author: MINORA, J,

text:
    Decker v. Nationwide Insurance Company

      April 16, 2007

      Jill H. Miller, for plaintiffs.

      James C. Haggerty and Mary C. Doherty, for defendant Nationwide.

      Charles E. Haddick Jr. and Bryon R. Raster, for defendant Robert G. Turano Insurance Agency.
   MINORA, J,

The instant issue before the court is the motion for summary judgment filed by defendant Nationwide Mutual Insurance Company. Two separate complaints were filed at captions 05 CV 1863 and 06 CV 2119. The court has elected to address these complaints separately. This motion for summary judgment was filed in response to plaintiffs’ second amended complaint at 05 CV 1863. The relevant facts are as follows.

On or about February 13, 2004, the plaintiff, John Decker, was seriously injured in a motor vehicle collision caused by the negligence of Willard Shepard. Shepard was operating a vehicle owned by Frank Collins. Mr. Decker was operating a state police cruiser owned by the Commonwealth of Pennsylvania.

At the time of the accident, the Collins vehicle was insured by State Farm Insurance Company, with body liability protection in the amount of $50,000. Mr. Decker settled all claims against Mr. Shepard and State Farm Insurance Company with the knowledge and consent of the defendant. All agree that the policy limits of State Farm Insurance Company were not adequate to compensate plaintiffs for the injuries sustained by plaintiff John Decker in the accident.

At the time of the accident, plaintiff John Decker was a named insured under Nationwide Insurance Company, policy number ***********_ plaintiffs’ second amended complaint at ¶10. The policy was issued by defendant Nationwide to plaintiffs on July 31, 1996. See plaintiffs’ complaint at caption 06 CV 2119, ¶9. The Deckers purchased the policy from defendant, Robert G. Turano t/d/b/a Robert G. Turano Insurance Agency, an authorized agent or employee of Nationwide. At the time Turano initially sold the policy to the Deckers, they told Turano that Mr. Decker was employed full-time as a Pennsylvania State Police Trooper, and therefore he knew the circumstances of Decker’s employment, i.e., that plaintiff John Decker was required to operate a state police cruiser as a mandatory condition of his employment. Turano also knew the state police cruiser motor vehicle regularly used by Decker was non-owned by him, i.e., owned by the Commonwealth of Pennsylvania.

Plaintiffs had specifically elected to purchase the optional uninsured/underinsured motorist (UM/UIM) benefits, as reflected in their declaration sheet and their higher premium paid. Insurance companies are required to offer such optional coverage as mandated by the Pennsylvania Motor Vehicle Financial Responsibility Law (Pa.MVFRL), specifically, 75 Pa.C.S. §1731. The text of the 75 Pa.C.S. §1731 is provided as follows:

“Availability; scope and amount of coverage
“(a) Mandatory offering. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverages is optional.
“(b) Uninsured motorist coverage. — Uninsured 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 therefor from owners or operators of uninsured motor vehicles. The named insured shall be informed that he may reject uninsured motorist coverage by signing the following written rejection form:
“Rejection of Uninsured Motorist Protection
“By signing this waiver I am rejecting uninsured motorist coverage under this policy, for myself and all relatives residing in my household. Uninsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have any insurance to pay for losses and damages. I knowingly and voluntarily reject this coverage.
“Signature of first named insured
“Date...
“(c) Underinsured motorist coverage. — 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 therfor from owners or operators of underinsured motor vehicles. The named insured shall be informed that he may reject underinsured motorist coverage by signing the following written rejection form:
“Rejection of Underinsured Motorist Protection
“By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.
“Signature of first named insured
“Date...”

Plaintiffs’ motive for seeking UM/UIM coverage is obvious. Plaintiff John Decker, as a trooper of the Pennsylvania State Police, spent long hours of employment within his police cruiser on highway patrol.

The policy provided, inter alia, underinsured motorist protection in the amount of $100,000. Invoice-type documents entitled “declarations,” memorializing the policy renewals and nature of coverage for the time in question and the year preceding plaintiff’s accident, indicate the policy was renewed bi-annually. See plaintiffs’ brief in opposition to the motion for summary judgment of defendant, Nationwide Mutual Insurance Co., exhibits 4, 5, 6. The declarations included the following renewal periods for plaintiffs’ insurance policy leading up to and including plaintiff John Decker’s accident:

(a) January 29, 2003 — July 29, 2003

(b) July 29, 2003 — January 29, 2004 — term immediately preceding the accident

(c) January 29, 2004 — July 29, 2004 — term during which the accident occurred

We again note that plaintiff’s accident occurred on February 13, 2004, approximately two weeks into the new term of the plaintiffs’ modified policy renewal.

On September 14,2004, plaintiff informed defendant Nationwide that he was making a claim for UIM benefits under the Nationwide policy and subsequently provided Nationwide with documentation to support his claim for underinsured motorist benefits. Plaintiff demanded that Nationwide tender its policy limits of $100,000. On November 30,2004, after getting no response from Nationwide to their demand for the policy limits, Mr. Decker demanded arbitration of his underinsured motorist claim. He appointed Lawrence J. Moran, Esquire to be his arbitrator, and requested that Nationwide appoint its arbitrator. Having again received no response from defendant Nationwide with regard to his demand for arbitration and request for defendant to appoint its arbitrator, on January 15,2005, Plaintiff presented a petition for appointment of defense and neutral arbitrators in the Court of Common Pleas of Lackawanna County.

Defendant, through a letter dated April 8, 2005, informed plaintiffs’ counsel that “Nationwide is denying coverage for the underinsured claim you have made on behalf of Mr. Decker. The Nationwide policy language was previously provided to you on January 26,2005.... Pursuant to the terms of the policy language, under-insured motorist coverage does not apply to:

“bodily injury to you or a relative using a non-owned motor vehicle that is available for regular use by you or a relative.” (Hereinafter referred to as the “regular use exclusion,”), plaintiffs’ second amended complaint at ¶16. (emphasis added)

This language was added to the policy through a six-page “summary of changes” document that included headings in larger, bold-face type, with a bulleted, single-spaced list itemizing the various changes and amendments. Attached hereto as exhibit “A”. Defendant Nationwide provided the summary of changes document to plaintiffs in a mailing dated January 5,2004. See defendant Turano’s answers to interrogatories, at ¶17, attached as exhibit “2” to plaintiff’s brief in opposition to defendant Nationwide’s motion for summary judgment. The language pertaining to the regular use exclusion limiting plaintiffs’ UM/UIM coverage was discretely included on page (4) of (6) of the document. The summary of changes includes separate headings for each of these two categories, uninsured and underinsured. The language accompanying each of the headings is identical. There is no language in the summary of changes using the phrase “regular use exclusion.” The language this court deems as summarizing the “regular use exclusion” is found under the third bulleted phrase under the respective headings, with emphasis added by the court:

“UninsuredMotorists (pages U1 to U5)

Under coverage exclusions, we have:

o Amended exclusion 1 to more clearly identify the types of uses we do not intend to cover, such as delivery of pizza, newspapers and mail.

o Added further clarification to exclusion 4 that coverage is excess when WC benefits are paid or payable.

o Added exclusion 9, prearranged or organized events and exclusion 10, use of a non-owned vehicle that is available for use by the policyholder, spouse or relative. . . .” See exhibit “A,” summary of changes, at 4. (emphasis added)

The “summary of changes” cover page highlights a few of the changes the document includes, apparently those defendants thought noteworthy. We note the cover page does highlight one policy change, affecting coverage for rural mail carriers:

“One important change with this renewal is the elimination of coverage for vehicles used by rural route mail carriers. If you are a rural route mail carrier or use your vehicle to haul people or property for a fee we urge you to discuss this immediately with your agent so they can properly advise you of your options.” See exhibit “A,” summary of changes document, at cover page.

Notably, there is no language whatsoever included on the cover page to the summary of changes to alert insureds to another, much broader category of exclusions of a similar nature that practically eliminates UM/UIM coverage: the regular use exclusion. The regular use exclusion of this policy arguably functions to suspend coverage for any insured operating a vehicle owned by his or her employer and regularly used by the employee during the course of employment.

The dispute currently between the parties concerns the policy coverage active at the time of the accident as it differs significantly from the coverage in the immediately preceding policy that expired just two weeks before plaintiff John Decker’s accident. Despite Turano and Nationwide’s knowledge of plaintiff John Decker’s employment as a Pennsylvania State Trooper and the State Police Department’s mandatory employment requirement that said plaintiff regularly operate a state police cruiser owned by the Commonwealth of Pennsylvania, defendant Turano never informed the Deckers of the regular use exclusion. Similarly, Turano never informed the Deckers of the regular use exclusion, despite knowing plaintiffs’ expectation that they would receive underinsured motorist protection in the event either was ever injured by an uninsured or underinsured driver. Turano also never told plaintiffs that Nationwide would deny any UIM claims made on the policy in the event that Mr. Decker was injured in the scope of his employment in the state police car. Likewise, Mr. Turano never offered to sell Mr. Decker a supplemental policy of insurance that would void the regular use exclusion, even though he knew that plaintiff Mr. Decker’s employment required him to drive a vehicle owned by the Commonwealth of Pennsylvania on a regular basis as a mandatory condition of Mr. Decker’s employment.

