author: RUEST, J.,

text:
    Commonwealth v. Bangert

      Nathan L. Boob, for Commonwealth.

      Joseph L. Amendola, for defendant.
    November 13, 2009
   RUEST, J.,

Presently before the court is defendant Michael S. Bangert’s omnibus pretrial motion filed on June 11, 2009. A hearing was held on September 28, 2009 to argue the following three issues raised in the omnibus: (I) defendant’s motions to suppress evidence and the chemical and blood test; (II) defendant’s petition for writ of habeas corpus; and (III) defendant’s motion in limine. Both parties submitted briefs. After consideration of the arguments at the hearing and after review of the briefs, the court determines defendant’s omnibus pretrial motions, petition for writ of habeas corpus, and motion in limine are denied.

I. PROCEDURAL HISTORY

The defendant was charged by Sgt. Ryan L. Hendrick of the Ferguson Township Police Department by summons dated November 24,2008, with driving under the influence of alcohol (75 Pa.C.S. §3812(a)(1) and (c)) stemming from an incident which occurred on November 21, 2008 at approximately 10:58 p.m. at the top of Pine Grove Mountain in Ferguson Township, Centre County, Pennsylvania. On February 25,2009, a preliminary hearing was held on these charges before District Judge Carmine Prestía Jr. and defendant was bound over to the Centre County Court of Common Pleas on all charges. On March 26, 2009, defendant waived his arraignment, and thereafter timely filed an omnibus pretrial motion which was heard by this court on September 28, 2009.

II. FINDINGS OF FACT

(1) On November 21, 2008 at approximately 10:58 p.m., Sgt. Ryan Hendrick, of the Ferguson Township Police Department, saw a vehicle stationary with the engine running in the pull-off area approximately five feet off of a two-lane highway at the top of Pine Grove Mountain. The vehicle was pointed towards the highway and facing the direction of defendant’s home address, the Huntingdon County side of Pine Grove Mountain.

(2) The pull-off area where defendant’s vehicle was located is connected to a highway and accessible to the public. The area is routinely used by public motorists who pull off to view the valley below, park and carpool, and who experience vehicle trouble. The area is also maintained by state road work crews who repair the pull-off, clear it of snow, and ensure that the public can access the area at all times.

(3) Sgt. Hendrick approached the vehicle and found defendant slumped over the steering wheel with the vehicle running, the headlights on, and the car in park.

(4) In an effort to determine defendant’s safety, Sgt. Hendrick attempted to wake the defendant by pounding on the window.

(5) Unable to wake defendant, Sgt. Hendrick opened the door and shook him. At that point, he noticed a strong odor of alcohol coming from defendant.

(6) After defendant awoke, he attempted to grab the gear shift and place the vehicle in drive. Sgt. Hendrick intervened and pulled the keys from the ignition.

(7) Sgt. Hendrick was able to determine the defendant was Michael S. Bangert but could not obtain a statement from him because he was too intoxicated.

(8) The defendant was taken to Mount Nittany Medical Center where he voluntarily provided a blood sample which indicated a .244 percent blood-alcohol level at 11:39 p.m. on November 21, 2008.

III. CONCLUSIONS OF LAW

(1) An individual is considered to be driving, operating, or in physical control of a vehicle while under the influence of alcohol if after consuming alcohol the individual is “rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(a).

(2) “The term ‘operate’ requires evidence of actual physical control of either the machinery of the motor vehicle or the management of the vehicle’s movement, but not evidence that the vehicle was in motion.” Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super. 2005), citing Commonwealth v. Johnson, 833 A.2d 260 (Pa. Super. 2003).

(3) A combination of factors should be considered in determining whether a person had “actual physical control” of a vehicle: whether the motor was running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle. Commonwealth v. Woodruff, 447 Pa. Super. 222, 227, 668 A.2d 1158, 1161 (1995).

