text:
    Commonwealth v. Jiggetts

      C.P. of Lehigh County,
    nos. CR-1591-2010, CR-1592-2010.

      Jeffrey S. Dimmig, deputy district attorney, for Commonwealth.

      Robert Long, for defendant Jiggetts.

      Karen J. Schular, for defendant Cisco.
    August 11, 2010
   STEINBERG, J.,

The defendants, Hakeem Jiggetts and Emmanuel Cisco, are charged with possession with intent to deliver a controlled substance, possession of a controlled substance and criminal conspiracy (two counts each). Both defendants were detained a short time after a can of Old English beer was discarded from the moving vehicle they occupied. During that detention, a clear plastic sandwich bag with cocaine was discovered in the vicinity of the center console of the vehicle.

Motions to suppress were filed on behalf of both defendants, contesting the stop of the Gold Chevrolet Trailblazer, and the subsequent discovery of the “fruits” of the stop, the cocaine. A “motion to sever from co-defendants” was also filed on behalf of Hakim Jiggetts, contending that a severance is appropriate because the defenses of each defendant are “antagonistic.” In other words, each defendant intends to claim at trial that the cocaine was the co-defendant’s. A hearing was held on these motions on July 28, 2010.

At the hearing, Detective Matthew Karnish, a member of the vice and intelligence unit of the Allentown Police Department, testified that a Gold Chevrolet Trailblazer caught his eye when it “abruptly” changed lanes without signaling in the 300 block of Seventh Street. He decided to follow the vehicle, and did so until the Trailblazer parked at Valenia Park, which is located at 500 Union Street in Allentown. The Trailblazer, which was the only vehicle in the parking lot, remained there for five-seven minutes. The only activity witnessed by Detective Karnish was Hakim Jiggetts pouring beer out of the window.

The Trailblazer departed the park with Detective Karnish maintaining surveillance. When the Trailblazer reached the vicinity of 6th and Union Streets, he observed a can of the Old English come out of the passenger side window. Detective Karnish called for a marked police unit to stop the Trailblazer, but none was available. As a result, Detective Karnish continued his surveillance as the vehicle stopped at a neighborhood market in the vicinity of 10th and Liberty Streets. No marked units were available as yet, and so Detective Karnish continued to follow the Trailblazer. A decision was made to stop the vehicle after the Trailblazer made a series of counter-surveillance movements down small alleyways.

The Trailblazer was blocked by responding unmarked vehicles of the vice and intelligence unit as it attempted to navigate Russell Street. Detective Karnish and Detective Jason Krasley then approached the Trailblazer, and when Emmanuel Cisco failed to comply with Detective Krasley’s commands, he was removed from the vehicle at gunpoint. Mr. Jiggetts, the driver, also exited the vehicle.

Detective Krasley peered into the Trailblazer and observed a clear plastic sandwich bag with an “off-white rock like substance” later determined to be cocaine. The bag was partially tucked between the passenger seat and center console, but Detective Krasley could observe what, in his experience, he believed was cocaine. The cocaine was retrieved and the defendants arrested.

DISCUSSION

The defendants contend that it was inappropriate and unconstitutional for vice squad members to stop a vehicle for littering. Specifically, it is alleged that the stop of the Trailblazer was a pretext for a drug investigation. Detective Kamish may have been conducting a drug investigation, but as he conducted surveillance, he observed a littering offense. He was not required to disregard the beer can being discarded from the Trailblazer, but was entitled to take action. The littering offense properly served as a basis to stop the Trailblazer, preferably by a uniformed officer. However, when one was not available, then by the vice officers.

A technical violation of the Vehicle Code or a municipal ordinance for littering, “legitimizes a stop, even if the stop is merely a pretext for some other investigation.” Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) quoting Whren v. United States, 517 U.S. 806, 812-13 (1996); United States v. Robinson, 414 U.S. 218 (1973); United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006); U.S. v. Walker, 2010 WL 2572513 (W.D. Pa.); U.S. v. Owens, 2010 WL 126170 (M.D. Pa.). Additionally, the subjective motivations of the officers, “play no role in ordinary probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813; U.S. v. McNeil, 2010 WL 235131 *4 (M.D. Pa.); Commonwealthv. Chase, 599 Pa. 80, 102, 960 A.2d 108, 120 (2008) (“[I]f police can articulate a reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into officer’s motive for stopping vehicle is unnecessary.”). Furthermore, the actions of police officers have been deemed reasonable even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. “We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices — even practices set by rule. While those practices ‘vary from place to place and from time to time’ Fourth Amendment protections are not ‘so variable’ and cannot ‘be made to turn upon such trivialities.’” Virginia v. Moore, 553 U.S. 164, 172 (2008), quoting Whren, 517 U.S. at 815.

The flight of the Old English beer can violated the Vehicle Code, the municipal ordinances of the City of Allentown, and the Crimes Code. The Vehicle Code states in part:

“[n]o person shall throw or deposit, upon any highway or upon any other public or private property without the consent of the owner thereof or into the or on the waters of this Commonwealth, from a vehicle, any waste paper, sweepings, ashes, household waste, glass, metal, refuse or rubbish, or any dangerous or detrimental substance.”

The pertinent municipal ordinance of the City of Allentown states; “[n]o persons shall throw, scatter, deposit or sweep litter, or cause litter to be on any public place, such as a street, sidewalk, park or playground, nor onto any private property, except in authorized receptacles.” The enforcement of this section is the responsibility of “police officers ...,” and is not limited to any branch of the police department. Finally, a person under similar circumstances may be guilty of a summary offense under the Crimes Code for scattering rubbish.

Not only did the defendant potentially violate multiple littering statutes or ordinances, but did so in the presence of a police officer, Detective Karnish. Their actions permitted Detective Karnish to initiate proceedings for the summary offense of littering, regardless of the nature of his investigation. It is the defendants misfortune that they possessed cocaine, but their attempt to shield themselves by asserting perceived constitutional roadblocks is unavailing.

For the foregoing reasons, the defendants’ motions to suppress are denied.

1. Motion to Sever

The defendant, Hakim Jiggetts, also filed a motion to sever, seeking to have this case separated from the case of his co-defendant in case number 1592-2010. The defense contends that a severance is justified because the defendant will present a defense that will be conflicting and antagonistic to his co-defendant.

The standard for reviewing a motion for severance has been set forth in Commonwealth v. Hetzel, 822 A.2d 747, 863 (Pa. Super. 2003):

“The decision to grant or deny a motion for severance is committed to the sound discretion of the trial court, reversal of which is proper only in the event of an abuse of that discretion. While joint trials are preferred in those cases in which conspiracy is charged and the evidence against one actor is the same or similar to that presented against the other actor, the law is also clear that severance is required whenever co-defendants intend to present antagonistic defenses. However, ‘the mere fact that there is hostility between the defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials.’ ” (internal citations omitted)

Accordingly, a severance may be granted if the defendants are prejudiced by being tried together. However, it is the real potential for prejudice from a joint trial which would require a severance; speculation that prejudice may result is not enough. Hetzel, 822 A.2d at 763.

“[T]he fact that defendants have conflicting versions of what took place, or the extents to which they participated in [the crime], is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together. . . . Defenses become antagonistic only when the jury, in order to believe the essence of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of his co-defendant.” Commonwealth v. Housman, 986 A.2d 822, 834 (Pa. 2009), quoting Commonwealth v. Chester, 526 Pa. 578, 590, 587 A.2d 1367, 1373 (1991).

No prejudice has been demonstrated in this case.

Here, both defendants are charged with the same crimes arising out of the same events. The testimony from the preliminary hearing reveals that the same witnesses and evidence would be required for both trials if severance was granted, including testimony from Detectives Karnish and Krasley and evidence regarding the cocaine. In addition, the fact that one or both defendants may try to exculpate themselves by inculpating the other defendant does not provide sufficient grounds for severance. Commonwealth v. Brown, 592 Pa. 376, 401, 925 A.2d 147, 161 (2007). Lastly, as we noted above, joint trials are preferred when defendants have been charged with conspiracy. See Commonwealth v. King, 554 Pa. 331, 721 A.2d 763 (1998) (severance not warranted, even though both defendants attempted to place blame on the other defendant, because defendants were charged with conspiracy, the crimes arose from the same events, and the witnesses at trial were the same). For all these reasons, in the exercise of this court’s discretion, the motion for severance is denied.

ORDER

And now, August 11,2010, upon consideration of the defendants pretrial motions, and after hearings thereon; it is hereby ordered that the pretrial motions are denied.

      .75 Pa.C.S. §3709(a).

      . City of Allentown codified ordinances, article 720, neighborhood improvement ordinance §725.03, deposit of litter prohibited.

      . Id., section 720.94A.

      . 18Pa.C.S. §6501.

      . Pa.R.Crim.P. 400 et seq.

      . A valid warrantless search of the vehicle was also permissible because the cocaine was in plain view. The plain view doctrine permits a valid warrantless search where: (1) the police have not violated the Fourth Amendment in arriving at the location from which the item could be viewed; (2) the item is in plain view; (3) the incriminating character of the item is immediately apparent; and (4) the police have a lawful right of access to the item itself. Horton v. California, 496 U.S. 128, 133, 136-37 (1990); Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010); Commonwealth v. McCree, 592 Pa. 238, 245, 924 A.2d 621, 625 (2007). The slop oftheTrailblazer, as previously explained, was lawful, the cocaine was partially visible and the nature of the substance was immediately apparent to the investigating officer, and the police were lawfully in a position to access the cocaine.

      . Pa.R.Crim.P. 583.


source: Caselaw Access Project

author: JENKINS, J,

license: Public Domain

text:
    Commonwealth v. Lewis

      C.P. of Delaware County,
    no. 232-10.