PROCEDURAL HISTORY

On May 10, 2005, Plaintiffs commenced this action by filing a complaint in the Court of Common Pleas of Lackawanna County. The parties filed subsequent pleadings which are not discussed here. Plaintiffs filed a second amended complaint on April 3, 2006 to caption 05 CV 1863. The counts of the second amended complaint are as follows:

Count I — Declaratory judgment — John and Cara Decker v. Nationwide Insurance Company

Count II — Negligence—John and Cara Decker v. Nationwide Insurance Company

Count III — Negligence—John and Cara Decker v. Robert G. Turano Insurance Agency Inc.

Defendant Nationwide filed a motion for summary judgment in response to plaintiffs’ second amended complaint at 05 CV 1863 on May 30, 2006. Plaintiffs responded on September 7, 2006.

DISCUSSION

Several issues with their corresponding arguments are presented to this court for disposition. Sections 1 and 2 of this opinion provide the legal standards governing motions for summary judgment and declaratory judgment, respectively. Section 3 of this opinion discusses UM/UIM coverage as mandated by the Pennsylvania Motor Vehicle Financial Responsibility Law (Pa. MVFRL), and its applicability to the instant disposition. Issues embedded in contract law are addressed in section 4, including analysis of the reasonable expectations of the insured andunconscionability. In section 5, we review public policy considerations presented in the unique set of facts of this case, with particular focus on the treatment of first responders elsewhere under the law of this Commonwealth. The final section of this opinion, section 6, focuses on defendants’ argument that the gist of the action doctrine governs Count II of plaintiffs’ complaint in negligence.

1. Summary Judgment Standard

Before the court is defendants’ motion for summary judgment. Rule 1035 of the Pennsylvania Rules of Civil Procedure provides the standard for summary judgment. Rule 1035.2 states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

“Summary judgment may be granted only in those cases in which the record clearly shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Harleysville Insurance Companies v. Aetna Casualty and Surety Insurance Company, 568 Pa. 255, 258, 795 A.2d 383, 385 (2002) citing P.J.S. v. Penn State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). “A material fact is one that directly affects the outcome of the case.” Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). (citation omitted) “[T]he trial court will determine the question of whether there is a genuine issue as to any material fact.” Hibbs v. Chester-Upland School District, 146 Pa. Commw. 556, 564, 606 A.2d 629, 633 (1992) citing Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

“On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists.” Id. “As with all summary judgment cases, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party as to the existence of a triable issue.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). (citation omitted)

“Interpretation of an insurance policy is a question of law that a court may resolve on a motion for summary judgment.” Harleysville Insurance Companies v. Aetna Casualty and Surety Insurance Company, 568 Pa. at 258, 795 A.2d at 385, citing Harstead v. Diamond State Insurance Co., 555 Pa. 159, 162-63, 723 A.2d 179, 180 (1999).

2. Declaratory Judgment

Declaratory judgment actions are governed by 42 Pa.C.S. §7532:

“Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to obj ection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.”

“In a declaratory judgment action, just as in civil actions generally, ‘[sjummary judgment may be granted only in those cases in which the record clearly shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ’ ” Hydropress Environmental Services Inc. v. Township of Upper Mount Bethel, 575 Pa. 479, 489, 836 A.2d 912, 918 (2003). (citations omitted) Having identified the procedural mechanisms defendant’s instant motion presents, we consider the substantive law applicable to the dispute at hand.

3. The MVFRL Mandates that Insurers Offer UM/UIM Coverage

The purpose of the UM/UIM coverage was provided in Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 58, 535 A.2d 1145, 1149 (1988):

“The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence.” (quoting Myers v. State Farm Mutual Automobile Insurance Co., 336 N.W.2d 288, 291 (Minn. 1983)).

The Pa.MVFRL mandates that insurers offer UM/UIM coverage and make it available to insureds; the statute requires individuals to sign a waiver indicating their choice to opt out of UM/UIM coverage. 75 Pa.C.S. § 1731. Accordingly, the legislature, in insisting that UM/ UIM coverage be made available yet optional, considered said coverage important enough to require a written rejection of such UM/UIM coverage. The rule governing statutory construction guides us in reconciling the contradiction between the language of 75 Pa.C.S. § 1731 and the ability of the defendant to insert the regular use exclusion into plaintiff’s policy. Statutory interpretation is governed by 1 Pa.C.S. §1921:

“Legislative intent controls
“(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
“(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit....”

Here, the plain, unambiguous language of 75 Pa.C.S. § 1731 imposes a mandatory requirement on defendants to obtain an insured’s signature if opting-out of UM/UIM coverage. The overwhelming impact of the regular use exclusion inserted by the insurer without adequately informing this insured of the consequence enables the defendants to seemingly comply with the statute, yet simultaneously circumvent the statutory duty to provide UM/UIM coverage to the insured who chooses to elect such coverage. This eviscerates the UM/UIM coverage for the overwhelming amount of time that the insureds spend in a motor vehicle. Gutting an insured’s UM/UIM coverage without the written rejection required per 75 Pa.C.S. §1731 is a clear, palpable violation of both the statute’s letter and its spirit.

(a) Enabling Insurance Companies To Effectively Void UM/UIM Coverage by Inserting a Regular Use Exclusion Allows Insurance Providers To Eviscerate the Requirements of the Pa.MVFRL

Attempting to reconcile two conflicting circumstances, namely (1) the statutory mandate that an insured must opt-out of UM/UIM coverage by signature, with (2) an insurer’s ability to effectively void huge portions of UM/ UIM coverage with minimal, marginal notification not ratified by signature, understandably presents a clearly contradictory result. In fact, it seems patently contradictory and counterintuitive to the legislative protections written into the Pa.MVFRL which require rejection of UM/UIM coverage in writing. To allow such shallow notice as here with a multi-page summary of changes document, to effectively circumvent the majority of the statutoiy scheme that must be met only by an individual’s written rejection of the UM/UIM coverage by signature would be a travesty laying waste to the legislatively mandated requirements made to protect the insureds. Of further significance is the language of 75 Pa.C.S. § 173l(c.l), “On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or underinsured motorists. ” (emphasis added) Interestingly,under 75 Pa.C.S. § 173l(c.l), an insurer is obligated to continually remind an insured who rejects UM/UIM coverage of the insured’s decision to decline UM/UIM coverage. And yet, in the case sub judice, defendants effectively ship an insured of the lion’s share of the requested and purchased UM/UIM coverage through the regular use exclusion without having to provide “prominent type” notice that would serve the same purpose of the notification language of 75 Pa.C.S. § 173 l(c. 1), supra. Again, the statutory language requires an insurer, at each policy renewal, to remind an insured who declines to purchase the UM/UIM coverage of the insured’s decision to drive without this coverage. Also, the need for a prior written rejection of UM/UIM coverage was noted supra, at pages 149-51.

Similarly problematic is the fact that the proffered, unilaterally-inserted regular use exclusion guts coverage for those frequently behind the wheel of a vehicle (i.e., as here, for the duration of plaintiff John Decker’s workday) of UM/UIM coverage. We therefore determine that the regular use exclusion effectively suspends the great majority of UM/UIM coverage for the insured employee whose office is his employer-owned vehicle and whose workday is on the road. Permitting an insurance company to insert such a regular use exclusion in an insured employee’s motor vehicle policy without consent or meaningful notification to the insured enables an insurer to thwart the statute and its scheme to protect insureds. This consequence is glaringly obvious, as here, where the insured specifically requested such UM/UIM coverage pursuant to 75 Pa.C.S. §1731, but was not provided the same. Resultantly, insurers are provided with a perverted, incongruous mechanism through which they may simultaneously both comply with and validly avoid their statutory mandate. To allow insurers to conduct business in such a fashion is to provide insurers with a path through which they may largely circumvent the statutory scheme. Therefore, we conclude and hold such a regularly-used, non-owned motor vehicle exclusion in violation of the Pa.MVFRL statutory scheme and therefore, null, void and illegal as against stated legislative statute and public policy.

Our analysis of this problem could conclude here but does not, as tenets of contract law provide additional insight into the situation before us.

4. Issues of Contract

Regular use exclusions that limit UM/UIM coverage on certain vehicles, like that in plaintiffs’ policy, have been held valid under Pennsylvania law. See Prudential Property & Casualty Insurance Co. v. Gisler, 569 Pa. 573, 806 A.2d 854 (2002); Burstein v. Prudential Property & Casualty Insurance Co., 570 Pa. 177, 809 A.2d 204 (2002); Prudential Property & Casualty Insurance Co. v. Hinson, 277 F. Supp.2d 468 (E.D. Pa. 2003); State Farm Mutual Automobile Insurance Co. v. Brnardic, 441 Pa. Super. 566, 657 A.2d 1311 (1995). There are distinguishing facts in the present case that prevent this court from adopting the reasoning of the prior precedent determining issues involving those similar clauses in other policies. We are mindful of the potential for error in applying factually-distinct, prior precedent blindly. Instead, we herein examine the various decisions that have required courts to parse the language of policies and scrutinize the particulars in such agreements.

“Generally, courts must give plain meaning to a clear and unambiguous contract provision unless to do so would be contrary to a clearly expressed public policy.” Pa. National Mutual Casualty Co. v. Black, 591 Pa. 221, 237, 916 A.2d 569, 578 (2007), citing Prudential Property & Casualty Insurance Co. v. Colbert, 572 Pa. 82, 813 A.2d 747 (2002). Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-305, 469 A.2d 563, 566 (1983) provided the traditional rules governing the interpretation of insurance contracts:

“The task of interpreting a contract is generally performed by a court rather than by a jury.... The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument.

. . . Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement.... Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” (citations omitted)

In Standard Venetian Blind, an insured (who had not read his insurance policy) sought coverage under an insurance policy; the insurance company argued policy exclusions barred the insured’s recovery. Id. at 303, 469 A.2d at 565. The court found that the language of the policy functioned as the binding agreement memorializing the terms between the parties. Id. at 305, 469 A.2d at 566. Its reasoning, in looking to terms of the written contract rather than examining the verbal exchange of negotiations that occurred prior to the agreement, was provided as follows:

“By focusing on what was and was not said at the time of contract formation rather than on the parties’ writing, Hionis makes the question of the scope of insurance coverage in any given case depend upon how a fact-finder resolves questions of credibility. Such a process, apart from the obvious uncertainty of its results, unnecessarily delays the resolution of controversy, adding only unwanted costs to the cost of procuring insurance.” Id. at 306, 469 A.2d at 567 (declining to follow Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 327 A.2d 363 (1974)).

The court carved out an exception to the absolute application of this standard, stating:

“Although on this record we reject Hionis, we note that in light of the manifest inequality of bargaining power between an insurance company and a purchaser of insurance, a court may on occasion be justified in deviating from the plain language ofa contract of insurance. See 13 Pa.C.S. §2302 (court may refuse to enforce contract or any clause of contract if a court as a matter of law deems the contract or any clause of the contract to have been ‘unconscionable at the time it was made. j. This record does not present such an occasion. We hold only that where, as here, the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it.” Id. at 307, 469 A.2d at 567. (emphasis added) See also, Bishop v. Washington, 331 Pa. Super. 387, 398, 480 A.2d 1088, 1093 (1984).

In considering the characteristics unique to insurance contracts and policies, it is proper for a reviewing court to determine issues of fact unique to the subject dispute. This is so the court may discern whether the language of the policy indeed controls or whether the clause is “unconscionable” or not “conspicuously displayed” and the record presents such an occasion for a court to refuse to enforce the contract clause.

The Supreme Court considered the applicability of the Standard Venetian Blind holding in Tonkovic v. State Farm Mutual Automobile Insurance Co., 513 Pa. 445, 521 A.2d 920 (1987). Tonkovic presented the issue of whether an exclusionary clause that was unilaterally inserted by the insurance company would apply to an insured who had not agreed to the exclusion, and in fact, expected full coverage under the policy. The court found for the insured, stating “where, as here, an individual applies and prepays for specific insurance coverage, the insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of, and understood, the change, regardless of whether the insured read the policy.” Id. at 455, 521 A.2d at 925. (emphasis added)

The court directed the judiciary to be mindful of characteristics unique to the insurance industry:

“Courts should also keep alert to the fact that the expectations of the insured are in large measure created by the insurance industry itself. Through the use of lengthy, complex and cumbersomely written applications, conditional receipts, riders, and policies, to name just a few, the insurance industry forces the insurance consumer to rely upon the oral representations of the insurance agent. Such representations may or may not accurately reflect the contents of the written document and therefore the insurer is often in a position to reap the benefits of the insured’s lack of understanding of the transaction.” Id. at 456,521 A.2d at 926, (emphasis added) citing Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 594-95, 388 A.2d 1346, 1353-54 (1978).

We find the rule set forth in Tonkovic applicable to the disposition of the instant facts before us. This does not end our inquiry, as the insureds’ reasonable expectations are also an element in the analysis.

(a) Reasonable Expectations of the Insured

“According to Pennsylvania law, ‘the proper focus for determining issues of insurance coverage is the reasonable expectations of the insured.’ ” Prudential Property and Casualty Insurance Co. v. Hinson, 277 F. Supp.2d 468, 476. (citations omitted) The court stated:

“In most cases, the parties’ reasonable expectations are best evidenced by the language of the insurance policy.... Even so, a court must examine the totality of the insurance transaction at issue to ascertain the reasonable expectations of an insured individual____The clearest of exclusions will not bind an insured where an insurer or its agent has created a reasonable expectation of coverage, and coverage may exist based upon any other reasonable expectations of an insured.” Id. at 476. (citations omitted)

Hinson concerned the situation of a part-time police officer who sought UM/UIM coverage following an accident he had while driving one of the police cruisers at his disposal. Like the instant case, in Hinson, the insured’s policy included a regular use exclusion. The district court, noting the factual distinctions between the Pennsylvania Supreme Court’s holdings in both Tonkovic and Standard Venetian Blind, determined that the language of the insurance policy governed the agreement between the parties: “We therefore decline to extend coverage based upon Pennsylvania’s reasonable expectations doctrine, contrary to the clear terms of the policy.” Id. at 477. (emphasis added)

Our case is distinguishable from the facts in Hinson. The instant case presents issues of defendants’ failure to adequately inform plaintiffs that material and substantial changes had been made to plaintiffs’ policy only shortly before the underlying accident. The plaintiffs requested, purchased, received, and continued to expect UM/UIM coverage as represented to them by the fully-informed defendants. The exclusionary terms are neither conspicuous nor clear. We consider these facts in light of a recent decision authored by the Superior Court.

In Beck-Hummel v. Ski Shawnee Inc., 902 A.2d 1266 (Pa. Super. 2006), plaintiff had been injured while snow tubing. A release of liability for the resort was located on the back of the plaintiff’s admission ticket for the activity which became the event of the injury. The court conducted an extensive factual examination of the purchase transaction and the appearance of the ticket. The court found the release unenforceable:

“Under the circumstances of this case, where it is undisputed that neither the purchaser nor user of the ticket read its language, and where the language of the ticket itself is not so conspicuous as to, without more, put the user/purchaser on notice, we cannot conclude as a matter of law that the disclaimer is enforceable.” Id. at 1275. (footnote omitted) (citations omitted)

We find the facts of Beck-Hummel v. Ski Shawnee Inc. analogous to the instant case. Here, language binding the plaintiffs was inconspicuously buried in a six-page document that contained many other confusing changes of various topics, all binding on the plaintiffs. Meanwhile, verbal representations to the contrary had been made to the plaintiffs by their agent, defendant Turano, regarding the extent of plaintiffs’ coverage. The record is clear that plaintiffs considered themselves to have received continued UM/UIM coverage in the nature they had requested and had been originally provided upon purchase. The unilateral restriction of the UM/UIM benefits due to the insertion of the recent regular use exclusion with notification buried in the six-page list of boilerplate amendments to the policy was insufficient to inform the plaintiffs of the policy’s change because said notifications were not conspicuous as per Beck-Hummel, supra, nor were they clearly stated as per Hinson, supra.

Accordingly, being ill-informed of the exclusion, the plaintiffs were unable to accept it. It is therefore proper to deny defendant’s motion for summary judgment as to declaratory judgment of the plaintiffs’ complaint since factual issues regarding proper notification and acceptance by the insureds are resplendently present which scream for a jury’s determination.

(b) Unconscionability

We are cognizant of the theory of unconscionability as it relates to contracts:

“ ‘Unconscionability’ has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms that are unreasonably favorable to the other party. Thus, unconscionability has two parts. First, for a contract or term to be unconscionable, the party signing the contract must have lacked a meaningful choice in accepting the challenged provision. Second, the challenged provision must unreasonably favor the party asserting it.

“Whether a contract or clause is unconscionable is a question of law for the court.” 16 Summ. Pa. Jur. 2d Commercial Law §1:100. (footnotes omitted) Pennsylvania statutory law provides the following at 13 Pa.C.S. §2302,

“Unconscionable contract or clause:

“(a) Finding and authority of court. — If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may:

“(1) refuse to enforce the contract;

“(2) enforce the remainder of the contract without the unconscionable clause; or

“(3) so limit the application of any unconscionable clause as to avoid any unconscionable result.

“(b) Evidence by parties. — When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.”

The Superior Court discussed two concepts of unconscionability in Germantown Manufacturing Co. v. Rawlinson, 341 Pa. Super. 42, 57, 59, 491 A.2d 138, 146, 147 (1985), “The first concept of unconscionability which we shall examine may be classified under the rubric of ‘unfair surprise. ‘ ... The second concept of unconscionability which we shall examine concerns clauses wherein there is apparent but not genuine assent.” (emphasis in original)

Unconscionability provisions of the Uniform Commercial Code have been held to apply to contracts of insurance. (“[I]t has been held that the sale of insurance and contracts of insurance are within the scope of the unconscionability section of the Uniform Commercial Code.” Bishop v. Washington, 331 Pa. Super. 387, 398-99,480 A.2d 1088, 1093-94 (1984) (citations omitted)). The Bishop court acknowledged definition of unconscionability as amorphous, but provided the following definition, “Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Id. at 400, 480 A.2d at 1094 (emphasis in original) (citing Witmer v. Exxon Corp., 495 Pa. 540, 551, 434 A.2d 1222, 1228 (1981), quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965)). “Insurance contracts are generally viewed as contracts of ‘ adhesion’. Under such a contract, the parties are usually not of equal bargaining power and the buyer must adhere to the terms of a form contract which are not negotiable.” Id. (citations omitted)

The Bishop court shifted its scope to consider factual issues of the policy in dispute. Directives for interpreting were provided:

“The language of a contract clause which limits liability coverage must be clear and precise in order to prevent unfair surprise____The insurance policy involved in this case is a ‘plain talk’ policy, written in understandable, straight-forward language. The ‘other insurance’ provision is a conspicuously labeled, bold-type sub-section listed under a larger bold-type heading entitled ‘limits of payment.’ This is not a case where an exclusion from coverage that defeats the reasonable expectations of the insured is buried in fine print deep in the insurance contract.” Id. at 401, 480 A.2d at 1095. (emphasis added) (citations omitted)

Thus, the court recognized the scenario in which alterations to a policy may not be obvious to the insured, thereby strengthening our decision to deny defendants’ motion for summary judgment.

