the defendants has access to his medical records and, due to their supervisory roles, should have known about his injuries. Plaintiff also alleges defendants may have acted collectively when they allegedly breached their duty to the plaintiff relative to the assault. Plaintiff states that defendants acquiesced in a meeting of minds to recklessly disregard DC-ADM policy but offers no further evidence to support his allegation of conspiracy. Plaintiff’s assertion that defendants acquiesced in double-celling [sic] plaintiff with Nash, and by attempting to cover up their involvement is also insufficient to maintain a claim for conspiracy. Accordingly, defendants’ preliminary objection for failure to state a claim for conspiracy is sustained.

B. Retaliation

Plaintiff alleges defendants retaliated against him for filing grievances and lawsuits by repeatedly searching his cell and denying him medical care. Defendants maintain he was not denied medical care, arguing plaintiff’s disagreement with the medical care he was provided does not constitute denial of care. Defendants also argue cell searches are matters left to the prison management unless plaintiff can establish that a constitutional right is being violated. This position is strongly supported by Sandin v. Conner, 515 U.S. 472, 482 (1995) and Hudson v. Palmer, 468 U.S. 517, 526 (1984) (the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell).

There is a split amongst the United States Courts of Appeals regarding the appropriate test for causation in cases in which a prisoner alleges retaliation. The Third Circuit has not explicitly adopted a test for causation, but has in the past applied one. An inmate must demonstrate that the prison authorities engaged in retaliatory action, and that this action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals. Brooks-Bey v. Kross, C.A. no. 947-7650, slip op. at 7-8 (3d Cir. June 24, 1995), citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Plaintiff’s allegation of retaliation is stated in a single sentence in his complaint: Plaintiff is being retaliated against for filing grievances and law suit [sic] against the defendants by constantly being cell searched and denied medical care and treatment. (Complaint, ¶42.) This claim is insufficient to support a claim upon which the court may grant relief. It is a mere allegation. Accordingly, defendants’ preliminary objection for failure to state a claim for retaliation is sustained.

C. Loss of Job

Plaintiff alleges defendants’ actions denied him the ability to work. There is no constitutional right to prison employment. Bryan v. Werner, 516 F.2d 233, 240 (3d Cir. 1975); accord Carter v. Tucker; Carter v. Tucker, 69 Fed. Appx. 678 (6th Cir. 2003). Alleged interference with his ability to obtain prison employment is not a cognizable constitutional violation. Accordingly, defendants’ preliminary objection for failure to state a claim for loss of job is sustained.

D. Supervisory Responsibility

Plaintiff alleges defendants Meyers, Whitman, Tennis and Aliar had knowledge of the wrongs conspired to be done on plaintiff or about to be committed and having the power to prevent these wrongs and conspired to neglect to intervene as a matter of procedural due process. (Complaint, ¶59.) Plaintiff is pursuing a theory that defendants should be liable by virtue of their role as supervisors. Claims under section 1983 cannot be based on a theory of respondeat superior. Rode v. Dellariprete, 845 F.2d 1195, 1207 (3dCir. 1988). Allegations of personal involvement must be made with particularity in order to establish a civil rights violation. Id. Plaintiff must show that defendants directed, knew, and acquiesced in the deprivation of plaintiff’s constitutional rights to have an actionable claim. Id.; McFadden v. Lehman, 968 F. Supp. 1001 (1997). Accordingly, defendants’preliminary objection for failure to state a claim for supervisory responsibility is sustained.

E. Personal Involvement Assault

Plaintiff alleges defendants Meyers, Whitman, Tennis and Aliar are vicariously liable for inmate Nash’s assault on plaintiff. Under the applicable law, there is generally no vicarious liability. A petitioner must show more than mere negligence to state a claim under section 1983. Estelle v. Gamble, 429 U.S. 97, 104-106 (1976); Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989). Plaintiff alleges defendants knew or should have known about Nash’s purported dangerousness and propensity for violence, but he does not allege any facts that they actually knew as required for personal involvement in a constitutional violation. Plaintiff states to the extent that the defendants deny awareness of Nash’s violent record where the inference could be drawn, then plaintiff reasonably believes and therefore avers, illustrating that plaintiff is inferring liability and is not alleging any actual knowledge on the part of the defendants. (Complaint, ¶25.) All of plaintiff’s allegations are conclusory where they must be factual and specific. Accordingly, defendants’ preliminary objection for failure to state a claim for personal involvement is sustained.

F. Duty To Protect

Plaintiff alleges defendants Meyers, Whitman, Tennis and Aliar failed to protect him from unnecessary and wanton infliction of pain. In order to succeed on this claim, two requirements must be met. First, plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994). This element is satisfied when the alleged punishment is objectively sufficiently serious. Id. Second, plaintiff must show that the prison officials have a sufficiently culpable state of mind. Id. at 838. Plaintiff must specifically show that the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Id.