      John F. X. Reilly, for Commonwealth.

      William Wismer, for defendant.
    July 28, 2010
   JENKINS, J,

Eric Lewis moved to suppress baggies of cocaine that a state corporal removed from Lewis’ sweatshirt pocket during a traffic stop. The court suppressed this evidence, and the Commonwealth filed a timely appeal to the Superior Court.

The Commonwealth contends that the corporal had probable cause to arrest Lewis for fleeing or attempting to elude a police officer and therefore had the authority to seize the baggies in a search incident to arrest. There was no probable cause to arrest Lewis for fleeing or eluding, since he stopped his car just 40 seconds after the corporal activated his dome lights and siren. Absent probable cause to arrest, the corporal had no right to execute a search incident to arrest.

The Commonwealth also argues that the corporal had the right under Terry and Dickerson’s “plain feel” doctrine to pat down Lewis’ outer garments for weapons during the traffic stop and to seize items that he felt during the pat down whose incriminating nature was immediately apparent. When the corporal felt the baggies during Lewis’ pat down, it could not have been immediately apparent that they were criminal contraband, because individuals frequently use bagging material for legal purposes.

For these reasons, the court recommends that its order granting Lewis’ motion to suppress be affirmed.

FACTUAL HISTORY

The court found the following facts based on evidence adduced during a suppression hearing on April 13,2010:

At approximately 2:50 a.m. on the morning of September 26, 2009, Corporal David Pezzano of the Pennsylvania State Police observed Lewis’ vehicle on 1-95 driving at a high rate of speed. Suppression Hearing (SH), 4/13/10, p. 10. Corporal Pezzano, who was alone in his police cruiser, pursued Lewis’ vehicle and caught up to it at the Avenue of the States exit. SH, pp. 10-11. A video recorder inside Corporal Pezzano’s cruiser filmed his pursuit and subsequent stop of Lewis’ vehicle. Exhibit DS-1.

Corporal Pezzano activated his dome lights near the top of the exit ramp at 2:52 a.m. Exhibit DS-1; SH, p. 11. Lewis turned right onto another street, and Corporal Pezzano turned on his siren at 2:52. Exhibit DS-1. Lewis slowly bore left with his turn signal on and turned right onto a four-lane highway. Exhibit DS-1. At 2:52, Corporal Pezzano drove up next to Lewis, who was still driving slowly, and directed him to “pull over.” Exhibit DS-1; SH, p. 13. Lewis turned left onto a side street and stopped at 2:53, 40 seconds after Corporal Pezzano activated his siren. Exhibit DS-1. The corporal claimed that Lewis’ car “lurched forward a little bit” and “looked like it was still actually in drive,” SH, p. 17, but the videotape does not corroborate this testimony. Exhibit DS-1. The car remained in place after Lewis brought it to a stop. Lewis never attempted to escape. Exhibit DS-1.

The stop took place in an industrial area where there were no residences. SH, p. 14. Over the cruiser’s public address system, the corporal instructed Lewis to place his hands outside the window where the corporal could see them. SH, p. 15. Lewis put both hands outside the window but then pulled his right hand back inside his caí'. SH, p. 15.

Concerned that Lewis was reaching for a gun, Corporal Pezzano approached Lewis’ vehicle and told him to put his hands up. SH, pp. 15-16; exhibit DS-1. Lewis complied; the corporal saw that Lewis was not holding anything in his hands. SH, p. 17. Lewis exclaimed that he did not stop his car immediately because he was calling his girlfriend and was scared. Exhibit DS-1. The corporal ordered Lewis to exit his car and stand against it with his hands on top. Exhibit DS-1.

The corporal had several concerns during this incident. Lewis appeared to have a “fight or flight mentality. . . not following verbal commands. He kept looking around, looking in the area.” SH, p. 21. There was a group of people about 100 feet away whom the corporal feared might become belligerent due to his show of authority. SH, pp. 14,21. There were no backup police officers to handle unruly behavior, because they were still en route to the scene. SH, pp. 14, 21.

The corporal patted Lewis down for several seconds and then handcuffed him. Exhibit DS-1. The position of Lewis’ body obstructed any view of his left side or the corporal’s left hand on the videotape. Corporal Pezzano testified about the pat down as follows:

“Q. [W]hat did you do after you took the defendant out?
“Corporal Pezzano. My initial reaction was to pat him down for my safety to make sure he wasn’t trying to pull a weapon during his movements in the vehicle. So, I patted him down for a weapon.
“Q. Were you able to feel anything?
“Corporal Pezzano. Absolutely. Yes, I did.
“Q. What did you feel?
“Corporal Pezzano. Well, I felt in his left side front sweater pocket, he had a .. . bulge of, like, a bag with . . . several small bags inside of that.
“Q. And what did you believe that to be?
“Corporal Pezzano: I believed it to be some sort of drug packaging.
“Q. Have you had the opportunity in your experience to hold or feel sandwich bags with other small bags in them packaged for drugs?
“Corporal Pezzano: Yes, I have.
“Q. And when you touched the package ... were you able to tell immediately what this was?
“Corporal Pezzano. I thought it was some sort of drug packaging. What type of drug, I wasn’t exactly sure....
“Q. D[id] you take that package out? What you believe[d] to be drugs, d[id] you take that out of his pocket at that point?
“Corporal Pezzano. No, I d[id] not.
“Q. And why not? What else [we]re you doing?
“Corporal Pezzano. I didn’t take it out of his pocket. That wasn’t my concern. My concern was to find something that would hurt me or to make sure he didn’t have something that would hurt me .... SH, pp. 19-20. (emphasis added)

After feeling what he believed were baggies during the pat down, Corporal Pezzano walked Lewis to his patrol car, emptied his pockets, and seized the baggies of cocaine. SH, p. 21; exhibit DS-1.

In an order docketed on May 26, 2010, the court granted Lewis’ motion to suppress all evidence seized during the traffic stop. On June 18, 2010, the Commonwealth filed a notice of appeal under Pa.R.A.P. 311(d), certifying that the order terminated or substantially handicapped the prosecution. On July 15,2010, the Commonwealth filed a timely statement of matters complained of on appeal.

DISCUSSION

In an appeal from an order granting a motion to suppress, the appellate court:

“considers] only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. We must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. The suppression court’s factual findings are binding on us and we may reverse only if the legal conclusions drawn therefrom are erroneous.” Commonwealth v. Hayes, 898 A.2d 1089, 1091-92 (Pa. Super. 2006).

The Commonwealth asserts that Corporal Pezzano had probable cause to arrest Lewis for fleeing or attempting to elude a police officer and therefore had the authority to seize the cocaine in a search incident to arrest. The fleeing and eluding statute, 75 Pa.C.S. §3733, provides that a driver of a motor vehicle commits a misdemeanor (or sometimes a felony) if he “willfully fails or refuses to bring his vehicle to a stop, or . . . otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop.” Section 3733’s purpose is to punish drivers who lead police officers on high-speed chases or who jump out of their cars and run away on foot. See Commonwealth v. Scattone, 448 Pa. Super. 533, 539, 672 A.2d 345, 348 (1996) (defendant violated section 3733 by leading four police cruisers with activated dome lights and sirens on two-three mile chase for five minutes). There do not appear to be any Pennsylvania decisions which hold that a momentary delay in stopping one’s car runs afoul of section 3733. And for good reason: common sense indicates that momentary delay does not constitute willful failure or refusal to stop, flight, or attempt to elude a police officer.

When Corporal Pezzano activated his dome light and siren, Lewis merely made a few slow-speed turns with his turn signal on and stopped his car less than one minute later. There was no high-speed chase, refusal to stop, or attempt to escape. Corporal Pezzano did not have probable cause under these circumstances to arrest Lewis for fleeing or eluding. Cf. State v. Coreano, 2009 WL 2859163 (Del. Super. 2009) (Delaware officers did not have probable cause to arrest defendant for disregarding police officer’s signal, where defendant drove at low rate of speed with his turn signal on and stopped less than one minute after officers made clear their intent to stop him). Absent probable cause to arrest, the search of Lewis’ person was invalid. Commonwealth v. Lovette, 498 Pa. 665, 677, 450 A.2d 975, 981 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983) (where probable cause to arrest does not exist in the first instance, any evidence seized in search incident to arrest must be suppressed).

The Commonwealth urges that if Corporal Pezzano lacked probable cause to arrest Lewis, he still had the right to frisk Lewis for weapons under Terry and seize the cocaine under Dickerson’s plain feel doctrine. This argument does not succeed because Corporal Pezzano ventured beyond Dickerson’s bounds.

A police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude that criminal activity may be afoot. Terry, 392 U.S. at 30. If the officer reasonably suspects, based on specific and articulable facts, that the detained individual is armed and dangerous, the officer may frisk the individual’s outer garments for weapons. Id. at 24. Since the sole justification for a Terry search is the protection of the officer or others nearby, a protective search must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Id. at 26. The purpose of this limited search is not to discover evidence, but to allow the officer to pursue his investigation without fear of violence. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

The plain feel doctrine entitles the officer to seize non-threatening contraband during a Terry frisk detected through the officer’s sense of touch if (1) the officer is lawfully in a position to detect the presence of contraband, (2) the incriminating nature of the contraband is immediately apparent from its tactile impression and (3) the officer has a lawful right of access to the object. Dickerson, 508 U.S. at 373-75. The mass or contour of the object must make its criminal character immediately apparent. Id. at 375; Commonwealth v. E.M., 558 Pa. 16, 32, 735 A.2d 654, 663 (1999). “Immediately apparent” means that the officer readily perceives, without further exploration or searching, that he is feeling contraband. Id. If, after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search, the immediately apparent requirement is not met, and the plain feel doctrine cannot justify seizure of the object. Id.; see also Commonwealth v. Graham, 554 Pa. 472, 485-86, 721 A.2d 1075, 1082 (1998).