5. Public Policy

Another element for consideration by the court in review of this case is defendants’ regular use exclusion which operates as a denial of the UM/UIM coverage to a Pennsylvania State Trooper and first responder. This is a critically important aspect of public policy. Recently, the Pennsylvania Supreme Court decision in Pa. National Mutual Casualty Co. v. Black, 591 Pa. 221, 916 A.2d 569 (2007) explained the court’s view of when contractual terms conflict with public policy. The court provided:

“ ‘Generally, courts must give plain meaning to a clear and unambiguous contract provision unless to do so would be contrary to a clearly expressed public policy.’ ... In recent years, the court has addressed several claims that unambiguous provisions in automobile insurance policies are unenforceable because they violate public policies expressed in or underlying the MVFRL. In response, we have repeatedly emphasized our reticence to throw aside clear contractual language based on ‘the often formless face of public policy. ’. . .

“Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term ‘public policy’ is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy.... Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.” Id. at 578-579 (emphasis added) (citing Prudential Property & Casualty Insurance Co. v. Colbert, 572 Pa. 82, 90, 813 A.2d 747, 752 (2002); Burnstein v. Prudential Property and Casualty Insur. Co., 570 Pa. 177, 182, 809 A.2d 204, 207 (2002); Eichelman v. Nationwide Insurance Co., 551 Pa. 558, 563, 711 A.2d 1006, 1008 (1998)).

We are mindful of the consequences of voiding a contract’s clause considered in light of the Supreme Court’s decision. Fundamentally, the very foundations of contract law enable parties to form binding agreements among themselves, free from judicial intervention. Generally, it is desirable to have these agreements be as stable and predictable as possible. Cases where contractual terms are discussed, contemplated, and negotiated before the parties choose to assent to the terms are distinguishable from those cases in which one party has more influential decision-making power over the other. It is beyond cavil that in contract law there must be an offer communicated to and understood by the other party who then, with knowledge, either accepts the same, making the contract binding, or rejects it, thereby preventing a contract or a contract clause’s formation.

We do not find the parties before us of equal bargaining power, especially regarding the surreptitious changes to the insurance policy at issue. Further, we do not find the actions of the defendants largely excluding the terms of UM/UIM coverage from the plaintiffs by means of a “summary of changes” document valid. The plaintiffs received verbal representations of UM/UIM coverage to the contrary, and given that plaintiff John Decker’s compulsory use of a non-owned vehicle (state police cruiser) was known to the agent, defendant Turano, plaintiff did not receive that for which he bargained.

Also, there was no written rejection of UM/UIM coverage, nor policy notification of the same, all despite the overwhelming loss of coverage to the plaintiff. Under these facts and circumstances, the original bargained-for exchange struck regarding UM/UIM coverage is controlling and the updated exclusion is clearly lacking in knowledge, assent and volition from the insured. Most significantly, we find it appalling that a first responder, who specifically requested UM/UIM coverage from his carrier, was surreptitiously denied the same as a result of a unilateral action by the insurance provider. The court notes that a factually-similar case was decided in Prudential Property & Casualty Ins. Co. v. Hinson, 277 F. Supp.2d 468. In Hinson, the district court found that the regular use exclusion in the part-time police officer insured’s policy, denying UM/UIM coverage was valid. “The court also finds it highly unlikely that Prudential would have willingly written the policy for defendants to include the frequent use of a police vehicle used to pursue traffic law violators at high speeds.” Id. at 477.

We understand the Hinson court’s rationale. We find it disturbing, however, that first responders, who are widely exposed to grave physical dangers by the very nature of their occupation and required to operate their employer’s motor vehicle within the scope of their employment and occupation, should be susceptible to unilateral changes to their insurance policy. Further, these changes would virtually negate the UM/UIM protection in coverage they purchased, and then subsequently had gutted by the invidious insertion of a non-owned, regularly-used motor vehicle exclusion.

Equally disturbing is the broad-based possibility that the quiet insertion of a regular use exclusion functioning to limit an insured’s UM/UIM coverage, as done here, might occur to any firefighter, police officer, sheriff, ambulance driver, volunteer firefighter, utility-worker, refuse-collector, delivery person for UPS, DHL or FedEx, teamster, on-the-road trucker, cabbie, bus driver, this list could go on, who works to protect and improve the community, as well as conduct business here. More directly to the case sub judice is the existence of other laws of this Commonwealth that afford greater protection to our first responders and show legislative intent to do so despite, no because of, their potentially hazardous duty.

(a) The Law Provides First Responders with Preferential Treatment

The consequence of the regular use exclusion functioning to void the coverage for plaintiff John Decker seems particularly contradictory and counterintuitive when noting that protections are afforded to first responders elsewhere under Pennsylvania law. Specifically, the Heart and Lung Act, 53 P.S. §637, mandates that certain categories of employees, including members of the state police force, are entitled to compensation if injured in the course of employment. Stated in the Heart and Lung Act, “Any member of the state police force . . . who is injured in the performance of his duties... and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the Commonwealth of Pennsylvania . . . until the disability arising therefrom has ceased.” 53 P.S. §637(a). The Heart and Lung Act further provides:

“In the case of the state police force . . . diseases of the heart and tuberculosis of the respiratory system, contracted or incurred by any of them after four years of continuous service as such, and caused by extreme overexertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of any such member of the state police force . . . shall be compensable in accordance with the terms hereof; and unless any such disability shall be compensable under the compensation laws as having been caused by accidental injury, such disability shall be compensable as occupational disease disabilities are presently compensable under the compensation laws of this Commonwealth. It shall be presumed that tuberculosis of the respiratory system contracted or incurred after four consecutive years of service was contracted or incurred as a direct result of employment.” 53 P.S. §637(b).

The Heart and Lung Act provides protection for first responders who sustain health problems arising from the nature of their employment. Clearly the law contemplates that our first responders are entitled to special protections. It is curious, then, to have some legislative statutes express an intent to afford such great protection for the health of first responders, while other legislative enactments are circumvented. This potentially allows this same category of protected persons to possibly remain exposed without adequate UM/UIM insurance that would compensate them for personal injury sustained during the course and scope of employment. Permitting the regular use exclusion limiting UM/UIM coverage in plaintiffs’ policy would function to enable the Pa.MVFRL to conflict with other protections the legislature chose to enact to protect the Commonwealth’s first responders.

6. Negligence and Gist of the Action Doctrine

The second prong of defendant Nationwide’s motion for summary judgment concerns whether the “gist of the action doctrine” bars plaintiffs’ claim of negligence against defendant Nationwide. The “gist of the action doctrine” is explained: “[generally, the doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims.... As a practical matter, the doctrine precludes plaintiffs from recasting ordinary breach of contract claims into tort claims.” eToll Inc. v. Elias/Savion Advertising Inc., 811 A.2d 10, 14 (Pa. Super. 2002). (citations omitted) “[CJourts have held that the doctrine bars tort claims (1) ‘arising solely from a contract between the parties’. . . (2) where ‘the duties allegedly breached were created and grounded in the contract itself’ ... (3) where ‘the liability stems from a contract’... or (4) where the tort claim ‘essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.’” Id. at 19. (internal citations omitted) “The question of whether the gist of the action doctrine applies is an issue of law subject to plenary review.” Id. at 15. (citation omitted)

Defendant argues that the gist of the action doctrine bars the plaintiffs’ claim of negligence because the relationship between the parties initiated through a contract. Conversely, plaintiffs argue the parties do not dispute issues of the contract, but rather, the failure on the part of the agent to fulfill his duty to procure a proper policy of insurance in accordance with the plaintiffs’ essential needs, requests and expectations. Stated as this court interprets it, plaintiffs’ position is that the negligence occurred as a result of the representations made by the agent, who had a duty to properly assess the needs, goals and requests of the plaintiffs regarding their insurance coverage, and communicate whether the policy met the expectations of the plaintiffs as communicated to the agent.

We find plaintiffs’ argument persuasive. While a contract in the fonn of an insurance policy is most definitely present in this case, it is obvious that a duty exists on the part of an agent to properly assess the stated goals of an insured and locate a policy with provisions that will match the same, and if the policy does not, to clearly state the shortfall of the policy to the insureds. Therefore, we deny defendant’s motion for summary judgment as to plaintiffs’ claim of negligence by the agent.

Considering all of the arguments in totality, we find that defendants’ motion for summary judgment is denied for the reasons stated herein. An appropriate order, therefore, follows.

ORDER

And now, April 16, 2007, defendant Nationwide’s motion for summary judgment is dismissed and denied.

