text:
    United Industries Corporation v. Leveraged Marketing Corporation of America

      Albert G. Bixler and Keith E. Smith, for plaintiff.

      Michael V. Phillips and Michael S. Pepperman, for defendant.
    Dec. 10, 2014
   MCINERNEY, J.,

I. BACKGROUND

On January 21,2004, Leveraged Marketing Corporation of America (“LMCA”) and Black Flag Brands, LLC (“Black Flag”) entered into a written trademark representation agreement whereby Black Flag designated LMCA as its exclusive licensing representative for its “Black Flag” trademark and agreed to pay LMCA certain commissions upon licensing the trademark (the “2004 TRA”). The 2004 TRA contains an arbitration provision whereby “[a]ny dispute or controversy arising out of or relating to this [agreement, or to the breach thereof, ...will be settled by arbitration before one arbitrator in Philadelphia, Pennsylvania, in accordance with the rules of the American Arbitration Association (AAA) then obtaining.” (2004 TRA ¶ 11.02.) Black Flag and LMCA are the only signatories to the 2004 TRA.

In 2010, LMCA brokered a written licensing agreement between Black Flag and Greenscapes Home and Garden Products, Inc. (“Greenscapes”) whereby Black Flag licensed its trademark to Greenscapes so that Greenscapes could sell a “Black Flag” line of bug zappers (the “2010 Greenscapes License Agreement”). The 2010 Greenscapes License Agreement identifies LMCA as Black Flag’s “sole agent/finder/broker in connection with this [agreement” and provides that Black Flag as the licensor shall bear “[a]ny and all commissions, fees and/or other monies due LMCA in connection with this [agreement....” (2010 Greenscapes License Agreement Art. 24.) The 2010 Greenscapes License Agreement does not contain an arbitration clause, does not mention the 2004 TRA, but does contain an integration clause stating, “[t]his agreement constitutes the entire [a] greement between the parties as to the [licensed [i]tems, and supersedes all prior agreements and understandings relating to this subject matter hereof.” (2010 Greenscapes License Agreement Art. 29.) Black Flag and Greenscapes are the only signatories to the 2010 Greenscapes License Agreement.

In 2011, United Industries Corporation (“United Industries”) entered into an asset purchase agreement whereby it purchased certain specified assets from Black Flag, Black Flag’s parent, Homax Group, Inc., and other Homax Group, Inc. affiliated companies (the “2011 APA”). The assets purchased included the 2010 Greenscapes License Agreement. United Industries paid the Homax entities more than $43 million to purchase these assets.

The 2011 APA makes clear that United Industries only purchased, and only assumed the rights and liabilities of the Homax entities with respect to, certain specified “Purchased Assets,” which included certain contracts specifically listed in the 2011 APAas “Assigned Contracts.” (See 2011 APA § 2.01-2.04.) The 2004 TRA is not listed as one of those “Assigned Contracts.” Accordingly, under the terms of the 2011 APA, the 2004 TRA is an “Excluded Contract” that United Industries did not purchase and was not assigned. (2011 APA § 2.02.) As to all “Excluded Liabilities,” including “Excluded Contracts,” the 2011 APA states United Industries “shall not assume and shall not be responsible to pay, perform or discharge any [liabilities of [the Homax entities] or any of their [a] ffiliates of any kind or nature whatsoever.” (2011 APA § 2.04.)

On or about April 1, 2014, United Industries received a copy of an American Arbitration Association (“AAA”) Demand for Arbitration from LMCA. The demand for arbitration sought to have United Industries, Black Flag, and Homax BF Holdings Corp. participate in an arbitration hearing in Philadelphia, Pennsylvania based on allegations that United Industries, Black Flag, and/ or Homax BF Holdings Corp. owe LMCA commissions on the licensing royalties United Industries has received from Greenscapes subsequent to its purchase of the 2010 Greenscapes License Agreement in 2011 as part of the 2011 APA. The demand for arbitration also stated that LMCA was demanding arbitration pursuant to the 2004 TRA and attached a copy of the 2004 TRA.

In correspondence to LMCA and the AAA case administrator, United Industries objected to the jurisdiction and authority of the AAA and its arbitrators over United Industries, and to the arbitrability of any issues relating to any claims LMCA may have against United Industries on the grounds that no arbitration agreement exists between LMCA and United Industries. In a May 13,2014 email, the AAA case administrator advised that the AAA would proceed to administer the arbitration commenced by LMCA, including against United Industries, in the absence of an agreement by the parties or a court order staying this matter.

On June 9, 2014, United Industries filed a complaint and a motion against LMCA seeking to enjoin LMCA from continuing to pursue the pending AAA arbitration against it. In its motion, United Industries argued it “is not a party to or otherwise bound by the arbitration provision in the [2004] TRA” and “[a]bsent exceptional circumstances, non-signatories to a contract are not subject to an arbitration clause in that contract.” (Pl.’s Mem. pp. 8-9.) United Industries stated “[cjourts have recognized five contract theories on which a non-signatory may be bound to a contractual arbitration clause: (1) incorporation by reference; (2) assumption; (3) agency; (4) veil piercing/ alter ego; and estoppel.” (Pl.’s Mem. p. 10 (citation omitted).) United Industries argued LMCA cannot show any of these theories apply.

Regarding incorporation by reference, United Industries stated “[t]he only conceivable link between United Industries and LMCA is the 2010 Greenscapes License Agreement that United Industries did purchase and assume from Black Flag....” (Pl.’s Mem. p. 12.) United Industries then, however, proceeded to argue:

Although the [2010] Greenscapes License Agreement identifies LMCA as the agreement’s broker, LMCA is not a party to that [agreement. And even if LMCA could claim any rights under the [2010] Greenscapes License Agreement, that agreement itself contains no arbitration provision and does not even mention the [2004] TRA, let alone purport to incorporate any provisions of the [2004] TRA. To the contrary, the [2010] Greenscapes License Agreement contains an integration clause that expressly refutes the incorporation of any other agreements.... Thus, there is no basis for finding the [2010] Greenscapes License Agreement somehow incorporates any part of the [2004] TRA, let alone the arbitration provision in the [2004] TRA.

(Pl.’s Mem. p. 12 (citations omitted).)

Regarding estoppel, United Industries cited a number of cases addressing the theory and argued that “[h]aving never exploited or even relied on the [2004] TRA to claim or receive any direct benefit under that contract, United Industries cannot be equitably bound to the [2004] TRA’s arbitration clause.” (Pl.’s Mem. p. 14 (emphasis removed).) To the contrary, United Industries stated that although it did obtain Black Flag’s rights to the 2010 Greenscapes License Agreement, “it did not receive those rights directly from the 2004 TRA.” (Pl.’s Mem. p.13.) Rather, United Industries argued it received those rights “, along with the other specified ‘Purchased Assets’ by paying more than $43 million to the Homax [e]ntities in a separate 2011 asset purchase transaction.” (Pl.’s Mem. p. 13.)

On June 23,2014, LMCAfiled a response in opposition to United Industries’ motion to enjoin arbitration. Therein, LMCA argued the 2004 TRA is incorporated by reference into the 2010 Greenscapes License Agreement because the later agreement “expressly references the obligation to pay commissions to LMCA” by stating “[Black Flag’s] sole agent/finder/broker in connection with this [ajgreement is [LMCA].... Any and all commissions, fees and/or other monies due LMCA in connection with this [agreement shall be borne by [Black Flag].”’ (Def.’s Mem. pp. 5-6 (quoting 2010 Greenscapes License Agreement Art. 24).) LMCA also argued in terms of estoppel that United Industries “incorrectly claims that it did not receive any right to the [2010] Greenscapes License Agreement directly through the [2004 TRA] or any efforts of LMCA...” (Def.’s Mem. p. 6 (quotations omitted).) Rather, LMCA asserted the 2010 Greenscapes License Agreement references LMCA and its “effort, expended pursuant to the [2004 TRA], is the sole reason why [United Industries] has been paid hundreds of thousands of dollars in royalties by Greenscapes under the [2010] Greenscapes License Agreement.” (Def.’s Mem. pp. 6-7 (emphasis removed).)

On June 26, 2014, United Industries filed a reply in further support of its motion to enjoin arbitration. Therein, United Industries stated:

As a whole, LMCA’s response to United Industries’ motion mischaracterizes the underlying facts, overstates the limited grounds upon which a non-signatory to a contract can be bound to an arbitration provision in that contract, and ignores critical differences between the facts of this case and the cases LMCA cites in support of its position.

(Pl.’s Reply p. 1.)

In terms of incorporation by reference, United Industries then argued “New York law, which LMCA asserts applies to this dispute, imposes an exacting standard for a contract to be incorporated by reference into another contract: the paper to be incorporated into a written instrument by reference must be so referred to and described in the instrument that the paper may be identified beyond all reasonable doubt.” (Pl.’s Reply p. 3 (quotations omitted).) In arguing that the standard is not met in this case, United Industries asserted the 2010 Greenscapes License Agreement does not reference the 2004 TRA, much less purport to incorporate any of its terms. Rather, according to United Industries, the provision that LMCA references merely identifies it as Black Flag’s broker for the 2010 Greenscapes License Agreement and establishes that as between Black Flag and Greenscapes, any monies that may be due LMCA shall be borne by Black Flag. “It does not recognize that any such monies are, in fact, due LMCA or identify any contract between LMCA and [Black Flag],” according to United Industries.

In terms of direct benefit and estoppel, United Industries reiterated that “[a] party that benefits from the contract containing the arbitration clause only indirectly is not estopped from denying an obligation to arbitrate.” (Pl.’s Reply p.5 (citations omitted).) And United Industries again asserted “the only entity to receive any direct benefit from the 2004 TRA was Black Flag” and that it, United Industries, “subsequently obtained the [2010] Greenscapes License Agreement, not from LMCA’s efforts under the [2004] TRA, but by paying millions of dollars to Black Flag ... and the other Homax entities in a separate, arms length asset purchase transaction.” (Pl.’s Reply p.6.)