Corporal Pezzano clearly had the right under Terry to order Lewis out of his car and pat down his outer garments to check for weapons, given Lewis’ reckless driving on 1-95, the nighttime traffic stop in an industrial area, Lewis’ nervous demeanor during the stop, and his suspicious hand movements in and out of view. Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007) (following lawful traffic stop, officer may order driver to exit vehicle until the traffic stop is completed); Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010) (Terry permits police officer to conduct quick frisk for weapons if he reasonably fears that person with whom he is dealing may be armed and dangerous).

At the instant Corporal Pezzano touched the baggies, however, it could not have been immediately apparent to him that he was feeling contraband. An officer cannot satisfy the plain feel doctrine unless he can “substantiate what it was about the tactile impression of the object that made it immediately apparent to him that he was feeling contraband.” Commonwealth v. Stevenson, 560 Pa. 345, 357, 744 A.2d 1261, 1267 (2000) (citing E.M, supra, at 16 n.8, 735 A.2d at 664 n. 8). The “immediately apparent” standard is not met merely by feeling packaging material for drugs or zip-lock baggies in the defendant’s pocket during a Terry frisk. Commonwealth v. Stackfield, 438 Pa. Super. 88, 651 A.2d 558 (1994). Stackfield observed:

“A zip-lock baggie is not per se contraband, although material contained in a ziplock baggie may well be.... The record supports a factual finding that the officer felt a mass that he recognized as a baggie; it does not support a factual finding that the officer felt what he immediately recognized as contraband. Sight unseen, the contents of the baggies that the officer felt in appellant’s pants pockets could as easily have contained the remains of appellant’s lunch as contraband.” Id. at 96-97, 651 A.2d at 562; see also, Stevenson, supra (citing Stackfield with approval).

In view of Stackfield, Corporal Pezzano could not have immediately recognized the baggies in Lewis’ pocket as contraband. He would have to have been clairvoyant to immediately recognize that the baggies contained drugs instead of perfectly legal items.

To be sure, the plain feel exception is satisfied when the officer feels both packaging material and drugs while patting down the defendant’s outer garments. In Commonwealth v. Parker, 957 A.2d 311 (Pa. Super. 2008), the officer conducting the pat down felt two plastic bags in the defendant’s cargo pocket with some “hard, rigid objects” that he believed were crack cocaine based on his training and experience. The Superior Court upheld the seizure of the drugs because the officer immediately identified the object he felt as contraband (packaged crack cocaine) before reaching into the defendant’s pocket and looking at its contents. Id., 957 A.2d at 316. Similarly, in Commonwealth v. Bryant, 866 A.2d 1143 (Pa. Super. 2005), the Superior Court found a search proper where the officer conducting the pat down immediately recognized the object as packaged drugs due to his experience in over 100 drug arrests and his familiarity with the packaging and feel of packaged drugs. Id., 866 A.2d at 1147. Parker and Bryant, however, do not control the present case, since Corporal Pezzano only felt bagging material in Lewis’ pocket as opposed to bagging material and drugs. Bagging material alone is not incriminating for the reasons stated above.

Therefore, the court concludes that Corporal Pezzano’s seizure of cocaine did not result from a valid search incident to arrest or a valid frisk under Dickerson. The court recommends that its order granting Lewis’ motion to suppress be affirmed.

      . Terry v Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334(1993).

      . Although the court did not enter written findings of fact and conclusions of law after the suppression hearing, this opinion is the equivalent, because it details the evidence credited by the court at the suppression stage and examines the applicable law. Commonwealth v. Stevenson, 832 A.2d 1123, 1126 (Pa. Super. 2003) (citing Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)) (where trial court does not enter findings of fact and conclusions of law, appellate court may look at trial court’s Rule 1925(a) opinion to garner findings of fact and conclusions of law).

      . The element of willfulness “is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.” 18 Pa.C.S. §304(g). A person acts “knowingly” with respect to a material element of an offense “whenQ if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist.” 18 Pa.C.S. §304(b)(2)(i).

      . For other decisions that provide analogous support for this decision, see Stevenson, supra at 354-55, 744 A.2d at 1266 (two cases consolidated for decision; “immediately apparent” test not met in first case when officer conducting Terry frisk for weapons felt cigar or cigarette and pill bottle, even if officer knew, from his experience in drug enforcement, that those objects could contain narcotics; in second case, “immediately apparent” requirement not met when officer felt three hard packages of folded paper or cardboard in change pocket of defendant’s jeans, even though officer testified that he had previously seen cocaine packaged in cardboard and that he knew packages contained cocaine by the feel of the bulge and package, since officer did not explain what it was about the mass or contour of particular package felt that led him to that conclusion; “immediately apparent” requirement not satisfied when officer merely feels and recognizes by touch an object that could be used to hold either legal or illegal substances, even when officer has previously seen others use that object to carry or ingest drugs); E.M., supra at 34, 735 A.2d at 664 n. 9 (even if officer recognized bulge in defendant’s pocket as cash, cash is not per se contraband and therefore, not immediately apparent as contraband); Commonwealth v. Thompson, 939 A.2d 371, 377 (Pa. Super. 2007) (digital scale and cash not immediately apparent as contraband to officer conducting frisk, since there was no evidence as to the size, shape or hardness of objects officer felt during search); Commonwealth v. Fink, 700 A.2d 447, 450 (Pa. Super. 1997), appeal denied, 552 Pa. 694, 716 A.2d 1247 (1998) (officer felt object during pat down that resembled “a regular smoking pipe without the stem” and testified that in his experience, he had seen such pipes used for smoking marijuana; illegal nature of object not immediately apparent because pipes, though sometimes used to smoke marijuana, can also be used to smoke legal substances); Commonwealth v. Mesa, 453 Pa. Super. 147, 157, 683 A.2d 643, 648 (1996) (detective’s testimony that he immediately knew bulge in suspect’s pocket contained cocaine due to the “shape and form it was in” did not support finding that detective immediately recognized object as contraband).


author: SIBUM, J,

text:
    Donegal Mutual Insurance Company v. Stroker

      CP. of Monroe County,
    no. 2568 civil 2010.

      G. Christopher Eves, for plaintiff.

      Salvatore P.J. Vito, for defendants.
    August 2, 2010
   SIBUM, J,

This matter comes before the court on plaintiff’s preliminary objections to defendants’ new matter and counterclaim. Plaintiff, Donegal Mutual Insurance Company, commenced this action to seek a judgment for breach of a subrogation provision provided for in an automobile insurance policy issued by plaintiff to defendants. Plaintiff filed a complaint for breach of contract on March 24,2010 alleging that under the terms of the insurance policy, a subrogation interest arose in favor of the plaintiff. Plaintiff alleges that defendants prejudiced its subrogation right by accepting a payment from and executing a release of a third-party tort-feasor. Defendants filed an answer with new matter and counterclaim on May 7,2010 raising nine affirmative defenses and two counterclaims for breach of contract and bad faith. Plaintiff filed preliminary objections on May 24,2010 raising a motion to strike several averments in plaintiff’s new matter and counterclaim for failure of the pleading to conform to law and for insufficient specificity in a pleading. Plaintiff filed a timely brief; however, defendants filed their brief late. Oral arguments were heard on July 6, 2010 at which time both parties argued their respective positions. We are now prepared to decide this matter.

DISCUSSION

Preliminary objections may be filed by any party to any pleading on several grounds, including failure of a pleading to conform to law or rule of court and for insufficient specificity in a pleading. Pa.R.C.P. 1028(a). In ruling on preliminary objections, we recognize that the court must accept as true “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom____” Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 638, 584 A.2d 403, 407 (1990). The court need not accept as true, however, “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. 1998).

When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the cases which are clear and free from doubt. King v. Detroit Tool Company, 452 Pa. Super. 334, 337, 682 A.2d 313, 314 (1996). Alternatively, a motion to strike a pleading may be granted when lack of conformity to a law or a rule of court occurs. Pa.R.C.P. 1028(a) (2).

Reviewing the facts of record in the light most favorable to defendants, the non-moving parties, the record reveals the following. Plaintiff is an insurance company with offices in Marietta, Pennsylvania. (Complaint, ¶2; answer, ¶2.) On May 17,2003, defendant Susan Stroker was involved in a motor vehicle accident resulting in damages to defendants’ vehicle in the amount of $10,489.04. (Complaint, ¶5; answer, ¶5.) At the time of the accident, defendants were insured under an automobile insurance policy with plaintiff. (Complaint, ¶4; answer, ¶4.) Damages to the vehicle were paid for under the terms of the insurance policy. (Complaint, ¶6; answer ¶6.) Part F of the policy also provided for subrogation as follows:

“(A) If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do:
“(1) Whatever is necessary to enable us to exercise our rights; and
“(2) Nothing after loss to prejudice them.” (Complaint, ¶7, exhibit A, page 11-12.)

On February 7, 2007, defendant Susan Stroker accepted a payment from a third-party tort-feasor Colleen Garrick in the amount of $14,500 and executed a release of all claims, releasing Garrick and her insurance company from further liability. (Complaint, ¶¶8-9, exhibit B.) Plaintiff filed suit at 3509 civil 2005 in the name of defendants to recover the property damage caused by Garrick. Plaintiff argues that in accordance with the insurance policy, defendants have an obligation to do whatever is necessary to enable the insurance company to exercise its rights against another for recovery of damages when a payment has been made to the insured under the policy and hold any amounts received in trust for plaintiff to the extent of plaintiff’s payment to its insured, the defendant. (Complaint, ¶13.) Defendants, on the other hand, argue that defendants are not responsible for, nor required to oversee, plaintiff’s subrogation claim and never signed a release on behalf of plaintiff. (Answer, ¶14.)