      . We have attempted to replicate the font used in the “summary of changes” document, [not replicated here]

      . We note that defendant Robert G. Turano Insurance Agency Inc. filed a motion for summary judgment to caption 05 CV 1863 on October 5,2006. Said motion is not considered here because it is not yet ripe.

      . The language of 75 Pa.C.S. §1731 is provided supra at 149-51.

      . Public policy concerns are addressed separately, infra.

      . The Tonkovic court clarified its holding in Standard Venetian Blind:

      “Thus, we made it clear that our holding was not to be mechanically applied without regard to the factual context in which the claim arose. Venetian Blind is simply not applicable to the facts of the instant case____We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for. When the insurer elects to issue a policy differing from what the insured requested and paid for, there is clearly a duty to advise the insured of the changes so made. The burden is not on the insured to read the policy to discover such changes, or not read it at his peril.” 513 Pa. at 453-54, 521 A.2d at 924-25. (emphasis added)

      . The Superior Court further explained “unfair surprise:
      “This type of unconscionability involves contractual terms which are not typically expected by the party who is being asked to ‘assent’ to them. An unexpected clause often appears in the boilerplate of a printed form and, if read at all, is often not understood. By signing such a form, a party is bound only to those terms which such party would reasonably expect such a printed form to contain. If the form contains a material, risk-shifting clause which the signer would not reasonably expect to encounter in such a transaction, courts have held that the clause may be excised as it is unconscionable.” 341 Pa. Super, at 57-58,491 A.2d at 146. (emphasis added) (citation omitted)

      . The court presented a hypothetical to elaborate on assent:
      “The party who requires goods or services important to his physical or economic well-being may have little or no choice but apparently to assent to the terms of a printed form dictated by the party with superior bargaining power. Even where other sources of supply are available, there may be conscious parallelism resulting in virtually identical printed forms offered by all available suppliers. The phrase “contract of adhesion” and the evil it suggests have been familiar for many years. The terms of these contracts do not surprise the weaker party because they were read and understood — perhaps even explained by the dictatorial supplier. Assent and volition and, therefore, agreement are absent.” 341 Pa. Super. at 59, 491 A.2d at 147. (emphasis added)

      . We note that a portion of Bishop v. Washington has been abrogated by the United States Federal District Court for the District of New Jersey in UTI Corp. v. Fireman's Fund Ins. Co., 896 F. Supp. 362 (D.N.J. 1995) on another point of law. In this case, we turn to Bishop for guidance on the issue of unconscionability only.

      . Discussed, supra, at 168-69.


source: Caselaw Access Project

author: WRIGHT, Member,

license: Public Domain

text:
    Office of Disciplinary Counsel v. Hickey

      November 3, 2006
   WRIGHT, Member,

Pursuant to the order of the Supreme Court of Pennsylvania dated February 27, 2006, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned matter.

I. FIISTORY OF PROCEEDINGS

On October 17,2005, Office of Disciplinary Counsel filed a petition for adjudication of contempt with the Supreme Court of Pennsylvania. The petition alleged that respondent, James A. Hickey, a formerly admitted attorney having been suspended for six months by order of the Supreme Court dated December 13, 2004, had engaged in the practice of law while under suspension. The petition further alleged that respondent failed to comply with the requirements of Pennsylvania Rule of Disciplinary Enforcement 217 and failed to pay the costs associated with the previous Supreme Court order of suspension.

On December 1, 2005, the Supreme Court issued a rule to show cause why respondent should not be held in contempt for willful violation of the court’s December 13,2004 order. Respondent failed to respond to the rule to show cause, so the rule was made absolute on February 27, 2006. The Supreme Court held that respondent was adjudicated in contempt for willful violation of the court’s December 13,2004 order. The court referred the matter to the Disciplinary Board for a hearing to recommend the appropriate sanction.

A sanction hearing was held on April 18,2006 before a District IV Hearing Committee comprised of Chair David K. Harouse, Esquire, and Members Walter F. Wall, Esquire, and William F. Ward, Esquire. Respondent did not appear. Petitioner’s sole witness was Brian Kline, investigator/auditor for Office of Disciplinary Counsel.

The Hearing Committee filed a report on July 21,2006 and recommended that respondent be disbarred.

This matter was adjudicated by the Disciplinary Board at the meeting on September 20, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to the Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent is James A. Hickey. He was bom in 1942 and was admitted to the practice of law in the Commonwealth in 1972.

(3) Respondent is a formerly admitted attorney in the Commonwealth of Pennsylvania, having been suspended for six months by order of the Supreme Court dated December 13, 2004, effective January 12, 2005.

(4) Respondent’s six-month suspension was based on his conviction for resisting arrest or other law enforcement and disorderly conduct. An additional aggravating factor was his conviction of disorderly conduct in connection with an incident at a Wal-Mart store.

(5) By letter dated December 14,2004, to respondent, Elaine M. Bixler, secretary of the Disciplinary Board:

(a) informed him that the prothonotary forwarded to the Disciplinary Board a certified copy of an order of the court, dated December 13, 2004, by which he was suspended from the bar of the Commonwealth for a period of six months, effective 30 days from the date of the order;

(b) forwarded to him a copy of the court’s December 13, 2004 order; and,

(c) provided him with copies of applicable Disciplinary Board Rules, Pennsylvania Rules of Disciplinary Enforcement and various forms.

(6) By second letter dated December 14, 2004, and directed to respondent, Ms. Bixler notified respondent that the expenses of the investigation and processing of his disciplinary case in the amount of $654 were to be paid by him.

(7) On January 3, 2005, respondent was personally served by constable with a copy of the two letters dated December 14, 2004 from Ms. Bixler, an expenses incurred statement and the December 13, 2004 order entered by the Supreme Court.

(8) By letter addressed to respondent and dated February 15, 2005, the secretary of the Disciplinary Board, inter alia:

(a) referenced her letters to respondent dated December 14, 2004;

(b) reminded respondent that the Disciplinary Board had not received the verified statement required by Rule 217(e), Pa.R.D.E.;

(c) stated that the Disciplinary Board had also not received payment of the costs assessed by the Supreme Court;

(d) advised respondent that Disciplinary Board Rule §89.272 provides that the Disciplinary Board will not entertain a petition for reinstatement filed before a formerly admitted attorney has paid in full any costs taxed by the Supreme Court;

(e) further advised respondent that reinstatement is not automatic and that his suspension continues until further order of court;

(f) advised respondent that after the termination of his suspension has expired, he must file a verified statement with the Disciplinary Board showing compliance with all of the terms and conditions of the order of suspension and of Rule 217, Pa.R.D.E.;

(g) finally, reminded respondent that if he was not subject to another order of suspension or disbarment or if formal disciplinary proceedings were not then pending, the Disciplinary Board would certify such fact to the Supreme Court so that an order might be entered reinstating him to active status, but if formal disciplinary proceedings were pending, respondent would be required to file a petition for reinstatement.

(9) The letter dated February 15, 2005 from the secretary of the board to respondent was sent to him at his last known address by certified and regular mail. The certified mail was signed for by respondent.

(10) Respondent did not file the required verified statement with the Disciplinary Board showing that the provisions of the order and the Rules of Disciplinary Enforcement were fully complied with.

(11) Respondent did not pay the costs owed to the Disciplinary Board.

(12) On September 8, 2005, respondent appeared at Magisterial District Judge Amy L. Nicols’ office in Titusville, Crawford County, Pennsylvania, purporting to be the guardian of Sharon Burkett, the defendant in a matter filed against her by the Commonwealth of Pennsylvania. He requested a continuance of a hearing scheduled for September 15,2005.

(13) Judge Nicols requested that respondent provide her with the court order appointing him as Ms. Burkett’s guardian.

(14) Respondent did not provide any guardianship papers but represented that he was counsel for Ms. Burkett and showed Judge Nicols an expired Pennsylvania license card. Respondent told Judge Nicols he would send to her office via facsimile transmission a written request for a postponement in Ms. Burkett’s case.

(15) By facsimile transmission dated September 12, 2005, on letterhead stating that respondent is an Attorney and Counselor at Law with an address in Emlenton, Pennsylvania, and a member of the Florida Bar, respondent sent to Magisterial District Judge Nicols a petition for continuance in Ms. Burkett’s matter.

(16) Respondent stated in the petition for continuance that he is attorney for Ms. Burkett and signed the pleading as “Attorney for defendant.” Similarly, respondent listed himself as Ms. Burkett’s counsel of record and gave his Pennsylvania Attorney Identification Number on the face sheet of the petition for continuance.

(17) Respondent was suspended from the practice of law at the time he filed the petition for continuance.

(18) Respondent is no longer admitted to practice law in Florida as of October 11, 2004.

(19) Judge Nicols did not rule on the petition for continuance filed by respondent.

(20) Respondent was personally served with notice of the April 18, 2006 sanction hearing on March 31, 2006.

(21) Investigator Brian Kline of Office of Disciplinary Counsel informed respondent of the documents served on him. Mr. Kline was accompanied by respondent’s probation officer.

(22) Respondent informed Investigator Kline that Office of Disciplinary Counsel had no jurisdiction over him and became agitated and aggressive toward Investigator Kline.

(23) Respondent pushed the papers away from himself as Investigator Kline gave them to him.

