author: WORTHINGTON, J,

text:
    Commonwealth v. Berry

      Chad Martinez, assistant district attorney for Commonwealth.

      James A. Swetz, for defendant.
    March 10, 2006
   WORTHINGTON, J,

Kevin M. Berry (defendant) was arrested on October 7,2005 and charged with one count of terroristic threats, a misdemeanor of the first degree, in violation of 18 Pa.C.S. §2706(A)(1), one count of simple assault, a misdemeanor of the second degree, in violation of 18 Pa.C.S. §2701(A)(3), and one count of recklessly endangering another person, a misdemeanor of the second degree, in violation of 18 Pa.C.S. §2705. The foregoing counts were included in the Criminal Information filed by the Commonwealth on December 19, 2005.

On January 17,2006, defendant filed a timely omnibus pretrial motion, which was in the nature of a motion to suppress any evidence seized under the Commonwealth’s search warrant based on the following allegations: (1) that the affidavit of probable cause lacks probable cause to support the search and seizure; (2) that the search warrant is overbroad and fails to particularly describe the handgun; and (3) that the search warrant does not satisfy the staleness doctrine. A hearing was held on January 24, 2006. Defendant filed a brief in support of his omnibus motion on January 25,2006; the Commonwealth filed a brief in opposition thereto on February 3, 2006. Defendant’s omnibus pretrial motion to suppress is now before us for disposition.

On October 7, 2005, Officer Sara Schramer of the Stroud Area Regional Police Department was summoned to Main Street in the Borough of Stroudsburg in response to Sharon Mellen’s report that she had been involved in an altercation with defendant. Officer Schramer conducted an investigation, which included an interview with the victim, Ms. Mellen, and determined that an argument between defendant and Ms. Mellen occurred in defendant’s residence, located at 572 Main Street, 3rd Floor, during which time defendant threatened Ms. Mellen with bodily harm while pointing what Ms. Mellen described as a black semi-automatic handgun at her. According to statements made by the victim to Officer Schramer, defendant told the victim to leave or he would shoot her. Officer Schramer checked with the Monroe County Control Center and verified that defendant had firearms registered to him, one of which was a type that was consistent with the type of handgun described by Ms. Mellen.

Detective Richard Wolbert of the Stroud Area Regional Police Department made an application for search warrant on October 8,2005. In the section of the search warrant in which the detective was to “identify items to be searched for and seized,” Detective Wolbert specified: “handgun, described as black in color semi-automatic type and any marijuana.” The description of the premises to be searched was identified as defendant’s Main Street apartment. This warrant was based on an affidavit of probable cause that reads as follows:

“Your affiant is a detective with the Stroud Area Regional Police Department. Your affiant was contacted [sic] reference to an incident that had occurred at 572 Main St., Stroudsburg Borough regarding a firearm and it’s [sic] use in the aforementioned crimes of terroristic threats, reckless endangerment and simple assault. An investigation into this incident was conducted and charges were prepared against [defendant] relating to the use of the firearm in those charges, in that he pointed the firearm at Sharon Mellen and did threaten to shoot her.

“The firearm was used at [defendant’s] apt., at 572 Main St. The victim observed and described the firearm used, which was last seen on a table in the residence. The fact that [defendant] owns such a firearm was verified though the Monroe County Control Center. Police have been observing the apartments [sic] exterior and there is no indication that the firearm could have been removed from the apartment.

“The seizure of the firearm is necessary to successfully prosecute the charges against [defendant].

“A female occupant advised there was marijuana in the apartment.” Affidavit of probable cause.

A search of defendant’s apartment was conducted and the following items were seized: a “Springfield Armory Ultra Compact CAL 45” and a “small greenish bag containing suspected marijuana + 2 joint butts.” Receipt/inventory of seized property.

In his motion to suppress any evidence seized under the Commonwealth’s search warrant, defendant’s challenge to the search and subsequent seizure is couched in three discrete arguments. Defendant alleges that the search warrant in question: (1) is based upon an affidavit of probable cause that lacks probable cause; (2) is a general exploratory warrant and, thus, overbroad; and (3) is stale. Defendant therefore asks that we suppress any and all evidence seized from his apartment pursuant to the search warrant executed by the Commonwealth.

We note at the outset that in a suppression hearing, the Commonwealth has the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of a defendant’s rights. Pa.R.Crim.P. 323(h). It is thus the Commonwealth’s burden in this instance to prove that the warrant upon which the search of defendant’s apartment was conducted was lawful.

Both the United States and the Pennsylvania Constitutions protect individuals from unreasonable searches and seizures. See U.S. Constituional Amendment IV. The Pennsylvania Supreme Court has held that Article I, Section 8 of the Pennsylvania Constitution confers greater personal privacy protection to the citizens of the Commonwealth under certain circumstances. See Commonwealth v. Cleckley, 558 Pa. 517, 527, 738 A.2d 427, 431 (1999); see also, Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530 (2002); Commonwealth v. Acosta, 815 A.2d 1078 (Pa. Super. 2003). Article I, Section 8 of the Pennsylvania Constitution provides that:

“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.” Pennsylvania Constitution Article I, Section 8.

Additionally, Pa.R.Crim.P. 2003(a) and (b) provide that:

“(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.

“(b) At any hearing on a motion for the return or suppression of the evidence, or for suppression of the fruits of evidence obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (a).” Pa.R.Crim.P. 2003(a) and (b).

Thus, a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause. See Commonwealth v. Edwards, 735 A.2d 723 (Pa. Super. 1999).

Defendant initially argues that the affidavit of probable cause lacks the requisite probable cause because it fails to identify the sources of information, the time the information was received and by whom the information was received. Defendant argues that although the affidavit alleges that the victim observed a gun and described said gun to the police, the affidavit does not specifically name the victim, does not describe the handgun seen, nor does it describe the handgun owned by defendant that was verified through the control center.

Additionally, defendant argues that the affidavit of probable cause contains insufficient probable cause to support the inference that marijuana could be found in the apartment. The affidavit does not allege the victim as the source of the information; rather, it simply refers to the informant as “a female occupant.” Defendant argues that the affidavit had to include information detailing the identity of the occupant of the apartment, when the contraband was allegedly viewed by the occupant, how the occupant knew that the suspect material actually was marijuana, and whether the occupant was a reliable informant. Defendant therefore argues that the warrant was issued upon hearsay, and there is nothing in the warrant to demonstrate the reliability of the informant. Based on the foregoing contentions, defendant argues that the affidavit of probable cause does not contain sufficient probable cause to support the issuance of a valid search warrant and, thus, the evidence seized during the execution of the search warrant must be suppressed.

Secondly, defendant argues that the search warrant issued is a general, exploratory warrant. He argues that the warrant is overbroad because it fails to articulate the description of the gun as given by the victim and fails to describe the firearms that the control center alleged were registered to defendant. Defendant contends that the affidavit does not satisfy the Pennsylvania constitutional requirement that the gun be described as particularly as is reasonably possible. Defendant claims that to sufficiently satisfy this standard and guard against a wholesale seizure of any and all firearms owned by defendant, relevant or otherwise, the police had to include the description that was given to them by the victim. Defendant claims that, in this instance, the victim gave a reasonable description of the gun, but the police chose not to include it in the affidavit. Defendant therefore claims that the search warrant violates the specificity requirements for a warrant under both the United States and Pennsylvania Constitutions. More specifically, defendant argues that it is a general, exploratory warrant of the type that the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution were designed to prevent. Based on these contentions, defendant argues that the seizure of the gun pursuant to the warrant violated his rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

Finally, defendant makes a staleness argument. Defendant contends that the search warrant fails to satisfy the staleness doctrine because there is no information upon which a detached magistrate could find a reasonable likelihood that evidence of a crime or contraband were in defendant’s apartment. Defendant therefore asks that we suppress any and all evidence seized from his apartment pursuant to the search warrant executed by the Commonwealth.

The Commonwealth argues that the search warrant sets forth sufficient probable cause, the applicable time frame, and particularly describes the weapon at issue. However, with respect to the marijuana, the attorney for the Commonwealth claims in his brief that “the issue is moot because the defendant has not been and will not be charged with any violations of title 35 — The Drug, Device, Cosmetic Act.” See Commonwealth’s brief, p. 3.