By order dated July 30, 2014 and docketed July 31, 2014, this court scheduled a hearing for the matter. At the August 11,2014 hearing, the parties reiterated their written arguments. Counsel for United Industries, however, also made clear:

If they want to bring everything here and bring it all in court, we’re not saying they can’t sue us for any purpose. We’re just saying they can’t make us arbitrate, and that’s a big distinction. We’re not saying that they are out of court and they can’t ever sue us. They can sue us. *** Whether they have a right to relief and whether they have a right to get any commissions from us is not the issue before the court. It’s purely can they force us to go to ... arbitration when we never agreed to arbitrate. That’s it. If they want to come here and sue us, if they think it is going to be more efficient to bring everybody here, file a counterclaim, they can do that. We can’t stop them. But to force us to arbitrate, to force us to give up our Constitutional right to be heard in court, to be heard by a jury, that is something they cannot do.

(N.T., Aug. 11,2014, p. 33.)

By order dated August 12, 2014 and docketed August 13, 2013, this court granted United Industries’ motion to enj oin arbitration and ordered that LMCA was permanently enjoined from pursuing its pending arbitration against United Industries. Thereafter, LMCA appealed and this court ordered it to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement. LMCA complied and makes the following complaints of error:

a. [this] [c]ourt erroneously failed to find that the [2004 TRA] is incorporated by reference into the [2010] Greenscapes License Agreement.
b. [this] [c]ourt erroneously failed to find that [United Industries] directly benefitted from and exploited the [2004 TRA].
c. [this] [c]ourt erroneously failed to find that [United Industries] is estopped from avoiding arbitration under the [2004 TRA].
d. [this] [c]ourt erroneously found that [United Industries] has a clear right to injunctive relief.
e. [this] [c]ourt erroneously failed to find that greater injury will arise from an injunction than if an injunction was not issued.

(Def.’s 1925(b) Statement ¶3.) This court will address LMCA’s complaints under the following three categories: (a) incorporation by reference; (b) direct benefit and equitable estoppel; and (c) United Industries’ right to permanent injunctive relief.

II. DISCUSSION

The 2004 TRA sets forth the terms by which LMCA would broker and service licensing agreements for Black Flag in the United States and Canada. (2004 TRA pp.l-2.” As such, the agreement affects interstate commerce and is subject to the Federal Arbitration Act (“FAA”). See Moscatiello v. Hilliard, 939 A.2d 325, 328 (Pa. 2007) (stating the FAA “applies to any agreement affecting interstate commerce.”) “The fundamental purpose of the [FAA] is to relieve the parties from expensive litigation and to help ease the current congestion of court calendars.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. Ct. 2013) (quotations omitted). “Its passage was a congressional declaration of a liberal federal policy favoring arbitration agreements.” Id. (quotations omitted). “This policy, however, was not intended to render arbitration agreements more enforceable than other contracts, and the FAA had not been designed to preempt all state law related to arbitration.” Id. at 661 (quotations omitted). “Rather, when addressing the specific issue of whether there is a valid agreement to arbitrate, courts generally should apply ordinary state-law principles that govern the formation of contracts...” Id. (quotations omitted).

Under Pennsylvania law,

[arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue. Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, arbitration agreements are to be strictly construed and such agreements should not be extended by implication. In general, only parties to an arbitration agreement are subject to arbitration. However, a nonparty, such as a third-party beneficiary, may fall within the scope of an arbitration agreement if that is the parties’ intent.

Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa. Super. Ct. 2012) (citations omitted).

Under New York law, which governs the 2004 TRA, (see 2004 TRA¶ 11.02), the law is the same. “Arbitration is a matter of contract, grounded in agreement of the parties.” Belzberg v. Verus Investments Holdings Inc., 999 N.E.2d 1130, 1133 (N.Y. 2013) (citations and quotations omitted). “As a consequence, notwithstanding the public policy favoring arbitration, nonsignatories are generally not subject to arbitration.” Id. (citations omitted). “However, under limited circumstances nonsignatories may be compelled to arbitrate.” Id. (citation omitted).

As a non-signatory to the 2004 TRA, United Industries is not subject to the arbitration clause contained therein unless LMCA can show an alternative basis for subjecting United Industries to the terms of the 2004 TRA. Courts have recognized five theories for binding non- signatories to arbitration agreements: (1) incorporation by reference; (2) assumption; (3) agency; (4) veil piercing or alter ego; and (5) estoppel. See, e.g., Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005); Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773, 776 (2d Cir. 1995). LMCA complains this court erred in not finding United Industries subject to the arbitration clause contained in the 2004 TRA under the first and fifth theories: incorporation by reference and equitable estoppel.

A. Incorporation by Reference

New York law, which LMCA asserts applies to this dispute, imposes a stringent standard for one contract to be incorporated by reference into another contract. Specifically, New York law requires that the contract to be incorporated by reference “must be so referred to and described in” the other contract that the contract to be incorporated “may be identified beyond all reasonable doubt.” Paine Webber Inc. v. Bybyk, 81 F.3d 1193, 1201 (2d Cir. 1996), citing Chiacchia v. National Westminster Bank USA, 124 A.D.2d 626, 628 (N.Y. App. Div. 2d Dep’t 1986). Under New York law, “[wjhile a party’s failure to read a duly incorporated document will not excuse the obligation to be bound by its terms, a party will not be bound to the terms of any document unless it is clearly identified in the agreement.” PaineWebber, 81 F.3d at 1201 (citing New York law).

Here, the 2010 Greenscapes License Agreement does not incorporate the 2004 TRA or its arbitration provision by reference. Neither the 2004 TRA nor its arbitration provision was referred to or described in the 2010 Greenscapes License Agreement. While Article 24 of the 2010 Greenscapes License Agreement identifies LMCA as the broker for the agreement and states that “[a]ny and all commissions, fees and or other monies due LMCA in connection with [the] [agreement shall be borne exclusively by [Black Flag,]” that provision merely establishes that as between Greenscapes and Black Flag, any monies which may possibly be due LMCA shall be paid by Black Flag. It does not recognize that any such monies are in fact due to LMCA, much less identify the 2004 TRA. In the opinion of this court, the 2010 Greenscapes License Agreement’s mere reference to LMCA is insufficient to incorporate the arbitration provision of a second contract that is not even identified in, let alone expressly incorporated into, that agreement. Moreover, the 2010 Greenscapes License Agreement contains an integration clause that states it — the 2010 agreement — is the entire agreement between Black Flag and Greenscapes, which makes it even less likely that an unmentioned, unidentified contract was meant to be incorporated by reference into it. It is for these reasons that there was no error in failing to find that the 2004 TRA is incorporated by reference into the 2010 Greenscapes License Agreement as LMCA complains.

B. Direct Benefit and Equitable Estoppel

Pursuant to the New York law which LMCA asserts applies to this dispute, “[a] nonsignatory to an agreement containing an arbitration clause that has knowingly received direct benefits under the agreement will be equitably estopped from avoiding the agreement’s obligation to arbitrate.” HRH Const. LLC v. Metro. Transp. Auth., 33 A.D.3d 568, 569 (N.Y App. Div. 1st Dept. 2006). Or stated another way, under this “direct benefits theory of estoppel,” “a nonsignatory may be compelled to arbitrate where the nonsignatory ‘knowingly exploits’ the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement.” Belzberg, 999 N.E.2d at 1134. Where benefits are merely “indirect,” “anonsignatory cannot be compelled to arbitrate a claim.” Id. Benefits are “indirect where the nonsignatory exploits the contractual relation of the parties, but not the agreement itself.” Id. In distinguishing between direct and indirect benefits, the Court of Appeals of New York has explained:

The guiding principle is whether the benefit gained by the nonsignatory is one that can be traced directly to the agreement containing the arbitration clause. The mere existence of an agreement with attendant circumstances that prove advantageous to the nonsignatory would not constitute the type of direct benefits justifying compelling arbitration by a nonparty to the underlying contract.

Id. at 1136. In other words, “a connection based on mere extended causality is beyond the intended scope of the direct benefits theory.” Id. The Court of Appeals of New York has also explained, “absent the nonsignatory’s reliance on the agreement itself for the derived benefit, the theory would extend beyond those who gain something of value as a direct consequence of the agreement.” Id.

With these principles in mind this court concluded that any benefit United Industries received from the 2004 TRA was at best “indirect” and it was not estopped from avoiding arbitration. Here, LMCA argued United Industries directly benefited from the 2004 TRA because its “effort, expended pursuant to the [2004 TRA], is the sole reason why [United Industries] has been paid hundreds of thousands of dollars in royalties by Greenscapes under the [2010] Greenscapes License Agreement.” (Def.’s Mem. pp. 6-7 (emphasis removed).) That is not true.

The royalties United Industries has been paid are “directly” traceable to its multi-million dollar purchase of the 2010 Greenscapes License Agreement as part of its 2011 APA with Black Flag and other Homax entities, not any work performed by LMCA pursuant to the 2004 TRA. The work LMCA performed under the 2004 TRA with respect to the 2010 Greenscapes License Agreement was performed for Black Flag and before any acquisition of assets by United Industries. As such, the entity to receive a “direct” benefit from the 2004 TRA was Black Flag and any benefit United Industries received by LMCA procuring the 2010 Greenscapes License Agreement in the first place was at best “indirect” as it is a “a connection based on mere extended causality [,] [which] is beyond the intended scope of the direct benefits theory.” Belzberg, 999 N.E.2d at 1136 (while noting there would not have been profits for the person seeking to avoid arbitration to divert absent the agreement containing the arbitration clause, concluding the person could not be compelled to arbitrate as he was “several steps removed from the formation of the arbitration agreement” and the connection was “based on mere extended causality....”).