(4) A determination of actual physical control is based upon the totality of the circumstances. Commonwealth v. Johnson, supra at 263; see also, Commonwealth v. Crum, 362 Pa. Super. 110, 523 A.2d 799 (1987) (finding actual physical control when defendant was found sleeping in his parked car, along the side of the road, with the headlights on and motor running); Commonwealth v. Brotherson, supra (finding actual physical control when defendant was found sleeping in his parked car, with the engine running, on the basketball court of a gated children’s playground with an open bottle of malt liquor in the car).

(5) 75 Pa.C.S. §3101 (b) provides, in part, that driving, operating or being in actual physical control of a vehicle after consuming alcohol applies to highways and trafficways throughout the Commonwealth. A “trafficway” is defined as “the entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.”

(6) A berm of the road constitutes a “trafficway” for purposes of 75 Pa.C.S. §3101(b). See Commonwealth v. Yaninas, 722 A.2d 187 (Pa. Super. 1998).

(7) The Commonwealth must establish a prima facie case “which sufficiently establishes that a crime has been committed and that the accused is probably the perpetrator of the crime.” Commonwealth v. Lopez, 439 Pa. Super. 625, 631, 654 A.2d 1150, 1153 (1995). (emphasis added)

(8) 75 Pa.C.S. §3802(g) states, “evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances ....”

IV. DISCUSSION

A. Motion To Suppress Evidence

Defendant alleges that Sgt. Hendrick lacked probable cause to arrest defendant for driving under the influence of alcohol because he had an insufficient legal basis to conclude that defendant had driven, operated or been in actual physical control of the movement of a vehicle on a roadway or trafficway in the Commonwealth at the time when he was under the influence of alcohol. As a result, defendant argues that all evidence seized from him should be suppressed. The Commonwealth argues that when Sgt. Hendrick arrested the defendant, Mr. Bangert was in actual physical control of the movement of the vehicle in the pull-off area of Pine Grove Mountain, an area that constitutes a trafficway under Pennsylvania law.

A determination of actual physical control is based upon the totality of the circumstances. Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003). A vehicle need not be in motion in order to find that it was “operated.” Commonwealth v. Brotherson, 888 A.2d 901, 904, citing Commonwealth v. Johnson, supra. In the majority of cases, the location of the vehicle, which supports an inference that it was driven, is a key factor in a finding of actual control. See Commonwealth v. Brotherson, supra at 905 (finding actual physical control when defendant was found sleeping in his parked car, with the engine running, on the basketball court of a gated children’s playground with an open bottle of malt liquor in the car); see also, Commonwealth v. Crum, 362 Pa. Super. 110, 523 A.2d 799 (1987) (finding actual physical control when defendant was found sleeping in his parked car, along the side of the road, with the headlights on and motor running). In the present case, defendant was found asleep in the pull-off area, slumped over the wheel of his parked car which had its headlights on and motor running. Based on these facts, the court determines, based on the totality of the circumstances, defendant was in actual physical control of the vehicle at the time of his arrest.

In order to commit a DUI offense, a defendant’s vehicle must be located on a highway or trafiicway. A trafficway must be open to the public for purposes of vehicular travel as a matter of right or custom. 75 Pa.C.S. §3101(b); see also, Commonwealth v. Baughman, 357 Pa. Super. 535, 516 A.2d 390 (1986) (finding that a one-lane dirt road on private property which dead-ended, but was open to the public and occasionally used for vehicular traffic with no signs and barriers prohibiting access was a trafficway); Commonwealth v. Karenbauer, 393 Pa. Super. 491, 574 A.2d 716 (1990) (finding that an access alley was a trafficway). The scenic pull-off was publicly accessible, state maintained, and routinely used by motorists who pull off to view the valley below, park and carpool, and who experience vehicle trouble. Therefore, like parking lots and alleyways, the scenic pull-off constitutes a trafficway.