(24) Respondent’s probation officer entered the room to calm respondent down.

(25) Respondent failed to appear at the April 18,2006 sanction hearing.

(26) Respondent has a prior history of discipline.

(27) Respondent received an informal admonition on July 29, 2003, as a result of his failure to proceed with a client’s case, failure to notify his client of changes in his address, and failure to communicate with the client. He further failed to return the unearned fee to his client after the client terminated the representation. Finally, respondent failed to satisfy the condition attached to the admonition that he repay $1,000 to the Lawyers Fund for Client Security.

(28) Respondent was suspended for six months by order of the Supreme Court dated December 13, 2004, which suspension is the subject of the instant contempt proceeding.

(29) Respondent was suspended for three years by order of the Supreme Court dated February 27, 2006. This suspension was based on respondent’s conviction of the crimes of identity theft, tampering with records or identification, deceptive or fraudulent business practices and securing execution of documents by deception.

III. DISCUSSION

The Supreme Court of Pennsylvania found respondent in contempt of the Supreme Court’s order of December 13, 2004; this matter was referred to the Disciplinary Board; a sanction hearing was held on April 18, 2006. This matter is now ripe for adjudication by the Disciplinary Board.

Following respondent’s suspension from the practice of law on December 13, 2004, effective 30 days after entry of the order, he failed to comply with the Rules of Disciplinary Enforcement requiring that he notify clients, the court and opposing attorneys of his suspension and consequent inability to practice law. Respondent failed to file a verified statement with the board demonstrating his compliance with the rules. Respondent failed to pay the costs related to the suspension proceeding. Respondent continued to hold himself out as a practicing attorney and engaged in the practice of law in Crawford County.

Respondent declined to participate in any fashion in the contempt proceeding brought against him by petitioner. He did not respond to the rule to show cause issued by the Supreme Court and he failed to appear at the sanction hearing before the Hearing Committee, despite ample notice. At the time Investigator Kline from Office of Disciplinary Counsel effectuated personal service, respondent physically attempted to push the papers away from himself and announced that the Disciplinary Board had no jurisdiction over him. According to the investigator, respondent became agitated and aggressive, necessitating the intervention of respondent’s probation officer, whom the investigator had the foresight to bring with him.

Respondent’s criminal history is disturbing. Respondent was convicted by a jury of resisting arrest and disorderly conduct in 2002 and pleaded guilty to disorderly conduct in 2003. In 2004 respondent entered a plea of guilty to identity theft, tampering with records or identification, deceptive or fraudulent business practices and securing execution of documents by deception. These convictions ultimately led to respondent’s professional discipline. Furthermore, in October 2004 respondent was charged with disorderly conduct and entered a plea of guilty to a summary offense of disorderly conduct in 2005. The board takes judicial notice of the fact that a disciplinary proceeding was brought against respondent based on this conviction and is currently before the board for adjudication.

The Hearing Committee recommended disbarring respondent, based on his course of action which includes refusing to acknowledge the authority of the Disciplinary Board and the Supreme Court and continuing to engage in a pattern of behavior that reflects an inability to manage his anger. The board concurs with the Committee’s recommendation. The totality of the circumstances portray an individual who is unfit to practice law and represent members of the public in a professional manner. The past sanctions imposed on respondent have failed to elicit from him a recognition of the seriousness of his conduct and an effort to remedy the course and pattern of his behavior. While disbarment is the most serious sanction that may be imposed, the board is persuaded that it is the most appropriate sanction to address the egregiousness of respondent’s misconduct.

IV. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, James A. Hickey, be disbarred from the practice of law.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Baer did not participate in the adjudication.

ORDER

And now, January 18,2007, upon consideration of the reports and recommendations of the Disciplinary Board both dated November 3, 2006, it is hereby ordered that:

(a) at no. 34 D.B. 2006, respondent is disbarred from the bar of this Commonwealth and he shall comply with all the provisions of Rule 217, Pa.R.D.E., and

(b) at no. 188 D.B. 2005, the disciplinary charges are dismissed.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: O’BRIEN, J.,

text:
    Commonwealth v. Ramsour

      August 8, 2006

      Michael Rakaczewski, assistant district attorney, for the Commonwealth.

      David W. Skutnik, for defendant.
   O’BRIEN, J.,

I. FINDINGS OF FACT

(1) In July 2005, defendant, Troy Ramsour, traveled from his home in Lawrenceville, Georgia to pick up his son who had been visiting the defendant’s brother in Cresco, Monroe County, Pennsylvania. (N.T. 2/23/06, pp. 22, 23.)

(2) During his visit, there was an occasion when the defendant was present in a playroom with three children including M.B. (date of birth 6/17/00), his brother’s daughter. (N.T. 2/23/06, p. 24.)

(3) Approximately a week after the defendant’s departure from his brother’s home, M.B., the brother’s daughter, was observed inserting her finger in her vagina. When admonished about the conduct, she stated to her father that, “Well, Uncle Troy puts his finger in my vagina.” (N.T. 2/23/06, p. 26.)

(4) After the statement by M.B. was reported to the police, the police referred the child to Andrea Taroli of Carbondale, Pennsylvania, a forensic pediatrician. Doctor Taroli described her occupation as follows:

“Okay. I’m a pediatrician who has practiced for about 10 years in general pediatric practice and then received training at the Children’s Hospital in Philadelphia in the field of child abuse and forensic pediatrics.

“A pediatrician who does this line of work is educated and trained in all aspects of child maltreatment, whether it be failure to thrive, sexual abuse, physical abuse, emotional abuse and all the related topics.

“My function at Pegasus Child Advocacy Center where I work is to be a medical director, to assess children medically for evaluation for allegations of child abuse of any kind.” (N.T. 9/29/05, pp. 23,24.)

(5) Although a physical examination of the child by Dr. Taroli did not disclose any evidence of abuse or injury, the doctor testified concerning the following conversation with the child:

“I explained to the child that — you know, she understood I was a doctor and we talked about the importance of telling the doctor the truth so that she can be properly treated. I did ask her if she had ever been touched in her private area. And she said yes. She said Uncle Troy touched her there.

“And I asked her when that happened and she said that’s when Uncle Troy and his kid, I think, came up to visit. He came up from Georgia to visit them.

“She said that he touched her — I forgot what she called it, if she called it a pee pee or her private, but she said that he touched it with his hand, with his fingers.” (N. T. 9/29/05, pp. 25, 26.)

II. DISCUSSION

The Commonwealth has filed a criminal information alleging that on or about July 9, 2005, the defendant committed the offenses of aggravated indecent assault of a child (18 Pa.C.S. §3125(b)); unlawful contact with a minor (18 Pa.C.S. §6318(a)(1)), both graded as felonies of the first degree, and corruption of minors (18 Pa.C.S. §6301(a)(l), indecent assault (18 Pa.C.S. §3126(a)(7)) and endangering the welfare of children (18 Pa.C.S. §4304(a)), all graded as misdemeanors of the first degree.

On June 15, 2006, a judge of this court denied an omnibus pretrial motion filed by the defendant in the nature of a motion to dismiss for violations of Pa.R. Crim.P. 600. On June 9, 2006, the defendant filed a motion in limine requesting this court enter an order precluding Dr. Andrea Taroli and the father of the alleged victim to testify as to statements made by the child to them. The defendant has also filed a separate motion seeking habeas corpus relief on the ground that there is no competent evidence to sustain the charges against him. Both motions were consolidated for hearing to be held July 25, 2006. At the time of the hearing, counsel for both parties agreed to submit the issue for resolution by the court on the basis of the transcripts of the two preliminary hearings held in this case and briefs in support of their respective positions. Therefore, both motions are now before the court for disposition.

We will first address the motion of defense counsel to grant the motion in limine with respect to the testimony of Dr. Andrea Taroli. The contentions of the parties on that issue are identical to those addressed by President Judge Ronald E. Vican in Commonwealth v. Rapp (683 Criminal 2005, opinion December 13, 2005). In a scenario most similar to the case at bar, Judge Vican precluded the testimony of Dr. Taroli upon the following reasoning.

“Defendant asserts that the statements made to Dr. Taroli by the victim are intended to be used by the Commonwealth as substantive evidence to prove the acts charged and to avoid having the victim actually testify at trial. Defendant states that there is no question that Dr. Taroli is a member of the investigative team and, thus, any statements made by the victim during questioning by Dr. Taroli should be excluded from trial under Crawford. The Commonwealth argues that statements made by an individual to a medical provider are non-testimonial and, thus, do not require a Crawford analysis to be admitted into evidence. However, the Commonwealth acknowledges that statements made during a forensic interview have been found to be testimonial.