Defendants, in their new matter and counterclaim, pleaded nine affirmative defenses in their new matter and aver breach of contract and a claim for bad faith in their counterclaim. Plaintiff objects to these allegations for failure of a pleading to conform to law or rule of court and for insufficient specificity in a pleading. Plaintiff claims the allegations contain general, boilerplate averments without any specific factual allegations to support them and plaintiff is unable to prepare an adequate answer. Defendants reply that they are required to plead all affirmative defenses to plaintiff’s complaint in their new matter or they would be waived and that defendants have set forth the essential elements of a breach of contract and bad faith insurer claim. We will address plaintiff’s preliminary objections to defendants’ new matter and counterclaim in turn.

1. Plaintiff’s Preliminary Objection for Failure of a Pleading To Conform to Law or Rule of Court/Insufficient Specificity in a Pleading As to Defendants ’ New Matter

Plaintiff filed preliminary objections to defendants’ new matter on the grounds that certain averments in the new matter are general, boilerplate averments without any specific factual allegations and therefore fail to conform to the law requiring specificity in a pleading. Plaintiff alleges that due to the lack of specificity, it is unable to prepare an adequate answer. Defendants, however, assert that there are no laws that require the citing of specific details when averring affirmative defenses in new matter. We agree with the plaintiff and will sustain its preliminary objections as to defendants’ new matter.

In their new matter, defendants assert the following affirmative defenses:

“(19) Plaintiff fails to state a claim or claims against upon which relief can be granted.
“(20) Plaintiff’s claims may be barred, in whole or in part, by the applicable statutory and/or contractual limitations of action.
“(21) Plaintiff’s claims may be barred, in whole or in part, by the doctrines of waiver, estoppel and/or laches.
“(22) Plaintiff’s claims may be barred, in whole or in part, by virtue of justification.
“(23) Plaintiff’s claims may be barred, in whole or in part, by virtue of release.
“(24) Plaintiff’s claims may be barred, in whole or in part, by virtue of failure of consideration.
“(25) Plaintiff’s claims may be barred, in whole or in part, by virtue of fraud and/or illegality.
“(26) Plaintiff’s claims may be barred, in whole or in part, by virtue of accord and satisfaction.
“(27) Plaintiff’s claims may be barred, in whole or in part, by virtue of the statute of frauds.”

Pa.R.C.P. 1019(a) requires that “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.” Pa.R.C.P. 1019(a). Pennsylvania is a fact pleading state. Pleadings in a fact pleading jurisdiction serve the purpose of putting an opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. Mansour ex rel. Mansour v. Gnaden Huetten Memorial Hospital, 2007 WL 5234151 (Pa. Com. Pl.), 3 D.&C.5th 149 (2007); Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 337, 690 A.2d 719, 723 (1997) (holding that the allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support [the] claim”). “The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses asserted in the case.” Estate of Swift, at 337, 690 A.2d at 723. “This purpose would be thwarted if courts, rather than the parties, were burdened with the responsibility of deciphering the causes of action from a pleading of facts which obscurely support the claim.” Id.

With respect to the pleading of affirmative defenses, all such defenses must be pleaded in a responsive pleading under the heading “new matter.” Pa.R.C.P. 1030(a). A party may set forth any other material facts which are not merely denials of the averments of the preceding pleading within their new matter. Id. Although there are specific offenses that are not required to be pleaded, namely assumption of risk, comparative negligence, and contributory negligence, the majority of affirmative defenses must be pleaded or are otherwise waived. Pa.R.C.P. 1030(b); Pa.R.C.P. 1032(a).

The material facts on which a defense is based must be stated in a concise and summary form. Pa.R.C.P. 1019(a). Certain averments, such as averments of fraud or mistake, must be averred with particularity. Pa.R.C.P. 1019(b). A trial court has broad discretion in determining the amount of detail that must be averred in a pleading, because the standard of pleadings set forth in Rule 1019 does not lend itself to precise measurement. United Refrigerator Company v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963).

In order to dispose of plaintiff’s preliminary objections, we must determine whether defendants are required to plead in their new matter the material facts upon which their affirmative defenses are based. In determining whether defendants have pled such averments with adequate specificity, we look to the reasoning set forth by the Honorable Margherita Patti Worthington of this court in Lee v. Denner, 7723 Civil 2004, for guidance. In that case, Judge Worthington was asked to decide plaintiff’s preliminary objections challenging whether the affirmative defenses set forth in the defendant’s new matter were insufficiently specific. In Denner, plaintiffs, in support of the preliminary objections, argued the applicability of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Our court provided the following analysis of Connor:

“Connor has been used by the Pennsylvania courts to preclude general allegations in complaints. Connor stands for the proposition that general averments in a complaint should be remedied by preliminary objections, which operate to have the offending averment stricken and later amended. The objectionable alternative would be to have both parties embark upon a course of extended discovery that would hopefully assure that there are no unpled facts that would support a new claim. The court in Connor reasoned that the former option is not only easier, but more likely to guarantee the desired result of eliminating surprise on the eve of trial than the later.” Lee v. Denner, 2005, 76 D.&C.4th 181, 190 (2005). (internal citations omitted)

The court held that:

“Plaintiffs should have the same recourse in dealing with the factually unsupported allegations contained in defendant’s new matter to minimize the chance that they will have to defend a surprise claim or defense at trial. It is our determination that to hold otherwise ‘would put the onus on plaintiffs to conduct extensive discovery to disprove a factually unsupported allegation rather than requiring defendants, who asserted the allegation, to marshal the facts to support it.’
“The Rules of Civil Procedure are in place to ensure that a new matter not only gives the opposing party notice of any affirmative defenses, but also makes clear the grounds upon which it rests by including a summary of the facts essential to support that defense. More precisely, Rule 1019(a) requires that ‘the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.’ Thus, the purpose of 1019(a) is to require the pleader to disclose the ‘“material facts’ sufficient to enable the adverse party to prepare his case.” The term ‘material facts’ has been defined as ‘those facts essential to support the claim’ raised in the matter. A pleading therefore must do more than simply give the adverse party fair notice of what his claim or defense is and the grounds upon which it rests; it should, instead, formulate the issue by fully summarizing the material facts.
“We find that plaintiffs are unable to adequately confirm or deny the allegations in defendant’s new matter without the benefit of further facts. We do not think the parties should be forced to proceed to discovery until further specificity is provided by defendant regarding her affirmative defense — ”M at 190-92. (internal citations omitted)

In our case, defendants fail to provide any facts that would corroborate the averments presented in their new matter. First and foremost, averments of fraud must be specifically pleaded. In paragraph 25 of their new matter, defendants make a general averment based on fraud. As stated above, such averments must be pled with particularity. Pa.R.C.P. 1019(b). Defendants have only submitted that plaintiff’s claims may be barred, in whole or in part, by virtue of fraud and/or illegality. There are no facts offered to support this otherwise conclusion of law and such detail is mandated by statute. See Pa.R.C.P. 1019(b).

In regard to defendants’ generic averments that plaintiff’s claims are barred by virtue of justification, release, failure of consideration, accord and satisfaction, statute of frauds, et cetera, defendants have provided no material facts to support these allegations. Defendants only make a blanket assertion that plaintiff’s claims may be barred without offering any reason why defendants believe this to be true. Such lack of information does not provide plaintiff with the material facts necessary to build a defense against these claims. Although we understand the need to plead these defenses to preserve and prevent them from being waived, we find that defendants are merely stating all possible affirmative defenses without determining if they truly have a basis in this case. This “spaghetti approach” is unproductive. Plaintiff’s preliminary objections will be sustained. Defendants will be granted leave to amend their new answer in compliance with the above opinion.

2. Plaintiff’s Preliminary Objection for Failure of a Pleading To Conform to Law or Rule of Court/Insufficient Specificity in a Pleading As to Defendants ’ Counterclaim

Plaintiff filed preliminary objections to defendants’ counterclaim on the grounds that the averments in the counterclaim are general, boilerplate averments without any specific factual allegations and therefore fail to conform to the law requiring specificity in a pleading. As a result, plaintiff alleges it is unable to prepare an adequate response. Defendants, however, assert that they have established all of the requirements to bring a cause of action for both breach of contract and a bad faith insurer claim. We agree with the plaintiff and will sustain its preliminary objections as to defendants’ counterclaim.

a. Plaintiffs Preliminary Objection to Defendants’ Count 1 — Breach of Contract

In their counterclaim against plaintiff for breach of contract, defendants assert the following:

“(29) Plaintiff and defendants entered an agreement.
“(30) Plaintiff breached said agreement by bringing the present action against defendants.
“(31) As a result of plaintiff’s failure to perform in accordance with the agreement, defendants have suffered and will continue to suffer direct and consequential damages.”

Plaintiff takes issue with paragraphs 30 and 31 in that they are general conclusions of law with no supporting facts. We agree.

“A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resulting damages.” Core-States Bank N. A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). While not every term . . . must be stated in complete detail, every element must be specifically pleaded. Id. In CoreStates BankN.A., the Superior Court found that appellant sufficiently set forth a claim for breach of contract by pleading all the essential terms of the agreement, a breach and damages. There, appellant pleaded that the bank orally agreed to loan him $50,000 if he would execute a $50,000 mortgage as collateral, that he executed the mortgage but the bank failed to perform by loaning him the money, and that as a result of his inability to obtain the money, he lost significant business opportunities, resulting in damages in excess of the arbitration limits. Such facts were specific enough for the court to find a claim for breach of contract.