We will address the marijuana first. With respect to the marijuana, defendant’s motion to suppress is granted. Search warrants must issue where sufficient, concrete, reliable information exists to establish the requisite probable cause of illegal activity. Here, we find that probable cause does not exist. The affidavit of probable cause fails to specifically identify the source of the information; it states only that “a female occupant advised there was marijuana in the apartment.” Affidavit of probable cause. “A tip from an unnamed informant can properly form the basis for probable cause to issue a search warrant, provided there is adequate evidence of the informant’s reliability.” Commonwealth v. Gindlesperger, 706 A.2d 1216, 1225 (Pa. Super. 1997), citing Commonwealth v. Lemanski, 365 Pa. Super. 332, 353, 529 A.2d 1085, 1095 (1987). The reliability of the informant’s information “must be determined from the fact supplied by the police official.” Id.

In this instance, there is no adequate evidence of the informant’s reliability. In addition, there is insufficient information to determine when the informant allegedly saw the marijuana or how she knew it was marijuana. Without a determination regarding the reliability of the informant or the veracity of the information she provided, we find that the affidavit of probable cause upon which the search warrant was based contained insufficient facts to provide a reasonable and logical basis to believe that marijuana would be found in defendant’s residence at the time of application for the execution of a search warrant. The affidavit of probable cause lacked the requisite probable cause to support the issuance of a valid search warrant in this respect. Accordingly, the portion of the warrant issued in this matter, which allowed police to search defendant’s apartment and seize “any marijuana,” is invalid and any marijuana evidence that was seized is subject to suppression.

With respect to the search for, and seizure of, the handgun, defendant argues that there was no probable cause for the police to conduct such a search. “The law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location . ...” Commonwealth v. Fisher, 316 Pa. Super. 311, 318, 462 A.2d 1366, 1369 (1983). Rather, it is only probability that a crime has been committed and that evidence or fruits thereof may be found on premises to be searched, and not a prima facie showing, that is required of a search warrant affidavit in order to pennit issuance of search warrant. Commonwealth v. Samuels, 326 Pa. Super. 561, 474 A.2d 632 (1984). Thus, “[t]he existence of probable cause is determined by a consideration of all circumstances, including the reliability of the proffered information and the probability that the evidence sought will be found in the place to be searched.” Commonwealth v. Alewine, 384 Pa. Super. 283, 286-87, 558 A.2d 542, 543 (1989), citing Commonwealth v. Weidenmoyer, 518 Pa. Super. 2, 7-9, 539 A.2d 1291, 1294 (1988). We are to first evaluate the affidavit in a “commonsense and realistic manner” and not subject it to “overly technical interpretations,” and then accord the issuing authority’s determination of probable cause great deference on review. Commonwealth v. Samuels, 326 Pa. Super. 561, 565, 474 A.2d 632, 634 (1984), citing Commonwealth v. Prokopchak, 279 Pa. Super. 284, 420 A.2d 1335 (1980).

We begin by noting that the affidavit of probable cause identifies the source of the information as the victim in this case. Generally, a tip from an informant “can properly form the basis for probable cause to issue a search warrant, provided there is adequate evidence of the informant’s reliability.” Commonwealth v. Gindlesperger, 706 A.2d 1216, 1225 (Pa. Super. 1997), citing Commonwealth v. Lemanski, 365 Pa. Super. 332, 353, 529 A.2d 1085, 1095 (1987). The reliability of the informant’s information “must be determined from the fact supplied by the police official.” Id. However, “[u] nder normal circumstances, the statement of a victim of a crime would be sufficient to create the probable cause necessary for the issuance of a search warrant.” Commonwealth v. Mamon, 449 Pa. 249, 258, 297 A.2d 471, 476 (1972), citing Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976, 979 (1966). Thus, in determining whether probable cause exists, our courts “have tended to credit information supplied by [a person] who has some direct personal knowledge of the crime.” Commonwealth v. Patterson, 266 Pa. Super. 167, 173, 403 A.2d 596, 599 (1979). We find that in the instant matter the victim’s statement to the police regarding the handgun she saw defendant use created sufficient probable cause to sustain a search of defendant’s apartment for the handgun. Consequently, the affidavit of probable cause contained sufficient facts to permit the issuing magistrate to conclude with reasonable certainty that a crime had been committed and that evidence or fruits thereof may be found on the premises to be searched.

Defendant further argues that the search warrant violates particularity requirements. Generally speaking, a warrant is unconstitutional for its lack of particularity when it “authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize.” Commonwealth v. Bagley, 408 Pa. Super. 188, 195, 596 A.2d 811, 814 (1991). The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized “as nearly as may be,” which has been held to be a more stringent standard than that of the Fourth Amendment, “which merely requires particularity in the description.” Id., 408 Pa. Super. at 196, 596 A.2d at 814. Thus, our courts have held that the clear meaning of the Pennsylvania Constitution is that the warrant must describe the items as particularly as is reasonably possible. Id., citing Commonwealth v. Reese, 520 Pa. 29, 32, 549 A.2d 909, 910 (1988) (Pennsylvania particularity requirement more stringent than that of the Fourth Amendment because Pennsylvania particularity requirement precedes probable cause requirement). Similarly, defendant argues that the warrant is overbroad. A warrant is unconstitutional for its overbreadth when it “authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation.” Commonwealth v. Bagley, 408 Pa. Super. 189, 195, 596 A.2d 811, 814.

The warrant issued in this case identified the item to be searched for and seized as “[a] handgun, described as black in color semi-automatic type and any marijuana.” We find that the preceding language constitutes a description of the item as particularly as is reasonably possible. Consequently, we find no merit in defendant’s argument that the warrant violates particularity requirements. Similarly, we find that the warrant is not over-broad. The warrant issued in this instance limited the parameters of the search to a search for a handgun “described as black in color” and “semi-automatic type.” Such search terms do not authorize “the seizure of an entire set of items . . . many of which will prove unrelated to the crime under investigation.” Accordingly, defendant’s overbreadth argument is misplaced.

Finally, defendant argues that the search warrant does not satisfy the staleness doctrine. Defendant claims that the description of the firearm in the search warrant was not included in the affidavit of probable cause. A determination regarding the staleness of information for a search must be made on a case-by-case basis, and it is axiomatic that “stale information cannot supply probable cause necessary to support the issuance of a search warrant.” Commonwealth v. Samuels, 326 Pa. Super. 561, 565, 474 A.2d 632, 634 (1984), citing Commonwealth v. Albert, 264 Pa. Super. 390, 399 A.2d 1106 (1979). “[T]he chief factors to consider when determining whether the information supporting the issuance of a warrant has grown stale are the quality and nature of the seized evidence, the ease with which the evidence may be disposed of, and the lapse of time between the information and the warrant.” Commonwealth v. Alewine, 384 Pa. Super. 283, 287, 558 A.2d 542, 543 (1989), citing Commonwealth v. Klimkowicz, 331 Pa. Super. 75, 81, 479 A.2d 1086, 1089 (1984).

In the instant case, the information supporting the probable cause for the warrant was obtained the day before the warrant was issued. See Commonwealth v. Samuels, 326 Pa. Super. at 566, 474 A.2d at 634-35. The warrant sets forth a violation date of October 7, 2005; and the date and time that the warrant was issued is listed as 7:55 a.m. on October 8, 2005. Because the warrant sufficiently identifies the commission of a crime and the date thereof, and the warrant was timely issued, we find that it was proper for the issuing authority to conclude that the handgun was probably located inside defendant’s residence. In addition, the affidavit of probable cause included language relaying that “[the] police have been observing the apartments [sic] exterior and there is no indication that the firearm could have been removed from the apartment.” Because the police recognized the relative ease with which a person could dispose of a handgun and observed no indication that defendant could have removed the handgun from the apartment, and because the lapse of time between when the police received the information and when the warrant was issued was brief, we find that there was sufficient probable cause to support the issuance of a warrant and that the warrant that was issued was not stale. Accordingly, the warrant in question satisfies the staleness doctrine and defendant’s argument is without merit.

We conclude that the affidavit of probable cause contained sufficient facts to provide a reasonable and logical basis to believe that a handgun would be found in defendant’s residence at the time of the application for, and execution of, the search warrant. Additionally, we find that the warrant was neither overbroad, nor was it in violation of the staleness requirement. Accordingly, the portion of the warrant issued in this matter that allowed the police to search defendant’s apartment and seize “[a] handgun, described as black in color semi-automatic type” is valid. The handgun evidence is therefore not subject to suppression.

