author:
SMITH, J.,
     BROWN, J.,
     RAUP, P.J.,

text:
    Allen v. Lipson

      Clifford Rieders, for plaintiffs.

      Joseph Hafer and David R. Bahl, for defendants.

      November 29, 1990
   SMITH, J.,

The issue before the court is whether defendants must plead in their new matter the material facts on which an affirmative defense is based. We find in the affirmative. There are no recorded appellate decisions addressing this issue and the common pleas’ decisions, both recorded and unrecorded, are divided in their holdings.

In response to the complaint, defendants Lipson and Susquehanna Urologic Associates, Ltd., filed an answer with new matter. The new matter sets forth the affirmative defense of contributoiy negligence in general terms that are totally unsupported by factual allegations. Plaintiffs filed preliminary objections to this portion of the new matter in the nature of a demurrer and a motion to strike.

In support of their preliminary objections, plaintiffs argue (a) the applicability of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983); (b) Pa.R.C.P. 1019(a), which requires that the material facts on which a defense is based be stated in a concise and summary form; and (c) fairness under the circumstances. The defendants retort with the assertions (a) of fairness under the circumstances; (b) that Pa.R.C.P. 1030 requires that contributory negligence be raised as an affirmative defense and that this rule does not require factual averments; and (c) the non-applicability of Connor, supra.

In Connor, supra, our Supreme Court held that a general allegation of negligence in the complaint allowed plaintiffs, even after the passing of the statute of limitations, to amend the complaint to specify additional acts of negligence which were not specifically pled in the original complaint. In the trenchant footnote 3, the court explained:

“If appellee did not know how it ‘otherwise failfed] to use due care and caution under the circumstances,’ it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants’ complaint.” Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n.3, 461 A.2d 600, 602 n.3 (1983).

Connor has been used by the Pennsylvania courts, including this one, to preclude general allegations in complaints. Plaintiffs now ask us to apply the Connor holding to defendants’ factually void allegation of an affirmative defense in the new matter. Defendants assert that Connor is distinguishable because Connor deals with a general averment of fact that must be answered and the instant case involves an averment of an affirmative defense which is a conclusion of law that does not require an answer under Pa.R.C.P. 1029(a)(d). Defendants further argue that the holding in Connor was necessary because the statute of limitations had run and we do not have such an issue in the case sub judice. A careful reading of Connor will reveal that while in that factual situation the statute of limitations had run on the claim in the proposed amendment, this fact was not a basis of the decision. The issue of the statute of limitations was raised by the plaintiffs in Connor in arguing that there was prejudice that should preclude the amendment. Under the holding in Connor, the amendment of the complaint would have been allowed if the statute had-not run.

As to defendants’ first contention, it is true that an averment of a conclusion of law does not require an answer, Pa.R.C.P. 1029(a)(d), and that an averment of fact does. Prior to Connor it was assumed that a general averment of negligence in a complaint would not support a later specific claim of negligence that was not initially factually supported, and defendants were routinely denying the general averment of fact and relying on the discovery process. Connor made this an extremely dangerous and unacceptable practice. Defendants now have two choices: first, they may file a preliminary objection as suggested by the Supreme Court in footnote 3, Connor, supra, and have the general averment stricken or, second, they can embark upon a course of thorough and extended discovery that will hopefully assure them that there are no unpled facts that would support a new claim under a general averment of negligence or other cause of action. One does not have to be an experienced practitioner to determine which of the choices is easier and most likely to guarantee the desired result of eliminating surprise at the time of or on the eve of trial. Connor guarantees the first choice to defendants. Plaintiffs should have the same choice in dealing with factually unsupported allegations of defendants contained in new matter to minimize the chance that they will have to defend a surprise claim at trial. To hold otherwise would put the onus on plaintiffs to conduct extensive discovery to disprove a factually unsupported allegation rather than requiring the defendants who asserted the allegation to marshal the facts to support it. We find that this burden should be on the party asserting the allegation.

Pa.R.C.P. 1030, that requires all affirmative defenses to be pled in the new matter, is not in conflict with rule 1019(a), that requires the pleading of material facts on which a defense is based. Material facts are those facts essential to support the claim raised in the matter. Baker v. Rangos, 229 Pa. Super. 333, 325 A.2d 498 (1974). While it is true that Rule 1030 does not require factual averments, it does not relieve the pleading party from complying with Rule 1019(a). Rule 1019(a) specifically and clearly provides:

“The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” (emphasis supplied)

Affirmative defenses are not excluded from this mandate. Rule 1030 must be read in pari materia with Rule 1019(a). In support of this finding, consider Pa.R.C.P. 1031. Rule 1031 allows the defendant to set forth any cause of action in assumpsit Or trespass in a counterclaim. This rule does not require factual averments, yet any court would consider as specious an argument that Rule 1019(a) does not mandate the pleading of material facts in a counterclaim. Goodrich-Amram 2d §1030:2 (1976) provides:

“The new matter, like the complaint, must be stated in separately numbered paragraphs, and the averments must be as detailed and specific as the averments in a complaint.”

Defendants also argue that since the affirmative defense is a conclusion of law to which no responsive pleading is required, Pa.R.C.P. 1029(a)(d), the same specificity required in a complaint or counterclaim is not required when affirmative defenses are raised in new matter. This assertion ignores the requirements of Pa.R.C.P. 1019(a) and would result in unpalatable unfairness under the Connor rule, both of which are discussed above.

Both parties have argued fairness under the circumstances. Defendants contend, first, that they must file a responsive pleading within 20 days; that an affirmative defense is waived if not pled, Pa.R.C.P. 1032; and that to require specificity in pleading affirmative defenses within such a brief period places an undue burden on the defendants. As a second argument, they assert that discovery rules are (a) self-executing, (b) would eliminate delay, (c) involve less judicial intervention, and (d) give plaintiffs a sufficient vehicle with which to ascertain the details of defendants’ affirmative defenses.

As we have seen above, while discovery may ascertain the facts behind defendants’ affirmative defenses, it is unfair to require this as plaintiffs’ only option when the holding in Connor gives defendants the choice of having the general allegations stricken or utilizing discovery. As far as defendants’ second fairness contention, we are at a loss to understand how a preliminary objection that results in an affirmative defense being stricken and perhaps specifically repled would result in more delay and less judicial intervention than discovery which would result in a motion for a summary judgment or a motion for a judgment on the pleadings. This argument simply has no merit. Defendants’ strongest argument on fairness is the fact that they must file a responsive pleading within 20 days. Fairness is achieved by giving defendants a reasonable time to amend their general allegations in the new matter with specificity.

Plaintiffs also argue fairness and presciently claim that in any jurisdiction where defendants do not have to plead supporting facts to their affirmative defenses, any self-respecting defense counsel would routinely place in every new matter every affirmative defense, including the 24 that are listed in Pa.R.C.P. 1030. While this assertion may be exaggerated, there is no doubt that boilerplate affirmative defenses could become commonplace and this would greatly increase the plaintiffs’ burden in discovery and the possibility of plaintiffs having to defend a surprise claim at the time of trial.

ORDER

And now, November 29, 1990, plaintiffs’ preliminary objection in the nature of a motion to strike is granted and it is ordered and directed that paragraphs 43 and 44 of defendants’ new matter are stricken. Defendants are granted leave to amend the allegations with specificity. Any such amendment shall be made within 60 days from the date of this order or 30 days before the pretrial conference, whichever shall first occur, unless the above period is shortened or extended by order of court for good cause shown. Plaintiffs’ preliminary objection in the nature of a demurrer is moot and is, therefore, denied.

CONCURRING OPINION

BROWN, J.,

November 29, 1990

I join in the opinion of the Honorable Clinton W. Smith. This concurring opinion is written only to express my belief in the importance of a factual pleading system as required by Rule 1019(a) of the Pa. Rules of Civil Procedure. Rule 1019(a) specifically mandates the pleading of material facts in defenses as well as in stating a cause of action. The rule states: “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Rule 1019(a) of the Pa. Rules of Civil Procedure.

To allow a party in defense to engage in nonfactual pleading by simply asserting a defense does not help define the real issues of a case or put the opposing party on notice of the claims (defenses) which will actually be litigated. Instead, as discussed by Judge Smith at page 395 of his opinion, a defense attorney will be tempted to engage in boilerplate listing of affirmative defenses. In this case, the factual basis asserted by the defendants at argument en banc for the contributory negligence claim could easily have been contained in new matter at an early stage. To the extent defendants could not fairly raise a factual basis in the time allotted to answer the complaint, the remedy fashioned by Judge Smith’s Order has provided them with an appropriate opportunity to amend their pleadings.

In conclusion, I believe that the decision of Judge Smith fosters , a more meaningful pleading process consistent with the Pa. Rules of Civil Procedure while preserving a fair opportunity for a defendant to amend his pleading upon discovery of new or additional facts.

Accordingly, I join in Judge Smith’s decision.

DISSENTING OPINION

RAUP, P.J.,

November 29, 1990 — It is more important that there be a single consistent ruling on the issue presented by the preliminary objections, than that either of the two conflicting viewpoints prevail. The majority opinion rendered today will provide litigants in our county with certainty as to the way the judges of this court will henceforth resolve the issue.

In the event the issue is ever presented to an appellate court or to the civil Procedural Rules Committee, I would like to record my dissent and reasoning.