Our case is distinguishable in that defendants have not provided adequate facts to support a cause of action for breach of contract on the part of plaintiff. Defendants only stated that the parties entered an agreement and that plaintiff breached the agreement by bringing the present action against defendants. Defendants offer no specific details to educate the court or plaintiff on what the agreement required, whether this was the same agreement as pleaded in plaintiff’s complaint, what the essential terms of the agreement were, or how bringing the present action against defendants breached the agreement. Furthermore, defendants declare that they have suffered and will continue to suffer direct and consequential damages but they do not specifically aver what those damages were. As such, we find that defendants have not properly set forth the fundamental requirements for a breach of contract cause of action.

b. Plaintiff’s Preliminary Objection to Defendants’ Count 2 — Bad Faith Insurer — 42 Pa.C.S. §8371

Plaintiff avers that defendants’ counterclaim for a bad faith insurer claim fails to provide enough detail to establish the essential elements required to bring such a cause of action. Defendants, on the other hand, reply that all the elements required to find bad faith on the part of the insured have been pleaded in their counterclaim as well as in defendants’ answer. We disagree.

Defendants claim bad faith on the part of plaintiff, alleging:

“(32) Defendants had a valid insurance policy with plaintiffs at the time of the subject incident.
“(33) The plaintiff insurer has acted in bad faith toward its insured.
“(34) Defendants have and will suffer direct and consequential damages as a result.”

42 Pa.C.S. §8371 provides as follows:

“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....
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorneys fees against the insurer.” 42 Pa.C.S. §8371.
“Although the statute does not define ‘bad faith,’ a uniform definition of this term has developed in the context of insurance litigation.” Adamski v. Allstate Insurance Company, 738 A.2d 1033, 1036 (Pa. Super. 1999). “Bad Faith” is defined as follows:
“Insurance. An insurance company’s unreasonable and unfounded (though not necessarily fraudulent) refusal to provide coverage in violation of the duties of good faith and fair dealing owed to an insured. Bad faith often involves an insurer’s failure to pay the insured’s claim or a claim brought by a third party.” Black’s Law Dictionary (8th ed. 2004).

To establish bad faith under section 8371, the Superior Court has utilized a two-part test: “(1) the insurer lacked a reasonable basis for denying coverage and (2) the insurer knew or recklessly disregarded its lack of a reasonable basis.” Adamski, 738 A.2d at 1036. Both elements must be established by clear and convincing evidence. Id.

Here, defendants provide that they had a valid insurance policy with plaintiff which is not disputed. However, defendants state that plaintiff has acted in bad faith toward its insured but have not provided any detail to show how plaintiff has done so nor provided any facts to meet the two-part test above. Defendants have not provided adequate information in either their counterclaim or answer, as such averments are only general conclusions of law or general denials lacking specificity. Defendants have not properly set forth the fundamental requirements for a bad faith insurer claim. Plaintiff’s preliminary objections as to both counterclaims will be sustained.

ORDER

And now, August 2, 2010, plaintiff’s preliminary objections to defendants’ new matter and counterclaim, are sustained. Defendants are granted 20 days leave to file an amended new matter and counterclaim.


author: SIBUM, J.,

text:
    Commonwealth v. Gross

      C.P. of Monroe County,
    no. 45 CR 2010.

      David Christine, district attorney, for Commonwealth.

      George W. Westervelt Jr. and Eric R. Breslin, for defendant.
    July 15, 2010
   SIBUM, J.,

Defendant has been charged with criminal conspiracy and accomplice liability for providing a firearm to Daniel Autenrieth. On June 7,2009, Autenrieth utilized the weapon to injure Trooper Robert Lombardo and kill Trooper Joshua Miller of the Pennsylvania State Police. Defendant has filed an omnibus pretrial motion seeking a bill of particulars and pretrial discovery. Defendant’s motion also includes a request to dismiss or, in the alternative, transfer this case for improper venue and to avoid prejudicial pretrial publicity. Finally, defendant’s omnibus motion requests a recusal of all judges of the Monroe County Court of Common Pleas or the appointment of an out-of-county judge to hear this matter. We held a hearing on defendant’s motion on May 24, 2010 and granted the parties 30 days to brief their respective positions. The Commonwealth and defendant have filed briefs, and we are now prepared to render our decision. We will begin with a review of the salient facts.

Defendant met Autenrieth in 2005 or 2006. Their relationship became romantic in early 2009. On May 4, 2009, Autenrieth’s estranged wife, Susan Autenrieth, filed a petition for a protection from abuse order against Autenrieth in the Northampton County Court of Common Pleas. Both Autenrieth and his estranged wife resided in Northampton County. On that same day, the Northampton County Court of Common Pleas issued a temporary PFA against Autenrieth naming his wife and their three children as protected parties. The temporary PFA prohibited Autenrieth from having any contact with the protected parties and evicted him from the residence in which Wife was residing. The May 4 temporary PFA did not prohibit Autenrieth from possessing firearms, nor did Wife request that he be prohibited from possessing firearms in her petition for a PFA.

At approximately 4 p.m. on May 4,2009, three members of the Northampton County Sheriffs Office went to Autenrieth’s home in order to serve the temporary PFA on Autenrieth and to effectuate the transfer of custody of the parties’ children to Wife. When the sherriff’s deputies arrived at Autenrieth’s residence, defendant was at the home baby-sitting two of Autenrieth’s children. Autenrieth was not present. Deputy Otto of the Northampton County Sheriff’s office served the temporary PFA upon defendant as the adult in charge of Autenrieth’ s residence and advised her that the document was a PFA that prohibited Autenrieth from having contact with his wife and excluded him from wife’s residence. Deputy Otto also told defendant — albeit incorrectly— that the temporary PFA prohibited Autenrieth from possessing or owning a weapon. Custody of the children was then transferred to Wife.

On May 18,2009, the Northampton Court of Common Pleas entered a final PFA in favor of Wife and against Autenrieth. The final PFA prohibited Autenrieth, inter alia, from possessing firearms. The final PFA was not served upon defendant.

On May 29, 2009 at approximately 4:30 p.m., defendant obtained a Pennsylvania driver’s license using Autenrieth’s address. Defendant resided in New Jersey with her family, but routinely stayed overnight at Autenrieth’s residence. She obtained the license at a driver licensing center near Autenrieth’s home. Defendant also changed her vehicle insurance to Pennsylvania using Autenrieth’s address, but continued to receive mail at her family’s residence in New Jersey.

Later in the evening on May 29, 2009, defendant and Autenrieth traveled from Autenrieth’s apartment to the Cabela’s store in Flamburg, Berks County, Pennsylvania. While at Cabela’s and in the presence of Autenrieth, defendant purchased a 9 millimeter Taurus handgun. Defendant utilized her Pennsylvania driver’s license to obtain the firearm. Defendant and Autenrieth then returned home to Autenrieth’s residence where Autenrieth instructed defendant on the use of the gun. After doing so, defendant and Autenrieth put the gun into the box in which it came and placed it on a shelf above the washer and dryer in Autenrieth’s house. That was the last time defendant ever saw the gun. Although defendant never saw or utilized the gun again, she was aware that Autenrieth had used it. He had fired it while with a friend and thereafter purchased another box of ammunition to replace the ammunition he had used.

On June 7, 2009, the Nazareth Borough Police responded to the report of a domestic disturbance involving a firearm at the home of Autenrieth’s estranged wife. Autenrieth’s wife advised the Nazareth Borough Police that Autenrieth threatened her with a handgun and then fled with the parties’ 9-year-old son prior to police arriving. Nazareth Police attempted to stop Autenrieth’s vehicle while in the Borough of Nazareth, however, Autenrieth refused to pull his vehicle over and began to flee from police at a high rate of speed.

Autenrieth continued to lead police from several municipalities on a 40-mile pursuit traveling over State Route 191 from Northampton County into Monroe County. When Autenrieth entered Monroe County, members of the Pennsylvania State Police, Swiftwater Barracks, joined in the pursuit. The pursuit ended on SR 611 North past SR 423 in Monroe County.

Upon ending the pursuit, two members of the Pennsylvania State Police, Trooper Joshua Miller and Trooper Robert Lombardo, approached the driver’s side of Autenrieth’s vehicle. Both troopers began ordering Autenrieth out of the vehicle but Autenrieth refused. The troopers broke open Autenrieth’s driver side window, at which point Autenrieth produced the 9 mm Taurus handgun that defendant had purchased. Autenrieth fired three times at both Trooper Miller and Trooper Lombardo. Trooper Miller was struck in the right leg and base of his neck. Trooper Lombardo was struck in the left shoulder. Both troopers returned fire striking Autenrieth eight times. Trooper Miller and Autenrieth died as a result of their injuries. Trooper Lombardo recovered.

The criminal information filed in the Court of Common Pleas by the Commonwealth charges the defendant with criminal conspiracy (18 Pa.C.S. §903); firearms not to be carried without license (co-conspirator) (18 Pa.C.S. §6106(a)(1)); possession of firearm prohibited (accomplice) (18 Pa.C.S. §6105(a)(l)); andloans on, or lending, giving of firearms prohibited (accomplice) (18 Pa.C.S. §6115(a)). The Commonwealth contends that defendant provided Autenrieth with the Taurus handgun despite knowing that Autenrieth was not licensed to carry a firearm and was not permitted to possess a firearm as a result of the protection from abuse order that had been entered against him.

DISCUSSION

In her omnibus motion, defendant requests that the charges filed against her in Monroe County be dismissed, or in the alternative, transferred to Northampton County for improper venue. Defendant asserts that no agreement or overt act was committed in Monroe County in connection with the conspiracy charges, nor is it alleged that the firearm was lent or given to Autenrieth in Monroe County. Defendant further asserts that venue is only proper where overt acts occurred in furtherance of — not subsequent to — Autenrieth’s possession of a firearm. As such, defendant argues that Monroe County has no jurisdiction to hear this case. Instead, defendant contends that venue is proper only in Northampton or Berks County. The Commonwealth, in opposition to defendant’s motion, asserts that defendant has been charged as an accomplice and co-conspirator to Autenrieth’s possession of a firearm and for loaning a firearm to Autenrieth. Because these are possessory charges and Autenrieth was in possession of the handgun in Monroe County, the Commonwealth contends that jurisdiction of these charges may occur in this county.