“The doctrine of severance mandates that invalid portions of a search warrant may be stricken and remaining portions held valid, so long as remaining portions of the warrant describe with particularity the evidence to be seized.” Commonwealth v. Bagley, 408 Pa. Super. 188, 215, 596 A.2d 811, 824 (1991). In light of this doctrine, and for all of the foregoing reasons, defendant’s motion to suppress the marijuana is granted and his motion to suppress the handgun is denied.

Accordingly, we enter the following:

ORDER

And now, March 10, 2006, in consideration of defendant’s omnibus pretrial motion, defendant’s motion to suppress is granted in part and denied in part:

(1) Defendant’s motion to suppress the marijuana is granted.

(2) Defendant’s motion to suppress the handgun is denied.

      . The words “handgun, described as black in color semi-automatic type” were typewritten. The words “and any manjuana” were handwritten immediately after the typewritten words.

      . The first three paragraphs were typewritten The fourth paragraph, /. e., “A female occupant advised there was marijuana in the apartment,” was handwritten.


source: Caselaw Access Project

author: O’BRIEN, J.,

license: Public Domain

text:
    Sansone v. Sansone

      Claire Friedman, for plaintiff.

      Elizabeth Bensinger Weekes, for defendant.
    January 18, 1991
   O’BRIEN, J.,

On April 4, 1990, plaintiff father filed a complaint for custody with respect to his son Michael, a child born on March 31, 1987, after the parties’ separation. The complaint also alleged that defendant mother has a child Thomas and that the mother had failed to disclose the identity of the father of that child when registering his birth. However, the complaint did not seek custody rights with respect to Thomas. On April 26, 1990, this court approved a custody master’s recommendation ordering home studies of the parties and an interim custody arrangement with respect to the child Michael. On October 22, 1990, plaintiff father filed a petition to compel HLA blood testing to determine the identity of the father of the child Thomas. Defendant mother filed an answer opposing this request and both parties filed briefs in support of their respective positions. Following oral argument before the court on January 7, 1991, the issue of whether or not to require blood testing with respect to Thomas’ paternity is now before the court for disposition.

The Uniform Act on Blood Tests to Determine Paternity provides that it shall be applicable to “all civil matters.” 42 Pa.C.S. §6132(a). That act further provides in pertinent part as follows:

“In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.” 42 Pa.C.S. §6133.

“The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child.” 42 Pa.C.S. §6137.

This statutory provision is usually invoked by a mother seeking support for her child from the alleged father. Recently there have also been an increasing number of cases where paramours have requested blood tests to determine paternity of a child born to a married couple. However, both the procedural posture and the factual scenario of the case at bar are distinctly unique.

Both parties are in agreement as to the facts in the case at bar. Thomas was conceived approximately three months prior to the parties’ marriage and born on October 27, 1989, approximately three months after the parties separated. Following Thomas’ birth, defendant mother intentionally failed to disclose the identity of the child’s father to the Vital Records Division of the Department of Health. The mother listed her maiden name “Frable” as the child’s surname. As a consequence, the Department of Health addressed a communication to the plaintiff father which provided in pertinent part as follows:

“The Division of Vital Records has received a Certificate of Live Birth for the above-named child.
“Since the mother of this child is your legal wife, Pennsylvania Law requires that you be notified of your wife’s intentions of listing someone other than yourself as the father of the child.” (Exhibit A to plaintiff’s petition.)

This communication prompted the present proceedings before this court.

The most relevant appellate court decision addressing the propriety of blood tests is our Supreme Court’s ruling in John M. v. Paula T. and Michael T., 524 Pa. 306, 571 A.2d 1380 (1990). In that case, the wife’s paramour sought to compel blood testing to establish his paternity of a child born to a married couple. The paramour alleged that the child was conceived during an extramarital affair which was later terminated. In his opinion for the court rejecting the paramour’s request for blood tests, Justice Larsen wrote as follows:

“There are other interests at stake in this case besides those of appellant-husband and appellee-putative father. Obviously, the needs and interests of the child are of paramount concern, and the needs and interests of appellant-wife/mother are on a par with the ‘putative’ and ‘presumptive’ fathers. There is, in short, a family involved here. A woman and a man who have married and lived together as husband and wife, giving birth to and raising four children, have obvious interests in protecting their family from the unwanted intrusions of outsiders (even ones who have had serious relationships with the mother, father or children). The Commonwealth recognizes and seeks to protect this basic and foundational unit of society, the family, by the presumption that a child born to a woman while she is married is a child of the marriage.”

In his concurring opinion, Chief Justice Nix wrote as follows:

“I join in the opinion and result of the majority. I write separately to emphasize that this court has not swayed from the presumption that a child born to a married couple is presumed to be a ‘child of the marriage.’
“Irrespective of the legal title given this presumption (whether it be ‘presumption of legitimacy’ or the presumption that the child born is the ‘child of the marriage’), it should remain clear that a child born to a married couple will be presumed to be the issue of the husband.”

The presumption articulated by Justice Larsen and Justice Nix, which is intended to protect the family unit, is one of the strongest presumptions within our law. However, where the reason for the rule does not exist, the presumption becomes less compelling. Where a child is conceived prior to marriage and born following separation of parties married for a brief period, the concern of preserving the family unit is not substantial. Most importantly, the action of the mother in refusing to list her husband as the father of the child on the birth registration, causes her assertion of her right of privacy in opposing the blood tests to ring very hollow.

In view of the unique facts in the case at bar, in particular the failure of defendant wife to identify her husband as the father of the child on the birth registration, we conclude the father’s request for blood tests should be granted. The importance of determining the identity of a young child’s father in these bizarre circumstances overcomes any legal presumption and outweighs any right of privacy asserted by defendant mother. The determination of paternity will serve the interests of both the parties to this dispute and the child. The ever-increasing importance of heredity in diagnosing and treating medical conditions in the child’s future life cannot be overlooked.

ORDER

And now, January 18, 1991, it is ordered as follows:

(1) The petition of Vincent P. Sansone III to compel blood testing is granted and the rule heretofore issued thereon is made absolute.

(2) Roche Biomedical Laboratories is appointed as a qualified examiner of blood types and directed to collect the blood samples of the parents and child in this proceeding, perform scientifically approved tests thereon and furnish a report thereof to all parties in this proceeding or their counsel of record.

(3) In accordance with the provisions of 42 Pa.C.S. §6135, plaintiff Vincent P. Sansone III is directed to pay the costs of the blood testing for all parties.

(4) Melinda L. Sansone is directed to appear at a time and place designated by Roche Biomedical Laboratories together with her child Thomas Ryan Frable for the purpose of providing blood samples to be tested to determine paternity.

(5) Vincent P. Sansone III is directed to appear at a time and place designated by Roche Biomedical Laboratories for the purpose of providing a blood sample to be tested to determine paternity.


author: HESS, J.,

text:
    Commonwealth v. Walters

      J. Michael Eakin, assistant district attorney, for the Commonwealth.

      Dennis A. Alessi, for defendant.
    September 18, 1990
   HESS, J.,

John Adams Walters has appeared before the court for sentencing following two pleas of guilty, to the above-captioned charges, entered on October 31, 1989. The guilty pleas arose out of his alleged delivery of substantial quantities of cocaine, the two charges carrying mandatory minimum of seven to 14 years in the aggregate. The question before us is whether or not the Commonwealth is bound by an agreement to withdraw its notice of these mandatory minimum sentences, thereby permitting the court to sentence within guideline ranges wherein the standard range sentence at 644 Criminal 1989 is 15 to 30 months, and at 319 Criminal 1989 is 27 to 39 months.

On August 28, 1990, we held a sentencing hearing on the matter from which we are able to make the following factual findings concerning the existence of a plea bargain. Our hearing was held in camera because the cooperation of Mr. Walters, with law enforcement officers, was extensive and is, in fact, ongoing. We will, therefore, not reiterate here the details of the cooperation of Mr. Walters, but permit the record of our in camera hearing to speak for itself.