The issues with respect to specificity in pleading negligence in a plaintiff’s complaint (or a defendant’s counterclaim) are distinct from those relating to the allegation of an affirmative defense of contributory negligence or assumption of risk. To our thinking, neither the Rules of Civil Procedure, the Supreme Court holding in Connor v. Allegheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983), nor concerns about judicial efficiency support the conclusion reached by the majority.

The requirements of the Rules of Civil Procedure must be viewed in the context of the pertinent history and the general pleading scheme set forth in those rules.

A plaintiff is allowed literally years in which to gather the information necessary to fashion a complaint which contains specific allegations of the material facts on which the causes of action are based. A defendant is allowed only 20 days from the service of that complaint in which to file a responsive pleading upon risk of suffering a default judgment. Until 1984 the defenses of contributory negligence (with which we are presented in this case) and assumption of risk were not required to be pleaded at all, rather, the mere filing of an appearance was sufficient to allow the defendant to present such defenses at trial. The reasoning behind that old practice was two-fold: (1) It was considered unlikely that a defendant would have sufficient knowledge to file more than a “lack of knowledge” response; and (2) As a practical matter, the plaintiff gained little knowledge through a defendant’s pleading as he was already aware of the common defenses available in a negligence case. See Goodrich-Amram 2d, §1045(b) (1976). The rules were revised in 1984, primarily to consolidate the rules applying to actions in assump-sit and in trespass into a single form of civil action; there was no intent to revise in a substantive way the pleading of affirmative defenses in trespass claims. See Pa. Bulletin Vol. 13, no. 83 at 3999-4001.

The resulting rule, Rule 1030, contains the following language:

“Rule 1030. New Matter

“All affirmative defenses, including but not limited to the defenses of accord and satisfaction, arbitration and award, assumption of risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of service, justification, laches, license, payment, privilege, release, res judicata, statute of fraud, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading ‘new matter.’ A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleadings.” (emphasis supplied)

The former rule, 1045(b), was rescinded.

The majority bases its opinion primarily on the language of Rule 1019(a):

“Rule 1019. Contents of Pleadings, General and Specific Averments

“(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. . .”

The language contained in that particular rule was adopted in 1946 and was in effect under prior Rule 1045(b). The language was never considered to require the mentioning of the defense of contributory negligence, much less a specific statement of the material facts underlying such a defense.

We have found nothing in the histoiy of the adoption of Rule 1030 in 1984 which would indicate an intent to require a party to aver the details of the defenses of contributory negligence and assumption of risk.

Likewise, we feel that the Connor decision cannot be construed to require the result reached by the majority. In that case, the plaintiff had made in its complaint specific allegations of negligence as well as a general allegation of “failure to use due care and caution.” Under the umbrella of that general allegation, the plaintiff was allowed to present at trial a theory of liability which had not been specifically articulated in the complaint. The statute of limitations would have expired as to that theory had the general allegation of negligence not been pleaded. In footnote 3 of the opinion, the court noted that the remedy for the defendant to avoid surprise, and to assure that the statute of limitations was a defense to theories of negligence which appear on the eve of trial, is to preliminarily object to the general allegation and thereby obtain a court order requiring that the general allegation either be stricken or amended to state any other specific assertion of negligence.

Distinct considerations are presented with regard to the allegation of an affirmative defense. There is no statute of limitations rationale which is applicable to an affirmative defense, and therefore the parties do not have to look to the pleadings to toll the running of a period of limitations. It is unwarranted, we believe, to read into that footnote in Connor a requirement that a defendant within 20 days of being served with a complaint, must plead the material facts upon which a defense of contributory negligence is based. The rules of discovery are available to provide plaintiff with such details.

To the extent that plaintiff in this case is arguing for the result reached by the majority on the basis that “what is sauce for the goose is sauce for the gander,” we can only respond that we are not dealing with goose and gander but rather with two distinct animals.

In order to analyze the effect on judicial efficiency of the two alternatives available to this court in ruling on the issue before us, it is helpful to view the scenario which I would ordinarily be presented by each alternative.

Under the majority’s approach, the defendant will ordinarily continue the pleading practice which has always existed under the civil rules in this state; i.e., under new matter in the answer, the defendant will include general language to the effect that the plaintiff was contributorily negligent. (The new matter may well contain a specific averment or two of contributory negligence, but it will certainly continue to contain a general allegation as well.) The majority seems to recognize this fact. The general allegation will be necessary because the defendant has only had a few days in which to fashion the answer and often will have had little time to investigate the complaint and to commit itself to a theory of defense. Potential specific defenses in the nature of contributory negligence will simply not be known to the defendant. After the new matter containing this general allegation of contributory negligence is filed, the plaintiff will, in knee-jerk fashion, file a preliminary objection seeking to have that allegation stricken. This objection will be listed for briefing and argument and the entire case will grind to a halt until the busy court system can find the time to address the issue. The majority proposes to resolve the preliminary objection by allowing an extension of time in which the defendant can file supplemental pleadings adding to any specific allegations of contributory negligence which had theretofore been pleaded. Presumably the court would oversee, through motion court, the compliance of the defendant with that requirement. It is our view that in a significant percentage of cases in which contributory negligence is a defense, this scenario will be followed.

Under the alternative which would allow a simple general allegation of contributory negligence or assumption of risk, the plaintiff would have no reason to file a preliminary objection to such an allegation. Accordingly, the expense and delay involved in consideration of such preliminary objections would be avoided. The plaintiff would avail itself of the discovery rules in due time in order to learn the specifics of the allegation of contributory negligence (unless the theory was so obvious that discovery would be unnecessary). In the overwhelming percentage of cases, the rules of discovery are self-executing, i.e., involve no intervention by the court. The concern expressed by the majority that motions filed by the plaintiff to compel discovery would merely be substituted for the preliminary objections of a plaintiff, is not realistic. The existence of sanctions which are available to the court in discovery proceedings reduces the amount of court involvement in those proceedings compared to the court energy and time which is expended when pleading motions are presented.

For the above reasons, we would reach a result contrary to the majority.


source: Caselaw Access Project

author: LUDGATE, J.,

license: Public Domain

text:
    Commonwealth v. Kehler

      Charles B. Coleman, assistant district attorney, for the Commonwealth.

      Jeffrey Schmehl, for defendant.
    December 11, 1990
   LUDGATE, J.,

A preliminary hearing was held before District Justice John F. Dougherty on August 30, 1990. Defendant was bound over for court on the charges of driving under the influence of alcohol or controlled substance, 75 Pa.C.S. §§3731(a)(l) and 3731(a)(4). Defendant was also bound over for court on the summary charges of reckless driving, 75 Pa.C.S. §3714, and violation of 75 Pa.C.S. §3301(a), driving on right side of roadway.

This matter is before the court on defendant’s omnibus pretrial motion for relief, wherein defendant requests a dismissal on double jeopardy grounds and requests the suppression of evidence, that being the result of a blood alcohol test on defendant’s blood. This matter was previously before the court on defendant’s motion to dismiss the complaint for improper venue and double jeopardy filed June 14, 1990, to Miscellaneous Docket no. 190/90. This court denied defendant’s motion to dismiss by opinion and accompanying order dated August 6, 1990. The preliminary hearing was held on August 30, 1990, after this court denied defendant’s motion to dismiss on double jeopardy grounds. That order was based upon stipulated facts. Defendant argues that this court misinterpreted the stipulated facts and that a re-evaluation of these facts would lead to result in defendant’s favor.

FINDINGS OF FACT

(1) On April 13, 1990, at approximately 6:07 p.m., defendant was involved in an accident in the 1200 block of Penn Avenue, in the Borough of Wyomiss-ing, near Atonement Lutheran Church.

(2) On April 13, 1990, Officer Dennis Reigel of the Spring Township Police Department was dispatched to the scene of an automobile accident at approximately 6:14 p.m. in Spring Township, Berks County, Pennsylvania. The accident occurred in the 1300 block of West Wyomissing Boulevard, approximately three miles from the scene of the earlier accident.

(3) Officer Grant Goeltz of the Wyomissing Police Department filed citations against defendant before District Justice John F. Dougherty, charging defendant with accidents involving damage to attended vehicles and entering roadway without yielding to traffic already on roadway, violations of the Vehicle Code.

(4) A summary trial was held before District Justice Dougherty on June 13, 1990, which time defendant entered a plea of guilty to one of the summary offenses with which he had been charged by Officer Goeltz. Defendant was sentenced on that offense on June 13, 1990.

(5) Officer Reigel, upon approaching defendant’s vehicle, observed that the defendant was trapped behind the wheel of his vehicle which was laying on its side.

(6) Officer Reigel, upon speaking with the defendant, noted an odor of an alcoholic beverage emitting from defendant’s vehicle, specifically from defendant’s mouth.

(7) Defendant was taken to Reading Hospital for his injuries.

(8) Officer Reigel informed defendant of the Implied Consent Law regarding a chemical test of defendant’s blood for alcohol content.

(9) Defendant consented to the blood test and signed the appropriate consent form in the officer’s presence.

(10) Officer Reigel testified at the omnibus pretrial hearing held on November 20, 1990 before this court, that the weather conditions surrounding the accident were good and that the accident occurred on a sunny day in daylight conditions and that the road was dry.

(11) Officer Dennis Reigel appeared before District Justice James M. Korch and charged defendant with driving under the influence of alcohol, reckless driving and driving on the right side of the roadway, based on the Spring Township accident which occurred on April 13, 1990, at approximately 6:14 p.m.