Plaintiff alleges that inmate Nash’s prior aggressive and assaultive behavior toward and against other inmates constitutes facts from which the defendants can be inferred to draw the conclusion that a substantial risk of serious harm existed. This allegation does not rise to the level contemplated by the court in Farmer. A mere conelusion that defendants knew because they were supervisors or the superintendent is insufficient. Plaintiff must show they specifically reviewed those records and therefore were aware of any alleged aggressive behavior of inmate Nash. Contrary to plaintiff’s position, access to records does not establish knowledge of the information contained in those records. For each defendant, plaintiff must allege that he had actual knowledge of inmate Nash’s history, and concluded for himself that a substantial risk of serious harm existed for plaintiff. Accordingly, defendants’ preliminary objection for failure to state a claim for duty to protect is sustained.

G. Habeas Corpus Claims

Plaintiff appears to be seeking relief under Pa.R.Crim.P. 108(B), habeas corpus. He has alleged: failure to provide a safe environment; failure to provide necessary medical care; and retaliation by repeated cell searches.

Prison authorities’ failure to exercise discretion in a particular way may not be reviewed by the courts within the context of a habeas corpus proceeding. Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa. Super. 2002). The writ may be used, however, to extricate a petitioner from conditions of confinement that constitute cruel and unusual punishment. Id. The standard for cruel and unusual punishment is that conditions must be such that they violate freedoms considered basic and fundamental. Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971). For conditions of confinement to constitute unconstitutional cruel and unusual punishment, the conditions must be totally without penological justification and deprive the inmate of the minimal civilized measure of life’s necessities. DeHart v. Horn, 694 A.2d 16, 18 (Pa. Commw. 1997); Bell v. Horn, 762 A.2d 776, 779 (Pa. Commw. 2000). Based on the discussion of plaintiff’s complaint and allegations in previous sections, the court determines plaintiff has not established conditions that constitute cruel and unusual punishment.

Additionally, a writ of habeas corpus will issue only if no other remedy is available for the condition the petitioner alleges, or the available remedies have been exhausted or ineffectual. Fortune, 792 A.2d at 1259; Department of Corrections v. Reese, 774 A.2d 1255 (Pa. Super. 2001). As has been previously determined by this court, plaintiff has not exhausted his administrative remedies. The department of corrections grievance system has been recognized by the courts as providing adequate post-deprivation remedies to inmates in satisfaction of the due process clause, and plaintiff has not availed himself of these mechanisms. Tillman v. Lebanon County Correctional Facility, 221 F.2d 410, 422 (3d Cir. 2000); Waters v. Department of Corrections, 97 Pa. Commw. 283, 290, 509 A.2d 430, 433 (1986). Accordingly, defendants’ preliminary objection for failure to state a claim for habeas corpus claims is sustained.

H. Negligence

Plaintiff alleges several instances of negligent behavior. As noted in section III(JE) above, negligence is insufficient to state a section 1983 claim. The mere negligent conduct that leads to serious injuiy of a prisoner by a prisoner, as alleged by plaintiff, does not expose a prison official or employee to liability under section 1983. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). All claims of negligent acts constituting deliberate indifference as to all defendants fail. Accordingly, defendants’ preliminary objection for failure to state a claim for negligence is sustained.

I. State Law Claims

Plaintiff alleges several claims against defendants Meyers, Whitman, Tennis and Aliar that defendants maintain are barred by the doctrine of sovereign immunity. The assertion of immunity is improper as a preliminary objection. Preliminary objections are limited to the grounds listed in Pa.R.C.P. 1028. As they raise objections specifically excluded under Rule 1028, defendants’ objection relative to sovereign immunity is overruled. Under Pa.R.C.P. 1030, immunity must be pled in a responsive pleading under the heading new matter.

J. Injunctive Relief

Plaintiff seeks injunctive relief to grant him single cell status, medical orders to see a neurologist and doctors for his spine and ankle, and instructions from the court to the defendants to refrain from further retaliation. To prevail in an action for an injunction in a section 1983 suit, a plaintiff must establish: (1) he is likely to prevail on the merits; (2) the extent to which he is being irreparably harmed by the conduct complained of; (3) the extent to which the non-moving party will suffer irreparable harm if the preliminary injunction is issued; and (4) whether granting preliminary injunctive relief will be in the public interest. See S & R Corp. v. Jiffy Lube Intern. Inc., 968 F.2d 371, 374 (3d Cir. 1992), citing Hoxworth v. Blinder, Robinson, & Co. Inc., 903 F.2d 197-98 (3d Cir. 1990). The moving party bears the burden of demonstrating these facts.

Plaintiff states that he seeks an injunction prohibiting retaliatory action. Speculative injury does not constitute a showing of irreparable harm. Continental Group Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1987). As noted previously, plaintiff has not stated facts with specificity to sustain a claim for retaliation.

Furthermore, plaintiff alleges the same pain today that he asserted in September 2001, when he was housed with inmate Nash. He does not assert being celled with inmate Nash since then. His references for fearing for his life all refer back to the incident in September 2001. He has not alleged anything to have happened since then to justify this fear.