Before addressing the substantive issues of defendant’s motion, we feel compelled to address the distinction between the terms jurisdiction and venue. We note that courts of this Commonwealth and attorneys frequently utilize the terms jurisdiction and venue interchangeably and that confusion remains regarding the two concepts. The Pennsylvania Supreme Court has expressly held that all courts of common pleas have statewide subject matter jurisdiction in cases arising under the Crimes Code. 42 Pa.C.S. §931; Commonwealth v. Bethea, 574 Pa. 100, 113, 828 A.2d 1066, 1074 (2003). “Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented.” Id. citing McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960). Venue, on the other hand, “relates to the right of a party to have the controversy brought and heard in a particular judicial district.” Id. The Supreme Court has further clarified this distinction as follows:

“Subject matter jurisdiction and venue are distinct. However, since jurisdiction references the power of a court to entertain and adjudicate a matter while venue pertains to the locality most convenient to the proper disposition of a matter, venue can only be proper where jurisdiction already exists.... The terms are often used interchangeably because they must exist simultaneously in order for a court to properly exercise its power to resolve a particular controversy.” Id. at 113-14, 828 A.2d at 1074-75.

Having clarified the distinction between jurisdiction and venue, we will now address the substantive merits of defendant’s omnibus pretrial motion. Because we find defendant’s motion to dismiss for improper venue dis-positive of this case, we will begin with that issue.

Our Supreme Court has established that “the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless, by some statute, it need not____” Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987). “For a county [trial court] to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county.” Id.; Commonwealth v. Donahue, 428 Pa. Super. 259, 270, 630 A.2d 1238, 1243 (Super. 1993). “In order to base jurisdiction on an overt act, the act must have been essential to the crime, an act which is merely incidental to the crime is not sufficient.” Boyle, at 112-13, 532 A.2d at 309-10.

The Supreme Court has also provided that “[although each court of common pleas within this Commonwealth possesses the same subject matter jurisdiction to resolve cases arising under the Pennsylvania Crimes Code, that jurisdiction should only be exercised beyond the territorial boundaries of the judicial district in which it sits in the most limited of circumstances.” Commonwealth v. Bethea, at 114, 828 A.2d at 1075. “Rules of venue recognize the propriety of imposing geographic limitations on the exercise of jurisdiction.” Id. Therefore, “[vjenue in a criminal action properly belongs in the place where the crime occurred. Id., citing Commonwealth v. Mulholland, 549 Pa. 634, 702 A.2d 1027 (1997).

In the Bethea case, our Supreme Court, in holding that venue in a criminal action properly belongs in the place where the crime occurred, stated:

“This practice recognizes the necessity of bringing a party to answer for his actions in the place where the crime itself occurred because that is where the evidence and witnesses will most likely be.. . . It would be nonsensical to transport defendants, evidence and witnesses from Philadelphia to Erie to resolve criminal charges arising in the former location before a judge and/or juiy sitting in the later location. A change of venue from the situs of the action to a different locale is permitted only upon good cause shown. Pa.R.Crim.P. §584.” Id. at 114, 702 A.2d at 1075.

In this case, defendant, Emily Gross, has been charged with accomplice and co-conspirator liability stemming from Autenrieth’s possession of the Taurus handgun in Monroe County. Autenrieth was not permitted to possess the gun as a result of the final PFA order entered against him on May 18, 2009. We will now review the law applicable to accomplice and conspiracy liability as it pertains to venue and whether the crimes charged against defendant can be prosecuted in Monroe County.

Accomplice Liability

Accomplice liability is discussed in pertinent part in the Pennsylvania Crimes Code as follows:

“Section 306. Liability for conduct of another; complicity
“ (a) General rule. — A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
“(b) Conduct of another. — A person is legally accountable for the conduct of another person when:
“(3) he is an accomplice of such other person in the commission of the offense.
“(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
“(1) with the intent of promoting or facilitating the commission of the offense, he:
“(ii) aids or agrees or attempts to aid such other person in planning or committing it;....” 18 Pa.C.S. §306(a)-(c).

Furthermore, one who aids or agrees or attempts to aid another person in planning or committing an offense may be convicted of the criminal acts of another on proof of the commission of the offense and of the accomplice’s complicity therein. 18 Pa.C.S. §306(g). “To ‘aid [and] abet’ in the commission of a crime, one must be an active partner in the intent to commit it!” Commonwealth v. Fields, 460 Pa. 316, 319, 333 A.2d 745, 747 (1975). While this may be established by circumstantial evidence, the proof must be more than would support suspicion or conjecture. Commonwealth v. Henderson, 249 Pa. Super. 472, 482, 378 A.2d 393, 398 (1977). “Mere presence at the scene of the crime and knowledge of its commission are not sufficient to prove that one has agreed or attempted to aid or is actually aiding in the commission of an offense.” Id.

Defendant has been charged with accomplice liability to Autenrieth’s possession of the handgun in violation of 18Pa.C.S. §6105(a)(l), possession of firearm prohibited. Section 6105(a)(1) provides as follows:

“(a)(1) Offense defined. — A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.” 18. Pa.C.S. §6105(a)(l).

Section (c) of the offense proscribes a person who is the subject of an active protection from abuse order issued pursuant to 23 Pa.C.S. §6108 from possessing, using, controlling, selling, transferring or manufacturing a firearm when the order provided for the relinquishment of firearms during the period of time the PFA was in effect. 18 Pa.C.S. §6105(c)(6).

The Commonwealth has also charged defendant with accomplice liability as to section 6115, loan on, or lending or giving firearms prohibited. That offense provides, in relevant part, that “[n]o person shall make any loan secured by mortgage, deposit or pledge of a firearm, nor ... shall any person lend or give a firearm to another or otherwise deliver a firearm contrary to the provisions of this subchapter.” 18 Pa.C.S. §6115(a).

Applying the law as set forth above to the facts of this case constrains us to hold that venue does not lie in Monroe County. The evidence, when reviewed in light most favorable to the Commonwealth, demonstrates that defendant purchased a handgun in Berks County while in the presence of Autenrieth and then took the gun to his home in Northampton County where she frequently stayed overnight. After Autenrieth showed defendant the use of the firearm, defendant returned the gun to the box in which it came and stored it at Autenrieth’s home over his washer and dryer. Defendant was aware that Autenrieth had utilized the weapon for target practice and that he had purchased ammunition to replace that which he had used.

These facts may demonstrate that defendant either directly intended for or tacitly acquiesced to Autenrieth’s possession of the firearm in Northampton County. However, these facts do not demonstrate that defendant intended or agreed for Autenrieth to lead police on a high speed pursuit through multiple jurisdictions or for Autenrieth to possess the gun in Monroe County. The record is devoid of any evidence that defendant intended or suspected, much less knew, that Autenrieth would engage in a shootout with police in Monroe County or anywhere else. We find that it was not foreseeable that Autenrieth would engage in such behavior ending in such tragic results for our law enforcement community in Monroe County.

The record contains no evidence that defendant intended to promote or facilitate Autenrieth’s possession, use or control of the gun in Monroe County or that defendant agreed for Autenrieth to possess the firearm in Monroe County. Nor does the record contain any evidence that defendant lent or gave the gun to Autenrieth with the intention that he possess or use it in Monroe County. Furthermore, the charge of unlawfully lending or giving the firearm to Autenrieth could only have occurred in Northampton County, thereby vesting venue in the Northampton County Court of Common Pleas but not in this court. Commonwealth v. Bethea, 51A Pa. 100, 114, 828 A.2d 1066, 1075 (2003) (holding that venue in a criminal action properly belongs in the place where the crime occurred). Absent some evidence that defendant intended or agreed for Autenrieth to possess the firearm in Monroe County, we are unable to stretch the concept of accomplice liability to such an extent as to find that venue is vested in this county.

Conspiracy Liability

With respect to the charge of criminal conspiracy, section 903(a) of the Crimes Code defines the crime of conspiracy as follows:

“(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
“(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
“(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.” 18Pa.C.S. §903(a) (IX (2).

The essence of every conspiracy is a common understanding, no matter how it comes into being, that a particular criminal objective be accomplished. Commonwealth v. Minnich, 236 Pa. Super. 285, 288, 344 A.2d 525, 526 (1975). Although the evidence must show more than a mere association, a “conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Id.; Commonwealth v. Horvath, 187 Pa. Super. 206, 211, 144 A.2d 489, 492 (1958). Just as with proof of accomplice liability under section 306, proof of guilt on a charge of conspiracy fails if it shows only that the accused was present at the scene of the crime and knew of its commission. Commonwealth v. Roscioli, 454 Pa. 59, 64, 309 A.2d 396, 399 (1973); Commonwealth v. Garrett, 423 Pa. 8, 13, 222 A.2d 902, 905 (1966).

For purposes of venue, it is well settled that within this Commonwealth, the situs of a criminal conspiracy is the “county where the unlawful combination or confederacy was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy.” Commonwealth v. Thomas, 410 Pa. 160, 164, 189 A.2d 255, 258 (1963). (emphasis in original) An overt act is distinguishable from that which rests merely on intention or design. Commonwealth v. Mezick, 147 Pa. Super. 410, 413, 24 A.2d 762, 764 (1942). An overt act as used in the law of conspiracy means an act done in furtherance of the object of the conspiracy. Id. In addition, if a conspiracy involves multiple criminal objectives, a person is guilty of only one conspiracy as long as such multiple crimes are the object of the same agreement or conspiratorial relationship. 18 Pa.C.S. §903(c). Generally, a conspiracy is punishable in the same manner and is graded as the most serious offense which is the object of the conspiracy. 18 Pa.C.S. §905(a).