Defendant argues that the pull-off area at the top of Pine Grove Mountain is analogous to finding an individual in a vehicle in a parked position on the berm of a road and therefore does not qualify since “roadway” specifically excludes the sidewalk, berm or shoulder. 75 Pa.C.S. §102. According to 75 Pa.C.S. §3101, the DUI provision applies upon “highways and trafficways throughout this Commonwealth.” The term “roadway” is not mentioned. Even if the scenic pull-off constitutes a “berm,” it still falls under the statute. In Commonwealth v. Yaninas, 722 A.2d 187 (Pa. Super. 1998), the court concluded that the defendant was in actual physical control of his car when found slumped over the wheel, with the engine running and the parking lights on, on the berm of a state road. Our courts have held that a berm meets the criteria of a trafficway and that the facts presented meet the criteria of 75 Pa.C.S. §3101. This court finds that even if the pull-off was a berm, it would fall under the criteria of the DUI statute.

B. Motion To Suppress Chemical and Blood Test

Defendant argues that since Sgt. Hendrick lacked sufficient probable cause to arrest him for driving under the influence of alcohol based upon the lack of evidence indicating that the defendant had driven, operated, or had actual physical control of the movement of a vehicle on a highway or trafficway while under the influence of alcohol, the results of the blood test taken by the defendant at Mount Nittany Medical Center on November 21, 2008 must be suppressed. However, as discussed in section IV.A. above, defendant was in actual physical control of the movement of a vehicle on a trafficway at the time that Sgt. Hendrick arrested him. Sgt. Hendrick properly arrested the defendant for having actual physical control of the movement of the vehicle on atrafficway while under the influence of alcohol. Therefore, the court determines that the results of the blood test are admissible.

C. Petition for Writ of Habeas Corpus

Defendant argues that the Commonwealth failed to establish a prima facie case at his preliminary hearing in regard to the charges of driving under the influence under 75 Pa.C.S. §§3802(a)(l) and (c) for two reasons: (1) it failed to establish that defendant drove, operated, or was in actual physical control of the movement of a vehicle on a highway or trafficway after consuming a sufficient amount of alcohol such that he was rendered incapable of safely being in actual physical control of the movement of the vehicle and (2) it failed to establish that defendant was in actual physical control of movement of the vehicle after consuming enough alcohol so that the alcohol concentration in his blood or breath was .16 percent or higher within two hours after he had been in actual physical control of movement of his vehicle.

The Commonwealth must provide evidence for a prima facie case “which sufficiently establishes that a crime has been committed and that the accused is probably the perpetrator of the crime.” Commonwealth v. Lopez, 439 Pa. Super. 625, 631, 654 A.2d 1150, 1153 (1995). (emphasis added) The Commonwealth has met its burden of establishing aprima facie case. As discussed in section IV. A. of this opinion, the facts establish that defendant was in actual physical control of the movement of the vehicle on a trafficway after consuming a sufficient amount of alcohol such that he was incapable of safely being in actual physical control. Since the pull-off constitutes a trafficway and the circumstances suggest that defendant was in actual physical control of the vehicle, the Commonwealth has met its burden in establishing a prima facie case.

D. Motion in Limine

75 Pa.C.S. §3802(g) states, “evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances ....” Defendant asserts in his motion that the Commonwealth has failed to meet its burden establishing when, if ever, defendant drove, operated or was in actual physical control of the movement of a vehicle. Defendant also asserts that the Commonwealth cannot establish good cause explaining why the chemical test conducted could not have been obtained within two hours since they cannot establish when the defendant drove, operated, or was in actual physical control of the vehicle.

After having reviewed the party’s arguments, this court finds that the issue of whether the Commonwealth can prove defendant was in physical control of his vehicle within two hours of the blood test being administered is an issue of fact which the fact-finder must determine. Pennsylvania Standard Jury Instruction 17.3802(a)(2), paragraphs three and five of the DUI charge, specifically instruct the jury on how it is to determine whether or not the Commonwealth has met its burden in proving defendant was in physical control of the vehicle within two hours of the blood test being administered. As such, defendant’s motion in limine seeking to bar evidence resulting from defendant’s blood test from being admitted into evidence based on the “two-hour rule” is properly denied. Such a determination is strictly the province of the fact-finder.

Accordingly, the following is entered:

ORDER

And now, November 13, 2009, the following is the order of this court:

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

(2) Defendant’s motion to suppress chemical and blood test is denied.

(3) Defendant’s petition for writ of habeas corpus is denied.