In sum, plaintiff has not established he is likely to succeed on the merits of his case. Accordingly, defendants’ preliminary objection for failure to state a claim on which injunctive relief may be granted is sustained.

The following is entered:

ORDER

And now, October 10, 2008, the following is ordered:

(1) Defendants’ preliminary objections to Counts I, II, and IV based on jurisdiction pursuant to Pa.R.C.P. 1028(a)(1) are overruled.

(2) Defendants’ preliminary objections to Counts I, II, and IV based on failure to conform to rule of law pursuant to Pa.R.C.P. 1028(a)(2) are overruled.

(3) Defendants’ preliminary objections to Counts I, II, and IV based on failure to state a claim pursuant to Pa.R.C.P. 1028(a)(4) are sustained in part and overruled in part.

(A) Conspiracy: sustained.

(B) Retaliation: sustained.

(C) Loss of job: sustained.

(D) Supervisory responsibility: sustained.

(E) Personal involvement — assault: sustained.

(F) Duty to protect: sustained.

(G) Flabeas corpus claims: sustained.

(H) Negligence: sustained.

(I) State law claims: overruled.

(J) Injunctive relief: sustained.

(4) Plaintiff’s third amended complaint is hereby dismissed for failure to state a claim upon which relief may be granted. Filing of an amended pleading shall not be allowed as plaintiff will be unable to cure the defects in his complaint such that it would survive the same preliminary objections raised by defendants in the case at bar.

      . The Third Circuit has not addressed this issue in a published opinion. Brooks-Bey is an unpublished opinion and has no precedential value. However, the court finds Brooks-Bey instructive, and although not bound by that case, shall consider it.


author: GEORGE, J,

text:
    Kuhn v. Maxwell

      C.P. of Adams County,
    no. 06-S-1331.

      Thomas W. Hall, for plaintiff.

      Evan Black, for defendant.
    October 22, 2008
   GEORGE, J,

Before the court for disposition is a motion for summary judgment filed on behalf of the defendant, Gettysburg Hospital. The hospital seeks summary judgment in their favor on a professional liability complaint filed by Patricia A. Kuhn against the hospital, Gettysburg Surgical Associates Inc. (GSA), and two treating physicians. The sole claim against the hospital is one of vicarious liability for the negligent acts of the treating physicians. The hospital seeks judgment in their favor arguing that Kuhn cannot establish that the treating physicians were employees or agents of the hospital.

Before granting summary judgment in favor of a party,.the court must find that there is no genuine issue of material fact as to a necessary element of the cause of action and that the party is entitled to judgment as a matter of law. Kvaerner Metals Division, of Kvaerner U.S. Inc. v. Commercial Union Insurance Company, 589 Pa. 317, 908 A.2d 888, 895 (2006). In considering a motion for summary judgment, the trial court must look at the facts in the light most favorable to the non-moving party. Baker v. Cambridge Chase Inc., 725 A.2d 757, 764 (Pa. Super. 1999). Additionally, the trial court must ignore controverted facts contained in the pleadings. Overly v. Kass, 382 Pa. Super. 108, 112, 554 A.2d 970, 972 (1989). Summary judgment should only be granted if the facts are so clear that reasonable minds could not differ. Kvaerner, 589 Pa. at 329, 908 A.2d at 896. In determining whether or not there is a genuine issue of material fact, the court may properly review all pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports which comply with Rule 4003.5(1) of the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P. 1035.1; Baker v. Cambridge Chase Inc., supra at 764.

In reviewing the record in the light most favorable to Kuhn, the factual background reveals the following:

On May 23, 2004, Kuhn, age 58, appeared at the emergency department at the hospital complaining of chest pain, heartburn, and symptoms of epigastric bloating. A chest x-ray examination conducted by the hospital revealed a large central hiatal hernia. After reviewing the results of the x-ray, the emergency room physician, Dr. William Steinour, referred Kuhn to GSA for follow-up care. The hospital’s emergency department patient instruction form instructed, as follow-up care, a return to the emergency department if needed and to call Dr. Maxwell on the following Monday for an appointment. Kuhn was thereafter released by the hospital emergency department.

Some time after leaving the emergency department, Kuhn called GSA and scheduled an appointment at the private offices of GSA. She was able to secure an appointment and was seen by Dr. Timothy R. McKee on June 2, 2004 at the offices of GSA. Following her examination by Dr. McKee, Kuhn underwent several diagnostic tests including an esophageal manometeiy performed at the Flershey Medical Center. Following diagnostic testing, Dr. McKee performed an esophagogastroduodenoscopy at the Wellspan Health Center on July 6, 2004. The test identified a large hiatal hernia measuring at least 6 cm(s) in diameter.