“Pa.R.E. 803(4), the Medical Treatment Exception, provides that statements made to a medical doctor for the purpose of medical diagnosis and treatment are excluded from the hearsay rule and, thus, testimony repeating the out-of-court statements made to the doctor for such purpose are admissible as substantive evidence at trial. Commonwealth v. Fink, 791 A.2d 1235, 1246 (Pa. Super. 2002). However, before such a statement can be admitted under this exception, two requirements must be met: (1) the declarant must make the statement for the purpose of receiving medical treatment, e.g., statements relating to the cause of injury, including testimony repeating statements made to nurses for the purposes of medical treatment and diagnosis; and (2) the statement must be necessary and proper for diagnosis and treatment, e.g., statements to medical personnel as to how the person sustained the injuries, but not the identity of the perpetrator. Id., citing Commonwealth v. Smith, 545 Pa. 487, 493, 681 A.2d 1288, 1291 (1996). However, statements to physicians retained solely for the purpose of trial are inadmissible under this exception. Id”

In the case at bar, the child, who is 5 years of age, was not presented as a witness by the Commonwealth and the district justice, following an in camera hearing, determined that she was “unavailable.” To qualify for admission under the Medical Treatment Exception of the hearsay rule, the victim’s statements to Dr. Taroli must have been made for the purpose of receiving a medical diagnosis and treatment for any injuries she may have sustained as a result of the alleged sexual assault. It is undisputed that the child was referred to Dr. Taroli by the police as part of their investigative work. We conclude, as did our colleague, that in such circumstances the testimony of Dr. Taroli may not be admitted at trial.

We now turn to the question of whether or not the child’s initial statement to her father concerning defendant’s conduct may be admissible at trial. This analysis must begin in the context of the decision of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). In that case, the court held that out-of-court statements by witnesses that are testimonial are barred under the Sixth Amendment to the United States Constitution unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. In the case at bar, the defense has not had any opportunity to cross-examine the child victim and, therefore, her statement to her father would be inadmissible if found to be “testimonial.” The Commonwealth contends that the child’s statements were not “testimonial,” therefore not affected by the ruling in Crawford v. Washington, supra. The Commonwealth further contends the child’s statements fall within the hearsay exception provided in the “Tender Years Statute.” That statute provides in pertinent part as follows:

“(a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. chs. ... 31 (relating to sexual offenses), . . . not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
“(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
“(2) the child either:
“(i) testifies at the proceeding; or
“(ii) is unavailable as a witness.
“(a.l) Emotional distress. — In order to make a finding under subsection (a)(2)(h) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:
“(1) observe and question the child, either inside or outside the courtroom.
“(2) hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.” (42 Pa.C.S. §5985.1.)

The Commonwealth correctly notes in its brief that there is no precedent on the issue of whether a spontaneous, unsolicited statement by a minor child to their parent is “testimonial.” Generally, the courts have found that testimonial statements are the kinds of solemn declarations made for the purpose of establishing or proving some fact. Therefore, statements made to police officers or government agents, People v. King, Colo. Ct. App. 2005, affidavits or depositions, Liggins v. Graves, 2004 U.S. Dist. Lexis 4889 (S.D. Iowa), in-court or grand jury testimony, People v. Patterson, 808 N.E.2d 1159 (Ill. App. 2004), pleas allocutions of co-defendants, United States v. Massino, 319 F. Supp.2d 295 (E.D.N.Y. 2004), and statements of confidential informants, United States v. Cromer, 389 F.3d 662 (6th Cir. Mich. 2004), are testimonial statements. However, the U.S. Supreme Court decided to “leave for another day any effort to spell out a comprehensive definition of‘testimonial.’ ”

In view of the circumstances in which the child’s statement was made (see N.T. 2/23/06, pp. 25, 26), we conclude the declaration by the child was spontaneous, unsolicited and therefore not testimonial. However, the admissibility of the child’s statement cannot yet be determined at this stage of the proceeding. A judge of the court of common pleas must find, in an in camera hearing, that the evidence is relevant and that time, content and circumstances of the statement provide sufficient indicia of reliability and the child either testified at the proceeding or is unavailable as a witness. The preliminary findings by a district court on such issues are not binding on the court of common pleas. Therefore, if the Commonwealth wishes to proceed with the prosecution, it must request a hearing for the purposes above cited as contemplated by the Tender Years Statute.

III. CONCLUSIONS OF LAW

(1) The child victim’s statement to the forensic pediatrician is testimonial, does not fit within the Medical Treatment Exception to the hearsay rule and is therefore inadmissible at trial.

(2) The child victim’s spontaneous unsolicited statement to her father is not testimonial and may be admitted at trial if a judge finds the criteria in the Tender Years Statute has been met.

ORDER

And now, August 8, 2006, it is ordered as follows:

(1) The defendant’s motion in limine to preclude the testimony of Dr. Andrea Taroli at time of trial is granted;

(2) The defendant’s motion in limine to preclude the testimony of the child’s father at time of trial is denied, without prejudice;

(3) The defendant’s motion for a writ of habeas corpus is denied.


author: WORTHINGTON, J,

text:
    Commonwealth v. Ramirez

      September 18, 2006

      Janet M. Catina, for Commonwealth.

      Bradley Warren Weidenbaum, for defendant.
   WORTHINGTON, J,

Alex Miguel Ramirez (defendant) was arrested on December 18, 2005 and charged with one count of attempted criminal homicide, a felony, in violation of 18 Pa.C.S. §901(a), 18 Pa.C.S. 2501; one count of aggravated assault with a deadly weapon, a felony, in violation of 18 Pa.C.S. §2702(a)(l) and (4); one count of possessing instruments of crime, a misdemeanor of the first degree, in violation of 18Pa.C.S. §907(a); one count of unsworn falsifications to authorities, a misdemeanor of the second degree, in violation of 18 Pa.C.S. §4904(a)(l); and one count of tampering with or fabricating physical evidence, a misdemeanor of the second degree, in violation of 18 Pa.C.S. §4910(1). On January 13, 2006 a preliminary hearing was held before Magisterial District Justice Anthony D. Fluegel. At the conclusion of testimony, District Justice Fluegel bound over the charges. The charges were included in a Criminal Information filed by the Commonwealth on February 2, 2006.

On June 5, 2006, defendant filed a timely omnibus pretrial motion. Included in the omnibus motion is (1) a motion to suppress statements that defendant made to police prior to his formal arrest; (2) a motion to suppress post-arrest statements that defendant made to police; (3) and a motion for a court appointed expert witness and private detective.

A hearing was held on June 13, 2006, at which time counsel made oral argument. Defendant filed a brief in support of his motions on July 17, 2006, and the Commonwealth filed a brief in opposition thereto on August 28, 2006. Defendant’s omnibus pretrial motion is now before us for disposition.

We begin our analysis with the testimony presented at the omnibus hearing on June 13,2006. The relevant facts are as follows: On December 18,2005, Detective Richard W. Luthcke, Sergeant Tim McCarty, and Detective Sergeant Harry Lewis of the Pocono Regional Police Department arrived at the home of defendant on Saw Mill Road in A Pocono Country Place at approximately 5:30 a.m. to interview him as a “potential witness” to a shooting that occurred earlier that evening. N.T. 06/13/06, p. 8. The officers were in plain clothes and were armed. Id. at 21. The officers identified themselves at the door of defendant’s residence and defendant’s brother admitted them and led them upstairs to defendant, whom they found awake and sitting on a couch. Id. at 10. Because there were children present upstairs, Detective Luthcke asked defendant whether they could speak somewhere else and defendant led the officers downstairs to a kitchen table. Id. Detective Luthcke then sat at the table with defendant and questioned him about the shooting but did not Mirandize him. Id. at 11. Detective Luthcke testified that Sergeants Lewis and McCarty were away from the table during the questioning of defendant. Id. at 13. Defendant gave a version of the events to the police and then, upon request by Detective Luthcke, provided a written statement which read:

“I got a phone call from my friend Matthew Hickman, he told me to hurry up and come over his house because somebody was breaking in so he hung up and I came over with Emily and Melissa. When I came over I saw somebody laying outside on the [indiscernible] in the driveway.” Commonwealth exhibit no. 1.

When asked why he failed to Mirandize defendant, Detective Luthcke testified that he did not consider the questioning custodial in nature and had no reason to believe at the time that defendant was the shooter. N.T. 06/13/06, p. 12. According to Detective Luthcke, defendant showed no hesitancy in speaking to him, nor did he at any time indicate that he did not want to speak to the police or that he wanted counsel. Id. at 12-13. Detective Luthcke did not provide defendant with a “notification of non-arrest form,” which, according to the testimony of Detective Luthcke, officers of the Pocono Regional Police Department sometimes use so that an interviewee “knows they are not under arrest” at the time of questioning. Id. at 24.

While Detective Luthcke interviewed defendant, Sergeant Lewis received a phone call and on the basis of its contents relayed to Detective Luthcke that defendant was the shooter and should be taken into custody. Id. at 13-14. Detective Luthcke and Sergeant McCarty then took defendant outside and arrested him for “making false statements,” verbally Mirandize him, and transported him to police headquarters. Id. at 16; defense exhibit no. 1.

After his removal to police headquarters, Detective Luthcke again Mirandize defendant by reading from a sheet of paper containing the Miranda warnings and defendant signed the waiver portion of the sheet. Id. at 17; Commonwealth exhibit no. 2. According to Detective Luthcke, defendant did not appear confused regarding his Miranda rights, did not indicate that he did not want to answer questions or make further statements, and did not request the presence of an attorney. Id. at 17-18. After defendant signed the Miranda waiver, Detective Luthcke and Detective John Bohrman took defendant into an interview room and conducted a taped interview. Id. at 19. Detective Luthcke testified that during the interview defendant never indicated that he did not wish to be questioned and never requested that his lawyer be present. Id. at 20.

At no time during the hearing on this matter did defendant present evidence showing that he was confused regarding his Miranda rights or his waiver of those rights or-that he invoked those rights at any time during questioning, either before or after his formal arrest.