(12) On June 6, 1990, a preliminary hearing was held before District Justice Korch on the charges arising from the Spring Township accident. After the hearing, the charges were dismissed by District Justice Korch.

(13)On June 13, 1990, Officer Dennis Reigel refiled the previously dismissed charges before a different district justice, namely District Justice Dougherty. Defendant was preliminarily arraigned on the driving under the influence charges following the summary trial on the charges which arose from the Wyomissing accident.

(14) Officer Reigel testified at the omnibus pretrial hearing on November 20, 1990, that the result of the blood alcohol test from Reading Hospital was 0.29 percent.

CONCLUSIONS OF LAW

(1) Defendant’s prosecution is not barred by the double jeopardy clause.

(2) Defendant was arrested based upon sufficient probable cause.

(3) The blood test in question was administered with defendant’s consent, at the request of a police officer, having reasonable grounds to believe that defendant had been driving while under the influence of alcohol.

(4) The arrest does not have to precede a request for a blood sample. Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 (1974).

DISCUSSION

Double Jeopardy

This court previously found that the defendant was arrested and charged with accidents involving damage to attended vehicles and entering roadway without yielding to traffic already on the roadway by Officer Grant Goeltz of the Wyomissing Police Department. However, defendant was not, in fact, stopped by Officer Goeltz in Wyomissing. Officer Goeltz saw defendant strike the car and swore out the citations which were served on defendant by mail. That being the case, the issue is whether, in fact, that changes the analysis significantly.

Defendant argues that Commonwealth v. Johnson, 399 Pa. Super. 463, 466 A.2d 636 (1983), applies since defendant was not stopped in Wyomissing after the first accident. We disagree. \n Johnson, supra, the defendant led police on a high-speed chase lasting from 12:39 to 12:42 a.m., through two counties, Berks and Montgomery, and three different municipalities, while committing numerous motor vehicle violations. Johnson was charged in the three municipalities. Johnson entered pleas of guilty to all the charges before three different magistrates. Johnson later petitioned to withdraw his guilty pleas in Montgomery County, but not in Berks County. The Superior Court found that the charges arose from the same uninterrupted episode and several of the charges were duplicative. The Superior Court held that defendant’s first pleas of guilty would be valid, but subsequent pleas to the same violations, as they arose from the same incident, would be barred by the double jeopardy clause. Id.

In the instant case, defendant struck a vehicle in Wyomissing. Defendant was observed by Officer Grant Goeltz of the Wyomissing Police Department who did not commence a high-speed chase of defendant, but rather swore out citations before District Justice Dougherty and served defendant by mail. After striking the car in Wyomissing, defendant continued into Spring Township, where he was involved in a more serious accident at 6:14 p.m., approximately three miles from the scene of the previous accident and approximately seven minutes after the first incident. There was no high-speed chase.

In Commonwealth v. Edwards, 264 Pa. Super. 223, 399 A.2d 747 (1979), the Superior Court relied upon the Model Penal Code definition of same criminal episode:

“In many instances one offense is a necessary step in the accomplishment of a given criminal objective; in other instances the commission of an additional offense may result from the attempt to secure the benefit of a previous offense or conceal its commission . . Edwards, quoting the Model Penal Code, section 1.08, comment at page 37 (dent, draft 5, 1956).

In the instant case, unlike Johnson, defendant did not lead the police on a high-speed chase. Defendant was not being chased in an attempt to conceal the commission of the earlier offense. Defendant continued after he struck the car in Wyomissing and was involved in a wholly separate accident in Spring Township. The second accident occurred at 6:14 p.m. and forms the basis for the instant charges of driving under the influence of alcohol under 75 Pa.C.S. §§3731(a)(l) and (a)(4), as well as summary charges of reckless driving, 75 Pa.C.S. §3714, and driving on right side of roadways, 75 Pa.C.S. §3301(a), against defendant. Therefore, defendant’s reliance upon Johnson is misplaced.

Defendant relies upon Grady v. Corbin, 495 U.S. _ , 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Defendant’s reliance upon Grady is likewise misplaced. The United States Supreme Court held that the federal double jeopardy clause bars a subsequent prosecution if “to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. In the instant case, there are two separate courses of conduct and the second resulted in the driving under the influence charge with which the defendant stands accused. The first accident was independent of the second. The Wyomissing accident, which occurred at 6:07 p.m., is not conduct which the Commonwealth must prove as part of an essential element of the driving under the influence prosecution.

The Supreme Court in Grady stated that “[t]his holding would not bar a subsequent prosecution on the homicide and assault charges, if the bill of particulars revealed that the state would not rely on proving the conduct for which Corbin had already been convicted (i.e., if the state relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence.” Id. (emphasis supplied; footnote omitted) In the instant case, the probable cause statement indicates that defendant was involved in a motor vehicle accident which left defendant trapped inside his car. Additionally, the probable cause states that defendant was traveling in the southbound lane and crossed the center line into the northbound lane, and that defendant drove his vehicle in careless disregard for the safety of persons or property. Defendant’s guilty plea was to a summary offense that was based on the earlier incident, not the later incident which resulted in defendant being charged with driving under the influence. Therefore, the Commonwealth will not rely on proving the conduct for which defendant has already been convicted. Defendant will not again be placed in jeopardy by conduct for which he was previously prosecuted.

Suppression of Evidence

Defendant argues that the police officer lacked probable cause to request that defendant submit to a blood test and on that basis, the police lacked probable cause to arrest defendant. We disagree.

Section 1547(a)(1) of the Vehicle Code, the Implied Consent Statute, provides that a person implicitly consents to a chemical test of his or her blood for alcohol content where a police officer has a reasonable suspicion that the defendant was driving under the influence of alcohol. 75 Pa.C.S. §1547(a)(l). The reasonable suspicion standard has been interpreted to be the probable cause standard; see Commonwealth v. Quarles, supra. “Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver had been driving under the influence of alcohol.” Commonwealth v. Kohl, 395 Pa. Super. 73, 576 A.2d 1049 (1990).

In a recent case, the Superior Court held that when an accident occurs during good weather and dry road conditions and the attending officer detects the odor of an alcoholic beverage about the defendant, sufficient probable cause exists that the defendant had been driving under the influence of alcohol. Commonwealth v. Welshans, 397 Pa. Super. 439, 580 A.2d 379 (1990). In the instant case, defendant was involved in a motor vehicle accident where the arresting officer found defendant trapped behind the steering wheel of the vehicle, which was on its side. An odor of alcohol was noted on defendant’s breath and the weather conditions were favorable. Therefore, applying Welshans to the instant case, sufficient probable cause existed for the arrest and for the blood alcohol content test.

For the above-mentioned reasons, the court will deny defendant’s request for dismissal on double jeopardy grounds, as well as defendant’s request for suppression of evidence.

ORDER

And now, December 11, 1990, upon consideration of the record, testimony at omnibus pretrial hearing, and argument having been made thereon, this court orders and decrees that:

(1) Defendant’s request for dismissal on double jeopardy grounds is hereby denied.

(2) Defendant’s request for suppression of the blood test result of 0.29 percent is hereby denied.

       Findings of fact numbers 1 through 4 and 11 through 13 are stipulated findings of fact by counsel and in this court’s opinion dated August 6, 1990, in Commonwealth v. Frederick G. Kehler, Misc. Dkt. 190/90. The remaining findings of fact are based upon the omnibus pretrial hearing held before this court on November 20, 1990.


author: BOZZA, J.,

text:
    MacDonald, Illig, Jones and Britton v. Erie County Board of Assessment Appeals

      Stephen R. Thelin, for plaintiffs.

      Kenneth D. Chestek and Ted G. Miller, for defendant.
    December 4, 1990
   BOZZA, J.,

This action is one of three related cases pending before the court which involve the application of the property tax exemption under the Local Economic Revitalization Tax Assistance Act as implemented by the City and County of Erie and the School District of the City of Erie to the property known as “100 State Street.”

On December 4, 1989, one of the owners of the subject property, MacDonald, Illig, Jones and Brit-ton, filed an assessment appeal challenging defendant’s determination of the year when the period of LERTA exemption is to begin with regard to the “shell/common area” portion of the building. On January 29, 1990, defendant board mailed an “appeal decision” to plaintiff indicating “no change/’ thereby denying plaintiffs’ appeal. This appeal was initiated on February 22, 1990, and following a status conference, the parties filed a joint stipulation of facts. The parties then filed cross-motions for summary judgment which are presently before this court for resolution.

Plaintiffs/appellants are the owners of Condominium Units 600 and 700 (sixth and seventh floors) within a seven-story office building known as “100 State Street.” By application dated June 6, 1988, real estate tax abatement was sought for the subject property under the Local Economic Revitalization Tax Assistance Act, 72 Pa.C.S. §4722 et seq., as implemented by the respective local taxing bodies. On June 7, 1988, a building permit was issued and construction was commenced the next day. By letter dated September 16, 1988, the Board of Assessment Appeals “tentatively approved” the subject property for property tax abatement under the LERTA program. In November 1988, while under construction, the partially completed building was assessed for purposes of real estate taxation at a value of $200,000. (Plaintiffs’ condominium units were not separately assessed in 1988). The real estate tax based on this assessment was due the following year (1989).

On March 3, 1989, real estate tax exemption was sought for the condominium units (phase I) under the LERTA program and a building permit was issued for the initial phase of their construction which began on March 4, 1989. On April 5, 1989, MacDonald, Illig sought LERTA tax exemption for phase II of the development. A building permit was issued for phase II on April 5, 1989. The Board of Assessment Appeals “tentatively approved” the condominium units for property tax abatement under the LERTA program on April 27, 1989.