Mr. Walters’ cooperation with authorities began prior to his plea in Cumberland County. Specifically, in September, he was responsible for the seizure of cocaine in Dauphin County and the arrest of a dealer in Harrisburg. As we have noted, Mr. Walters pled guilty to the Cumberland County charges in October 1989. The less than artful manner in which the plea was handled no doubt accounts for much of the problem faced by the court today. The record made of the plea indicated an agreement on the part of the Commonwealth to run the four-year and a three-year minimum sentences concurrently for a mandatory minimum sentence of four to eight years.

While we certainly do not wish to minimize the largess of the Commonwealth, we feel it imperative to observe, at this point, that the offer to run sentences concurrently in exchange for a plea of guilty is a rather routine device in this county and not a plea bargain in the true sense of the phrase. We do not mean, by this observation, to suggest that concurrent sentences are a matter of right, but only to observe that consecutive sentences, in a case such as this, would have been, in any event, highly unlikely. It is for this reason that the contents of a sidebar conference, held at the time of the plea, are of particular importance. While we have learned not to do so in future cases, the sidebar conference sub judice was held off the record. It thus had to be reconstructed at our recent sentencing hearing. While there is considerable disagreement between the District Attorney’s Office and defense counsel as to the nature of their understanding, both sides agree as to the contents of the sidebar conference.

Whether or not a criminal defendant has abided by the terms of a plea bargain agreement is ultimately a question for the court and not for the prosecutor. Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971). Thus, while the background of plea bargain negotiations is a factor which the court must consider, the representations which ultimately control are those made known to the court at the time of the plea. In this case, both sides agree that the court was informed that the Commonwealth would withdraw its notice of mandatory sentencing and recommend a departure therefrom in the event that the defendant gave “substantial cooperation.”

We do not dispute the Commonwealth’s contention that, at the time of the plea, they had in mind a cooperation which would lead to the apprehension of a certain kind of supplier (described with less than precision by one of the prosecutors at the sentencing hearing as a “big fish”). This demand, however, was not made known to the court and the defense has confessed ignorance concerning any such requirement. It is, however, no small matter that Mr. Walters, according to testimony adduced at our recent hearings, stands ready, willing and able, to testify at grand jury proceedings to satisfy even this expectation. Notwithstanding, the Commonwealth has refused to withdraw its notice of mandatory sentencing or to recommend any departure from its previously agreed-upon four-year minimum sentence.

At our recent sentencing hearing no less than three police officers testified, all favorably, to defendant. Their testimony revealed that prior to and following his plea of guilty before us in October 1989, Mr. Walters’ cooperation was substantial. There is no dispute that his cooperation has led, directly and indirectly, to the seizure of more than 300 grams of cocaine, several pounds of marijuana, $16,000 in cash, and the forfeiture of a Mazda RX7 vehicle. In fact, his cooperation in implicating others involved in the drug trade was so extensive that it was underscored to us in a letter dated February 7, 1990, signed by William H. Graff Jr., Deputy Prosecutor of York County.

Sentences in Cumberland County, of course, are not governed by communications from prosecutors outside our venue. The District Attorney of Cumberland County, in this case, insists that there is no binding plea bargain in this case because Mr. Walters’ cooperation has resulted in the actual apprehension of persons involved in the sale of drugs in smaller quantities than those in which he himself is charged. The fact remains that, once there is an agreement with a criminal defendant and the defendant performs his part of the bargain, it is not, we believe, the role of the district attorney to modify the qualitative aspects of the defendant’s expected performance after the fact. While the prosecutor is, or course, at liberty to argue that defendant has not met the terms of the plea agreement, the decision as to whether or not this is so is, as we have said, ultimately up to the court. Thus, in this case, simply put, the question is whether or not defendant lived up to his agreement to give “substantial” cooperation. It is clear that he has.

It is generally accepted, throughout the United States, that plea bargains must be treated by the courts as quasi-contracts. Santobello v. New York, 404 U.S. 257 (1971). Unlike contracts, however, plea bargains “entail much more than a mere offer and acceptance . . . [They] involve a myriad of collateral considerations such as expectations of fundamental fairness by the defendants, efficient administration of justice, and the integrity of the Government’s promises.” U.S. v. Smith, 648 F.Supp. 495, 498 (S.D. Texas 1986). As noted in U.S. v. McGovern, 822 F.2d 739, 743 (8th Cir. 1987), a plea bargain “necessarily implicates the integrity of the criminal justice system.” The Supreme Court of Pennsylvania has been clear in holding that there is an “affirmative duty on the part of the prosecutor to honor any and all promises made in exchange for a defendant’s plea.” Commonwealth v. Zuber, 466 Pa. 453, 458, 353 A.2d 441, 445 (1976). The Superior Court has several times reaffirmed the duty to honor promises made in the context of a plea agreement. Commonwealth v. Jackson, 376 Pa. Super. 433, 546 A.2d 105 (1988); Commonwealth v. Williams, 333 Pa. Super. 77, 481 A.2d 1230 (1984); Commonwealth v. Potosnak, 289 Pa. Super. 115, 432 A.2d 1078 (1981).

Satisfied as to the nature of the agreement communicated to the court at the time of the plea and the fact that defendant has abided by it, we go on to address two other issues. The first has to do with the suggestion that defendant’s remedy is the withdrawal of his guilty plea. This would normally be the solution where there had been some misunderstanding at the time of the plea or a failure on the part of the defendant to subsequently perform his part of the bargain. In this case, defendant has already admitted his guilt. It is therefore reasonable to assume that even he believes he would be convicted if the matters went to trial. In the event of guilty verdicts, the defendant would face a potential minimum sentence of seven years rather than the four years he initially bargained for. In other words, having cooperated, he is now worse off. This result is patently illogical and unfair.

The second issue has to do with the lawfulness of enforcing the plea bargain in light of the mandatory nature of the statutory sentencing requirement. It is true that section 7508 of our Crimes Code requires the imposition of set minimum penalties where certain quantities of controlled substances are involved. 18 Pa.C.S. §7508. With respect to these sentences, however, the Crimes Code also provides that the Commonwealth must give “reasonable notice” of its intention to seek imposition of the mandatory minimum sentences. 18 Pa.C.S. §7508(b).

In this county, and no doubt in many other venues, it is common practice for the Commonwealth, to the mutual advantage of parties in criminal cases, to agree to “withdraw” the notice of mandatory sentencing. In the matter sub judice we simply hold the Commonwealth to its prior agreement to do precisely that. We do not dispose of any broader question, including whether such notice can be withdrawn or whether the failure of the Commonwealth to proceed, pursuant to mandatory sentencing, is somehow unlawful. As an aside, we note that such a conclusion would obviously have a remarkable effect on plea bargaining in this county. Were an appellate court to prohibit such plea bargaining throughout the Commonwealth, the effect on the district attorney’s ability to administer criminal cases, not to mention the already burgeoning prison population, would be startling. Most importantly, the Commonwealth would be deprived of one of its most useful weapons in the war on drugs — the criminal turned confidential informer.

ORDER

And now, September 18, 1990, the district attorney is directed to list the within matter for sentence.

       The Commonwealth, on the record, referred to “reserving the right” to recommend a sentence other than the mandatory sentence, thus presumably reserving to themselves, rather than the court, the decision as to whether the cooperation had been “substantial.” As we have already observed, this is a legal non sequitur.


author: FARINA, J.,

text:
    Commonwealth v. Espola

      Henry S. Kenderdine Jr., assistant district attorney, for the Commonwealth.

      James P. Cullen, for defendant.

      George C. Werner, for intervenor.
    December 26, 1990
   FARINA, J.,

By motion to intervene in pending criminal proceedings and to inspect and copy documents filed by intervenor/mo-vant Lancaster Newspapers Inc., we are here called upon to determine the extent to which there is a public right of access to a document presented to, but not required by law, custom or usage to remain on file with a district justice during the course of a preliminary hearing upon which document the district justice relies in rendering his/her decision on pending criminal charges.