(4) Defendant’s motion in limine is denied.


source: Caselaw Access Project

author: NANO VIC, P.J.,

license: Public Domain

text:
    Commonwealth v. Wehr

      Joseph J. Matika, assistant district attorney, for Commonwealth.

      Christian D. Frey, for defendant.
    October 19, 2009
   NANO VIC, P.J.,

On April 9,2009, the defendant, William D. Wehr Jr., filed a petition for writ of habeas corpus asking that we dismiss the charges filed against him. At issue is whether the Commonwealth presented sufficient evidence at the time of the preliminary hearing to establish a prima facie case.

PROCEDURAL AND FACTUAL BACKGROUND

On November 24,2007, Wehr, a general construction contractor, signed a written contract with Irina Lyakhovitslcaya and Yevgenity Lyakhovitskiy (owners) to erect and construct a one-floor, modular home on their property in Indian Mountain Lakes, Penn Forest Township, Carbon County, Pennsylvania. The total contract price was $116,800. In anticipation of the contract, the owners paid Wehr $20,000 on October 27, 2007. An additional $12,000 was paid when the contract was signed on November 24, 2007. $10,000 was paid on February 9,2008, for the completed foundation. Also on February 9,2008, the owners paid Wehr $63,800 to be used for the purchase and delivery of the home from the manufacturer. In all, the owners have paid Wehr a total of $105,800.

Under the contract, Wehr’s work was to be completed by January 31, 2008. This has not occurred. What work has been done consists primarily of obtaining permits, clearing the property for construction, digging trenches and installing pipes, and pouring the foundation for the home; the home, however, has never been delivered.

The amount of money Wehr spent toward the erection of the home does not appear on the record of the preliminary hearing. Nor does the record reveal what Wehr has done with all of the monies he received from the owners. Nevertheless, the record is clear that at some point Wehr experienced financial difficulties, was unable to perform his work on time, and has never completed the work he was to perform for the owners.

On February 3,2009, Wehr was charged with theft by deception and theft by failure to make required disposition of funds received. Both charges were bound over by the magisterial district judge. In evaluating whether this decision is supported by the evidence, we have been provided with a transcript of the preliminary hearing and have before us the same record presented to the district judge.

DISCUSSION

The thrust of Wehr’s argument is that this is a civil matter, not a criminal one, and that no crime has been committed. Wehr concedes that the owners have a cause of action for breach of contract but denies that he ever made false statements, deceived the owners or entered the contract with the intent of not performing. Absent evidence to the contrary, and Wehr claims there is none, Wehr argues there is no crime.

The burden of proof is on the Commonwealth to show the existence of each material element of each crime charged when it attempts to establish a prima facie case. In determining whether the facts presented by the Commonwealth make out a prima facie case, we apply a mechanical standard:

“Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania Legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such . . . offenses. If the facts do not fit the statutory definitions of the offenses charged against [the defendant] then [the defendant] is entitled to be discharged.” Commonwealth ex rel. Lagana v. Commonwealth, Office of Attorney General, 443 Pa. Super. 609, 613, 662 A.2d 1127, 1129 (1995). (brackets and omission in original) Under this standard, we accept Wehr’s argument, in part, but not in total.

Theft by Deception

Section 3922(a)(1) of the Crimes Code, the section with which Wehr has been charged, together with subsection (b), define theft by deception as follows:

“Section 3922. Theft by deception
“(a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
“(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;...
“(b) Exception. — The term ‘deceive’ does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.” 18 Pa.C.S. §3922(a)(l), (b).

As is evident from this language, for theft by deception to exist, the Commonwealth must prove intentional deception in the acquisition of another’s property. In the context of a construction contract, this intention must exist at the time the payments are received, as distinguished from a subsequent failure to perform the contract. See Commonwealth v. Bentley, 302 Pa. Super. 264, 267, 448 A.2d 628, 629 (1982).