Since the 2011 asset purchase, United Industries has not relied on the 2004 TRA in order to be paid royalties by Greenscapes. Rather, it has relied on the 2010 Greenscapes License Agreement itself and its purchase thereof in order to be paid royalties by Greenscapes. Nor has it made claims against LMCA under the 2004 TRA or demanded or received any services LMCA owes to the “licensor” under the 2004 TRA. With these facts, the principle of equitable estoppel does not apply. LMCA’s argument is based on mere extended causality, which is beyond the intended scope of the direct benefits estoppel theory. Thus, there was no error in failing to find United Industries (1) directly benefitted from and exploited the 2004 TRA or (2) is estopped from avoiding arbitration under the 2004 TRA as LMCA complains.

C. United Industries’ Right to Permanent Injunctive Relief

“[A] party who can establish that [it] did not agree to arbitrate ... may be entitled to enjoin an arbitration proceeding.” Flightways Corp. v. Keystone Helicopter Corp., 331 A.2d 184, 185 (Pa. 1975). See also AT & TMobility LLC v. Smith, 2011 WL 5924460, at *3 (E.D. Pa.2011) (noting the court’s power to enjoin arbitration under the FAA if appropriate). In Pennsylvania, “[i] njunctive relief is considered an extraordinary equitable remedy and it is to be granted only where the ... party [seeking injunctive relief] has established that immediate and irreparable harm, which cannot be compensated by damages, will result if the injunction is denied.” Grimes v. Enter. Leasing Co. of Philadelphia, LLC, 66 A.3d 330, 340 (Pa. Super. Ct. 2013), appeal granted in part sub nom, Grimes v. Enter. Leasing Co. of Philadelphia, 84 A.3d 1058 (Pa. 2014). “Furthermore, the party seeking to enjoin certain conduct must demonstrate that greater injury would result by refusing the injunction than by granting it.” Grimes, 66 A.3d at 340. “Ultimately, the grant or denial of a permanent injunction will turn on whether the [trial] court properly found that the party seeking the injunction established a clear right to relief as a matter of law.” Id. (quotations omitted).

In this case, United Industries established a clear right to relief. “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). As discussed above, there was no valid arbitration agreement between United Industries and LMCA. Accordingly, United Industries had a clear right to enjoin the arbitration LMCA had pending against it.

Moreover, without injunctive relief, United Industries would have suffered a legal wrong for which there is no adequate remedy at law. Courts have recognized “[b]eing forced to arbitrate a claim one did not agree to arbitrate constitutes an irreparable harm for which there is no adequate remedy at law.” UBS Sec., LLC v. Voegeli, 405 F. App’x 550, 552 (2d Cir. 2011); Law Office of Marvin Lundy v. Whitehaven S.F., LLC, 2010 WL 4178643, at *7 (E.D. Pa. 2010) (recognizing the same). The harm occurs not only by forcing a party “to expend time and resources arbitrating an issue that is not arbitrable, and for which any award would not be enforceable,” Merrill Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 129 (2d Cir. 2003), but by infringing upon important rights, including constitutional rights, the party might otherwise enjoy, see Pisano, 77 A.3d at 661-62 (noting that “compelling arbitration upon [wrongful death claimants] who did not waive their right to a jury trial would infringe upon [the] wrongful death claimants’ constitutional rights.”); NASDAQ OMX Grp., Inc. v. UBS Sec. LLC, 957 F. Supp. 2d 388, 402 (S.D.N.Y. 2013) (noting “’[i]t is not merely expense that underlies the prohibition against forcing a party to arbitrate a dispute that it did not agree to arbitrate,’ but also the concern that a party will ‘lose its right to have [its] claim adjudicated in a court of law, rather than an arbitral forum to whose jurisdiction it has not consented.’”). Loss of such fundamental rights constitutes irreparable harm for which there is no adequate remedy at law.

Finally, greater injury would result by refusing the injunction than by granting it. In comparison to the per se harm that would have befallen United Industries if LMCA would have been permitted to continue its arbitration against United Industries, LMCA could only point to potentially greater expenses and the possibility of inconsistent rulings as potential harm. These potential harms are not enough to offset the certain and significant harm to United Industries, particularly in light of the fact that LMCA has no legitimate right to have its claims against United Industries decided by arbitration as there is no arbitration agreement between them.

In conclusion, for the reasons provided above, United Industries had a clear right to relief as a matter of law. Thus, there was no error in permanently enjoining LMCA from pursuing its pending arbitration against United Industries and this court should be affirmed.


source: Caselaw Access Project

author: FORADORA, J.,

license: Public Domain

text:
    Commonwealth v. Shepler

      C.P. of Jefferson County,
    Nos. CP-33-CR-496-2009; CP-33-CR-301-2010
    June 27, 2014
   FORADORA, J.,

Factual and Procedural History

The defendant, Shane Shepler (“Shepler”), was found guilty by an Indiana County jury on October 22, 2012 of committing the crimes of Retail Theft and Receiving Stolen Property. {Gagnon I Transcript, 01/30/2013, p. 2). Sentencing occurred on November 21, 2012. {Id.). This court subsequently took judicial notice of that conviction at a Gagnon I hearing, deeming it to be sufficient to establish that Shepler had violated his probation. {Id. at 2-3). Relative to that proceeding, the defendant had also been charged with failing to report on May 1, 2012. {Id. at 2). He explained that he had not received his probation officer’s voicemail instructing him to report that day, {id. at 3), and the court did not issue a finding one way or the other on that technical violation. It then resentenced him to an aggregate term of 3 1/2 — 7 years in prison on account of the new charges. {Gagnon II Transcript, 02/19/2013, pp. 3-4).

Sometime after Shepler was resentenced by this court, the trial court in Indiana, in response to his PCRA petition, reversed his convictions, and by order dated November 4, 2013, the presiding judge granted the Commonwealth’s “motion to nol pros” based on its declaration that “a nol pros should be entered in this case because the Commonwealth does not feel that a retrial is warranted.” Def. Exh. A.

A month earlier, Shepler had filed a PCRA petition in this county alleging that his victim also should have been charged for the incidents that led to his original convictions. When he later became aware of the nol pros, he also asked this court to reconsider its probation sentence in light of that development. PCRA counsel later filed an amended petition raising the same issue and asking the court to either invalidate its February 19,2013 sentence or grant the defendant a new sentencing hearing on account of the relevant developments in Indiana County.

The parties agree that this court’s earlier judgment cannot stand since it relied on Shepler’s conviction. They disagree, however, on available remedies, Shepler positing that the court may now only consider the technical violation for purposes of re-hearing, and the Commonwealth arguing that it may elect to prove the receiving and retail theft at a full evidentiary hearing. For the reasons to follow, the court concurs with the Commonwealth’s position.

Discussion

Commonwealth v. Royster, 572 A.2d 683 (Pa. 1990), the Commonwealth concedes, controls on the issue of whether Shepler’s revocation is sustainable in light of what occurred in Indiana County. There, as here, the revocation court revoked the defendant’s probation and re-sentenced him solely on the basis of his new conviction, the Commonwealth having elected not to present evidence of the underlying acts that led to the conviction. Id. at 684-86. Eight months later, the trial judge granted his post-sentence motion and arrested judgment on double jeopardy grounds. Id. The defendant then challenged the constitutionality of the revocation, contending that it could not stand when its foundation had been undermined. Id. at 683-84. Our Supreme Court agreed, explaining that “[bjecause the trial court arrested judgment on the conviction, the Commonwealth cannot be found to have established by a preponderance of the evidence that appellant committed the offense. Revocation of probation and re-sentencing appellant to a term of imprisonment was therefore improper.” Id. at 686.

In this case, the essential facts are indistinguishable. While Shepler was in the process of appealing his Indiana County conviction, this court revoked his probation after finding him in violation as a result of the new conviction. The Commonwealth, however, had established only the fact of the conviction at the revocation hearing; it did not introduce any evidence to prove the underlying facts. When the trial court approved the Commonwealth’s motion for nol pros after reversing the Indiana County conviction, therefore, Shepler found himself in the same legal position as the Royster defendant, i.e., with a probation revocation founded upon facts that no longer existed as a matter of law. As was the Royster defendant, therefore, Shepler is entitled to have the February 19, 2013 judgment of sentence vacated.

Because a judgment of nol pros is not the functional equivalent of an acquittal, however, Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983), does not preclude the Commonwealth from proving the retail theft and receiving at a new revocation hearing.

The court determined in Brown that it would violate the doctrine of collateral estoppel and would be “unseemly” and “fundamentally unfair” to permit the Commonwealth to prove a “new crimes” probation violation based on the same facts that had resulted in an acquittal at trial. Id. at 1375-78. If the Commonwealth chose to defer violation proceedings until after the trial, it reasoned, the defendant should not be required to defend against the same factual allegations a second time when a judge or jury had already found him not guilty. Id. Brown, however, did not address the propriety of a subsequent violation hearing where the absence of a conviction arose from a judgment that did not entail a factual resolution.

Unlike the defendant in Brown, Shepler was not acquitted; neither jury nor judge listened to the facts and concluded that the Commonwealth had not proven him guilty beyond a reasonable doubt. On the contrary, a jury found just the opposite. After the trial judge reversed his conviction, however, the Commonwealth elected not to retry him. In taking that procedural step, the Commonwealth foreclosed the possibility of a renewed conviction. Far from mimicking an acquittal, though, that step also left the factual questions wholly unresolved.

Brown, therefore, is inapposite, its reasoning having no application where the facts underlying a probationer’s new charges have not already been resolved in his favor. Accordingly, that Shepler’s retail theft and receiving stolen property charges were resolved via nol pros rather than a judgment of acquittal means that he cannot rely on Brown to avoid a violation hearing at which the Commonwealth may attempt to prove one or both of those offenses as the basis for proving that he violated the conditions of his probation.

As for Shepler’spro se allegation, that someone else did not get charged relative to the same series of events that led to a defendant’s conviction is not grounds for relief under the Post Conviction Relief Act. See 42 Pa.C.S.A. § 9543 (articulating the eligibility requirements, including the available grounds, for PCRA relief).