The applicable facts are not in dispute. As the consequence of a suspicious fire on July 30, 1990 resulting in the deaths of five persons, a criminal investigation culminated in criminal charges of arson and criminal homicide (five counts) being filed against Jose Antonio Espola, a 14-year-old juvenile. Defendant was charged as an adult under section 3301(a)(2) of the Crimes Code; to date no petition is pending requesting transfer of the charges to Juvenile Court under 42 Pa.C.S. §6322(a). A preliminary hearing was conducted on October 23, 1990 at the conclusion of which all charges were returned to court. During the hearing the assistant district attorney prosecuting the case offered into evidence, out of the police investigation file, a written statement of defendant with a request that the District Justice read it to herself. After silently reading the statement the District Justice returned it to the Commonwealth. Counsel for defendant did not object to this matter of presentation of evidence and all indications are counsel concurred in it. The effect was that the Lancaster Newspapers Inc.’s reporter present and covering the hearing was unable to learn of the contents of defendant’s statement. Following the hearing the newspaper’s reporter requested the District Justice make the statement public, and she refused. The newspaper’s formal motion followed. The District Attorney and counsel for defendant filed answers opposing the request.

Preliminarily we note all parties agree the newspaper’s procedural choice to bring the issue to court by way of intervention in and motion to inspect and copy under the caption of the pending criminal case against defendant is proper. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987). All parties further agree that Fenstermaker is the applicable authority, each party relying upon it to support their opposing positions.

In Fenstermaker the petitioning newspaper sought the right to inspect, in a pending criminal proceeding, the affidavit of probable cause filed with a district justice by the Commonwealth to support its request for an arrest warrant. The Pennsylvania Supreme Court determined that the affidavit of probable cause, “filed” with the magistrate, was a “public judicial document,” the right of public inspection and copying of which cannot be denied absent compelling reasons warranting the court’s ordering the document temporarily sealed. The Supreme Court’s opinion does not set forth a single general purpose definition of public judicial document that would be applicable in all cases.

Tracing the common-law history and tradition of “keeping proceedings and records of the criminal justice system open to public observation” and finding it “clear that the courts of this country recognize a general right to inspect and copy public records and documents including judicial records and documents” the Supreme Court concluded that the “right ... to inspect and copy judicial [documents] antedates the Constitution and has been justified on grounds of the public’s right to know and the public’s right to open courts.” Fenstermaker, 515 Pa. at 508, 530 A.2d at 418. Finding a common-law right to inspect that would be infringed by a per se rule sealing all affidavits of probable cause, the court found it unnecessary to consider the case on constitutional First Amendment grounds. Consequently the Fenstermaker inspection principle does not rest upon any constitutional basis and Lancaster Newspapers’ requested relief founded upon Fen-stermaker requires no constitutional analysis.

Recognizing the public’s generalized common-law right to inspect and copy, the Supreme Court instructs that in analyzing an inspection request the threshold inquiry is whether the document to which public access is sought is a public judicial document. In analyzing such a request in the context of an affidavit of probable cause filed with a magistrate to support a request for an arrest warrant the Supreme Court in Fenstermaker observed:

(1) “[Njot all writings connected with judicial proceedings constitute public judicial documents.” 515 Pa. at 508, 530 A.2d at 418.
(2) “[Djocuments that arc filed with magistrates constitute ‘judicial’ documents, for magistrates” are part of the court system. 515 Pa. at 508, 530 A.2d at 418. (emphasis supplied)
(3) “[Djocuments upon which a magistrate bases a decision to issue an arrest warrant are clearly judicial in character, for the decision to issue a warrant is itself a judicial one. . .” 515 Pa. at 509, 530 A.2d at 418.
(4) “[Wjhether documents deposited with magistrates are to be deemed ‘public’ in nature” depends upon a consideration of factors. 515 Pa. at 509, 530 A.2d at 418. In the case of arrest warrant affidavits these include: they are required by Rules of Criminal Procedure 101 and 146 to be filed with the magistrate and become part of the permanent public record of the case.

Based upon the foregoing observations the Supreme Court concluded that arrest warrant affidavits, once filed with a magistrate, are public judicial documents subject to public inspection.

In this case the newspaper does not seek the affidavit of probable cause but rather the right to inspect defendant’s written statement introduced into evidence by the Commonwealth at defendant’s preliminary hearing and read, with the concurrence of defendant, silently by the magistrate. Submitting defendant’s statement to the Fenstermaker analysis we observe: First, the mere fact the statement was introduced into evidence does not make it a public judicial document. Second, the statement was not “filed” with the magistrate. “Filed” is a term of art that means the document remains a part of the permanent public record of the proceeding before the magistrate. A warrant of arrest affidavit is filed. Defendant’s written statement is evidence that was introduced at the preliminary hearing but is not left with the magistrate to become part of the permanent court file. Documents introduced as evidence at a preliminary hearing are in the custody of the prosecuting police officer and after having been reviewed by the magistrate are returned to the officer. Evidence does not become “filed” or part of the permanent judicial record until it is admitted into evidence at the court of common pleas level at the time of trial. Third, defendant’s written statement, read and considered by the magistrate in determining whether the Commonwealth has presented a prima facie case to be returned to court is clearly a document judicial in character, for the decision whether to return the case to court requires a judicial decision based upon consideration of the evidence presented. Fourth, defendant’s statement, although a judicial document, is not a “public” document because it is not “filed” and does not become part of the magistrate or judicial system permanent public record until admitted into evidence at trial at the court of common pleas. Considering the foregoing we conclude that defendant’s statement is not a “public judicial document” to which a right of public inspection exists under the Fenstermaker principles. Rather, it is merely evidence temporarily deposited with the magistrate for the purpose of the preliminary hearing only, that does not become a part of the permanent public record of the proceeding.

There are also sound policy reasons why defendant’s statement is not at this present point in time subject to public inspection and copying. As a practical matter it is not now in, is not required by law, custom or usage to be in, nor should it be in, the possession of the magistrate nor filed with the court. Any order by the court to the magistrate to permit inspection and copying would be futile and impossible of execution because she does not have it and is not required to now have it. It was, as it must have been, returned to the prosecutor after being considered during the preliminary hearing. Defendant’s statement is evidence and rightfully in the possession and under the custody and control of the prosecuting police officer and district attorney. Any court order directing the statement be made available for inspection and copying would have to be directed to them and would by necessary implication and extension mean that any part of the investigatory file used at the preliminary hearing would also be subject to public inspection. However, records of investigation in the control of public agencies (the police and district attorney’s office are such agencies) are exempt from public inspection and disclosure under the Right to Know Act, 65 P.S. §66.1. Furthermore the district attorney, under Rule of Professional Conduct 3.6(a)(2) and Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973) on which the rule is based, is prohibited from revealing to the public the contents of a defendant’s statement in a pending criminal matter other than during the course of a criminal proceeding. Thus, to direct release of the statement to the newspaper by the police or district attorney at this time would be contrary to statute and would compel the district attorney to violate the Code of Professional Responsibility.

Although we hold defendant’s statement in this case is not yet a public judicial document subject to the right of public inspection, we are constrained to comment upon what occurred in this case. The newspaper stands in the shoes of and is representative of the public. Criminal preliminary hearings are public proceedings. The preliminary hearing for defendant in this case was a public proceeding at which the newspaper was rightly present as a representative of the general public, with the right to hear and observe. The public’s right to hear and observe was thwarted and frustrated by the manner in which defendant’s statement was presented into evidence. We have no doubt that the manner of presentation was purposefully selected by the Commonwealth and defense to prevent public dissemination of the contents of the statement by the press. This purposeful frustration of public dissemination was permitted to occur by the magistrate’s acquiescence and willingness to silently read the statement. We condemn most strongly such procedure and issue notice and warning such practice must not be repeated. Evidence introduced in a preliminary hearing, if documentary, must, as to the portion relied, or requested to be relied upon by the magistrate, be read aloud sufficient to be heard by the public in attendance. Any deviation from such procedure can only be justified for reasons that would warrant in camera proceedings or sealing of the record. The Commonwealth concedes no reasons justifying sealing defendant’s statement are here present.

We recognize that by holding defendant’s statement in this case is not yet a public judicial document subject to the public inspection and copying, and by our determination that the Commonwealth’s and defendant’s manner of presentation of the statement, with the magistrate’s acquiescence, purposefully frustrated the public’s right to observe a public criminal proceeding, we have determined there to be a wrong for which there is no remedy that compels immediate disclosure. However, we are constrained under the law to so rule. A remedy, if any, would have to take a different form than that requested by the newspaper, the type, necessity or appropriateness of which we here express no opinion as that issue is not now before us.