MOTION TO SUPPRESS PRE-ARREST STATEMENTS

Defendant argues that officers of the Pocono Regional Police performed a custodial interrogation of defendant at his home at approximately 5:30 a.m. on December 18,2006 without informing him of his Miranda rights, thereby violating his right against self-incrimination as preserved by the United States Constitution and Pennsylvania law. We disagree. We hold that the officer’s questioning of defendant did not rise to the level of a custodial interrogation and therefore did not invoke defendant’s right against self-incrimination.

It is well-settled that a person in custody must, prior to interrogation, be informed of the procedural safeguards stated in Miranda, including the right to remain silent and the right to counsel. Miranda v. Arizona, 384 U.S. 436 (1966); Commonwealth v. Thompson, 778 A.2d 1215 (Pa. Super. 2001). Absent these warnings, any statements made are subject to suppression. The warnings required by Miranda are only necessary, however, when the defendant is subject to custodial interrogation. Commonwealth v. Paxton, 821 A.2d 594, 598 (Pa. Super. 2003), citing Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (2001).

Whether a person is in custody for Miranda purposes “depends on whether the person is physically denied his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation.” Commonwealth v. Johnson, 556 Pa. 216, 238-39, 727 A.2d 1089, 1100 (1999). The Superior Court clarified this standard in holding that detentions become custodial “when under the totality of the circumstances the conditions and/or duration of the detention become so coercive as to become the functional equivalent of arrest.” Commonwealth v. Dupre, 866 A.2d 1089, 1106 (Pa. Super. 2005).

The Superior Court has held that “the basis for detention; the location; whether the suspect was transported against his will; how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions” are “among the factors the court utilizes in determining, under the totality of the circumstances, whether police detention became so coercive as to constitute the functional equivalent of arrest....” A custodial interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Commonwealth v. DeJesus, 567 Pa. 415, 428, 787 A.2d 394, 402 (2001), citing Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682 (1980). It is commonly held that this definition “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Id.

Because the officers responsible for initially questioning defendant concede that they did not Mirandize him before questioning, defendant’s arguments hinge on whether he was in custody during this period. Defendant argues that the “totality of circumstances” support the conclusion that defendant reasonably believed he was in custody when police questioned him at his residence. Defendant argues that the early hour of questioning (approximately 5:30 a.m.), the fact that there were three armed officers present (possibly with side-arms visible to defendant), the duration of the questioning (over 30 minutes), and the failure of the officers to inform defendant that he could decline to answer the questions or leave the house demonstrate that defendant was in police custody when the officers initially questioned him.

Defendant primarily relies on Commonwealth v. Zogby in support of his position. 455 Pa. Super. 621, 689 A.2d 280 (1997). In Zogby, the Superior Court held that when a state trooper entered a suspect’s bedroom, roused him from a sound sleep, “advised” him to dress and go outside for questioning, and did not inform him that he could refuse to answer the trooper’s questions, it gave rise to a custodial interrogation requiring police to advise the suspect of his Miranda rights. In that case, state police identified a suspect in an early morning hit and run accident and went to his residence to question him. As the Superior Court noted, “[the trooper] attempted to arouse him but encountered much difficulty in doing so. [The trooper] peeled off [the suspect’s] bed cover and then began shaking his leg.” Zogby, at 622, 689 A.2d at 281.

Defendant also attempts to distinguish this case from Commonwealth v. Dupre, in which the Superior Court held that the questioning of a person at her residence by officers in plain clothes did not rise to the level of a custodial interrogation. 866 A.2d 1089, 1106 (Pa. Super. 2005). In this case, a female officer asked a woman believed to be involved in the death of her newborn whether she could speak to her alone in another room, to which the woman agreed. The officer questioned the woman for approximately 20 minutes until she revealed the circumstances of her newborn’s birth and suggested the death might have been an accident. Having become a suspect, the officer Mirandized her before continuing questioning. Id. at 1105.

The present case closely resembles the facts of Dupre. In this case, three police officers in plain clothes arrived at defendant’s home, identified themselves and requested to speak with defendant. Defendant agreed and led the officers to his kitchen. Detective Luthcke then proceeded to question defendant alone while the other officers stood off to the side. Like the defendant in Dupre, defendant displayed no unwillingness to answer questions and did not request an attorney. He also willingly made a written statement. Like the defendant in Dupre, defendant in this case did not become a suspect until after the questioning had commenced, at which time Detective Luthcke, like the officer in Dupre, stopped the questioning and Mirandized defendant.

It is also significant that none of the factors outlined in Dupre for determining whether a detention is custodial support defendant’s contention in this case. The purpose of the original detention was not to establish probable cause for an arrest, but to question defendant as a possible witness to the shootings; defendant was initially questioned at home, not at a police station; defendant was not transported against his will; defendant was not restrained; the officers did not threaten or use force, and did not display force other than by carrying holstered side-arms that may or may not have been visible to defendant; and the methods used to interrogate defendant were straightforward and defendant at no time objected to or showed confusion regarding the line of questioning.

The differences between this case and Zogby are also significant. In Zogby, the officer had determined that the car involved in the hit and run belonged to the defendant and viewed the defendant as a suspect when he arrived at his home to interrogate him.

He entered the defendant’s bedroom, pulled the covers off of him, shook him awake, and urged him to get dressed and come outside for questioning. The officer testified that had the defendant refused to accompany him, he would have continued to press him until he complied. Zogby, at 625, 689 A.2d at 283. In this case, there was no physical contact and defendant readily agreed to sit for questioning. Also, Detective Lutchke testified that defendant was not a suspect during the questioning at his residence.

As defendant emphasizes, here officers questioned defendant at 5:3 0 a.m. and may have had visible side-arms. These factors, however, are insufficient to create a custodial investigation where defendant was not a suspect and knowingly and without hesitation sat for police questioning in his own home. Furthermore, none of the factors that the Superior Court set forward in Dupre support defendant’s contention. We therefore deny defendant’s motion to suppress his pre-arrest statements to police.

MOTION TO SUPPRESS POST-ARREST STATEMENTS

Defendant next argues that post-arrest statements made to the Pocono Mountain Regional Police should be suppressed as statements made incident to an unlawful arrest. Because we find that defendant’s arrest was lawful, we deny defendant’s motion to suppress his post-arrest statements.

Defendant asserts that under Pennsylvania law, statements made incident to an unlawful arrest must be suppressed unless the Commonwealth can demonstrate that the taint of illegal arrest was purged by an intervening act or temporal cessation of interrogation. See Commonwealth v. Farley, 468 Pa. 487, 494, 364 A.2d 299, 302 (1976). However, absent an unlawful arrest, defendant’s post-arrest statements are admissible assuming that defendant was properly Mirandized and the statements were otherwise legally obtained. See e.g., Commonwealth v. Young, 2006 WL 2063075 (Pa. Super. 2006). A legal arrest requires probable cause on the part of police, which is determined by considering the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 (1983). Under the totality of the circumstances, a police officer must make a practical common sense decision whether, given all of the circumstances known to him at that time, there is a fair probability that a crime was committed and that the suspect committed the crime. Commonwealth v. Taylor, 850 A.2d 684, 687 (Pa. Super. 2004).

In this case, defendant argues that his arrest was unlawful because the police found probable cause on the basis of written statements that he made under custodial interrogation before he was advised of his constitutional rights. Defendant is correct that the inconsistency of these statements with other evidence created a basis of probable cause for which police arrested defendant. Defense exhibit no. 1, p. 10. However, because we find that the initial non-custodial questioning of defendant does not implicate Miranda, the pre-arrest statements are admissible and legally formed the basis of probable cause for arresting defendant. Furthermore, defendant concedes that he was formally Mirandized before his questioning at police headquarters and does not claim that he was coerced into waiving his Miranda rights or in making post-arrest statements to police. Because defendant was not in custody at the time of his original statements to police and not entitled to Miranda warnings, we find that police legally considered defendant’s statements when determining whether probable cause existed for his arrest.

We therefore deny defendant’s motion to suppress his post-arrest statements to police.

MOTION FOR APPOINTMENT OF EXPERT WITNESS AND PRIVATE DETECTIVE

Defendant moves for the appointment of a private investigator or that we make funds available so that he may retain one, and for the appointment of a gunshot residue expert. We deny this motion.

Our Superior Court has “recognized the right of indigent defendants to have access to the same resources as non-indigent defendants in criminal proceedings.” Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa. Super. 2005). Yet it has also recognized that “there is no constitutional mandate, either federal or state, that experts be appointed at public expense to assist in the preparation of a defense whenever requested by one accused of crime.” Commonwealth v. Gelormo, 327 Pa. Super. 219, 229, 475 A.2d 765, 770 (1984).

In this case, defendant is not indigent, as he has retained and paid private counsel. As we noted in our June 22 order denying defendant’s petition to proceed in forma pauperis, defendant may make application to the public defender office upon withdrawal of private counsel in this matter. Otherwise, defendant is not entitled to the appointment of experts or a private investigator.

Accordingly, we enter the following:

ORDER

And now, September 18, 2006, in consideration of defendant’s omnibus pretrial motion, we enter the following order:

(1) Defendant’s motion to suppress statements is denied.

(2) Defendant’s motion for appointment or funding of gunshot residue expert and private detective is denied.