The 100 State Street building (shell and common areas) was completed on April 25, 1989, and occupancy permits from the City of Erie and Commonwealth of Pennsylvania were issued. Occupancy permits were issued for the condominium units when they were completed on June 14, 1989. The subject property was declared a condominium by declaration executed June 27, 1989, and plaintiff, MacDonald, Illig, Jones and Britton, purchased the condominium units on the same day.

The 100 State Street building was again assessed for purposes of real estate taxation in 1989. The assessment reflected a total value for the completed building of $2,680,970 and tax calculated on that amount would have to be paid in 1990. On November 1, 1989, the Board of Assessment Appeals mailed property assessment change notices to MacDonald, Illig indicating that the condominium units had been assessed for property tax purposes. The assessment for Unit 700 was subsequently revised on November 22, 1989. Included with the assessment change notices were copies of memoranda apparently sent by the board to Carl Cannavino, Treasurer of the City of Erie. These memoranda indicated the board’s calculation of the amount and length of the period of exemption of plaintiff’s property under the LERTA program. The assessment for each condominium unit was divided between “interior” and “shell/common area” and a LERTA exemption period designated for each. The “shell/common area” portion was determined to be eligible for a LERTA exemption for the years 1989 through 1993. The LERTA exemption period on the “interior” portion of the condominium was established for the years 1990 through 1994.

It is MacDonald, Illig’s position that the exemption for the “shell/common area” should begin in the year 1990. Its position is based on the conclusion that LERTA requires that exemptions begin in the year following completion of the improvement. The Board of Assessment maintains that the exemption period begins in the year following the issuing of a building permit, which in this case would be 1989. If MacDonald, Illig prevails, it will be exempt from tax on its pro rata share of the “shell/common area” tax for the year 1990. The assessment for its share for that year is $470,830. If the Board of Assessment is correct, the exemption in the first year would be equal to the tax owed on its share of the $200,000 assessment determined in 1988 and payable in 1989, a substantially lesser amount.

This court begins its analysis cognizant that the issues before it have not previously been resolved nor addressed by the Pennsylvania appellate courts. The general rules of statutory construction and interpretation apply and contrary to positions of both parties, a particular result is neither clear nor obvious. While substantially similar, the county’s LERTA ordinance differs in at least one material aspect from the city’s ordinance and the school district’s resolution. It provides that “the exemption shall commence in the tax year immediately following the year in which the building permit was issued.” Erie County, Pa., County Council Ordinance 16, §4(b) (April 17, 1985). Neither the city nor the school district has adopted the county’s approach, but rather have incorporated the language of the LERTA statute in a section designated “procedure for obtaining exemption.” School District of the City of Erie, Resolution, §5(2) (October 19, 1982); Erie, Pa., City Council Ordinance 80, §381.05.(b) (October 21, 1981). In spite of this distinction, the Board of Assessment has apparently applied the county’s standard for determining the commencement of the exemption period for the exemptions under all three laws. While the overriding issue for this court to decide is whether the county’s provision is acceptable within the framework of LERTA, it is apparent that the city and school district approaches are inconsistent with the county’s approach and therefore cannot be administered according to the county standard. City and school district LERTA exemptions begin, according to the terms of their enactments, in the year following completion of the improvements.

While the legislature has made the adoption of a real estate tax exemption for the development of deteriorated property optional, it has mandated that once adopted, it be implemented consistent with certain requirements. Section 4725 of the enabling legislation provides that exemptions from real estate taxation shall be carried out “in the amounts and in accordance with the provisions and limitations hereinafter set forth. . 72 Pa.C.S. §4725. While a number of options are available to local taxing authorities, including the option of exempting taxes up to 10 years, the legislature did not include in LERTA a provision authorizing each local authority to adopt its own criteria for determining the commencement of the exemption. Although the LERTA statute does not contain a separate subsection entitled, “commencement of period of exemption” or something similar, it contains language indicating when a LERTA assessment will be conducted and the amount of the tax exemption calculated. Section 4727 explicitly states:

“Assessment agencies shall, after completion of the improvement, assess separately the improvement and calculate the amounts of the assessment eligible for tax exemption in accordance with the limits established by the local taxing authorities and notify the taxpayer and the local taxing authorities of the reassessment and the amounts of the assessment eligible for exemption.” (emphasis supplied)

Both the city and the school district have incorporated this precise language in their respective authorizations. The county has chosen to disregard this legislatively prescribed procedure as well as the rest of the provisions of section 4727. See section 5, county ordinance. It is apparent that if the legislature had intended for the requirements of section 4727 to be optional, it would have said so or chose not to use language indicating mandatory compliance (i.e., “shall, after completion of the improvement. . .”). Defendant has argued that this section merely deals with “procedures” and does not include substantive rules to be followed by local taxing authorities. Further, defendant maintains that this language, as incorporated in the city and school district enactment, is “at best ambiguous and at worst convoluted” as to when an exemption is to commence. Although the operative language is included in the section entitled “procedure for obtaining exemption,” its character and application are not determined by its caption. While one could quite reasonably argue that the drafters of legislation could be more effective if they chose to limit the nature of the material within a particular section, unfortunately there is no requirement of law that statutes be well-written or organized. There is, however, a requirement that statutes be interpreted in a rational manner and that unreasonable results be avoided.

Upon close review of LERTA, the meaning and application of the relevant portions become evident. The legislature has decided that if a local taxing authority chooses to enact a program for local tax abatement consistent with that authorized by LERTA, it may do certain things and must do others. Among the things that must be done are the following:

(1) The exemption must be limited to the additional assessment valuation attributable to the actual cost of improvements. 72 P.S. §4726(b)(3).

(2) The assessment agency shall, after the completion of the improvement, assess separately the improvement and calculate the amounts of the assessment eligible for tax exemption. 72 P.S. §4727(a).

While the parties have argued strenuously over the meaning of the word “shall,” an elementary notion of statutory construction dictates that when words in the statute are clear and free from all ambiguity the “letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921; In re Fox’s Estate, 494 Pa. 584, 431 A.2d 1008 (1981). This court finds nothing ambiguous about the use of the word “shall” in the context of section 4727 or section 4726, nor does this court find any confusion over the admonition that the assessment shall be done “after the completion of the improvement.” The plain meaning of such words is that the assessment will occur after the improvement is finished. No other option is provided or implied.

Unfortunately, the legislature did not explicitly state that an exemption period shall begin after the completion of improvements. However, by adopting the mandatory provisions of section 4726 and section 4727 it strongly implies it and when the principles of statutory construction are otherwise applied, no other conclusion can be properly reached. Indeed, a general review of the legislature’s intent, a compelling consideration when construing a statute, leads inextricably to that result. See Tyler v. King, 344 Pa. Super. 78, 496 A.2d 16 (1985). The obvious purpose of LERTA is to provide meaningful incentives to encourage the development of deteriorated property in such a way that the property acquires increased value and inter alia becomes a more significant source of tax revenue. Within the context of this objective, the legislature will be presumed to have intended the reasonable consequences of the act’s provisions and concomitantly to not have intended absurd or unreasonable results. Lehigh Valley Co-Operative Farmers v. Bureau of Employment Security, 498 Pa. 521, 447 A.2d 948 (1982).

By adopting a LERTA program, a local taxing authority is confronted with a legislative mandate to assess an improvement after it has been completed and to determine the amount of the applicable exemption. A reasonable conclusion is that the legislature intended that exemptions begin after an improvement is finished. This approach maximizes the incentives provided for the development of deteriorated property and is consistent with the fundamental purpose of LERTA. Moreover, ascertaining when “completion” has occurred is not difficult and is subject to reasonably precise determination either by legislative prescription or administrative guidelines.

One of the more obvious consequences of the county’s approach is the likelihood in an indeterminable number of cases of no real or significant advantage of a LERTA exemption in the first year of the program. If, for example, a developer obtained a building permit late in the year or was otherwise unable to make significant progress by the time new assessments are ordinarily made for the following year’s tax, the exemption for the next year would be either non-existent or for a less meaningful amount. This situation can quite easily arise in the construction business where delays for a multitude of reasons are common. Additionally, it may well be that the nature of the project undertaken requires an extraordinary period of site preparation or other preliminary activity which may be costly but, in relationship to the total cost of the project, represents a relatively minor expenditure. (To some extent, that is the situation posed by the present facts.) Regardless of the circumstances, where the period for the exempted tax begins in the year following the obtaining of the building permit, one who anticipates five full years of tax abatement may at the end of the project discover that for at least the first year the exemption benefit is not, in relative terms, very meaningful. This is a result inconsistent with the underlying rationale of Article VIII, section 2(b) (iii) of the Constitutioh of Pennsylvania upon which LERTA is based and the purpose of LERTA to encourage the development of deteriorated areas. As such it is unreasonable and was not intended nor contemplated by the legislature.

In addition, it is important to recognize the deleterious effect of inconsistent commencement dates among taxing authorities with overlapping jurisdictions. Under the scheme in question, the county may be and in the present case is providing substantially less incentive for the development of City of Erie property, thus negatively affecting the city’s efforts to pursue its specific LERTA objectives. Indeed, the legislature has indicated a contrary intention by including the provisions of 4725(b) which encourage joint action and agreement in the administration of LERTA exemptions.