Defendant has been charged as a co-conspirator with Autenrieth with respect to the charge of firearms not to be possessed without a license, 18 Pa.C.S. §6106(a)(l). That section provides, in pertinent part, as follows:

“(a)(1) Any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license ... commits a felony of the third degree.” Id.

The statute carves out numerous exceptions to this prohibition, such as allowing the transportation of an unloaded firearm in a secure wrapper from the place of purchase to the purchaser’s home. 18 Pa.C.S. §6106(b) (8).

In this case, the record does not contain any evidence of an agreement or overt act committed by defendant in Monroe County with the intent of promoting or facilitating Autenrieth’s unlawful possession of a firearm without a license. With respect to the situs of the alleged agreement between Autenrieth and defendant, the criminal complaint in this matter sets forth no connection with Monroe County. None of the allegations place defendant in a position to have reached a conspiratorial agreement with Autenrieth in Monroe County, nor do the allegations place defendant in a position to have aided or intended to promote or facilitate Autenrieth’s possession of the gun here.

Additionally, none of the acts alleged to have been committed by defendant in furtherance of the firearms violations occurred in Monroe County. The record is bereft of any evidence that defendant committed an overt act here in furtherance of any of the charges with which she is charged. Venue is appropriate only where an overt act was committed in furtherance of, not subsequent to, conspiracy. As such, any possession of the firearm by Autenrieth in Monroe County subsequent to his acquisition of it in Northampton County does not confer venue on this court.

By way of further explanation, once defendant left the handgun within the control of Autenrieth, the conspiracy was completed, the agreement and intention between Autenrieth and defendant was accomplished and the object of the conspiracy was completed — all of which occurred in Northampton County. Acts that occur after the completed conspiracy cannot possibly be said to have been committed in furtherance of any agreement or conspiracy. Although the criminal complaint contains allegations concerning Autenrieth’s later use of the handgun in Monroe County, that use is not an overt act in furtherance of any agreement between defendant and Autenrieth or the object of the alleged conspiracy because such object had already been completed — Autenrieth had obtained the firearm.

Our conspiracy statute clearly provides that a “conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired.” 18 Pa.C.S. §903(g)(l). Unless evidence exists that the conspirators originally agreed to take certain steps after the principal objective of conspiracy is reached, conspiracy does not continue after the criminal objective is committed. Commonwealth v. Evans, 489 Pa. 85, 92-93, 413 A.2d 1025, 1029 (1980).

Furthermore, we can find no case law or precedent in which a court has been asked to find venue to exist where the defendant’s contact with the judicial district has been as remote as it has been in this case. In our research, we were unable to find cases where a court exercised jurisdiction in a case where the defendant was never present in the county during either the making of the conspiratorial agreement or commission of an overt act in furtherance of the criminal objective. Nor were we able to find any case or precedent where the court found venue to be proper but the defendant never expressly intended for the crime or a part thereof to occur in the county or had contact with the victim while the victim was present in the venue at issue.

Parlaying the lack of precedent or case law as set forth above, we note that defendant was never present in Monroe County during the making of the alleged conspiratorial agreement nor was she ever present during or while committing an overt act in furtherance of the alleged criminal objective. Further, there is no allegation of or evidence that defendant ever intended for Autenrieth to come to Monroe County let alone for him to commit such horrible acts as he did in this jurisdiction. Going one step further, there are no allegations that defendant even had contact with anyone related to Monroe County.

To hold that defendant’s criminal liability extends for an unlimited duration of time and at any location at which Autenrieth may have possessed the firearm leads to absurd results. Under such a scenario, defendant could be prosecuted in any state where Autenrieth possessed the gun. If the high speed pursuit had ended in Nevada, for example, and the tragic shootout had taken place in that location, defendant would be able to be tried in that jurisdiction.

Further extending this hypothetical scenario would result in the defendant being subject to criminal charges in each and every jurisdiction in which Autenrieth possessed the handgun in question without any consideration of the statute of limitations for the offenses in question. For example, if Autenrieth had traveled with the gun to Clinton County one month, Bradford County six years later, and Cambria County 10 years thereafter, defendant could have been charged in each of those jurisdictions without the statute of limitations ever expiring. Under the Commonwealth’s theory, each time Autenrieth entered a new jurisdiction with the gun would constitute a new offense by defendant thereby effectively nullifying the statute of limitations in accomplice-and conspiracy cases. Such an expansive view defies all logic and the intentions of our criminal statutes. Thus, defendant’s conduct — whether as a co-conspirator or an accomplice, ended at the time she provided the handgun to Autenrieth — all of which occurred in Northampton County.

The Commonwealth argues that Monroe County does in fact have a geographical connection with the course of events that occurred when defendant’s co-conspirator (Autenrieth) possessed the firearm in Monroe County throughout his lengthy chase by the police. In support of its position, the Commonwealth cites in its brief several cases which it asserts support its contention that venue is proper in Monroe County. However, a review of the cases cited by the Commonwealth reveals that the Commonwealth’s assertions are misplaced. In fact, the cases cited by the Commonwealth are either inapplicable to the instant matter or held that jurisdiction and/or venue did not lie in the county in question.

The first case cited by the Commonwealth is Commonwealth v. Newton, 994 A.2d 1127 (Pa. Super. 2010). The Commonwealth cites to Newton for the proposition that an overt act need not accomplish the crime in question for conspiracy to occur, but rather only be in furtherance of the object crime. While we agree with the proposition of law asserted, Newton held that the evidence in that case was not sufficient to support the defendant’s conviction for conspiracy to commit identity theft. The charge arose out of the defendant’s participation in a scheme to ship laptop computers, purchased with a stolen credit card, to South Africa. The court, in vacating the judgment of sentence for conspiracy to commit identity theft, recognized that the record reflects no evidence that the defendant had any awareness that her co-conspirators had committed identity theft in obtaining the stolen credit cards, let alone a shared intent to facilitate the crime of identity theft. Although the Commonwealth cites the Newton case in support of proposition that venue in the case at bar should be in Monroe County, we find that Newton does not dictate that Monroe County is the correct venue, but rather requires us to find that we are not the appropriate venue for this case. As in Newton, the record in the case now before us reflects no evidence that defendant had any awareness that Autenrieth would take the handgun to Monroe County, let alone a shared intent to facilitate Autenrieth taking the gun to Monroe County.

The second case cited by the Commonwealth in support of its contention that venue of the present case should be in Monroe County is Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66 (2008). We find the Fithian case to be inapplicable and distinguishable from our case. Fithian concerned the application of our compulsory joinder statute to drug prosecutions. The drug transactions in question involved a defendant who resided in Montgomery County. The defendant arranged a meeting with undercover police from his home, and then met the undercover officer in Delaware County to arrange the drug transaction, but delivered the drugs to the undercover police in Philadelphia County. After delivery of the drugs in Philadelphia County, the defendant was arrested in Montgomery County and was found to be possessed of additional drugs.

Defendant was charged in Montgomery County with possession with intent to distribute and conspiracy. Defendant was also charged in Delaware County with simple possession, possession with intent to distribute, conspiracy, and possession of paraphernalia. The defendant entered a guilty plea in Montgomery County and filed a motion to dismiss the Delaware charges as being barred by the Montgomery County prosecution under the compulsory joinder statute. The Pennsylvania Supreme Court held that the prosecution for the offense of criminal conspiracy brought in Delaware County was barred by the compulsory joinder rule and the Montgomery County guilty plea. The court further held that that the prosecution for simple possession, possession with intent to deliver, and paraphernalia was not precluded.

We find the Fithian case inapplicable to our present case since it dealt solely with the interpretation of our compulsory joinder statute. Even if the matter were applicable to our pending case, it does not mandate venue in Monroe County. In Fithian, the defendant had direct contact in each of the counties in which charges were filed against him. He resided in Montgomeiy County and arranged portions of drug transactions from Montgomery County. The defendant also conducted portions of drug transactions in Delaware County and actually delivered drugs in Philadelphia County. In the case before us now, the record contains no evidence a all that defendant had any contact whatsoever with Monroe County. As such, we do not find Fithian to require venue of this case in Monroe County.

The last case cited by the Commonwealth is a Dauphin County Court of Common Pleas case, Commonwealth v. Keenan, 33 D.&C.3d 46 (1984). We find the Commonwealth’s reliance on Keenan to be wholly misplaced since the court in that case found that it had no jurisdiction.

In Keenan, the defendants were indicted by grand jury, tried and convicted in Dauphin County in connection with a scheme involving the distribution and sale of counterfeit automobile inspection stickers in the city of Philadelphia. The defendants filed post-trial motions arguing that their alleged criminal activity occurred in Philadelphia and therefore, there was no jurisdictional basis for their joint trial in Dauphin County. The prosecution, on the other hand, argued that the judge supervising the grand jury could establish venue in any county within the Commonwealth pursuant to 42 Pa.C.S. §4551. In effect, the prosecution argued that the supervising judge could establish venue in any county since, under 42 Pa.C.S.§931, every court of common pleas has original jurisdiction for criminal cases, but failed to cite to any authority to corroborate such a theory. Id. at 48-49.

The common pleas court ultimately concluded that neither jurisdiction nor venue was proper in Dauphin County. In reaching its conclusion, the Dauphin County court stated:

“It is true that 42 Pa.C.S. §931(a), in its broad grant of ‘unlimited original jurisdiction of all actions and proceedings,’ does vest courts of common pleas with jurisdiction to hear criminal matters.
“However, jurisdiction in criminal cases has further requirements of the occurrence of an overt act in the county, (citation omitted) The broad grant of authority in section 931 is a far cry from clothing all common pleas courts with jurisdiction to try any criminal case, regardless of where the crime occurred.” Id. at 49-50.