Insofar as the only relief to which Shepler is entitled is to have his Gagnon sentence vacated, therefore, the court shall enter the order to follow.

ORDER

And now, this 27th day of June, 2014, for the reasons articulated in the foregoing opinion, it is hereby ordered and decreed that the defendant’s petition for post-conviction relief is granted in part. Accordingly, the judgment rendered by this court on February 19, 2013 is vacated. In all other respects, the defendant’s petition is denied.

It is further ordered that the Commonwealth shall notify the court within thirty (30) days of whether it intends to present evidence of the “new charges” at a new evidentiaiy hearing.


author: CEISLER, /.,

text:
    In re Condemnation Proceeding

      Richard L. Bazelon and Michael A. Shapiro, for appellant.

      Laura Walsh Kern, for appellee.
    Sept. 19, 2014
   CEISLER, /.,

The instant appeal, filed by condemnees-appellants James E. Dupree and Anita Brook Dupree (hereinafter “appellants”), stems from this court’s June 26, 2014 order, which reaffirmed this court’s original order overruling of appellants’ preliminary objections in their entirety and denied appellants’ request to amend their preliminary objections.

I. PROCEDURAL HISTORY AND FACTS

On December 27, 2012, condemner-appellee Philadelphia Redevelopment Authority (hereinafter “appellee” or “RDA”), filed a declaration of taking and recorded a notice of condemnation, seeking to acquire a number of blighted properties in Philadelphia’s Mantua neighborhood, in order to redevelop them for commercial and residential use. Declaration of taking at 2. This condemnation action included, among others, three parcels owned by appellant: 3617, 3619, and 3621 Haverford Avenue (hereinafter collectively referred to as “property”). Id. at 2, Ex. B. Appellants operate an art studio, gallery, and teaching facility consisting of a single building that spans 3617 and 3619 Haverford Avenue, while 3621 Haverford Avenue is an unimproved lot. Appellee’s Br. at 2; appellants’ Br. at 2.

Appellants filed preliminary objections on February 7, 2013, arguing that both the notice of condemnation and the declaration of taking were fatally deficient. On February 28,2013, appellee filed an answer to appellants’ preliminary objections. In an order dated July 17, 2013 (hereinafter “July 17, 2013 order”), this court scheduled a hearing regarding the sufficiency of appellee’s bond and overruled appellants ’ remaining preliminary obj ections. On August 16,2013, both parties stipulated to the withdrawal of appellants’ preliminaiy objection to appellee’s bond. On the same day, appellants filed a notice of appeal with the Commonwealth Court of Pennsylvania regarding this court’s July 17, 2013 order.

On August 19,2013, this court ordered appellants to file a statement of errors complained of, pursuant to Pa. R. A.P. 1925fb). In the statement of errors, appellants contended, among other issues, that the court erred in overruling its preliminary objections because the declaration of taking did not authorize the condemnation of the property, and the notice of condemnation was defective as to the condemnation of the property. In response to the statement of errors, this court filed an opinion on November 5,2013. In preparing the opinion, this court became aware, for the first time, that the ordinance of September 14, 2006 (hereinafter “ordinance”), upon which appellee relied for the authority to condemn the property, did not include one of the three parcels, 3617 Haverford Avenue, on the list of parcels authorized for condemnation. Ceisler Opinion 11/5/2013 at 3. Because neither party had addressed this omission, this court raised the issue sua sponte in its opinion and requested that the appeal be remanded in part, so the parties could address the limited issue of this parcel’s absence from the ordinance. Id. As for the remainder of the preliminary objections addressed in this court’s first opinion, this court requested that the appeal be denied for the reasons set forth at length therein. Id. The parties subsequently filed a joint application for remand, and the Commonwealth Court granted the application on January 31, 2014, thereby remanding the appeal to this court.

On February 19, 2014, pursuant to the Commonwealth Court’s decision to remand the appeal, this court scheduled a hearing for April 23,2014. The court’s Scheduling order directed the parties to address the following discreet issue at the hearing “appellee’s authority to condemn 3617 Haverford Ave.” Scheduling order 2/19/2014 at 1.

At the hearing, although both parties were informed that the court would only address appellee’s authority to condemn 3617 Haverford Avenue, appellants immediately informed the court that they wished to present evidence unrelated to this issue and raise additional preliminary objections. See N.T. 4/23/14 at 6:1-9; 11:1-5; 12:9-18. Appellants argued that if the court heard evidence as to one issue, the record would be opened in its entirety, creating a novo situation” as to all legal issues in the case. See id., at 6:9-12; 18:3-16.

Appellee, by contrast, averred that 3617-3619 Haverford Avenue is a single stand-alone building, and that omitting 3617 Haverford Avenue from the condemnation action would essentially require that this single building be cut in half, so to speak, with only a portion of a single building escaping condemnation — an obviously absurd and unintended outcome. See id. at 14:9-15, 23-25; 15:1-3. Appellee sought to support this argument by calling Tania Nicolic, the RDA’s Deputy Executive Director of Development. See id. at 27:8-29:2; however, because appellants repeatedly argued that they should be able to raise preliminary objections outside of this issue, the court directed the parties to submit supplemental briefs on the issues of (1) whether there was law stating that the omission of 3617 Haverford Avenue was fatal to the condemnation plan and (2) whether the court should allow new preliminary objections. See id. at 25:6-15; 30:21-25; 31:12-18.

On May 14, 2014, appellants submitted their brief in response to these questions, and on May 23,2014, appellee submitted its brief in response. After consideration of oral arguments and the briefs, the court reaffirmed its July 17, 2013 order overruling appellants’ preliminary objections in their entirety and, in addition, denied appellants’ request to amend their preliminary objections. Ceisler Order 6/26/2014 at 1. On July 24, 2014, appellants filed the instant appeal to the Commonwealth Court. On that same day, this court ordered appellants to file a detailed and itemized statement of errors complained of (hereinafter “statement”), pursuant to Pa. R.A.P. 1925(b).

Appellants’ statement is reproduced, verbatim, herein:

1. The court erred on remand in re-affirming its order overruling the preliminary objections filed by the condemnees..
2. The court erred in re-affirming its order overruling preliminary objections as to condemnation of 3617 Haverford Avenue because the ordinance of the City of Philadelphia signed by the mayor on September 14, 2006, which approved the thirteenth amended Redevelopment and the tenth amended urban renewal plan for the redevelopment of the Mantua Urban Renewal Area (hereinafter, the “redevelopment proposal”), did not authorize the condemnation of the 3617 Haverford Avenue.
3. The court erred in re-affirming its order overruling the preliminary objections as to the condemnation of 3617 Haverford Avenue where the Philadelphia City Council’s published notice of public hearing advertising a hearing upon the redevelopment proposal did not describe the 3617 Haverford Avenue by boundaries and by city block, street and house number as required by 35 P.S. §1710(g) for description of “that portion of the redevelopment area affected by the proposal.”
4. The court erred in re-affirming its order overruling the preliminaiy objections as to the condemnation of 3617 Haverford Avenue where the Philadelphia City Council’s published notice of public hearing advertising a hearing upon the redevelopment proposal did not describe the 3617 Haverford Avenue by boundaries and by city block, street and house number as required by 35 P.S. §1710(g) for description of “that portion of the redevelopment area affected by the proposal.”
5. The court erred in re-affirming its order overruling preliminary objections as to condemnation of 3617 Haverford Avenue where the redevelopment proposal did not otherwise provide a specific notice to Condemnees of 3617 Haverford Avenue’s future condemnation.
6. The court erred in its interpretation that the Commonwealth Court’s order remanding the case required this court to take additional evidence on remand,
7. The court erred in re-affirming its order overruling preliminary objections as to condemnation of 3617 Haverford Avenue by considering purported “additional evidence” submitted by'the redevelopment authority on remand, as the purported evidence is irrelevant and inadmissible; the condemnees, despite their request at the April 23, 2014 hearing, were not allowed to cross-examine the redevelopment authority’s witness, including with respect to the documents; and the documents were never entered into evidence and are not part of the record on preliminary objections.
8. The court erred by not permitting to the Condemnees to present additional evidence and raise new matters in opposition to the condemnation even though the court considered new materials submitted by the redevelopment authority on remand in support of the condemnation.

II. DISCUSSION

This court respectfully requests that the instant appeal be denied for the following reasons:

1. The court allowed both parties adequate opportunity to address the issue of whether appellee was authorized to condemn 3617 Haverford Avenue before reaching its decision;
2. The court was not required to consider appellants’ additional preliminary objections because appellants did not show cause for the failure to timely file these objections.

A. Both parties had adequate opportunity to address whether the condemnation of 3 617 Haverford Avenue was authorized.

On remand, this court’s focus was on the discreet issue of whether appellee was authorized to condemn 3617 Haverford Avenue since this court raised the issue sua sponte upon realizing that this parcel was omitted from the ordinance. Ceisler Opinion 11/5/2013 at 3. At the April 23, 2014 hearing, both parties acknowledged that this was the sole issue that the court wished to address. N.T. 4/23/14 at 5:10-16; 21:24-25; 22:1. Appellants now contend that this court acted improperly in limiting the remand to this one issue and in taking additional evidence from appellee addressing this issue. Statement at 2; N.T. 4/23/14 at 19:15-22. Appellant errs for several reasons. First, the Commonwealth Court’s order did not limit the issues that this court could address on remand. Second, upon remand, this court gave both parties the opportunity to address whether the condemnation of 3617 Haverford Avenue was authorized.