This is not to suggest that the county is not free to exercise its discretion in choosing among the “options” expressly provided in LERTA. If the county is interested in diminishing the period of exemptions it can do so by simply choosing a lesser period and stating it in its ordinance. Under the present approach, the stated period of five years is not an accurate representation of what a taxpayer may really be obtaining. If a person is told by the legislature that the assessment will be made after the improvements are completed it is a reasonable assumption that the exemption would be for the total cost of the improvements in each year the exemption is available. A diminished exemption in the first year is a consequence not consistent with either the spirit of LERTA or the creation of confidence in local government.

Defendants have relied on Northwood Nursing Care and Convalescent Home Inc. v. City of Philadelphia, 98 Pa. Commw. 401, 511 A.2d 281 (1986), to support the belief that the county is free to determine whether a LERTA'exemption program will be adopted and “how it is to be obtained.” (Plaintiff’s brief at 3.) In Northwood, a plaintiff who did not comply with Philadelphia’s requirement that a person apply for a LERTA exemption within 60 days of obtaining a building permit argued that Philadelphia had no right to impose the 60-day deadline. The Commonwealth Court disagreed, noting that it was within the city’s discretion to determine “how” the exemption should be obtained. The court’s decision obviously reflects the need for local discretion to respond to the exigencies of a communities’ practical circumstances. Philadelphia’s requirement that a person notify a local taxing authority of the intention to seek an exemption within 60 days of a building permit being secured in no way impedes the substantive rights of a taxpayer pursuant to LERTA. It is a procedural limitation necessary to administer LERTA programs in the context of Philadelphia’s approach to obtaining building permits. The circumstances presented by the county’s provision has nothing to do with “how” an exemption is obtained nor does it reflect a concern for the idiosyncrasies of the operation of county government; it simply serves to lessen the amount of a LERTA exemption.

For all of the reasons stated above, MacDonald, Illig’s motion for summary judgment is granted and the Erie County Board of Assessment Appeals motion for summary judgment is denied. An appropriate order will follow.

ORDER

And now, December 4, 1990, upon consideration of the cross-motions for summary judgment filed by plaintiff, MacDonald, Illig, Jones and Britton, and defendant, Erie County Board of Assessment Appeals, it is hereby ordered, adjudged and decreed that plaintiffs’ motion for summary judgment is granted and defendant’s motion for summary judgment is denied.


author: KUHN, J.,

text:
    Barlow v. Sutphen

      Walton V. Davis, for plaintiff.

      Keith O. Brenneman, for defendants.
    December 17, 1990
   KUHN, J.,

Plaintiff has filed a three-count complaint wherein he alleges that he was hired by defendants to sell their retail military art business known as the American Print Gallery. Defendants have filed preliminary objections in the nature of a demurrer to each count and a motion to strike count II or III.

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

In count I plaintiff avers that on or about March 2, 1989, the parties entered into a written contract for plaintiff to represent defendants in the sale of the business. The contract specifically provided that plaintiff was authorized by defendants to act as their:

“[Ejxclusive agent in connection with the sale of the company by means of any transaction resulting in any change of control of the company or the disposition of any of its assets or any portion of its business.”

For his services plaintiff was to receive a minimum fee of $50,000 “if a transaction is consummated.” After August 15, 1989, defendants allegedly entered into an agreement, with a party with whom plaintiff was dealing, which transferred some control and assets of the business and included the right to operate the business at defendants’ established location. Plaintiff’s request for his fee has been refused.

Defendants’ demurrer to count I is based upon plaintiff’s failure to plead that he was a licensed real estate broker in Pennsylvania.

Licensure is a condition precedent to bring suit for enforcement of a commission agreement by a real estate broker and failure to so plead is a basis for dismissing the action. Golibart v. Reamer; 1 D.&C. 4th 660 (1989). The Real Estate Licensing and Registration Act of 1980, 63 P.S. §455.101-909, provides in section 301, 63 P.S. §455.301, that:

“It shall be unlawful for any person . . . acting in the capacity of a broker . . . within this Commonwealth without first being licensed or registered as provided in this act, unless he is exempted. . .”

The term “broker” is defined in section 201 as:

“Any person who, for another and for a fee, commission or other valuable consideration:

“(1) negotiates with or aids any person in locating or obtaining for purchase, lease or acquisition of interest in any real estate;

“(2) negotiates the listing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for any real estate;

“(3) manages or appraises any real estate;

“(4) represents himself as a real estate consultant, counselor, house finder;

“(5) undertakes to promote the sale, exchange, purchase or rental of real estate; provided, however, that this provision shall not include any person whose main business is that of advertising, promotion or public relations, or

“(6) attempts to perform any of the above acts.”

Section 302 of the act provides:

“No action or suit shall be instituted, nor recovery be had, in any court of this Commonwealth by any person or compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act by any person other than a licensed broker . . . unless such person was duly licensed and registered hereunder as a broker ... at the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation of any such contemplated act or service.”

If plaintiff was hired only to find a purchaser of a business located on certain real estate, the act does not apply. Golibart v. Reamer, 1 D.&C. 4th at 663. Defendants argue, however, that the contract involved more than the sale of the business because plaintiff undertook “to value the properties to be sold.” The contract implies that the business owned some real estate and the complaint avers that the deal between defendants and the third party included “the right to operate a retail business at defendants’ established location.” (paragraph 10a.)

The complaint does not leave the court with a clear impression that plaintiff was a broker. First, the contract states that if current market values of real property are required, defendants would be separately responsible for those fees. Second, although one who, for a fee, negotiates a lease on behalf of another is a real estate broker, Wilkins v. Heebner, 331 Pa. Super. 491, 495, 480 A.2d 1141, 1144 (1984), it is not clear that plaintiff negotiated or attempted to negotiate a lease. Furthermore, the timing of the deal on the business and the one for a lease (if there was one) and the severability of the contract are unclear. Schoenfeld v. Mekes, 166 Pa. Super. 101, 70 A.2d 377 (1950).

The central theme of the contract and the complaint is the negotiation and sale of the business. Whether plaintiff acted as a broker is not clear and free from doubt. Therefore, the demurrer will be denied at this time.

In count II plaintiff proceeds on a theory of quantum meruit and seeks to recover expenses and a “customary hourly fee” of $100 per hour totalling over $25,000 for services rendered on defendants’ behalf. Defendants raise two points, first, that the complaint fails to aver that defendants agreed to pay a “customary hourly fee” to plaintiff and, second, that the written contract governs the relationship, rights and obligations of the parties. The first point fails because a promise to pay a reasonable value for services rendered may be implied from the circumstances. 66 Am. Jur. 2d Restitution and Implied Contracts §20, at 946. Therefore, express agreement as to the fee need not be pled.

The second point likewise fails. While defendants are correct in arguing that existence of an express contract, whether oral or written, precludes recovery on the basis of quantum meruit, Murphy v. Haws & Burke, 235 Pa. Super. 484, 344 A.2d 543 (1975); Schlechter v. Foltz, 179 Pa. Super. 119, 115 A.2d 910 (1966), which theory to pursue must be resolved later in the proceedings. Pa.R.C.P. 1020 permits a plaintiff to plead alternative causes of action which was done in the complaint before the court.

In count III plaintiff proceeds on a quasi-contractual theory of unjust enrichment. Defendants argue that recovery under this theory is precluded because the relationship of the parties is based upon an express contract, the existence of which is set forth in the complaint. Gee v. Eberle, 279 Pa. Super. 101, 119, 420 A.2d 1050, 1060 (1980). The doctrine of unjust enrichment permits recovery where a claimant can show that a benefit was wrongly secured or passively received and it would be unconscionable for the receiving party to retain it without payment. Thus, the focus of the inquiry is upon the enrichment being unjust and not on the intention of the parties. State Farm Mutual Automobile Insurance Co. v. Jim Bowe & Sons Inc., 372 Pa. Super. 186, 190, 539 A.2d 391, 393 (1988).

While ultimately defendants may prevail on this issue we must be mindful of the reluctance of a court to grant a demurrer. Argument can be advanced that the written contract of the parties does not apply to this particular transaction and that because plaintiff provided substantial services in bringing the parties together, it would be unjust for defendants to receive the benefit without incurring an obligation to pay for it.

Finally, defendants seek to have either count II or III stricken as being duplicative. A motion to strike is granted only when a pleading lacks conformity to law, or rule of court or because of scandalous or impertinent matter. Cornett v. Berwick Township, 30 Adams L.J. 44, 45 (1988). As noted above, count II is based upon a contract implied in fact while count III is not based upon a contract but an equitable doctrine designed to prevent one from being unjustly enriched at the expense of another. Such theories are not duplicative.

ORDER OF COURT

And now, December 17, 1990, defendants’ preliminary objections are dismissed.


author: RUFE, J.,

text:
    Bureau of Liquor Control Enforcement v. General Davis Inc.

      Sarah Slesinger Smith, for plaintiff.

      Charles T. Mcllhinney, for defendant.
    November 13, 1990
   RUFE, J.,

This opinion is written pursuant to the issuance of an order from the Commonwealth Court of Pennsylvania dated July 10, 1990, directing the filing of an opinion in support of the court’s order dated June 13, 1990. The latter order was entered in favor of the Pennsylvania State Police, Bureau of Liquor Control Enforcement finding defendant, General Davis Inc., in violation of section 493(1) of the Liquor Code and imposing a fine of $1,000. The relevant facts are as follows.