The Commonwealth cites Keenan for the proposition that “[wjhere a conspiracy is alleged, an overt act committed in a county by any one of the conspirators is sufficient for the county to assert jurisdiction over all.” While we agree with the above cited legal proposition, we disagree with the Commonwealth that the Keenan case supports a finding of venue in Monroe County in the case now pending since the Keenan court ultimately found that it did not have jurisdiction in that case. Extrapolating the theories from the Keenan case to the facts of our case supports our conclusion that neither venue nor jurisdiction is vested in Monroe County.

Finally, we feel compelled to address the letter the Commonwealth solicited from the district attorney of Berks County indicating that the Berks County DA would relinquish to Monroe County the prosecution of any offenses which could have been brought in Berks County. Although the district attorney from Berks County may agree that Monroe County can assume the prosecution of this case including the acts which took place in Berks County, we are forced to disregard such agreements. Having found that venue is improper in Monroe County, we are unable to assume prosecution of the acts that occurred in Berks County.

For the reasons stated above, venue for accomplice liability and conspiracy is proper in Northampton and Berks, and venue for unlawful lending and possession is proper in Northampton. Accordingly, while the Northampton and Berks County Courts of Common Pleas are appropriate venues to hold defendant accountable for her conduct in those counties, we are constrained to find that this court is not. Having reached this conclusion, we need not and cannot address the remaining issues raised in defendant’s omnibus pretrial motion, motion for habeas corpus and motion to compel bill of particulars. Those issues are more properly addressed by either the Northampton or Berks County Court of Common Pleas upon the filing of charges against the defendant in one of those judicial districts.

Accordingly, we enter the following order.

ORDER

And now, July 15,2010, upon consideration of defendant’s omnibus pretrial motion, this matter is dismissed for improper venue.

      . The criminal complaint filed against defendant on October 15, 2009 with Magisterial District Justice Anthony Fluegel charged defendant of the following crimes: (1) criminal conspiracy (18 Pa.C.S. §903(a)(l)) to commit firearms not to be carried without license (18 Pa.C.S. §6106(a)(l)); (2) criminal conspiracy (18 Pa.C.S. §903(a)(2)) to commit firearms not to be carried without license (18 Pa.C.S. §6106(a)(1)); (3) criminal conspiracy (18 Pa.C.S. §903(a)(l))to commit persons not to possess, use, manufacture, control, sell or transfer firearms (18 Pa.C.S. §6105(a)(1)); (4) criminal conspiracy (18 Pa.C.S. §903(a)(2)) to commit persons not to possess, use, manufacture, control, sell or transfer firearms (18 Pa.C.S. §6105(a)(1)); and (5) loans on, or lending, or giving firearms prohibited (18 Pa.C.S. §6115(a)).

      . Our Supreme Court held that “[w]here there is evidence that the [co-]conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such an agreement may reasonably be inferred, the conspiracy may be found to continue.... The crucial factor is the necessity for showing that the later activities were part of the original plan.” Commonwealth v. Evans, 489 Pa. 85, 93, 413 A.2d 1025, 1029 (1980). (internal citations omitted)

      . 42 Pa.C.S. §4551 applies to prosecution by an attorney general when a multicounty investigating grand jury returns a presentment against any person and states that the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction. 42 Pa.C.S. §4551(c)(d).


author: WALLACHMILLER, J,

text:
    Stillwater Lakes Civic Association Inc. v. Nieves

      C.P. of Monroe County,
    no. 12198 Civil 2008.

      Nicholas Charles Haros, for plaintiff.

      Stewart Irwin Rosenblum, for defendants.
    August 3, 2010
   WALLACHMILLER, J,

Defendant Michael Glassic, owns two units in the planned residential community of Stillwater Lakes Estates. As a property owner, Glassic is a member of plaintiff Stillwater Lakes Civic Association Inc., the non-profit corporation that manages and administers the common facilities in Stillwater Lakes Estates. On August 7, 2008, Glassic first recorded a meeting of plaintiff’s board of directors without permission. (Deposition of Glassic, p. 34, 11. 7-8.) Over the objections of board members, Glassic again videotaped plaintiff’s October 4, 2008 meeting. Glassic continued videotaping the meeting despite the board passing a resolution prohibiting recording or otherwise disrupting organized board or membership meetings. The board passed a subsequent resolution on October 18, 2008, prohibiting recording and disruption of Association board meetings subject to a $250 fine per offense. Glassic once more recorded a board meeting on November 15, 2008.

Plaintiff filed this action on December 17, 2008, to both prevent Glassic from recording future board meetings and for the deletion of prior recordings. This court dismissed Glassic’s preliminary objections on April 20, 2009, and granted plaintiff’s preliminary objections to Glassic’s answer on July 6,2009. Glassic’s appeal of our order to the Superior Court was quashed on December 16, 2009. Plaintiff now moves for summary judgment.

Pennsylvania’s Rules of Civil Procedure permit a party to move for summary judgment as a matter of law following the closing pleadings. Pa.R.C.P. 1035.2. It is well-established Pennsylvania law that summary judgment is only appropriate where no genuine issues of material fact necessary to an element of a cause exist. Abrams v. Pneumo Abex Corp., 602 Pa. 627, 635, 981 A.2d 198, 203 (2009). The moving party has the burden of proving that no genuine issues of material fact exist. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Id. at 204, 412 A.2d at 468-69. Thus, summary judgment is proper only when the entire record demonstrates that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Id. Summary judgment is an appropriate remedy where a party is seeking an injunction. P.J.S. v. Pennsylvania State Ethics Commission, 697 A.2d 286, 288 (Pa. Commw. 1997) (citing Hospital Association of Pennsylvania Inc. v. Foster, 157 Pa. Commw. 363, 629 A.2d 1055 (1993)).

An injunction gives the court the power to prohibit or command virtually any type of action. Big Bass Lake Community Association v. Warren, 950 A.2d 1137, 1144 (Pa. Commw. 2008). A party seeking a permanent injunction must establish three elements: (1) a clear right to relief; (2) that an injunction is necessary to avoid an injury that cannot be compensated by damages; (3) that a greater injury will result from refusing the injunction. Mazin v. Bureau of Professional and Occupational Affairs, 950 A.2d 382, 389 (Pa. Commw. 2008). Unlike a claim for a preliminary injunction, a plaintiff seeking a permanent injunction does not need to establish irreparable harm or the need for immediate relief. Buffalo Township v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 663-64 (2002). The power to grant or deny an injunction is within the court’s discretion under the circumstances and facts of the case. Big Bass Lake Community Association, 950 A.2d at 1144.

Plaintiff argues a clear right to relief exists as Glassic violated rules passed by the board prohibiting Association members from recording meetings. Under 68 Pa.C.S. §5302(a)(l), Unit Owner’s Associations may “adopt and amend bylaws and rules and regulations.” Similarly, plaintiff’s bylaws provide the board with power to make rules and regulations necessary to maintain order. The board exercised their power in issuing rules prohibiting the recording of meetings. As a member of the Association, the rules prohibiting recording meetings applied to Glassic. Glassic does not deny attending and recording meetings, despite the protests of board members. Glassic does not deny continuing to record despite rules passed by the board prohibiting such activity. Glassic also has several copies of previous recordings saved. (Deposition of Glassic, at p. 90, 11.10-23.) Plaintiff’s bylaws provide that any recordings of meetings shall be maintained by Association, rather than individual members such as Glassic. We thus find no issues of material fact exist denying plaintiff’s clear right to relief.

Plaintiff next argues that a final injunction is necessary to prevent a legal wrong as no adequate redress at law exists. Plaintiff argues that recording private board meetings would chill their discussions. Glassic admits to the actual chilling effect on board member April Bunjee caused by the recording of meetings. (Deposition of Glassic, p. 166, 11. 14-22.) Further, plaintiff fears more clips of recordings will appear on the internet edited by Glassic and out of context, portraying the board in a negative light.

Glassic contends an issue of fact exists, arguing that an injunction would not be necessary to prevent a harm that cannot be compensated by damages. Glassic argues that he has not recorded any meetings subsequent to receiving a cease and desist letter from plaintiff on December 21,2008, and essentially argues that an injunction is unnecessary as the matter is moot. However, our Pennsylvania Supreme Court has held that the mere fact that a practice has been abandoned does not render a controversy moot. Tamagno v. Waiters & Waitresses Union, Local No. 301, 373 Pa. 457, 461, 96 A.2d 145, 147 (1953). The court must determine whether the practice is likely to be resumed despite defendant’s assurances and the passage of time. Id. In the instant case, Glassic has expressed an interest in recording should the court not grant the injunction. Glassic feels the bylaws give him the right to videotape. (Deposition of Glassic, p. 113, 11. 19-20.) Further, Glassic admits that another person recorded the February 21, 2009 meeting at his request. {Id. at pp. 104-105 11. 19-25, 1-2.) We find Glassic’s assurances of recording, despite his assurances and the passage of time since receiving the cease and desist letter. As damages cannot compensate plaintiff’s ability to discuss Association matters freely, we find that a final injunction is necessary.

We finally turn to whether a greater harm will result if this court refuses to grant the injunction. As discussed above, it is likely that Glassic will continue to record if an injunction is not ordered. These recordings have a chilling effect on board members and hinder free discussion. We therefore find that a greater harm will result if an injunction from future recordings and an order to destroy existing copies is not granted. As such, we find no material issues of fact. We enter the following order accordingly.

ORDER

And now, August 3, 2010, upon consideration plaintiff’s motion for summary judgment, and following oral argument and a review of the briefs filed, plaintiffs motion is granted.