On November 1, 2004, Kuhn returned to the offices of GSA and, once again, consulted with Dr. McKee. As a result of the consultation and evaluation, Dr. McKee recommended a plan consisting of a reduction of the paraesophageal hernia and repair to the diaphragm. On November 30,2004, Kuhn was admitted to the hospital under the care of Dr. McKee. On that same date, Dr. McKee performed the surgery. Throughout the surgery, he was assisted by an employee of GSA, Tara Hall, PAC. Following surgery, Kuhn was discharged to her home on December 2, 2004.

On December 9,2004, Kuhn returned to the offices of GSA and consulted with Tara Hall, PA-C, for follow-up.

On February 18, 2005, Kuhn appeared at the emergency department of Hospital. While there, she consulted with Dr. Maxwell. Kuhn was complaining of chest pain and nausea. An x-ray taken at the hospital revealed a large hiatal hernia. Dr. Maxwell performed a subsequent surgeiy at the hospital on February 24, 2005. During the course of surgery, he was assisted by Tara Hall, PA-C. Following surgery, Kuhn was discharged from the hospital on March 2,2005. Several days later, on March 9,2005, Kuhn appeared at the offices of GSA and consulted with Dr. Maxwell. As a result of the consultation, Dr. Maxwell re-admitted her to the hospital. Following an upper GI series conducted to rule out a surgical leak, Kuhn was discharged from the hospital on March 15,2005. The upper GI series revealed no evidence of leaking.

On March 22,2005, Kuhn returned to GSA complaining of difficulty swallowing. Although the record is not clear, it appears she was released by Dr. Maxell after consultation. However, she returned to GSA on April 18, 2005 with the same complaint. An upper gastrointestinal endoscopy was performed by Dr. Maxwell on April 26, 2005. Kuhn returned to Dr. Maxell’s office with continued complaints of dysphasia on May 3, 2005. On May 11,2005, Dr. Maxwell re-admitted Kuhn to the hospital. Thereafter, she was transferred to the Hershey Medical Center on May 16, 2005.

Although discharged from the Hershey Medical Center, Kuhn claims to remain under intensive medical care and treatment as she continues to suffer from dysphasia, abdominal pain, and weight loss.

Gettysburg Hospital is a hospital duly licensed under laws of the Commonwealth of Pennsylvania. Neither Dr. Maxell nor Dr. McKee are employed by the hospital. Additionally, neither physician is an independent contractor of the hospital. Both physicians, however, have staff privileges permitting both the ability to admit patients to the hospital for surgical treatment.

Undoubtedly, Pennsylvania law provides that an employer may be vicariously liable for the harm caused by the negligence of an employee. See The Milton S. Hershey Medical Center of The Pennsylvania State University v. Pennsylvania Medical Professional Liability Catastrophe Loss Fund, 573 Pa. 74, 85, 821 A.2d 1205, 1212 (2003). This general rule, however, does not extend liability for torts committed by an independent contractor hired by an employer. McDonough v. U.S. Steel Corporation, 228 Pa. Super. 268, 273, 324 A.2d 542, 545 (1974). Nevertheless, in the area of professional malpractice claims, appellate courts have held employers responsible for the acts of independent contractors in certain instances under a theory of ostensible agency. In Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 368, 430 A.2d 647, 648 (1980), the concept of ostensible agency was first recognized by the Superior Court. This theory provides that one who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer, is subject to liability for physical harm caused by the negligence of the independent contractor in supplying those services. Capan at 369, 430 A.2d at 648. The relevant factors in establishing ostensible agency are: (1) whether the patient looks to the institution, rather than the individual physician for care and (2) whether the hospital holds out the physician as its employee. Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579, 591 (Pa. Super. 2002) (quoting Goldberg v. Isdaner, 780 A.2d 654, 660 (Pa. Super. 2001). In regard to the latter factor, “[a] holding-out occurs when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees.” Capan at 370, 430 A.2d at 649.

As it is undisputed that neither Dr. Maxwell nor Dr. McKee are employees or independent contractors of Hospital, the sole basis of Hospital’s liability, if any, rests upon the theory of ostensible agency. Kuhn points to a number of factors in support of her claim. Initially, Kuhn suggests that she initially looked to the hospital for her care when she was at the emergency department on May 23,2004. She suggests that Dr. Maxwell was held out as an employee of the hospital when she was referred to him for follow-up care. She notes that she was singularly referred to Dr. Maxwell rather than given the option to select from several surgeons. In support of her argument, Kuhn highlights the two surgical procedures that were actually performed at the hospital. Finally, Kuhn cites her deposition testimony wherein she stated that she believed the doctors to be employees of the hospital. Kuhn deposition, p. 76. She points to several Hospital records which purportedly were signed by her at the time of her admission as corroboration of her belief that it was Hospital who was her primary care provider.