On February 26, 1988, Enforcement Officers James Farano and William Koerner entered the licensed premises of General Davis Inc. while on a routine minor patrol. While in the premises, the officers observed two patrons who appeared to be youthful. Farano and Koerner walked over to the patrons, identified themselves and requested identification from the patrons. The two patrons were identified as Jennifer Rouse and Danielle Gordon, both of whom were 19 years of age. The officers observed both patrons in possession of bottles of beer. Neither of the girls purchased the beer. They testified that they received it inside the establishment from friends.

The licensee did not maintain a declaration of age card file, but it did employ doormen. Licensee’s employees testified that on the night in question the premises was very crowded. Officer Farano observed five patrons enter the premises without being asked for identification.

Licensee was cited for furnishing liquor to minors pursuant to section 493 of the Pennsylvania Liquor Code. 47 P.S. §4-493(1) (1987). A hearing was held on this matter on August 15, 1989 before Administrative Law Judge Tania Wright, who imposed a $1,000 fine, the minimum allowable citation under this section. On December 11, 1989, licensee filed an appeal to the Pennsylvania Liquor Control Board. The board affirmed the decision by opinion dated February 15, 1990. Licensee appealed to the Court of Common Pleas of Bucks County. Counsel agreed that in lieu of a de novo hearing the matter would proceed pursuant to briefs. This court affirms the decisions of the administrative law judge and the board.

Licensee sets forth two arguments: the hearing for suspension was not timely because the hearing notice itself was not issued in a timely fashion pursuant to section 471 of the Liquor Code; and that the testimony at the hearing was insufficient to prove that licensee furnished alcoholic beverages to the minors. We address these issues seriatim.

With regard to the first argument, the licensee asserts that notice of the hearing was not sent in a timely fashion. Licensee contends that since the violation occurred on February 26, 1988, but the notice of hearing was not sent by the administrative law judge until July 12, 1989, the bureau was in violation of the code. Section 471 states that a notice to appear before the administrative law judge to show cause why a fine should not be imposed may be sent “within one year from the date of such violation or cause appearing . . ..”

The time constraints in the Liquor Code have been interpreted by Pennsylvania Courts to be directory, as opposed to mandatory. See Pennsylvania Liquor Control Board v. Civic Arena Corp., 117 Pa. Commw. 75, 77, 543 A.2d 207, 208-9 (1988), appeal granted, 558 A.2d 533 (1989); Pennsylvania Liquor Control Board v. Silva, 219 Pa. Super. 31, 34, 275 A.2d 871, 872 (1971). This court interprets these holdings as allowing for flexibility in the issuance of notices of hearing under the Liquor Code. We hold that such language is directory and does not become mandatory except in situations where delay would prejudice a licensee.

The licensee in this case has not alleged any prejudice to itself as a result of the fact that notice was not sent until July 12, 1989. The licensee was able to utilize all of its witnesses. Every witness was able to recall the events which occurred on the evening in question. In the words of the Commonwealth Court of Pennsylvania, “Due process violations are triggered by prejudice and we find none to the licensee in the present case.” Pennsylvania Liquor Control Board v. S&B Restaurants Inc., 112 Pa. Commw. 382, 386, 535 A.2d 709, 711 (1988). Although a two-year delay between a Liquor Code violation hearing and the adjudication thereof in which key witnesses were gone from the area and would not be available for appeal may result in prejudice, In re Jerry Bonner’s Inc., 34 D.&C. 3d 347, 350 (1985), an eight-month delay without any showing of detriment has been held to be nonprejudicial. S&B Restaurants Inc., 112 Pa. Commw. at 387, 535 A.2d at 712. Accordingly we hold that a delay of a year and four months between the date of violation and the date of hearing notice, in and of itself, is not prejudicial.

Licensee’s second argument is that the evidence before the administrative law judge was not sufficient to satisfy the burden of proof that the licensee furnished alcohol to the minors on the night in question. The bureau has the burden of proving by a fair preponderance of the evidence that the defendant has committed a Liquor Code violation. Appeal of Speranza, 416 Pa. 348, 351, 206 A.2d 292, 294 (1965). In support of its argument that the bureau has not met this burden, licensee contends that no evidence suggests the beverages were furnished on its premises, and that there is insufficient evidence that the beverages were alcoholic. We find both of these arguments meritless.

Officers Farano and Koerner testified that they observed the two patrons on the licensed premises in possession of what appeared to be bottles of beer. The patrons’ testimony that they received the beer from friends on the premises also supports the contention that they were furnished by the licensee, albeit indirectly. Moreover, the licensee’s doormen failed to card the two minors upon their entry because the sign on the door of the premises states that no one under 21 years of age will be admitted. This leads to the inescapable conclusion that the beverages were furnished to the minors in question on the premises.

With regard to the licensee’s argument that the beverages were not known to be of alcoholic content, this too must fail. Despite licensee’s arguments to the contrary, chemical analysis is not required in order to prove that the beverages were alcoholic. Although such a study may in some instances be helpful, it is not required where other ample evidence exists. Several case law interpretations have indicated that chemical analysis is not necessary to prove that intoxicating beverages were furnished in violation of the Liquor Code so long as the Bureau otherwise sustains its burden of proof. See Slovak-American Citizens Club v. Pennsylvania Liquor Control Board, 120 Pa. Commw. 528, 536, 549 A.2d 251, 255 (1988) (officer’s testimony that the drink he was served tasted like vodka was sufficient to show that club served alcoholic beverage to a non-member); Pennsylvania Liquor Control Board v. K.V.M. Inc., 119 Pa. Commw. 458, 461, 547 A.2d 517, 519 (1988) (officer’s testimony that minor drank from a tumbler containing, in his opinion, alcohol, and admissions by a minor that she drank a “Mountain Cooler,” were adequate to show that establishment furnished alcohol to a minor); Appeal of Charunser Bar Corp., 68 Pa. Commw. 382, 384, 449 A.2d 106, 107 (1982) (minors’ testimony that they were served beer, daiquiris and Kahlua and cream were sufficient).

In the case at hand the officers testified that the minors were in possession of what appeared to be bottles of beer. Although they did not recall the brand names of the beer nor did they testify as to an odor of alcohol, the minors’ testimony was based on the assumption that the beverages were alcoholic and they did not dispute it.

Therefore, the evidence shows that the beverages were indeed alcoholic and that they were furnished to the minors on the premises. We find no merit in the licensee’s second contention.


author: MUNLEY, J.,

text:
    GAB Business Service Inc. v. Semcheski

      James Wetter, for plaintiffs.

      John Bednarz, for defendants.
    December 11, 1990
   MUNLEY, J.,

Before the court is a petition filed by plaintiffs herein for a declaratory judgment, pursuant to the Declaratory Judgments Act, 42 Pa.C.S. §7531-7541, seeking a judicial determination as to whether or not defendant, Semcheski, can proceed with underinsurance arbitration. It should be noted at the outset that this is a case of first impression. We find that there is no controlling precedent in Pennsylvania upon which we can rely in making our decision. The issue before the court of whether an insured must satisfy all claims against all defendants before the insured can make a claim for underinsurance has not been addressed in this jurisdiction.

A non-juiy trial was held before this court on September 5, 1990, at which time the parties stipulated to an agreed statement of facts as follows: On December 19, 1985, defendant, Eugene Semcheski, was involved in a motor vehicle accident while he was acting within the scope and course of his employment for GAB Business Services Inc. As a result of this accident, Semcheski sustained an injury to his right knee. Defendant, Semcheski, brought a third-party action against the other driver, Mr. Grabner, and against PennDOT. Defendant, Semcheski, settled his third-party action against Mr. Grabner for the policy limit totaling $25,000. This settlement was consummated with the consent of plaintiffs, GAB and The Hartford. Defendant Sem-cheski settled with PennDOT for $27,500; however, this settlement was entered into without the consent of GAB and The Hartford. Concurrently with this civil action, defendant filed a workers’ compensation claim under the Pennsylvania Workmen’s Compensation Act. Said claim was uncontested and to date, Semcheski has been paid temporary disability and medical benefits.

In the matter sub judice, defendant Semcheski has made a claim for underinsurance coverage afforded by The Hartford Insurance Company on the GAB Business Services’ motor vehicle that defendant was driving when he was involved in the accident. Plaintiffs contend that defendant’s claim for unde-rinsurance benefits is contrary to public policy and directly contravenes section 303(a) of the Workmen’s Compensation Act, 77 P.S. §481(a), in that section 481(a) mandates that an employee’s exclusive remedy for an injury sustained in the course and scope of his employment is the act. Plaintiff relies solely on the Azpell case to support its contention that the act is the exclusive remedy. Azpell v. Old Republic Insurance Co., 382 Pa. Super. 255, 555 A.2d 168 (1989). Relying on the Pennsylvania Supreme Court’s decision in Lewis, the court in Azpell concluded that section 303(a) of the act immunized the employer from the employee’s claim for uninsured motorist benefits. Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988).