The precise reason for this court’s remand request was clearly stated in the court’s original opinion. There was no ambiguity as to the single issue that needed resolution. Furthermore, the Commonwealth Court’s order allowing the remand did not define the issues to be addressed by this court, merely stating that the instant matter was remanded “for such action as the court deems necessary including Issuance of a new order,” and thereby granting this court broad latitude to address the matter as it saw fit. Commonwealth Court order 5/8/2014 at 1. Accordingly, this court exercised this grant of discretionary authority to establish the exact scope of the remand, stating in the scheduling order that the hearing would address the narrow issue of “appellee’s authority to condemn 3617 Haverford Avenue,” Scheduling Order 2/19/2014 at 1, a question that neither party had theretofore addressed. See N.T. 4/23/14 at 7:17-24. In particular, on remand, this court sought further information of the effect, if any, of failing to list 3617 Haverford Avenue in the condemnation ordinance. This court convened the hearing on April 23,2014 to allow appellee to present the reasoning for the parcel’s absence from the ordinance, and to allow appellants to respond. See id., at 10:4-14; 22:14-15, 17-21. At this hearing, appellee persuasively argued that 3617-3619 Haverford Avenue is one building. Id. at 13:16-17:6. Additionally, appellee attached exhibits to its supplemental brief showing that appellants purchased the entire property, consisting of 3617, 3619, and 3621 Haverford Avenue, in a single transaction, that the property has always been treated as a single tax parcel, and that appellants’ building physically encompasses both 3617 and 3619 Haverford Avenue. See appellee’s Br. at 5, Ex. 1 at 4, Ex. 2, Ex. 3. Appellees have never challenged these records or assertions. As such, this court immediately recognized that to omit from the condemnation this partial section of the single building would result in a patently absurd outcome, understanding that there were reasonable and logical explanations as to why 3617 Haverford Avenue could have been omitted. Finally, the court determined that the appellees were not harmed or prejudiced in any way by this inadvertent omission as they were on full notice that their property was going to be condemned as part of the larger condemnation action. This is made obvious by the fact that not even the appellees’ themselves noticed the omission or ever raised the issue. They had a full and fair chance to challenge the condemnation via preliminary objections and availed themselves of this opportunity.

Appellants further argue that this court limited the scope of the remand by its language in its November 5, 2013 opinion stating that the preliminary objection “should have been sustained.” Appellants have focused on the language in this opinion that states:

Thus, it appears that...said ordinance did not allow for the taking of 3617 Haverford Avenue. Accordingly, this court is of the belief that it should have sustained this preliminary objection as to the latter property. Thus, this court respectfully requests that the Commonwealth Court remand this matter, for the sole purpose of allowing this court to modify its July 17, 2013 order to that effect.

Ceisler Order 11/5/2013 at 6. Appellants argue that this language required this court to change the wording of its July 17, 2013 order to reflect that this preliminary objection was sustained. N.T. 4/23/14 at 5:4-18; 6:1-5; 18:17-22; Appellants’ Br. at 5; however, this is not an accurate reading of the opinion. This court was merely “of the belief that the objection should have been sustained at the time of that opinion; and for that reason, ordered that the parties appear at a hearing to address the issue. Only after oral argument, and review of the supplemental briefs, did this court decide to re-affirm the overruling of the objection. To do otherwise would have caused a patently absurd result — the partial condemnation of a single building. For that reason, this court did not err, after remand, by conducting a substantive review regarding this issue and deciding to reaffirm the July 17, 2013 order in its entirety.

Appellants also argue that this court erred because “at the April 23, 2014 hearing, [appellants] were not allowed to cross-examine the [RDA’s] witness, including with respect to the documents; and the documents were never entered into evidence and are not part of the record on preliminary objections.” Statement at 2. Contrary to appellants’ assertions, both parties were given ample opportunity to address'the narrow issue before it on remand, both at the hearing and in their supplemental briefs. Furthermore, appellants have never questioned that fact that their building spans both 3617 and 3619 Haverford Avenue. Appellants could have rebutted that argument at the hearing, but chose instead to use that hearing to address other issues. See N.T. 4/23/14 at 18:2-26:13; 29:10-32:22.

Appellants next argue that by inadvertently omitting 3617 Haverford Avenue, appellee also failed to comply with the statutory requirement that the notice of public hearing describe the affected redevelopment area “by boundaries and by city block, street and house number.” Statement at 1-2 (citing 35 P.S. § 1710(g)). Although it is true that appellee did not follow the letter of 35 P.S. § 1710(g), it appears that the purpose of this statute, as interpreted through Redevelopment Authority of Scranton v. Kameroski, 616 A.2d 1102 (Pa. Cmwlth. Ct. 1992), has been satisfied. In that case, the redevelopment authority of the City of Scranton (“SRA”) authorized the condemnation of the Samter Building and 227 Lackawanna Avenue, adjacent properties which were accessible by the same stairwell, but omitted the latter property from the redevelopment plan. Id. at 1103-04. The trial court heldthat the redevelopment plan did not include the condemnation of 227 Lackawanna Avenue, and the SRA appealed, arguing that this property was adequately described in the plan because it was physically connected to the Samter Building. Id. at 1104. The Commonwealth Court upheld the trial court’s ruling, emphasizing that both the prior owner and the current owner of the property did not know that the property was subject to condemnation, due to its absence from the redevelopment plan and the absence of any legal relationship between the two properties, let at 1104.

Per the court in Kameroski, the purpose of the requirements under 35 P.S. § 1710(g) is to ensure that Condemnees are given adequate notice of the consequences of a redevelopment plan impacting their properties. Here, as contrasted with the Condemnees in Kameroski, appellants were fully aware of the consequences of the RDA’s redevelopment plan: their studio building would be condemned. Appellants have not contradicted this point, nor have they presented evidence showing that the portions of the studio on 3617 Haverford Avenue and 3619 Haverford Avenue are legally, or functionally, separate. This is in contrast to Kameroski, where the SRA’s development plan omitted an entire, separately-owned, essentially distinct property, depriving that property’s owner of notice regarding its condemnation. Thus, although appellants argue that the RDA has not complied with the statutory requirements for the notice of public hearing as to 3617 Haverford Avenue, the RDA satisfied the true purpose of those requirements through the inclusion of 3619 and 3621 Haverford Avenue, which notified appellants that their building and adjacent vacant lot would be condemned. The fact that appellant’s timely filed extensive preliminary objections at the time of the notification of the condemnation is proof that they were on notice of the taking. Also, it is noteworthy that the appellees never raised this issue.

This court has found no evidence suggesting that the condemnation of 3617 Haverford Avenue was unintended or unauthorized. As explained by the appellants, the omission of this parcel number was an inadvertent and understandable error in light of the fact that this was a single building that was taxed by the City of Philadelphia as a single parcel. Additionally, the evidence established that the 3617 parcel was clearly understood, by all parties, including the condemnees themselves, to be part of the condemnation plan. See N.T. 4/23/14 at 14:9-15, 23-25; 15:1-3; Appellee’s Br. at 6. Accordingly, this court found that the condemnation of 3617 Haverford Avenue was authorized and, accordingly, reaffirmed its July 17, 2013 order overruling appellants’ preliminary objections in their entirety. Ceisler Order 6/26/2014 at 1.

B. Appellants Have Not Shown Cause for Failure to Timely File New Preliminary Objections

Appellants next argue that since the court “considered new materials” submitted by appellee on remand, appellants should be permitted to present new materials and raise new preliminary objections. Statement at 3; N.T. 4/23/14 at 6:1-9; Appellants’ Br. at 11-15.

Pennsylvania’s Eminent Domain Code provides a thirty-day period within which a party may file preliminary objections to a declaration of taking. 26 Pa. C.S. § 306(a) (1). These “preliminary objections shall be raised at one time and in one pleading,” and the party’s failure to raise an issue, in such a filing and in a timely fashion, results in its waiver. Id. at §§ 306(b),(d). The Commonwealth Court has held that a trial court may “at its discretion” allow amendments to preliminary objections filed pursuant to the Eminent Domain Code “in the absence of an error of law or prejudice to the adverse party.” In the Matter of Condemnation by the Twp. of Upper St. Clair, 587 A.2d 907, 909 (Pa. Cmwlth. Ct. 1991) (citing Dep’t of Transp. v. Schode, 433 A.2d 143, 145 (Pa. Cmwlth. Ct. 1981)); see also Lower Perkiomen Valley Reg’l Sewer Auth. v. Beyer, 2681 C.D. 2010, 2011 WL 10893859, *2, n.13 (Pa. Cmwlth. Ct. Nov. 21, 2011) (citing the foregoing two cases for the same proposition although Section 406 of the Eminent Domain Code, relied upon by those cases, is now codified under Section 306 of the current Eminent Domain Code).

However, the Eminent Domain Code only permits a court to extend the time for filing preliminary objections if “cause” is shown. 26 Pa. C.S. § 306(a)(2). Pennsylvania trial courts have prohibited Condemnees from filing additional preliminary objections if the cause shown is not “sufficient.” Appeal of McCoy, 621 A.2d 1163, 1165 (Pa. Cmwlth. Ct. 1993) (upholding the trial court’s denial of additional preliminary objections because mistakes by former legal counsel were not “sufficient cause”); see also In re Condemnation of .036 Acres, More or Less, of Land Owned By Wexford Plaza Assoc., 674 A.2d 1204, 1207-08 (Pa. Cmwlth. Ct. 1996) (affirming the trial court’s overruling of amended preliminary objections as untimely and without “excuse for the late filing”). Cf. Schode, 433 A.2d at 145 (upholding the trial court’s sustaining of amended preliminary objections as “servpng] the administration of justice” because the amended objections were filed only a week later and within the thirty-day period).

In the instant matter, appellants seek to add two additional preliminary objections related to “whether the December 27, 2012 condemnation was for a public purpose” and whether “a condemnation premised on a 49-year old blight determination is unconstitutional and against public policy.” Appellants’ Br. at 13-14. In their brief, appellants detail the merits of these issues, however they failed to provide any reason for raising these preliminary objections fifteen months after their initial preliminary objections, instead of within the permitted thirty-day period. Given the untimely nature of the proposed amendments to appellants’ preliminary objections and the very limited scope of the court’s consideration of the instant matter on remand, this court in its sound discretion denied appellants’ request to amend its preliminary objections. Ceisler Order 6/26/2014 at 1.

III. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be denied.

      . Appellants have reiterated arguments in their instant statement of errors related to whether there was proper notice for the condemnation. See Statement at 1-2. Because this court previously found that the notice given was proper as to all three parcels of the property, it does not repeat that reasoning here.-See Ceisier Opinion 11/5/2013 at 8-11.


author: FORD, J.,

text:
    Commonwealth v. Watson

      C.P. of Lehigh County,
    No. CP-39-CR-2469-2013; 2429 EDA 2014

      Craig W. Scheetz, for Commonwealth.

      Craig B. Neely, for defendant.
    Oct. 9, 2014
   FORD, J.,

— On March 26, 2014, a jury found defendant/appellant, Cassius Watson, guilty of one count of persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1). On May 2,2014,1 sentenced appellant to state confinement for three-and-a-half to seven years. This is an appeal from that sentence. Appellant’s only contention on appeal is that I should have granted his pre-trial suppression motion. There is no merit to the appeal.

Appellant was originally charged with the firearms offense and with drug offenses. By the time of trial, all charges except for the firearms offense had been dismissed or withdrawn.

On August 9, 2013, appellant filed omnibus pre-trial motions. This included a motion to suppress evidence seized from appellant’s residence through search warrants. I conducted a hearing on appellant’s suppression motion on November 18,2013. At the hearing, appellant first argued that the police entry into his residence was legally tainted so the firearms and drugs seized following the entry were illegally seized. Appellant also challenged the sufficiency of the search warrants. Third, appellant contended that the police did not comply with the Pennsylvania Rules of Criminal Procedure in Processing the search warrants. On December 5, 2013,1 denied the suppression motion with an order and opinion.

On June 16, 2014, appellant filed a petition under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In the PCRA petition, appellant claimed that his trial counsel was ineffective for failing to file a direct appeal after appellant had expressed his desire to do so. It was uncontested that defense counsel inadvertently missed the appeal deadline. By order filed on July 28,2014,1 granted appellant’s PCRA petition and allowed him to file a direct appeal of his sentence nunc pro tunc.

Appellant timely filed the present appeal on August 15, 2014. He filed a “concise statement of errors complained of on appeal” (concise statement) under Pa.R.A.P. 1925(b) on September 2, 2014, challenging my suppression ruling which I now explain.

Findings of Fact

1. Matthew Kraszewski works at Sacred Heart Hospital in Allentown. After he completed his shift on March 21, 2013, he was on the second deck of the hospital’s parking garage. From the second deck, Mr. Kraszewski saw a man standing in the second floor window at 428 Oak Street which is a residence opposite the south side of the parking deck. The man in the window had dark skin and was not wearing a shirt. He was holding a chrome and black pistol. The man then left the window area. Shortly after that, Mr. Kraszewski saw the same man, now wearing a black jacket, exit the house, lean into a car and then return to the house. Mr. Kraszewski was concerned about a recent shooting at Lehigh Valley Hospital and about what others might think should something happen at Sacred Heart Hospital with this man if Kraszewski did not take action. He called the Allentown police.

2. Officer Karl Kozlowski is a twelve-year veteran of the Allentown Police Department. He worked the day shift on March 21. Officer Kozlowski received a radio transmission that there was an armed black male wearing a black coat who was at a car at 428 Oak Street and who then entered that residence. Kozlowski responded to 428 Oak Street with Officer Fiorello. Officer Kozlowski noted that there were surveillance cameras outside the residence. He saw “heavy binded books” stacked in the front window of the residence. Based on his experience, such thick books can be used for ballistic purposes. All of this caused the officer’s security awareness to be heightened.

3. Officer Kozlowski knocked on the door. Appellant answered. The officer told appellant about the information he had received. Appellant responded that he had been outside at an SUV. He claimed that he had no gun but he may have been holding a violin case.

4. Appellant invited the officers into the living room at 428 Oak Street. In the living room, Officer Kozlowski asked about guns. Appellant responded that he had guns but they were “legal.” He described each of the guns but said that they belonged to his sister. He told the officers that he was arrested for homicide years ago. He said that the Oak Street residence was his residence. The officers left appellant’s residence.

5. After officers advised Detective Aumaury Almonte of the events of March 21, he investigated appellant’s background and he learned that appellant had a manslaughter conviction. Almonte secured a photo of appellant. He knew from his research of public property records that appellant rented the Oak Street residence. He briefed Detective Kevin Mriss about all that had occurred with appellant. Almonte also consulted the district attorney and obtained consent to secure a search warrant for the Oak Street residence.

6. On March 22,2013, shortly after 6:00 a.m., Detective Mriss assisted Detective Almonte in setting up surveillance at 428 Oak Street. Mriss watched the rear of the building while Almonte watched the front. Appellant left the rear of the residence at about 7:00 a.m., entered a blue BMW, and then drove from the area. Very shortly after that, appellant parked the car in the front of his residence. Almonte, Mriss and a patrol officer made contact with appellant there. Appellant was not placed in handcuffs.

7. Detective Almonte told appellant about his plan to secure a search warrant for the residence based on what the police had learned the previous day. Appellant responded that there were children in the home. Appellant was taking care of a 16-year-old boy. His seven-year-old and nine-year-old children were also in the home. Mriss told appellant that he could not re-enter the residence. He did this for officer safety, the children’s safety and the possibility that appellant would hide weapons. Appellant agreed that the police should call the younger children’s mother to take them to school. Appellant provided the mother’s name and phone number to the officers. Because it was cold and the officers were not going to let appellant re-enter the home, they placed him in a patrol van to stay warm. He was still uncuffed.

8. Detective Mriss with other officers knocked on the door of 428 Oak Street. The 16-year-old boy answered. Mriss told the boy that the police were calling the younger children’s mother. Mriss and Almonte entered the living room of the home with the 16-year-old boy. The two younger children were ready for school and were sitting on a sofa in the living room. The police contacted the mother who picked up the children. Police officers remained in the living room while warrants were prepared.

9. Detectives Almonte and Mriss went to police headquarters to prepare search warrants. Almonte then drove to the home of Magistrate District Judge (MDJ) Karen Devine who signed the first search warrant. This warrant authorized a search of the home for weapons. After Almonte secured the warrant, he called his supervisor, Sergeant Glenn Granitz, whom he advised that the MDJ had signed the warrant. The search of 428 Oak Street then began. Almonte and Mriss returned to the residence to help with the search.

10. With the first warrant in hand, the police took photos throughout the residence. They found and seized four guns. Detective Mriss saw a bag of suspected cocaine on top of a cabinet in the kitchen. He did not seize it because the warrant was only for weapons.

11. Officer Michael Lovett was the last patrol officer to arrive at the residence on March 22. He was in full uniform. He stayed at the van with appellant while officers waited in the living room of428 Oak Street. Appellant then talked without any prompting or questioning by Lovett. Among other things, appellant stated that he was afraid for his daughter in the house. Appellant claimed there were five guns in the house but he only described four. He admitted that the guns belonged to him. Appellant asked Officer Lovett if it would be illegal to shoot guns in a house. He explained that he had a shooting range in the basement where he would shoot his .22 rifle.

12. Lovett Patted down appellant and then put him in a squad car. Appellant was taken to headquarters and placed in a holding cell. Appellant did not have cuffs on him throughout the time that Lovett dealt with him.

13. During his search of 428 Oak Street, Detective Mriss found a .45 caliber Ruger handgun in the cushions of a sofa in the living room, a .22 caliber Walther on a shelf under jeans on the third floor with appellant’s documents, a .22 assault rifle with magazines on the third floor, a .22 caliber Stevens rifle in the basement, a gun cleaning kit and an empty gun box in a duffle bag in the basement. The police took the weapons and related items back to headquarters.

14. A second search warrant was prepared to seize the suspected cocaine. Again, Detective Almonte got permission from the district attorney to seek the search warrant. MDJ Devine signed the second search warrant at her home when Detective Almonte brought it to her. Once the warrant was signed, Mriss seized the suspected cocaine on the kitchen cabinet.

15. Exhibit C-1 is the original package for the first search warrant. MDJ Devine issued it at 8:33 a.m. on March 22. The warrant has an obvious transposition of dates in that MDJ Devine wrote that she issued the warrant on March 24, 2013, at 8:33 a.m. and that the warrant may not be served later than March 22, 2013, at 8:33 a.m. Exhibit C-4 was represented as a copy of C-l; however, it does not show this transposition of dates. An examination of these two exhibits side-by-side reveals that MDJ Devine separately wrote out her portion (the actual warrant) on the original warrant (C-l) and then again on the copy (C-4). This occurred when Detective Almonte had her fill out the original warrant (C-l) and the copy of it (C-4), and he did not use duplicating equipment to make the copies.

16. Exhibit C-2 is the second search warrant package which includes a warrant signed by MDJ Devine at her home on March 22, 2013, at 11:21 a.m., This warrant authorized a second search of the Oak Street residence, later that same morning, primarily for the suspected cocaine in the kitchen. Exhibit C-5 is a copy of C-2 created with duplicating equipment. Although Detective Almonte testified that he could not remember how the copy of this second warrant was created, it is apparent that duplicating equipment was used.

17. Detective Almonte did not immediately file the original warrants, Exhibits C-l and C-2, with the court. Rather, he inadvertently kept them in his own personal file. This was not realized until the suppression hearing when the police, counsel and the court went looking for the original warrants. Detective Almonte found them in his file following a lunch break and he then filed them with the court.

18. Exhibit D-l, a copy of the second warrant package prepared for the seizure, of the cocaine, was given to appellant by Detective Almonte at 2:00 a.m. on March 23, 2013, while appellant was being processed for his arrest. This copy of the second warrant was not created with duplicating equipment. It was handwritten by MDJ Devine upon the request of Detective Almonte.