The record before us proves only that Wehr failed to perform. No evidence exists of an intent to deceive. To the contrary, at the time the contract was entered, Wehr provided his correct name, address and telephone number. He began work and obviously spent money in this regard. When, because of money shortages, he was unable to pay for the modular home, Wehr wrote the owners of his predicament and asked that they give him additional time to raise the monies to pay the manufacturer and have the home delivered and set. In this letter sent sometime in May 2008, Wehr wrote that he was struggling to stay in business, that he had used some of the owners’ money for other purposes, that he no longer had sufficient money to pay for the home, and that he needed their indulgence before he got back on his feet. (Preliminary hearing, Commonwealth exhibit 7; see also, N.T. 03/11/2009, pp. 22-23.)

By the time the owners received this letter, they were becoming desperate. After making the $63,800 payment in February 2008, for the delivery of the modular home, and being promised repeatedly by Wehr that the home would be delivered, Wehr’s letter was a death knell. When they went to Wehr’s place of business to obtain more information, they found that the door was locked. Still later, they discovered Wehr had gone out of business.

Although it appears apparent that Wehr was in over his head and was clearly experiencing cash flow problems, the evidence presented does not support a finding that at the time Wehr received the owners’ payments, including the $63,800 payment for the home, he did not intend to perform the contract. That he in fact did not perform the contract cannot, by itself, support an inference of an intent to not perform existing at the time the funds were received. See Bentley, 302 Pa. Super, at 268-69, 448 A.2d at 630. Absent any other evidence of Wehr’s intent to deceive at the time these payments were received, the Commonwealth has failed to prove a prima facie case of theft by deception. See Commonwealth v. Gallo, 473 Pa. 186, 189, 373 A.2d 1109, 1111 (1977).

Theft by Failure To Make Required Disposition

As to the charge of theft by failure to make required disposition of funds received, section 3927(a) of the Crimes Code provides in relevant part:

“Section 3927. Theft by failure to make required disposition of funds
“(a) Offense defined. — A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.” 18 Pa.C.S. §3927(a).
“A defendant is guilty of theft by failure to make required disposition of funds received if he obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition of the property, and intentionally deals with the property as his own and fails to make the required payment or disposition.” Lagana, 443 Pa. Super. at 615, 662 A.2d at 1130. This offense has four elements:
“(1) The obtaining of property of another;
“(2) Subject to an agreement or known legal obligation upon the recipient to make specified payments or other disposition thereof;
“(3) Intentional dealing with the property obtained as the defendant’s own; and
“(4) Failure of the defendant to make the required disposition of the property.” Commonwealth v. Crafton, 240 Pa. Super. 12, 16, 367 A.2d 1092, 1094-95 (1976), opinion corrected, 410 Pa. Super. 390, 599 A.2d 1353 (1991).

This form of theft is “designed to require the actor to meet the obligation under which he undertook to collect monies or property of another.” Commonwealth v. Wood, 432 Pa. Super. 183, 200, 637 A.2d 1335, 1344 (1994). In the context of a construction contract that does not require a specific disposition of funds, payments made to the contractor become the property of the contractor at the time of transfer. See Commonwealth v. Bartello, 225 Pa. Super. 277, 279-80, 301 A.2d 885, 886-87 (1973); see also, Commonwealth v. Austin, 258 Pa. Super. 461, 466, 393 A.2d 36, 38 (1978). Because one cannot misappropriate his own property, when a contractor misuses such payments, he cannot ordinarily be convicted of theft. Under these circumstances, the requirement that the property converted be “the property of another” has not been met. See Commonwealth v. Robichow, 338 Pa. Super. 348, 364, 487 A.2d 1000, 1009 (1985) (Spaeth, J., concurring), appeal dismissed, 510 Pa. 418, 508 A.2d 1195 (1986). Where, however, payments are received and contractually or otherwise earmarked for a specific purpose, a use inconsistent with that purpose is an appropriate basis upon which to found an embezzlement-type offense since both possession and title to the funds has not passed to the recipient. See Commonwealth v. Coward, 330 Pa. Super. 122, 127, 478 A.2d 1384, 1387 (1984).