Clearly, Kuhn has claimed a subjective belief concerning the hospital’s relationship with Drs. Maxwell and McKee. Nevertheless, her subjective assumption is not controlling. Rather, the question of whether an ostensible agency relationship exists is examined under an objective standard as to whether the patient’s belief of being treated by the hospital or its employees is reasonable. Yacoub, supra at 591. Therefore, the critical focus is not on Kuhn’s subjective belief but rather whether her belief is reasonable under the circumstances presented to her. As previously mentioned, in support of her suggestion that her belief was reasonable, she relies on two specific circumstances: (1) the referral by a hospital to a specific surgeon or association of surgeons and (2) the two surgical procedures conducted by the surgeons at the hospital pursuant to their staff privileges. For the reasons set forth below, I find that Kuhn is unable to objectively establish that her belief that the physicians were agents of the hospital was reasonable.

In considering the importance of the GSA surgeons possessing staff privileges at the hospital, I note that the Pennsylvania Legislature has enacted statutory guidance in this area. In 2002, the General Assembly adopted the Medical Care Availability and Reduction of Error Act, 40 Pa.C.S. §1303.101 et seq. (MCARE), as part of an effort to address Pennsylvania’s medical malpractice crisis while ensuring appropriate legal process and reasonable compensation to persons injured due to medical negligence. As part of the legislation, the ostensible agency theory enunciated by Capan was codified. 40 P.S. §1303.501. The codification, however, was careful to note that evidence of a physician holding staff privileges at a hospital was insufficient, in and of itself, to establish vicarious liability under the principles of ostensible agency. 40 P.S. §1303.516(b). Thus, while the fact that the current surgery was performed at the hospital may be a relevant consideration, it is not controlling.

As MCARE clearly enunciates that the holding of staff privileges alone is insufficient to establish ostensible agency, survival of the claim against the hospital requires a greater showing on the part of Kuhn. In order to buttress her claim, Kuhn points to the hospital’s referral to Dr. Maxwell as being sufficient to permit this action to move forward. The crux of the current issue, therefore, is whether the referral to GSA is an act sufficient to lead a reasonable person to believe that they were being treated by the hospital or one of its employees. I determine, as a matter of law, that it is not.

Although I presume it as true that Kuhn was referred by Hospital staff to a specific surgeon, it is interesting to note that it was she who actually scheduled the initial appointment. In doing so, she made contact with GSA and ultimately scheduled her visit with a surgeon other than the one mentioned by the hospital. Therefore, Kuhn’s claim, by necessity, translates to a claim that all surgeons at GSA were held out as employees of the hospital. Thus, the direct nexus that one might expect in an agency relationship is transparent. Certainly, a reasonable person understands that scheduling an appointment through a medical association separate of the hospital, without restriction as to the specific surgeon, is the first act in establishing a doctor/patient relationship with an entity separate from the hospital. Further indication that GSA was a distinct entity separate from the hospital is apparent when one considers that the appointments between Kuhn and GSA physicians occurred at the private offices of GSA. Incidentally, those appointments involved diagnostic and other procedures which occurred at locations other than the hospital, and, in fact, one occasion occurred at a separate and distinct hospital. Under these circumstances, the existing evidence in support of a finding of ostensible agency is insufficient to submit this matter to a jury.

Although I have been unable to uncover any postMCARE appellate authority on this issue, earlier appellate decisions have required something more than a referral before an ostensible agency relationship is established. See Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980) (patient admitted to hospital through emergency room department, initially treated at hospital by previously unknown doctor while in the care of the hospital); Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988) (patient being treated in emergency room when doctor, unknown to patient, summoned by a treating nurse to provide medical care while at the emergency room); Walls v. Hazleton State General Hospital, 157 Pa. Commw. 170, 629 A.2d 232 (1993), appeal denied, 536 Pa. 649, 639 A.2d 35 (1994) (patient being treated at hospital emergency department by emergency department physician who called an orthopedic surgeon to provide additional treatment while at the hospital); Goldberg v. Isdaner, 780 A.2d 654 (Pa. Super. 2001) (brochures and medical forms indicated affiliation between treating physician and hospital accompanied by physician’s offices sharing entrance with hospital); Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579 (Pa. Super. 2002) (radiologists conducted studies on decedent in the hospital’s radiology department when patient referred to hospital for diagnostic test). A common thread among all of these cases is that the patient turned to a hospital for medical care and subsequently received treatment by a previously unknown physician, or other expert, provided to the patient by the hospital. This factual scenario is simply non-existent in the current case.

The Superior Court in Capan recognized the need for an ostensible agency theory in light of the changing role of the hospital in society as patients look to the institutions of hospitals rather than the individual physicians for care. The court recognized that present-day hospitals do far more than furnish facilities for treatment. They regularly employ, on a salary basis, a large staff of physicians, nurses, and interns and they charge patients for medical care and treatment rendered by these professionals. Based on this changing role of hospitals in society, the Capan court opined that “[i]t would be absurd to require such a patient to be familiar with the law of respondeat superior and so to inquire of each person who treated him whether he is an employee of the hospital or an independent contractor.” Capan at 369, 430 A.2d at 649.