We find defendant’s argument that the act is the exclusive remedy to be an incorrect reading of current law. In making our determination, we are guided by the recent pronouncement of the high court on this position, wherein the court held, inter alia, that a claimant is entitled to recover both workers’ compensation benefits and uninsured motorist benefits by way of an employer’s policy of insurance. Selected Risks v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989); see also, Chatham v. Aetna Life Casualty Co., 391 Pa. Super. 53, 570 A.2d 509 (1989). We read Thompson to approve the payment of claims for benefits through the workers’ compensation scheme of recovery and the underinsured motorist policy obtained by an employee’s employer. We submit that this is dispositive and supplanted the earlier decisions in Azpell and Lewis. In accord with the Thompson decision, courts in subsequent cases have continued to hold that an individual can collect underinsured or uninsured motorist benefits in addition to workers’ compensation benefits from an employer. See generally, Odom v. Carolina Casualty Insurance Co., 394 Pa. Super. 283, 575 A.2d 631 (1990). Thus we find the current case law to be consistent with our holding that coverage required by underinsurance cannot be made subject to an exclusion because of workers’ compensation benefits. American National Fire Insurance Co. v. Stewart, 709 F.Supp. 641 (E.D. Pa. 1989).

Further and more compelling is the enactment of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., which was promulgated subsequent to the act. The provisions of the MVFRL provide a separate source of recovery for employees injured by a motorist that is independent of the exclusive remedy for work-related accidents provided under the act. The MVFRL, as it pertains to this issue, takes precedence over the act and allows for recovery of both workers’ compensation benefits and underinsured benefits.

In commencing our discussion on the question of preclusion, plaintiff argues that defendants are precluded from pursuing their underinsured motorist claim against the employer’s insurance carrier because of failing to receive the consent to settle with PennDOT and for failing to settle for the policy limits with PennDOT. This question of whether an insured must satisfy all claims against all defendants before the insured can make a claim for underinsurance is without precedent in Pennsylvania. On the face of the insurance policy, an injured party must exhaust the liability coverage under the policies covering all motor vehicles involved in the accident before making a claim for underinsurance benefits. However, it is clear that PennDOT cannot be categorized as a motor vehicle in the context outlined below. According to the language in the provisions of the MVFRL, the section reserving certain procedures for underinsurance claims is applicable to motor vehicles. Moreover the MVFRL prohibits the issuance and delivery of any motor vehicle liability insurance policy unless underinsured, as well as uninsured, motorist coverage is provided. Section 1731 provides:

“Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefore from owners or operators of underinsured motor vehicles. ” (emphasis supplied)

This clear legislative mandate is unaccompanied, however, by an equally clear definition of underin-sured coverage. We are required to refer back to section 1702 which defines an underinsured motor vehicle as “a motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” (emphasis supplied) The above statutory enumeration demonstrates that PennDOT is essentially a non-motorist tort-feasor. We must interpret the words and phrases used in the statute to have the meaning given to them by the legislature unless the context clearly indicates otherwise. 75 Pa.C.S. §1702. Thus, pursuant to the statute, we find defendant’s third-party claim against PennDOT, a non-motorist, irrelevant to defendant’s claim for underinsurance. Similarly, the requirement of consent before settlement is inapplicable to PennDOT.

Finally and most significant is the question of whether, under the provisions of the MVFRL, plaintiff is entitled to reduce the underinsured motorist benefits by the amount paid on behalf of a third-party tort-feasor. Plaintiff posits that the liability for payment of underinsured motorist benefits is limited by an offset clause included in the provisions of the policy, which provides in pertinent part:

“Any amount payable under this insurance shall be reduced by all sums paid or payable under any workers’ compensation. . .”

We vehemently disagree; to adhere to plaintiffs position would require us to improperly abridge a substantive right of an insured. The Supreme Court has endorsed the position held by some of our sister states, due to the dearth of case law in Pennsylvania, on the subject and it garnered from such out-of-state rulings the following justification for following suit; to-wit:

“[Fjirst, uninsured motorist coverage is paid for by a separate premium, and to give the uninsured motorist carrier a set-off based on the fortuitous existence of a collateral source would result in a windfall to the carrier; second, uninsured motorist coverage is mandated by statute and any variation from that statutory mandate should come from the legislature; third, workers’ compensation only covers a fraction of what tort damages would cover, (e.g. workers’ compensation does not provide 100 percent of wage loss coverage, nor pain and suffering, nor other consequential damages) and a dollar-for-dollar set-off does not recognize this rarity; and fourth, there is no public policy against an individual purchasing additional uninsured motorist coverage to protect himself and his family against the shortfall which could result from a dependency on workers’ compensation benefits.” Thompson, supra; Chatham, supra.

As further support of this position, Title 75 Pa.C.S. §1735 of the MVFRL, which contains the current Underinsured Motorist Law, provides:

“The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any worker’s compensation benefits payable as a result of the same inquiry.”

Finally, under the MVFRL, specifically section 1720, we find there is no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits. Walters v. Kamppi, 118 Pa. Commw. 487, 545 A.2d 975 (1988). Ergo, it is apparent from the above-cited language of the MVFRL, that the automobile policy-clause is void as contrary to statute and public policy. To permit set-off provisions, which have the effect of reducing underinsured motorist coverage, would frustrate the legislative intent that underin-sured insurance motorist coverage be a requirement in this Commonwealth. Limitations of this coverage should be effected only in accord with legislative directives. Hence the excess automobile liability insurer, The Hartford, is not entitled to an equitable setoff of the amount paid to the insured by a third-party tort-feasor in excess of statutory limitation on recovery of underinsured motorist benefits.

Moreover, we determine issues of exhaustion of policy limits and consent to settle as fundamentally questions of arbitration. Rocca v. Pennsylvania General Insurance Co., 315 Pa. Super. 67, 516 A.2d 772 (1986); Snyder v. Nationwide Insurance Co., 373 Pa. Super. 294, 541 A.2d 19 (1988); and Nagle v. Allstate Insurance Co., 358 Pa. Super. 82, 516 A.2d 1191 (1986).

Accordingly for the foregoing reasons, we direct plaintiffs to appoint an arbitrator so that defendant can proceed with his underinsurance claim. An appropriate order will be entered.

ORDER

Now, December 11, 1990, the court finds defendant’s claim to recover both workers’ compensation benefits and underinsured motorist benefits via his employer’s insurance policy to be valid. Plaintiff insurer is directed to appoint an arbitrator and proceed with defendant’s underinsured motorist claim.


author: BIESTER Jr., J.,

text:
    Hastings v. Pennsylvania National Mutual Insurance Company

      Thomas J. Mettee, for plaintiff.

      Walter J. Timhy, for defendant Pennsylvania National Mutual Insurance Company.

      Glenn A. Ricketti, for defendant American Fire and Casualty Company.
    December 17, 1990
   BIESTER Jr., J.,

This case arises out of a motor vehicle accident that occurred on January 12, 1984 on Route 532 in Northampton Township. William Hastings, plaintiff, was struck in the rear of his 1984 Ford Thunderbird by another vehicle. The accident occurred in the late afternoon when the plaintiff was on his way home from his job as a car salesman for John Kennedy Ford. The car which plaintiff was driving was a demonstrator car owned by his employer, John Kennedy Ford.

The accident resulted in plaintiff sustaining various personal injuries and disabilities which required extensive medical treatment. Plaintiff began receiving first-party medical and wage loss benefits from defendant, Pennsylvania National Mutual Insurance Company (Penn Mutual), the no-fault carrier for John Kennedy Ford. In August 1984 plaintiff brought suit against Penn Mutual alleging that defendant had wrongfully ceased paying first-party benefits, called no-fault benefits, as of May 15, 1984. Penn Mutual alleged in its answer and new matter that all required no-fault payments had been made to plaintiff and also alleged that plaintiffs injuries were covered by workers’ compensation. Defendant Penn Mutual then impled John Kennedy Ford and its workers’ compensation carrier, American Fire and Casualty Company, as third-party defendants. Penn Mutual alleged that plaintiff’s injuries occurred in the course and scope of his employment at John Kennedy Ford. Additional defendants, John Kennedy Ford and American Fire and Casualty Company, filed an answer to Penn Mutual’s complaint in the nature of a cross-claim against defendant Penn Mutual.

John Kennedy Ford and American Fire and Casualty Company filed a motion for summary judgment against Penn Mutual based on the grounds that plaintiff was not acting within the scope of his employment when the accident occurred. We denied that motion on February 28, 1989.

Penn Mutual then filed a motion for summary judgment against John Kennedy Ford and American Fire and Casualty Company alleging that Penn Mutual was entitled to reimbursement of all benefits paid to William Hastings. American Fire and Casualty Company and John Kennedy filed briefs in opposition to Penn Mutual’s motion, while plaintiff’s counsel filed no brief in opposition of Penn Mutual’s motion. On November 17, 1990, we granted Penn Mutual’s motion for summary judgment. American Fire and Casualty Company, John Kennedy Ford and William Hastings appealed our order to the Pennsylvania Superior Court.

DISCUSSION

A motion for summary judgment may be properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b); Craddock v. Gross, 350 Pa. Super. 135, 140, 476 A.2d 928, 930 (1984).

When a motion for summary judgment is filed and adequately supported as provided in Pa.R.C.P. 1035, the non-moving party may not rest upon the mere allegations and denials found in his pleadings. To avoid a summary judgment grant, the non-moving party must set forth specific facts by way of affidavit, or as otherwise provided in Rule 1035, demonstrating that a genuine factual issue exists. Phaff v. Gerner, 451 Pa. 146, 149, 303 A.2d 826, 829 (1973); Ressler v. Jones Motor Co. Inc., 337 Pa. Super. 602, 609, 487 A.2d 424, 428 (1985). The critical question in deciding a motion for summary judgment “is whether the admissible evidence in the record, in whatever form, from whatever source, considered in a light most favorable to the respondent to the motion, fails to establish a prima facie case or defense.” In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed. 2d 527 (1987).