Accordingly, we enter the following

ORDER

And now, December 26, 1990, the motion of Lancaster Newspapers Inc. to inspect and copy documents is denied.

      . Briefs were filed and oral argument held December 14, 1990.

      . This act does not apply to the judiciary and we consequently did not analyze it for purposes of determining whether records on file with the judiciary are subject to public inspection.


author: JOYCE, J.,

text:
    Boesch v. Ericsson

      William J. Boesch Jr., in propria persona.

      John M. Bonanti, for defendants.

      December 12, 1990
   JOYCE, J.,

This matter is before the court on defendants’ petition to open confessed judgment. A brief statement of the facts is as follows: Plaintiff/landlord and defendants/tenants entered into a real estate lease agreement on February 25, 1987, whereby defendants were to lease premises from plaintiff for a term of five years. Beginning on March 1, 1987 and ending on February 28, 1992, defendants were to make a total of 60 equal monthly installments of $1,200.

Particular to this lease was an acceleration clause which permitted plaintiff to confess judgment upon the balance of rent remaining on the lease in the event of defendants’ default.

On March 28, 1990, plaintiff confessed judgment against defendants in the amount of $33,621.93, representing rent payments for the balance of the lease, unpaid real estate taxes, water and sewer charges, plus attorney’s fees, interest, and costs.

Defendants set forth four reasons they believe entitle them to have the confessed judgment opened: (1) failure to mitigate damages, (2) novation, (3) estoppel, and (4) election of remedies.

To have a confessed judgment opened, petitioner must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission to a jury. Continental Bank v. Axler, 353 Pa. Super. 409, 510 A.2d 726 (1986). (citations omitted) Because defendants’ petition was timely filed, the court shall address the latter two requirements.

In their April 6, 1990 petition to open judgment, defendants set forth three defenses to entry of judgment. The first defense states that plaintiff has failed to mitigate damages by making any effort to lease said premises to another tenant.

The present state of the law in Pennsylvania is not at all well settled as to the issue of a landlord’s duty to mitigate damages upon a tenant’s abandonment of the premises. Those courts applying principles of contract law follow the language of the Restatement (Second) of Contracts that “a party cannot recover damages for a loss that he could have avoided by reasonable efforts.” Section 350, comment b, at 127 (1981). See In re New York City Shoes Inc., 86 Bankr. 420 (E.D. Pa. 1988). Nevertheless, the decision of the Supreme Court in Auer v. Penn, 99 Pa. 370, 375-6 (1882), that “the landlord may allow the property to stand idle, and hold the tenant for the entire rent” has never been overruled, and represents the other side of this issue.

Regardless of how this court would hold on the issue of mitigation, it does not believe the present case falls within the parameters of the mitigation issue. It was represented to the court that there are outstanding bills affixed to the premises in question, namely: “$124 plus electric, $687 plus phone, $137 plus gas, and $1,500 property taxes.”

Plaintiff further represented to the court that he is not financially capable of assuming these debts of defendants. Essentially then, there exists a situation where as a result of the degree of tenants’ breach, the landlord is unable to mitigate his damages should he desire to.

Defendants’ second defense to entry of judgment in support of their petition to open confessed judgment is that on February 23, 1990, plaintiff and defendánts agreed that defendants would be released from the lease with no further obligation to plaintiff effective April 1, 1990.

The law regarding oral modifications of written instruments was decided long ago by the Supreme Court:

“The rule that when a contract is required by the Statute of Frauds to be in writing its terms cannot be orally modified is well settled. The modification of a contract is subject to the same test to determine validity as is the original contract.” Brown, to use v. Aiken, 329 Pa. 566, 198 Atl. 441 (1938). (citations omitted)

There is no dispute that the lease between plaintiff and defendants is such that its terms must be reduced to writing pursuant to the Pennsylvania Statute of Frauds, 33 Pa.C.S. §1 et seq. Thus defendants’ claim of an oral modification of the lease must fail. Further preventing defendants from succeeding on their claim of novation is paragraph 49 of the lease agreement itself which states:

“(49) No amendment, modification, or alteration of the terms hereof shall be binding unless the same be writing, dated subsequent to the date hereof, and duly executed by the parties hereto.”

While it is true that such boilerplate clauses may themselves be altered by subsequent agreements, Encyclopedia Britannica Inc. v. Cowan, 142 Pa. Super. 534, 16 A.2d 433 (1940), the terms of the modification must be proven by clear and convincing evidence. Pellegrene v. Luther, 403 Pa. 212, 215, 169 A.2d 298, 300 (1961).

Defendants have not met this burden of proof. The fact that they vacated the premises before April 1, 1990 does not establish the terms of the alleged novation. Plaintiff has specifically denied in his answer and new matter of May 1, 1990 that such a modification of the lease took place, and there is no conduct on his part which indicates a desire to release defendants from their obligations under the lease. Defendants’ request that judgment be opened based on the principle of novation is therefore denied.

Defendants’ third defense to entry of judgment is in the nature of estoppel. Specifically, defendants claim that plaintiff is estopped from enforcing the term of the lease requiring all modifications of the lease to be in writing (paragraph 49). In support of their claim, defendants aver that in two separate instances, plaintiff was aware that defendants had breached certain terms of the léase and he did not insist that a written modification to the lease be made.

Plaintiff’s answer and new matter directs the court’s attention to paragraph 51 of the lease which provides that:

“No waiver by the parties hereto of any default or breach of any term, condition or covenant of this lease agreement shall be deemed to a waiver of any other breach of the same or of any other term, condition or covenant contained.”

In short, plaintiff states that his previous waiver as to the requirement that lease modifications be in writing does not prevent him from presently enforcing it.

It is true that a landlord may be estopped by his conduct from enforcing a particular provision of a lease. Sferra v. Urling, 324 Pa. 344, 188 Atl. 185 (1936). However, the court does not believe that plaintiff’s waiver of the modification clause with respect to structural alterations (paragraph 6) and changing the nature of the business (paragraph 36(d)) prevents him from enforcing that clause as to all other clauses of the lease. The language of paragraph 51 of the lease anticipates such waivers and the court is inclined to allow this clause its plain meaning. Although plaintiff is estopped from enforcing the modification clause with respect to structural alterations and changes in the nature of the business, he is not estopped from enforcing it as it relates to an alleged oral agreement releasing defendants from obligations under the lease.

Defendants’ last defense to confession of judgment is stated in their amended petition to open confessed judgment, filed November 19, 1990. There, defendants claim that between April 6, 1990 and November 19, 1990, plaintiff changed the locks and reoccupied the premises. Defendants aver that because plaintiff has elected his remedy of confession of judgment, he is not permitted by law to reoccupy the premises. In support of their position, defendants rely on the holding in H. S. Steen Industries Inc. v. Richer Communications Inc., 226 Pa. Super. 219, 314 A.2d 319 (1973), which sets forth that a lessor may not repossess and relet space and collect rent due from breaching lessee. More recently, the court in Finkle v. Gulf and Western Manufacturing Company, 744 F.2d 1015 (3d Cir. 1984) stated that:

“[Ujpon breach of a material condition in a commercial lease a landlord must elect between repossession and actual damages or acceleration of the balance due.” Id. at 1021.

The court agrees with this principle of law. The court also agrees that plaintiff has elected his remedy of confession of judgment for accelerated rent. The court does not agree, however, that plaintiff has taken possession of the premises. In most circumstances, a landlord’s changing of the locks would constitute affirmative action in preventing a tenant’s reoccupation. The circumstances in the present case are somewhat different. Here, the premises were burglarized subsequent to the defendants’ abandonment. Plaintiff’s entry and changing of the locks reflects a desire to secure his property rather than an intent to reoccupy. In fact, as a result of the burglary, equipment was taken which would render the premises unusable by the landlord/plaintiff.

The principle that a landlord has a right to protect his property has been addressed before. In Greco v. Woodlawn Furniture Co., 99 Pa. Super. 290 (1930), the court ruled that:

“Distinction must always be made ‘between possession of vacated premises taken by the landlord merely to protect the property or minimize damages that would follow the tenant’s abandonment, and a possession which would be adverse to any resumption of occupation by the tenant and thus amount to an eviction.’” Id. at 292-3, citing Hochman v. Kuehler, 53 Pa. Super. 481, 487 (1913).