The concern recognized by the Capan court is simply not present instantly. Kuhn was treated and released by the hospital. She initiated contact with GSA several days after her interaction with the hospital. For all practical purposes, her relationship with the hospital had ended as she established a new relationship with GSA. As mentioned, the Capan rationale is founded on the presupposition that a patient does not normally visit an emergency room expecting to be treated by the hospital’s independent contractors. Rather, a reasonable person rationally assumes that when they go to a hospital for treatment, and are subsequently treated at the hospital, that it is the hospital that is providing the treatment. It logically follows, therefore, that when a person visits a doctor’s office for medical attention, and receives that attention from the office, that the patient expects that they are under that doctor’s care. See generally, Parker v. Freilich, 803 A.2d 738, 748 (Pa. Super. 2002) (a patient attending a doctor’s office reasonably expects that they are under the doctor’s care). Stated another way, when a reasonable person schedules an appointment with a physician’s office, they are looking to that physician for treatment and expecting care from that physician rather than from the referral source.

While I am mindful of the standard for granting summary judgment, I am also aware of this court’s obligation to act as gatekeeper of our legal system to avoid unnecessary, time-consuming, and expensive litigation which lacks merit. Currently, the hospital did nothing more than competently render emergency services to Kuhn and refer her for further treatment to an independent physician. If evidence supports a finding of medical negligence by her treating physicians, that responsibility rightfully falls on those responsible for the negligent acts. However, the hospital had no part in the care or accompanying negligence. Requiring the hospital to remain in this litigation under the guise of the existence of a factual issue as to ostensible agency results in nothing more than unnecessary litigation and financial hardship to an innocent party.

For the foregoing reasons, the attached order is entered.

ORDER

And now, October 22,2008, the motion for summary judgment filed by Gettysburg Hospital is granted. Summary judgment is entered against the plaintiff and in favor of the defendant, Gettysburg Hospital. Litigation against the remaining defendants shall proceed as set forth in the Pennsylvania Rules of Civil Procedure.

      . Mosbys Medical, Nursing, and Allied Health Dictionary, 6th edition, defines epigastric as to pertaining to the epigastrium, the area above the stomach.

      . Dr. Henry L. Maxwell is a physician licensed to practice medicine in the Commonwealth of Pennsylvania and is a practicing physician with GSA. Dr. Maxwell is a named defendant in this action.

      . Dr. Timothy R. McKee is a physician licensed to practice medicine in the Commonwealth of Pennsylvania and is a practicing physician at GSA. Dr. McKee is a named defendant in this action.

      . An esophagogastroduodenoscopy is an endoscopic test that permits direct visualization of the upper GI tract and involves insertion of a long, flexible fiber-optic-lighted scope permitting examination of tumors, inflammation, hernias, ulcers, and obstructions. Mosbys Medical, Nursing, and Allied Health Dictionary, 6th edition.

      . The patient instruction form given at discharge directs her to contact an individual physician. However, in her deposition, Kuhn claims to have been referred to the surgical group of physicians known as GSA.

      . Although Kuhn’s deposition contains her claim that she believed the physicians to be employed by the hospital, earlier in her deposition, the following occurred:
      “Q. Well, did you think they were employees of the hospital?

        “A. I wasn’t sure how that worked, because I knew that they used the hospital for operating and things like that. But I didn’t know I didn’t know what their setup was.” Kuhn deposition, p. 76.

      . The forms include a consent to anesthesia; a consent and authorization form referencing treatment, payment, and business operations; a consent to surgical and other therapeutic/diagnostic procedures form; and an agreement for blood transfusion. Additionally, Kuhn submitted unsigned documents carrying designation as Gettysburg Hospital forms. These unsigned forms consisted of a refusal to consent to treatment form and a refusal to consent to a blood transfusion form.

      . Hospital suggests that Kuhn’s subjective claim that she assumed the hospital was providing her treatment is refuted by her own experiences. Hospital points out that Kuhn is extremely versed in the relationship between the Gettysburg Hospital Emergency Department and independent, community-based physicians. Hospital cites 725 occasions between 1983 and the current litigation during which Kuhn visited Hospital’s emergency room. Additionally, Hospital claims that from November 30,2004 through July 19,2007, Kuhn sought services from Hospital’s emergency room on an additional 65 occasions and from York Hospital’s Emergency Department on seven separate occasions.


author: WECHT, J,

text:
    Addlespurger v. Addlespurger

      C.P. of Allegheny County,
    no. FD 04-4718-003.

      Julie Addlespurger, pro se.

      Arthur Bloom, for defendant Steven Addlespurger.

      Ronald H. Heck, for additional defendants Donald Addlespurger and Auto Driveway Company.
    October 14, 2008
   WECHT, J,

Plaintiff Julie Addlespurger (Wife) appeals from this court’s order dated July 25, 2008. That order vacated this court’s previous orders that had stayed the sheriff’s sale of the marital residence. In accordance with Pa.R.A.P. 1925, this opinion sets forth the court’s reasons for the July 25, 2008 order.