The Pennsylvania No-fault Motor Vehicle Insurance Act, 40 Pa.C.S. §1009.106(a)(3), which has been repealed, controls this action and allows for the reimbursement to a no-fault carrier those benefits paid to an injured employee from anyone found obligated to pay workers’ compensation benefits to that employee. Erie Insurance Exchange v. Balinski, 16 D.&C. 3d 137 (1980). Here, Penn Mutual contends that Mr. Hastings use of the demonstrator vehicle was a requisite function of his job, and as such, any injury sustained by the employee in this “company car” is to be compensated through the employer’s workers’ compensation plan.

The Pennsylvania Commonwealth Court has repeatedly applied the so-called “going-and-coming rule” to claims that arise from injuries which occurred after the claimant left the employer’s premises en-route to his residence. See Rittner v. Workmen’s Compensation Appeal Board, 76 Pa. Commw. 596, 464 A.2d 675 (1983). Under that rule, an injury sustained while an employee is going to or coming from work occurs in the course of employment when at least one of the following criteria is met: “(1) claimant’s employment contract includes transportation to and from work; (2) claimant has no fixed place of work; (3) claimant is on a special mission for his employer; (4) special circumstances are such that claimant was furthering the business of the employer.” Rittner, supra, (citations omitted)

While we could find no Pennsylvania appellate decisions controlling this matter, we find the Tennessee Supreme Court’s holding in Anderson v. Sam Monday Motors, 619 S.W.2d 382 (1981), persuasive. In Sam Monday Motors, an automobile salesman was injured in an automobile accident when the employee had stopped on his way home to purchase milk. The salesman was driving a demonstrator model owned by the employer. The Tennessee Supreme Court held that “the employer chose to furnish the employee with an automobile for the purpose of providing transportation between his place of work and his residence, thereby extending the protection of the Workers’ Compensation Laws to that journey. . Id. at 383. The court further held that “the accident or injury to the employee is held to arise out of and in the course of his employment when it is sustained by the employee while engaged in going to and from work by means of transportation furnished by the employer, as ‘an incident of employment’ or as part of the compensation afforded to the employee. ” Id. (citations omitted; emphasis supplied) See 77 Pa.C.S. §51. See also, 82 Am.Jur. 2d Workers’ Compensation §241 (1976); 99 CJS Workers’ Compensation §235 (1958).

In placing one of its cars on the road, a car dealership is furthering its business. Applying common sense, it would not be so universal a practice if it was not so generally appreciated by the employer that doing so furthers his business. Based upon all evidence submitted on this matter, we had no reservation in finding that Mr. Hastings was furthering the course of his employer’s business. Mr. Hastings received a brand-new automobile at a fraction of its true rental/retail value for obvious business reasons. The accident occurred when Mr. Hastings was leaving Kennedy Ford. Therefore, based on Rittner and persuaded by Sam Monday Motors, we held that Penn Mutual had met its burden by proving that Mr. Hastings was engaged in the furtherance of his employers’ business.


author: STALLONE, J.,

text:
    Commonwealth v. Perez

      Curtis E. Barnes, assistant district attorney, for the Commonwealth.

      Clement J. Cassidy, for defendant.
    December 14, 1990
   STALLONE, J.,

The court hereby issues the following findings of fact and conclusions of law in support thereof.

FINDINGS OF FACT

(1) On December 4, 1990, the Commonwealth and defendant, Francisco Perez, commenced the selection of a panel of 12 principal and three alternate jurors for trial in the above-captioned matter to begin on Wednesday, January 2, 1991.

(2) During the selection, defendant interrupted proceedings, complaining that his court-appointed attorney, Clement J. Cassidy, Esq., refused to follow his specific instructions concerning the selection of the jurors.

(3) First, defense counsel informed the court, at sidebar that defendant was upset about the exercise of a peremptory challenge by the Commonwealth to strike from the panel Claudio Rodriquez, a Hispanic male, as well as another male venireman who was his age. The court then directed the assistant district attorney, Curtis E. Barnes, to set forth on the record “neutral reason(s)” for his decision to strike the only Hispanic on the jury panel. When the assistant district attorney was unable to state neutral reasons satisfactory to the court, the court ordered that Mr. Rodriquez, a member of the same minority race as defendant, be “reinstated” as a principal juror as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986).

(4) At this point in the proceedings, a total of 12 principal jurors, consisting of 11 women and one man, were selected.

(5) Secondly, defendant, Francisco Perez, complained that he had instructed Attorney Cassidy prior to the start of jury selection that he had wanted “two guys and 10 ladies” on the jury.

(6) The court then ordered that Eileen F. Aulenb-ach be made the “second alternate” instead of a principal juror and that the male juror, Douglas R.I. Henfield, originally selected as an alternate, become a principal juror.

(7) The court did not remove or add any veniremen to the jury, with the exception of Claudio Rodriquez, a Hispanic male, whom the court ordered “reinstated” because of the inability of the assistant district attorney to articulate “neutral” reasons for exercising a peremptory challenge against a member of the defendant’s minority race; and, the court exercised its judicial discretion by exchanging one male alternate juror for one female principal juror, for reasons of judicial expediency.

(8) At no time within the hearing of the court or the official court stenographer did defendant or anyone else make reference to a “dream jury” as was reported in the newspaper;

(9) At no time within the hearing of the court or the official court stenographer did defendant say “he needed a special jury because of a vision that demanded that 10 women and two men serve on the jury,” as was reported in the newspaper; and

(10) At no time did the court tell defense counsel that he could remove as many prospective jurors as he wanted to reach the “dream jury,” as was reported in the newspaper.

CONCLUSIONS OF LAW

While the Commonwealth and the defendant are generally entitled to seven peremptory challenges each in a non-capital felony case where only one defendant is being tried, plus one challenge for each two alternates selected, Pa.R.Crim.P. 1126(a)(2), the court retains judicial discretion to grant additional peremptory challenges whenever “special circumstances” justify doing so. ABA Standards for Criminal Justice, 2d ed., §15-2.6(a) (1980).

A casual reading of the official court stenographer’s transcript clearly shows the court’s sole motivation in doing what it did, in exercising its discretion to exchange one male alternate juror for one female principal juror, was to avoid a later claim by defendant for a new trial, in the event of conviction, as frivolous as it may have been, that because his lawyer refused the request he made of him before the selection process began, he was therefore “ineffective.”

It is also important to understand the dynamics of a criminal courtroom in today’s drug-infested society, where no less than 75 percent of the defendants being brought before the court are represented by public defenders or other lawyers appointed by the court to represent them. It goes without saying that in many instances these lawyers, although doing their very best, are not highly regarded by the people forced to use their services because they feel they are being “sold out” by their lawyer.

Defense counsel in this case, who had been appointed by the court, was experiencing tremendous difficulty with his client from the moment he walked into the courtroom. Although the general public may have the perception that a criminal trial is a “battlefield” between the district attorney and the defendant, often times it instead becomes a “battlefield” between the defendant and his lawyer. When the court finds itself in such a situation, the court must, on occasion, take extraordinary measures to restore a feeling of confidence between the lawyer and his client — and above all restore order within his courtroom.

While the court therefore reaffirms its prior rulings, as a proper exercise of judicial discretion in the jury selection proceedings, we are faced, however, with a more serious problem which requires the court to take immediate action so the trial of this case is not further delayed.

That problem involves the news report appearing in the December 6, 1990, Reading Times /Reading Eagle, entitled “Judge OK’s "Dream Jury’ Request.” In the introductory paragraphs, it is reported, and accurately we might add, that defendant, Francisco Perez, is a convicted drug dealer currently serving a sentence of 10 to 20 years on an unrelated drug case, a sentence, incidentally, imposed by the same judge who is presiding over this case. Moreover, the same article states:

""Reading police say Perez and Hector Maldonado, 22, sold a quarter-ounce of cocaine for $230 to a county drug investigator in an alley behind the 200 block of North Front Street on October 26, 1989.

“Maldonado was sentenced by Stallone to 12 to 25 years in prison in September for several incidents, including the razor slashing in Berks County Prison of another inmate who testified against him in an assault case.

“City investigators say Perez was a major cocaine trafficker in the city. . .

“State police said cocaine recovered in an investigation of Leon and Perez last fall had a street value of more than $3 million.”

Given the time frame between the date the jury was selected and the publication of this newspaper article, and the publicity obviously to be generated by the motion to strike filed by the District Attorney’s Office and before us this day, the court is of the opinion that it is very likely that these articles have and/or will be viewed by one or more of the jurors and, therefore, may very well influence their otherwise impartiality and ability to decide the case before the court strictly upon its merits.

Accordingly, the court hereby orders in the interests of justice to both the Commonwealth and defendant, as well as in the interest of judicial economy, that the jury be and is hereby dismissed from further service in this case.

A new jury will be selected in due course.

ORDER

And now, December 14, 1990, the court, upon its own motion, dismisses the “unsworn” jury selected on December 4, 1990, to hear the above-captioned case for the reasons set forth in the attached memorandum opinion.

      . Upon agreement of counsel, the court had previously ordered that three alternate jurors be selected instead of two alternates, inasmuch as the actual trial was not scheduled to begin until the following month.

      . Those present at sidebar, and therefore out of everyone else’s hearing, were defendant; defense counsel; the assistant district attorney; the official court stenographer, Judy Meckley; and the trial judge.