19. Exhibit D-2 is yet another copy of the second search warrant package. This was given to appellant by Detective Almonte about two weeks after his arrest when Almonte came to appellant’s home. Almonte told appellant that he had information in the package that was not in the copy of the earlier warrant package that he had given to him.

20. On the last page of Exhibit D-1 is found the “receipt/ inventory of seized property” for the second search. Detective Almonte listed everything that was seized from both searches on this page. In other words, he listed the guns and related items found during the first search and the cocaine and related items found during the second search even though Exhibit D-l is the search warrant package for seizure of the cocaine only. Then on the fourth page of Exhibit D-2, “receipt/inventory of seized property,” which is also related to the search for the cocaine, Detective Almonte only listed the cocaine and related items.

21. Despite the irregularities in the warrants, the evidence presents a clear picture of what happened. Detective Almonte presented affidavits of probable cause to MDJ Devine on the two occasions when he met her at her home on March 22. The affidavits presented to the MDJ are the same as the affidavits which are part of the exhibits from the suppression hearing. One of the warrants, Exhibit C-l, has an obvious, inadvertent transposing of dates. Appellant was given a complete listing of the items seized by the police, namely guns, drugs and related items, in the receipts and inventories provided to him even though Detective Almonte listed all of the items seized from the first search with the drugs seized in the second search on the same receipt and inventory form (Exhibit C-6).

22. There was a third warrant package prepared by Detective Almonte, introduced into evidence as Exhibit C-3. This was prepared to obtain permission to search appellant’s 1997 BMW to look for the fifth gun that appellant said he had which was not found during the searches of428 Oak Street. Almonte presented this search warrant application to MDJ Ronald Manescu on March 22, 2013. The warrant was issued by MDJ Manescu at 1:35 p.m. on March 22, 2013. No evidence pertinent to this case was seized during the search of the vehicle.

Discussion and Conclusions of Law

A reading of the affidavits of probable cause found in Exhibits C-l and C-2 revealed that Detective Almonte presented MDJ Devine with probable cause to believe that appellant possessed firearms, that they were located in his home, that it was illegal for him to possess them and that he had illegal drugs there. Thus, MDJ Devine issued search warrants for 428 Oak Street for guns and drugs after she was presented probable cause to believe that those items were located there. The police searched the residence and seized the evidence only after they were in possession of these valid warrants.

Additionally, the patently obvious typographical errors in the search warrants issued by MDJ Devine did not render them invalid. In Commonwealth v. Begley, 566 Pa. 239, 299, 780 A.2d 605, 641 (2001), the Pennsylvania Supreme Court explained that “[a]n error in a warrant is fatal only if it deprives a reviewing court of the ability to review the propriety of the issuance and execution of the warrant.”-

From the evidence presented at the suppression hearing, I was able to review the propriety of the issuance and the execution of the two warrants. The affidavits of probable cause were presented to MDJ Devine for each of the warrants that led to the securing of the evidence. The documents showed the bases for her issuance of the warrants. Although the receipts and inventories were cumulative and repetitious of what was found, they set forth for appellant all that was taken from his residence. There was no evidence of police deception as to the items taken, only evidence of unnecessarily repetitive police paperwork. Accordingly, the irregularities in the paperwork do not render illegal the searching for and seizing of the evidence.

On appeal, appellant does not challenge my determination that there existed probable cause justifying the issuance of the search warrants for appellant’s residence nor does appellant challenge my determination that the warrants were valid despite the aforementioned irregularities. The sole issue raised is that I erred in rejecting the claim that his due process rights were violated because the police failed to adhere to certain rules governing search warrants. Specifically, appellant in his concise statement argues that

the Commonwealth violated Pennsylvania Rules of Criminal Procedure 208 and 209 by not providing [appellant] with true and correct copies of the Search Warrants underlying the search, and did not file the original Warrants and Returns until November 18, 2013, at approximately 1:30 p.m., halfway through the Hearing on [appellant’s] Omnibus Pretrial Motions. The failure to provide true and correct copies of the Warrants to [appellant] and the failure to timely file the original warrants and returns violated [appellant’s] constitutionally protected due process rights, and prejudiced [appellant’s] defense, as he was forced to prepare for the omnibus pretrial hearing without having been afforded the opportunity to review the original search warrants, while the copies that he received from the police were not true and correct copies of the originals.

These claims lack merit.

Under Pennsylvania Rule of Criminal Procedure 208(A), after a law enforcement officer conducts a search and seizes property under a warrant, he must “leave with the person from whom or from whose premises the property was taken a copy of the warrant and affidavit(s) in support thereof, and a receipt for the property seized.”

On March 23, 2013, while appellant was being processed for his arrest, Detective Almonte provided appellant with a copy of the second warrant package prepared for the seizure of the cocaine. This included a “receipt/inventory of seized property” for the second search. Even though the second search warrant authorized seizure of the cocaine only, the inventory attached to the warrant listed eveiything that was seized from appellant’s residence through both the first and second warrant. This included the firearms. About two weeks later, the detective visited appellant at his residence and provided him with another copy of the second search warrant package. The inventory attached to this warrant listed only the cocaine and related items.

Appellant admittedly did not receive a copy of the first search warrant prior to the suppression hearing. However, from all of the surrounding circumstances, appellant was clearly aware that he was being investigated for illegally possessing firearms. Further, the inventory Detective Almonte provided appellant on March 23,2013, accurately listed all of the items seized from appellant’s residence from the first and second search warrants. Finally, appellant was able to review the original first and second warrants during the suppression hearing after those items were determined to be in the possession of Detective Almonte. I allowed defense counsel ample time to examine these documents. Defense counsel then fully cross-examined Detective Almonte on the content of both warrants. Because appellant was not prejudiced by the failure of police to supply appellant with a copy of the first search warrant prior to the suppression hearing, I acted properly in denying appellant’s request for suppression on these grounds.

Pennsylvania Rule of Criminal Procedure 209(A) reads that a law enforcement officer conducting a search under a warrant must file with the issuing authority the warrant and an inventory of the items seized under the warrant. The issuing authority must then file the warrant, supporting affidavits and the inventory with the clerk of the court of common pleas of the judicial district where the property was seized. There is no time limit in the rules for the filing of warrants and inventories. Here, the complete search warrant packages were filed with the court on the day of the suppression hearing. The delay in the filing was only due to inadvertence by the prosecuting detective and not to his use of deception to gain an advantage. All was done aboveboard by the police. The proceedings were conducted in such a way that appellant was fully informed and suffered no prejudice. There was no violation of the rules which would justify suppression of the evidence.

Respectfully, I acted properly in denying appellant’s suppression motion. Therefore, this appeal should be denied.


author: MOTTO, P.J.,

text:
    Knaus v. McBeth

      C.P. of Lawrence County,
    No. 10925 of 2013

      Charles W. Garbett, for plaintiff.

      Stephen Ledva, Jr., for defendant.
    Nov. 10, 2014
   MOTTO, P.J.,

— Before the court for disposition is the motion for partial summary judgment filed on behalf of plaintiff, Kathryn M. Knaus, which argues that plaintiff is entitled to summary judgment on the issue of liability in a motor vehicle accident where it is uncontroverted that defendant crossed over into plaintiff’s lane of travel, striking plaintiff’s vehicle head-on. Plaintiff contends that as a matter of law defendant violated the assured clear distance ahead rule and that her unexplained presence on the wrong side of the road requires a finding of negligence per se.

This case arises from a motor vehicle accident which occurred on February 19,2013 on Route 422 near Slippery Rock Township, Lawrence County. At the time of the accident the defendant, Jennifer McBeth, was operating a wheelchair van owned by the defendant Pennsylvania Medical Transport, Inc. in a westerly direction on Route 422. The parties have stipulated that at the time of the accident McBeth was the agent and servant of defendant Pennsylvania Medical Transport, Inc. As the plaintiff was travelling in the eastbound lane on Route 422, the defendant’s vehicle approached in the westbound lane. The defendant lost control of the wheelchair van, slid across the centerline of the three lane highway and collided head-on with the plaintiff’s vehicle in the eastbound lane. Plaintiff claims to have suffered injuries as a result of the accident.

On September 4, 2013, the plaintiff commenced this suit by filing a complaint averring a claim of negligence. The plaintiff asserts that at the time of the accident McBeth carelessly and negligently operated the Pennsylvania Medical Transport, Inc’s van so as to cause and permit the van to slide out of control on State Route 422, cross over into the eastbound land and collide violently with the front of plaintiff’s vehicle. After the parties participated in discovery, the plaintiff filed this motion for partial summary judgment on the issue of liability claiming that McBeth violated the assured clear distance ahead rule because McBeth cannot explain her presence on the wrong side of the road and that such violation constitutes negligence per se and plaintiff is entitled judgment as a matter of law on this issue. Defendant argues that plaintiff’s contention that McBeth violated the assured clear distance ahead rule and that such violation was negligence per se must fail because there is no evidence that McBeth violated any applicable standard of care and/or breached any duty owed to plaintiff as defendant has offered an explanation for her presence in the wrong side of the road through no fault of her own. As such, defendant asserts plaintiff’s motion for partial summary judgment must be denied.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa. Super. 2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, may the trial court properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary, judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike- Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa.Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the Court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Paxmwlth. 494, 579 A.2d 1358 (1990).

In order to establish a cause of action in negligence, a plaintiff must prove the following four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. Jones v. Levin, 940 A.2d 451 (Pa. Super. 2007). Originally a common law principle, the assured clear distance ahead rule is codified in the vehicle code, 75 Pa.C.S.A. §3361, which provides, inter alia, that “no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.” Under the assured clear distance rule, a driver must have his vehicle under such control and operated as such a speed so as to be able to safely stop within the assured clear distance ahead. Brown v. Schriver, 254 Pa. Super. 468, 386 A.2d 45 (1978). It is fundamental that a driver must consider the condition on the roadway while driving, and regulate his speed and control his vehicle at all times. Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960). Otherwise stated, the rule requires that such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision.