BACKGROUND AND PROCEDURAL HISTORY

Wife and defendant Steven Addlespurger (Husband) married on August 7,1987. They separated in July 2004. Wife filed her divorce complaint on September 2,2004. Over its multiyear course, this action has been rife with frequent, extensive, and contentious litigation of many issues, both in this court and in the Superior Court.

On July 6, 2007, Wife, then represented by counsel, presented a motion requesting a stay of a scheduled sheriff’s sale of the marital residence pending equitable distribution. Parkvale Savings Bank had foreclosed on its line of credit collateralizing the marital residence, and appeared through counsel to oppose Wife’s motion. Husband appeared without counsel, and did not oppose the sale. On July 11, 2007, this court granted Wife’s request and stayed the sale pending the outcome of equitable distribution. On July 17, 2008, this court issued a clarifying order, at the Bank’s request, ruling that the sale was postponed.

This court then attempted once again to move this case forward to dispose of the parties’ economic claims. An equitable distribution conciliation was scheduled for August 13, 2007 and then rescheduled for August 23 at the request of counsel for additional defendants. It was later rescheduled for August 27. Following conciliation, a pretrial conference was scheduled for December 20, 2007. In December 2007, the Bank presented a motion for reconsideration. A January 23, 2008 order disposed of the motion for reconsideration and scheduled trial for March 17, 18 and 24. Trial proceeded on March 17, March 18, March 24, June 16, June 18, June 24, July 1, July 7, and concluded on July 15. One hundred forty-five exhibits were entered into evidence. An order disposing of the parties’ economic claims issued on July 25, 2008.

On July 14, 2008, the Bank again presented a motion requesting that the stay of the sheriff’s sale be lifted. This court took the motion under advisement, and issued an order on July 25, 2008 that vacated its July 11 and July 17, 2007 orders, thereby lifting the stay.

On August 1, 2008, Wife presented a motion in the civil division, docketed at GD 05-28310, requesting an additional stay. The motion was granted by the civil division motions judge, and the sale was stayed until November 3, 2008.

Nonetheless, on August 22, 2008, Wife, proceeding pro se, filed a notice of appeal of this court’s July 25 order lifting the stay. On August 25,2008, in accordance with Pa.R.A.P. 1925(b), this court ordered Wife to file a concise statement of errors complained of in the appeal. On September 16,2008, the twenty-second day after the date of the order, Wife filed a statement.

Issues Raised on Appeal

In her Pa.R.A.P. 1925(b) statement, Wife averred as follows:

“(1) Did the lower court error [sic] and/or abuse its discretion when it vacated all previous orders of court staying the sheriff sale on the marital residence (thereby permitting Parkvale to continue with the sale) knowing a final distribution of this marital asset was not issued in its equitable distribution ruling of July 25, 2008? Yes

“(2) Did the lower court error [sic] and/or abuse its discretion when it vacated all previous orders of court staying the sheriff sale on the marital residence (on July 25) knowing the occupant/custodial parent would then only have 10 days/five business days notice to address the situation before the sheriff sale occurred on August 4, 2008? Yes”

Discussion and Analysis

In deciding to grant Wife’s original stay motion, this court gave close consideration to the case of Kronz v. Kronz, 393 Pa. Super. 227, 574 A.2d 91 (1990). In Kronz, our Superior Court indicated that a family court had neither the power to alter or delay the rights of creditors in order to facilitate equitable distribution, nor jurisdiction over a secured creditor who was not a third party involved in or concerned with the disposition of the divorce. Id. at 233, 574 A.2d at 93-94. Instead, the court “in which the execution proceedings are pending has an inherent power to stay the proceedings.” Id. at 233, 574 A.2d at 94. However, the Kronz court’s principal concern appeared to be that the family court had stayed execution indefinitely. Id. at 234, 574 A.2d at 94-95. The Superior Court found that, in so doing, the lower court had impaired the creditor’s contractual rights. Id. at 234, 574 A.2d at 95. The Superior Court suggested that the lower court had failed properly to balance the interests of the creditor and debtor because the court had not made any provisions to ensure a prompt sale of the property nor any provisions to manage and maintain the property, all of which impaired the substantive rights of the creditor. Id.

This court determined that Wife would be damaged if the sheriff’s sale occurred before equitable distribution. Wife represented to this court at argument that she was current on the first mortgage encumbering the home, a loan from Dollar Bank. Additionally, Wife contended that Husband was responsible for the maj ority of the line of credit obligation (unpaid since 2005) upon which the Bank had foreclosed, and that the additional defendants also were responsible for payment. Prior to development of an evidentiary record at trial on economic claims, this court could not properly evaluate Wife’s contentions. Because the Bank had obtained its foreclosure, it appeared to be protected, at least for that time. As Wife was living in the marital residence with the parties’ two minor children, this court was confident that the residence would be maintained. The challenge, then, was to craft an order that protected the Bank under Kronz, while recognizing and minimizing the risk to Wife.