Pennsylvania Restatement (Second) of Property §12.1(i) supports the rationale of Greco, supra, and Hochman, supra, when it addresses the issue of abandonment of leased property by a tenant:

“The fact that he (landlord) . . . takes possession only to the extent necessary to protect the leased properly against vandalism, does not constitute a taking of possession and occupancy for his own purposes.”

Should this court ignore these principles of law, it still must recognize the fact that plaintiff has expressed a willingness to allow defendants to reoccupy the premises upon their payment of the outstanding bills. The premises cannot be used for business until the utilities are restored. Defendants assumed responsibility for these costs. To follow defendants’ argument to its logical conclusion would mean that because plaintiff has elected to confess judgment and accelerate the rent, defendants can occupy the premises for the remainder of the lease term without paying anything to plaintiff. This is not the goal behind the principle of a landlord’s election of remedies. A tenant does retain possessory rights when the landlord accelerates, but those rights are accorded him on payment of the accelerated rent. Matovich v. Gradich, 123 Pa. Super. 355, 187 Atl. 65 (1936).

For the reasons discussed, the court finds that defendants have not raised a meritorious defense sufficient to permit this court to open the confessed judgment entered against them.

ORDER

And now, December 12, 1990, it is hereby ordered and decreed that for the reasons discussed in the attached opinion, defendants’ petition to open confessed judgment is denied.


author: CARPENTER, J.,

text:
    Boland v. Nationwide Mutual Insurance Co.

      Richard M. Serb in, for plaintiff.

      John L. McIntyre, for defendant.
    January 11, 1991
   CARPENTER, J.,

Plaintiff Nancy A. Boland instituted this action on July 2, 1990, asserting that defendant Nationwide Mutual Insurance Company failed to pay certain first-party benefits (namely, income loss benefits) for injuries she sustained as a passenger in a two-car accident. In addition, plaintiff seeks punitive damages, interest, attorney fees and costs for the allegedly unreasonable refusal to pay. Defendant has filed preliminary objections in the nature of a motion to strike plaintiff’s claim for punitive damages, the disposition of which is presently before this court. We are faced with two issues: (1) whether the statute authorizing punitive damages, 42 Pa.C.S. §8371, may be applied retroactively; and (2) whether a cause of action for defendant-insurer’s alleged bad faith nevertheless accrued after the effective date of 42 Pa.C.S. §8371, so as to make retroactive operation unnecessary.

This statute is crucial to plaintiff’s claim for punitive damages because before its passage, punitive damages were not available for an insurance company’s bad-faith denial of a claim. D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981); Bleiberg v. Insurance Company of North America, 50 D.&C. 3d 570 (1987). At that time, plaintiffs could only raise a claim for punitive damages in such cases by asserting the common-law tort of fraud and deceit. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2d 1243 (1983); Bleiberg v. Insurance Company of North America, supra. The rationale for these holdings rested largely upon the principle that punitive damages could not be awarded for breach of contract, even if the breaching party had acted in bad faith. Daniel Adams Associates Inc. v. Rimbach Publishing Inc., 287 Pa. Super. 74, 429 A.2d 726 (1981); Raab v. Keystone Insurance Co., 271 Pa. Super. 185, 412 A.2d 638 (1980), appeal dismissed, 437 A.2d 941 (1981). Also, the D’Ambrosio court determined that the legislatively created regulatory scheme appearing in the Unfair Insurance Practices Act provided sufficient deterrence to bad-faith conduct on the part of insurance companies. D’Ambrosio, supra.

Such was the state of affairs for nearly nine years after the D’Ambrosio decision until the legislature’s enactment of 42 Pa.C.S. §8371, which provides in its entirety:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus three percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.” Act of February 7, 1990, no. 6. (emphasis supplied)

In a catchall provision, section 32(8) of Act 6 ascribes an effective date of July 1, 1990 to section 8371. Since the negotiations between plaintiff and defendant took place before this date, defendant challenges the bad-faith claim on the basis that section 8371 may not be applied retroactively. We believe defendant is correct. Absent clear language to the contrary, statutes are to be construed to operate prospectively only. Gehris v. Commonwealth, Dept. of Transportation, 471 Pa. 210, 369 A.2d 1271 (1977); Statutory Construction Act of 1972, 1 Pa.C.S. §1926. The terms of a statute allowing for retroactivity must be so clear as to preclude all questions as to the intention of the legislature. Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960); Farmers National Bank & Trust Co. v. Berks County Real Estate Co., 333 Pa. 390, 5 A.2d 94 (1939). Indeed, retroactive legislation is so offensive to the Anglo-Saxon sense of justice that it is never favored. Appeal of Sawdey, 369 Pa. 19, 85 A.2d 28 (1951). Where the language of the statute is general and might be given both retroactive and prospective operation, it will be held to be prospective only. Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983).

There is no language in section 8371 which would indicate an intent for retroactive application. Instead, the language explicitly indicates that this law was to take effect nearly six months after passage. Act 6, §32(8). Thus, section 8371 provides for prospective operation by its own terms, since a statute which fixes a future day as to its effective date stamps its prospective character on its face. Commonwealth v. Griffin, 189 Pa. Super. 59, 149 A.2d 656 (1959), cert. denied, 365 U.S. 838.

Plaintiff advances the argument that application of section 8371 to the present case does not require retroactivity. According to this theory, insurers always owed to their insureds the duty to exercise reasonable care when investigating claims, even before passage of section 8371. Insurers also owed further duties to refrain from the acts prohibited by the UIPA, which effectively created a “duty to act in good faith.” While insureds possessed a right without a remedy under D ’Ambrosio, the legislature responded by passing section 8371 and gave injured insureds a remedy for bad-faith practices — punitive damages. In plaintiff’s words:

“[A]t the time this contract was entered, the defendant’s obligation to the insured was to act in ‘good faith.’ That obligation did not change on July 1, 1990. What did change was the plaintiff’s legal remedy in the event that the insurer does not fulfill its obligation.” Plaintiff’s brief in opposition to defendant’s preliminary objections, p. 12. (emphasis supplied)

While plaintiff’s argument may appear attractive at first blush, we believe it is fallacious for several reasons.

First, plaintiff’s own cases indicate that there has always been a remedy for breach of an insurer’s duty to exercise reasonable care when investigating claims — compensatory damages in an action in assumpsit. Diamon v. Penn Mutual Fire Insurance Co., 247 Pa. Super. 534, 372 A.2d 1218 (1977).

Second, the D Ambrosio court determined long ago that the UIPA does not afford insureds a private cause of action, so that statute could hardly be said to create private contractual duties as between insurers and their insureds. Rather, the UIPA is merely a regulatory framework that prohibits unfair practices harmful to consumers in the insurance industry. It confers no rights upon private parties, and the only remedies provided by the act are those administrative remedies which the Insurance Commissioner is authorized to pursue. Nazur v. Safeguard Mutual Assurance Co., 293 Pa. Super. 385, 439 A.2d 165 (1981); Stack v. Nationwide Mutual Fire Ins. Co., 7 D.&C. 3d 113 (1978); 40 P.S. §§1171.7-1171.11.

Third, this is not a case of possessing a right without a remedy, as plaintiff would have us believe. Section 8371 did not merely afford insureds with a remedy. On the contrary, this law was passed to create legislatively a new cause of action which the courts in the past had declined to recognize. D Ambrosio, supra. Plaintiff’s argument must therefore fail, since the legislature does not possess the authority “to give retrospectively a right of action where none existed at the time of the occurrence out of which the alleged cause of action arose.” Borough of Huntingdon v. Dorris, 78 Pa. Super. 469, 476 (1922). A cause of action accrues at that time when plaintiff could have first maintained her action to a successful result. Kapil v. Assn. of Pennsylvania State Colleges and University Facilities, 504 Pa. 92, 470 A. 2d 482 (1983); Halpern v. Gerber, 42 D.&C. 3d 59 (1986). Plaintiffs statutory cause of action under section 8371 in the present case thus would have accrued, if at all, upon the first instance that could be construed as bad faith. By plaintiffs own admission, such time was well before the effective date of section 8371: “There should be no excuse for Nationwide not paying work-loss benefits for the period from August 16, 1989, until the present.” Plaintiff’s complaint, exhibit F (letter mailed by plaintiffs counsel to defendant dated April 25, 1990). Also, all of the negotiations between plaintiff and defendant transpired well before the effective date. And before that date, no such cause of action existed for punitive damages for mere contractual breach.