In plaintiff’s brief in support of her motion for partial summary judgment, plaintiff cites two Pennsylvania Superior Court cases which support her argument that when a defendant cannot explain his or her presence on the wrong side of the road, the plaintiff is entitled to summary judgment on the issue of liability, in Krupa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983), Plaintiff John Krupa and his teenage son were driving north on Route 8 in Butler County when defendant Lawrence Williams, who was driving southbound on Route 8, crossed over the center line and collided head-on with plaintiff’s vehicle in the northbound lane. Plaintiff and his teenage son suffered severe injuries as a result of the accident. Plaintiff filed suit against defendant on a claim of negligence. At trial, the court issued a directed verdict on the issue of liability in favor of plaintiff. Defendant appealed and the Superior Court found that the inference from the testimony that the debris was found entirely on the northbound lanes is that the impact between the plaintiff and defendant’s vehicles occurred in the northbound lanes. Id. at 416, 463 A.2d at 433. The court found that the conclusion is inescapable that defendant was on the wrong side of the road, placing him in violation of the rules of the road. In “wrong side of the road” fact situations, unless the defendant can explain his presence in the wrong lane, negligence can be inferred. Id. quoting Fair v. Showball Express, Inc., 226 Pa. Super. 295, 310 A.2d 386 (1973). The court found that defendant did not present any evidence to controvert the conclusion that he was on the wrong side of the road. At trial, defendant testified that he recalled being in his own right lane then a glare blinded him and did not know where he was at the moment of impact. Evidence in the case indicated the glare came from plaintiff’s headlights as defendant left his lane. The court found that although a driver who is where he is supposed to be and is blinded by a glare might not be negligent in a collision, this rule can hardly apply to a situation where the glare results from the driver’s own negligence in being in the wrong lane. Id. at 417, 463 A.2d at 433. See Cf. Maranca v. Philadelphia, 394 Pa. 531, 147 A.2d 413 (1959). Although defendant’s testimony on his own behalf, that he was in his own proper lane when blinded by the glare, is entitled to be regarded favorably in considering a directed verdict, nevertheless, the court found that defendant did not present any facts on which a jury could have found in his favor, Id. While the defendant argued that where plaintiff’s proof rests entirely on oral evidence the case must go to the jury, even if defendant does nothing to rebut it, because the credibility of such evidence is for the jury to determine, the court found that the oral evidence rule had no application to the case because plaintiff’s proof established physical facts, not contradicted, from which defendant’s presence on the wrong side of the road was the only possible conclusion. Id. The plaintiff’s proof at trial included skid marks from the plaintiff’s car, the location of debris from the damaged cars and the position of the cars following the impact. Id. The court concluded that “oral evidence which establishes uncontroverted physical facts which demonstratably govern the facts may be a basis for a directed verdict.” Id., see also Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867 (1927). Thus, the Superior Court found that where defendant did not present any facts on which the jury could have found in his favor, trial court was correct in directing verdict against defendant on the issue of liability.

A similar result was reached in Bohner v. Stine, 316 Pa. Super. 426, 463 A.2d 438 (1983), where defendant admitted that his vehicle skidded into the oncoming lane of traffic and struck plaintiff’s vehicle. At trial, the jury returned a verdict in favor of the defendant. In post-trial motions the plaintiff argued that the jury was not properly advised that skidding on a wet roadway is not, in and of itself, justification for crossing the center line; and, that the trial court’s instructions regarding the shifting of the burden of proof to defendant who crossed the center line was misleading. Id. at 431, 463 A.2d at 440. The trial court denied plaintiff’s motion for a new trial. On appeal, the superior court reversed and remanded for a new trial finding:

There is no dispute as to the basic facts herein. The evidence offered by [defendant] at trial to justify the fact that his vehicle skidded into the oncoming lane of traffic, however, is insufficient to sustain a finding of no negligence. This determination is premised upon the legal maxim that a driver crossing the center line of a roadway, and thereafter causing a collision, is negligent per se. Kenworthy v. Burghart, 241 Pa. Super. 267, 282, 361 A.2d 335, 343 (1976). The only evidence offered by [defendant] in an attempt to meet his burden of proof was that the road was wet., the car in front of him suddenly slowed down to make a turn, and there were wet leaves in certain placed on the road.

Bohner v. Stine, 316 Pa. Super, at 436-37, 463 A.2d at 443. The court found that the condition of the roadway must be considered by a driver regulating his speed and controlling his vehicle. See 75 Pa.C.S.A. §3361. Furthermore, under the assured clear distance rule, a driver must have his vehicle under such control and operate it at such a speed as to safely stop within the assured clear distance ahead. See Brown v. Schriver, supra. The sudden slowing or stopping of a vehicle ahead must be anticipated. See Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966).

The Bohner Court noted testimony by the investigating officer that immediately after the accident defendant admitted to panicking and hitting his brakes harder than he had to, thereby losing control of his automobile on the wet roadway, Id. at 436-37,463 A.2d at 443. Defendant did not deny making that statement when asked about it during cross-examination. The Bohner Court, after a review of all of the trial evidence relevant to the reasons for the skidding of defendant’s car, determined that the verdict for defendant was against the weight of the evidence. Id. Thus, the decision of the trial court was reversed and a new trial was granted.

In the instant case, the record shows that the accident occurred when the defendant’s vehicle traversed the center lane of traffic and entered into the plaintiff’s lane of traffic where it collided head-on with the plaintiff’s vehicle. According to defendant’s deposition testimony, when asked if she knew what caused her van to fish-tail and enter plaintiff’s lane of traffic defendant stated in her opinion is was black ice. She testified that after the accident she did not go and inspect the road to check see if in fact there was black ice on the road and is only basing her opinion on how her car handled on that portion of the road. Defendant stated that she did nothing to cause her car to enter the opposite lane of traffic so it is her assumption that she hit black ice with her back tires and that is what caused her van to hit plaintiff’s vehicle head-on in the opposite lane. Plaintiff contends the facts in this case are similar to the facts in Krupa v. Williams, supra, and Bohner v. Stine, supra, wherein the court in each of those cases found that in “wrong side of the road” fact situations, unless the defendant can explain his or her presence in the wrong lane, negligence can be inferred. Here, there is no dispute that the collision took place in the plaintiff’s lawful lane of traffic and according to defendant’s testimony, she is unable to offer any justification or reason for striking the plaintiff’s vehicle head-on except her “belief’ that she may have skidded on black ice, which is not supported by any evidence in the case that such black ice existed.

Defendant argues that the facts in this case are clearly distinguishable from the facts in Bohner v. Stine, supra. and Krupa v. Williams, supra, because defendant testified there was no sudden slowing or stopping of a vehicle in front of the defendant at the time of the accident, therefore, she did not violate the assured clear distance ahead rule and there can be no negligence as a matter of law. Moreover, defendant contends that her testimony is more than sufficient to support a finding of no negligence where she testified that her presence on the wrong side of the road was due to the rear of her vehicle hitting a patch of black ice that was camouflaged on the snow covered roadway after she cautiously reduced her speed to less than 30 mph. Further, defendant argues that it readily apparent that she considered the snow and icy conditions on the roadway by driving her vehicle at a careful and prudent rate of speed that was reasonable under the circumstances. As a result, defendant asserts that plaintiff has failed to set forth any evidence showing that the sliding of defendant’s van into oncoming traffic was a result of any negligent operation on her part, and thus has failed to meet the burden required to establish negligence per se.

The court concludes that the based on the evidence, the court must find that defendant is negligent as a matter of law because the defendant is unable to offer any justification for striking the plaintiff’s vehicle head-on on the wrong side of the road, despite defendant’s belief that she may have skidded on black ice immediately before the accident. This determination is based upon the legal principle that a driver crossing the centerline of a roadway, and thereafter causing a collision, is negligent per se. See Farreli v. Marko, 349 Pa. Super. 102, 502 A.2d 1293 (1985)(holding that a driver who crossed the centerline of a roadway thereby causing a collision is negligent per se unless he can prove by a fair preponderance of the credible evidence that his vehicle was there through no negligent conduct on his part); Matkevich v. Robertson, 403 Pa. 200, 203, 169 A.2d 91 (1961)(holding that proof of a wrong side of the road collision shifts the burden of justification to the defendant). The only testimony in this case offered by the defendant in an attempt to meet her burden of proof was that she believes she may have hit a patch of black ice which caused her to lose control of her van and strike plaintiff’s vehicle in the opposite lane of traffic. The defendant’s testimony is nothing more than speculation and cannot overcome her burden to prove that she was on the wrong side of the road though no negligent conduct on her part. Her effort to explain her presence on the wrong side of the road is no different that the failed attempts in Krupa (alleged blinding glare from headlights) and Bohner (suggestion of leaves on a wet roadway). Thus, because defendant cannot explain her presence on the wrong side of the road with evidence, she must be found to be negligent as a matter of law and plaintiff is entitled to summary judgment on the issue of liability.

Lastly, defendant argues that plaintiff failed to exercise reasonable care in the operation of her vehicle and that Plaintiff’s conduct was the factual cause of the accident. However, no evidence has been placed before the court from which an inference of negligence may be made. Although defendant asserts that plaintiff failed to apply her brakes, the evidence shows that plaintiff was traveling in her proper lane of travel when defendant McBeth suddenly and without warning traveled into plaintiff’s lane striking plaintiff head on. There is no evidence that plaintiff had any opportunity to avoid the accident or that plaintiff otherwise caused the accident.

For the foregoing reasons, plaintiff’s motion for partial summary judgment on the issue of liability is granted.

ORDER OF COURT

And now, this 10th day of November, 2014, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that plaintiff’s motion for partial summary judgment on the issue of liability is granted and judgment on the issue of liability is entered in favor of plaintiff and against defendants. Trial shall proceed on the issue of damages only.