In Kronz, the Superior Court was concerned that undue delay would affect the creditor’s rights. There was a similar concern here. Clearly, the stay could not be of indefinite duration. The parties had failed to move this case forward to equitable distribution. Without such forward motion, to allow a stay until equitable distribution might have been tantamount to a de facto stay of indefinite duration. Yet, to put a specific expiration date on the stay would only have encouraged Husband to continue to delay equitable distribution, given his apparent wish that Wife be evicted from the property.

This court’s July 11, 2007 order attempted to balance the interests of all involved. It moved equitable distribution along by setting a date for conciliation, thereby ensuring that the stay was not indefinite. It imposed enough of a potential penalty to encourage Husband to comply, and it allowed Wife some protection pending the outcome of equitable distribution.

In its argument for reconsideration in January 2008, the Bank asserted that the stay was essentially indefinite because there was no deadline for equitable distribution to occur and because the parties, particularly Husband, had a history of dragging out the proceedings. The Bank further argued that, as long as the stay remained in place, fees and costs were accruing steadily, making it less likely that the parties ultimately would retain any equity in the home, and less likely that foreclosure ultimately could satisfy the parties’ obligation to the Bank.

In an attempt to protect all the parties’ interests, and to keep the stay from becoming a de facto indefinite delay, this court issued its January 23,2008 order setting the dates for the equitable distribution trial in March 2008. Unfortunately, the parties’ expectations for length of trial proved unrealistic, and the proceeding dragged out over nine days until July 2008.

At the time this court issued its July 25, 2008 order, the equitable distribution trial had concluded, and an order disposing of economic claims was issued. At that point, there was no longer a need to protect Wife’s interest pending equitable distribution, because distribution was now occurring. At that time, following development of a full evidentiary record and issuance of fact-findings and legal conclusions, it finally was clear that there was very little to the marital estate. There was no pool of money that Husband was withholding that could suffice to cure the foreclosure. The additional defendants were found not to be part of the marital estate, and were found not to be responsible for the payments to the Bank. Wife was in the best financial position to attempt to cure the foreclosure. But it was not clear that Wife would be able to do so. The Bank argued that there essentially was no equity in the property once all the fees and costs were considered. No payments had been made on the line of credit since 2005. The elder child had reached 18 and graduated from high school. As the Bank no longer had any protection, and with the property now well underwater, and with the interests of Wife and Husband having been adjudicated through equitable distribution, there no longer was any need (or good cause) for this court to continue to stay the sheriff’s sale.

The marital residence was part of the final distribution in the July 25, 2008 equitable distribution order. Due to the special circumstances of this encumbered property, the court deemed it inequitable to award either party the equity in the home, inasmuch as it appeared unlikely that either party would be able to keep the home or realize any equity from it. Therefore, this court provided for the various specific eventualities that might occur, to wit, either the home would be sold at sheriff’s sale, or one of the parties would cure the foreclosure. While there was some uncertainty as to whether either party would be able to retain the home, there was no uncertainty as to how any proceeds or interests would be divided among the parties regardless of the home’s disposition.

Wife also complained that the July 25,2008 order did not provide her with enough time to “address the situation” prior to the scheduled sheriff’s sale. Wife has had ample time since the October 2005 complaint in mortgage foreclosure and the February 2007 order entering judgment in mortgage foreclosure to “address the situation.” Wife has continued to make no payments since before the complaint was filed, despite having full possession and enjoyment of the marital residence. Further, this court’s orders have made clear that the sale was stayed only pending equitable distribution. Wife was on notice that, once equitable distribution was concluded, the sale would no longer be stayed. Finally, it is disingenuous for Wife to complain that there was not enough time when Wife was able to come into civil division motions court and get a new stay after this court’s July 25 order.

Given the need to protect the rights of all those involved, including not only the defaulting parties but also the lender forced involuntarily to finance delay, and given that equitable distribution had concluded, this court’s July 25 order was appropriate.

      . At 1401 WDA 2008, Wife also has appealed a separate July 25, 2008 order. That other order disposed of the parties’ economic claims. On August 26,2008, this court granted Wife’s and Husband’s requests for reconsideration of that order. As such, Wife’s appeal at 1401 WDA 2008 is inoperative. Pa.R.A.P. 1701(b)(3).

      . Previous appeals in this action are docketed at: 2241 WDA 2007 (appeal pending); 2032 WDA 2006 (appeal quashed); 2012 WDA 2006 (appeal quashed); 1952 WDA 2006 (appeal quashed); 1852 WDA 2006 (appeal quashed); 936 WDA 2006 (appeal quashed); 91 WDA 2006 (appeal quashed); 90 WDA 2006 (appeal quashed); 89 WDA 2006 (trial court affirmed); 2231 WDA 2005 (appeal quashed); 1935 WDA 2005 (appeal quashed); and 90 WDM 2005 (application for relief denied).

      . See this court’s memorandum and order, dated July 11,2007, and memorandum and order, dated January 23, 2008, both of which are appended to this opinion. [Not published herein.]