Fourth, applying section 8371 to the facts here on the basis of plaintiff’s argument would have the effect of recasting the statute as remedial legislation. A remedial statute falls within a special class of legislation also known as curative or validating, which operates retroactively by definition to cure an omission that the legislature might have dispensed with by a prior statute. Borough of Weatherly v. Warner, 148 Pa. Super. 557, 25 A.2d 831 (1942). By way of example, a statute was held to be remedial and thus apply retroactively where it validated any county tax lien not revived every five years, as long as the county took certain prescribed steps within six months after the statute’s final enactment. In re Malick, 137 Pa. Super. 139, 8 A.2d 494 (1939). In the words of that court:

“The improvement of the property is assumed and the equitable right to contribution from the property survives although by reason of some mistake in the proceedings the remedy for its collection is lost. The legislature may provide a new remedy and in so doing there is no deprivation of a constitutional right.” In re Malick, quoting Borough of Huntingdon v. Dorris, 78 Pa. Super, at 474-5. (emphasis supplied) In the case at bar, section 8371 cannot be considered remedial, since it was not passed with the purpose to remedy some prior omission that might have been dispensed with by prior statute. There was no prior statute on point.

Fifth, in support of her argument, plaintiff cites the principle that “retrospective laws which have been deemed reasonable are those which impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted.” Plaintiff’s brief at 11 (emphasis supplied), citing as authority Krenzelak v. Krenzelak, supra, and Smith v. Fenner, supra. We believe this principle is cited out of context because it has no relevance to a prospective statute, which we have already termed section 8371 to be. In our view, plaintiff cannot cite this principle while simultaneously arguing that application of section 8371 to this case does not require retroactive operation.

Sixth, even were we to construe the subject statute as remedial, retroactive statutes are deemed reasonable only if, among other things, they disturb no vested right. But application of section 8371 to the case at bar would disturb a vested right of the defendant-insurer. Prior to the passage of this statute, insurers possessed an absolute defense to any claim for punitive damages for unreasonable refusal to pay insurance claims (absent tortious conduct on the part of the insurer such as fraud). And as the Superior Court recognized in Borough of Huntingdon v. Dorris, supra:

“A vested right is property, as tangible things are, when they spring from a contract or principles of the common law, and there may be a vested right in an accrued cause of action or in a defense to a cause of action. ” 78 Pa. Super, at 475-6. (emphasis supplied) We cannot in good conscience permit interference with such a right.

We now reach the second issue in this case, whether a cause of action for defendant-insurer’s alleged bad faith nevertheless accrued after the effective date of section 8371 so as to make retroactive application unnecessary. Plaintiff analogizes this case to two appellate decisions, Commonwealth, Dept. of Labor and Industry v. Pennsylvania Engineering Corp., 54 Pa. Commw. 376, 421 A.2d 521 (1980), and Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957), to argue that retroactivity here is not required. While it is true that a statute is not made retroactive merely because it draws upon antecedent facts for its operation, Creighan v. Pittsburgh, supra, its effect will nonetheless be given only to those transactions or events occurring after its effective date.

In Pennsylvania Engineering Corp., the Commonwealth Court permitted application of section 704 of the Unemployment Law to enable the Bureau of Employment Security to recover funds from defendant-employer equal to the deductions the latter had made from certain back-wage awards to former employees. The statute provides a mechanism for the bureau to recoup unemployment compensation benefits paid to claimants who become ineligible for such benefits because of the claimant’s receipt of back-wage awards. Although the unemployment benefits accrued and the back wages were awarded prior to the effective date of section 704 (a decidedly prospective statute), these facts alone did not make application of the statute retroactive. In making this determination, the court looked only to those transactions or events that triggered legal liability. The transaction triggering liability under section 704 lay in the employer’s act of making the deduction from the back-wage award. Pennsylvania Engineering Corp. at 380, 421 A.2d at 524. Thus, the court permitted recoupment by the bureau for those deductions made after the effective date of the statute, and denied recoupment where the deductions were made before that date.

In the case at bar, the transactions or events that could conceivably trigger legal liability under 42 Pa.C.S. §8371 are alleged in paragraphs 21(a)-(h) in plaintiff’s complaint. However, the primary triggering event here, defendant-insurer’s asserted refusal to pay plaintiff’s claim for income loss benefits, occurred months before the effective date of section 8371. Further, we can find no transaction or event with regard to defendant’s conduct after the effective date which would trigger liability under the subject statute.

With respect to the Creighan decision, the Pennsylvania Supreme Court permitted appellee-fireman to recover disability benefits under the Heart and Lung Act for tuberculosis he contracted before the effective date of the act. The retroactivity issue was avoided by characterizing the tuberculosis as an on-going condition which continued to exist on the statute’s effective date and thereafter. The court rejected defendant’s attempt to term the discovery of the disease as the event triggering application of the statute:

“Particularly unfair and unsound is this distinction in view of the extreme difficulty, if not actual impossibility, of pinpointing with any degree of accuracy the actual time of the onset of tuberculosis. If all the stated requirements are met, the time of discovery of the onset of the disease should not control liability for compensation.” Creighan, supra. We are hesitant to extend this rationale to matters beyond medical conditions.

In the case at bar, the time when an insurer refuses to pay benefits is readily ascertainable since it is a specific act or omission. Bad faith must be found in the specific acts or omissions made by the insurance company. It is not a state of being in which insureds suddenly find themselves. After July 1, 1990, the insurer’s file had already been referred to its attorneys to prepare a defense in the instant lawsuit. This state of affairs alone cannot, as a matter of law, constitute a bad-faith insurance practice.

In summary, we find no act or omission made by defendant-insurer constituting bad faith after the effective date of section 8371. Any such alleged bad-faith practices occurring before that date are irrelevant and beyond the prospective reach of the statute. To hold otherwise would, in effect, be equivalent to rewriting the statute to give it an entirely new effective date — an undertaking beyond the authority of this court. Whereas any purported cause of action for punitive damages for mere contractual breach accruing before the subject statute’s effective date is defeated by the D’Ambrosio decision, plaintiff’s claim for punitive damages in the present case must fail. We are satisfied that the law says with certainty that no recovery is possible on the claim for punitive damages. As the complaint shows on its face that the punitive damage claim is devoid of merit, defendant’s preliminary objections in the nature of a demurrer are sustained. Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984); Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, Scarselletti v. Aetna Casualty & Surety Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1967), rehearing denied, 393 U.S. 899.

ORDER

And now, January 11,1991, upon consideration of defendant’s preliminary objections, the briefs of counsel and oral argument thereon, it is hereby ordered, directed and decreed that defendant’s preliminary objections in the nature of a demurrer are granted, and the claim for punitive damages is stricken from the complaint.

      . Act of July 22, 1974, P.L. 589, 40 P.S. §1171.1 et seq. (Supp. 1990).

      . Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by section 8 of the Act of July 6, 1977, P.L. 41, 43 P.S. §864, effective January 1, 1978.

      . Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §327.

      . Upon its own motion and outside of any case or controversy, the Pennsylvania Supreme Court stayed operation of 42 Pa.C.S. §8355, which was another provision in the recently enacted Act 6. See Pennsylvania Bulletin, Vol. 20, no. 36, September 8, 1990, p. 4703. Such action was taken pursuant to the court’s rule-making authority appearing in the Constitution of 1968, Article V, section 10(c), as codified by 42 Pa.C.S. §1722. Interestingly enough, section 8355 attempted, among other things, to provide a sanction punishing an attorney’s bad-faith filing of pleadings, motions and other papers in litigation. The remedy for such bad-faith conduct consisted in an award to the successful party of the costs, attorney’s fees and a civil penalty not to exceed $10,000. Through its staying of section 8355 pursuant to its uniquely held constitutional power, the Pennsylvania Supreme Court has taken back the regulation of such matters from the General Assembly, thereby designating itself as the sole arbiter of attorney conduct. Therefore, the terms of section 8371 as a companion provision to section 8355 in Act 6 may not be extended to the conduct of attorneys. Otherwise, our Supreme Court would have stayed its operation as well.