The requirement that the defendant “ ‘deals with [the] property as his own’ does not require that the defendant actually use the property of another. Rather the word ‘deals’ in the context of this statute means that the actor treated the property or funds of another, designated to be used for a specific purpose, as if it were his or her own property.” Wood, 432 Pa. Super. at 200, 637 A.2d at 1344. Further, in contrast to theft by deception, deceit is not an element of theft by unlawful disposition.

At least as to the $63,800 payment, Wehr accepted this money knowing and agreeing it was to be paid to the manufacturer of the modular home for its purchase and delivery to the owners’ property. (Preliminary hearing, N.T. 03/11/2009, p. 21.) The receipt Wehr provided the owners at the time of the payment expressly provided that, “This payment is to cover paying the Muncy factory for the modular home 2-14-08.” (Preliminary hearing, Commonwealth exhibit 6; see also, Commonwealth exhibit 3, construction contract, paragraph 2, draw schedule, item 5.) In effect, Wehr was to act as an intermediary, facilitating the transfer of these monies between the owners and the manufacturer. When combined with Wehr’s letter to the owners in May 2008, advising that he had used this money for other purposes and no longer had the funds available to pay for their home, all of the elements of this offense have been met.

CONCLUSION

For the forgoing reasons, the charge of theft by deception will be dismissed, with the Commonwealth allowed to proceed to trial on the charge of theft by failure to make required disposition of funds received.

      . To be precise, the contract is between Wehr’s construction business, Pocono Mountain Modular Homes Ltd., and the owners. Wehr is the president of this company and appears to control its operations. Consequently, Wehr individually may be held criminally responsible. See Commonwealth v. Wood, 432 Pa. Super. 183, 201, 637 A.2d 1335, 1344 (1994) (“It is wel 1 settled that individuals are subject to indictment for acts done under the guise of a corporation where the individual personally so dominated and controlled the corporation as to immediately direct its action.”).

      . 18 Pa.C.S. §3922(a)(l).

      . 18 Pa.C.S. §3927(a).


author: GEORGE, J.,

text:
    Marsh’s Construction LLC v. Varish Construction Inc.

      Arthur Becker, Jr., for plaintiff.

      Bernard Yannetti, for defendant.
    December 9, 2009
   GEORGE, J.,

The appellant, Varish Construction Inc., appeals this court’s entry of judgment, following non-jury trial, against Varish and in favor of Marsh’s Construction LLC in the amount of $24,382 plus costs and interest. Although the factual background is adequately set forth in this court’s findings of fact dated May 19, 2009, it will be briefly summarized.

In 2006, Varish entered into a contractual agreement to serve as general contractor for construction of a hotel project known as the “Towne Place Suites.” Thereafter, on October 5,2006, Varish entered a written subcontract with Marsh for the framing and roofing for the project. The contract called for Marsh to construct and install pre-built framing and roofing for a four-story hotel for the price of $245,000. A draw schedule was entered between the parties and construction on the project commenced. During the course of the construction, Varish paid Marsh $105,600 pursuant to the draw schedule. However, prior to completion of the work, dispute arose between the parties concerning Marsh’s performance at the job site and Marsh’s payment of subcontractors. Ultimately, the relationship between the parties deteriorated and they terminated their relationship. At that time, the third floor to the hotel had not yet been installed although pre-built third floor walls had been constructed and delivered to the job site. Additionally, some fourth floor walls had been pre-built that were delivered to the job site; however, not all fourth floor walls were completed. Varish subsequently contracted with several other entities to complete Marsh’s work.

Marsh instituted litigation against Varish seeking reimbursement for labor performed pursuant to the contract as well as “down-time” resulting from the contract’s termination. Varish responded with a counterclaim seeking damages related to Marsh’s alleged breach of the contractual obligations. Following non-jury trial, this court entered judgment in favor of Marsh on the complaint in the amount of $24,557 and further entered judgment against Varish on the counterclaim. Varish timely filed post-trial motions which were denied by this court. Currently, Varish appeals alleging that the court abused its discretion in failing to offset the amount of judgment for wages Varish claims to have been paid to complete the work not performed by Marsh. Varish further claims that the court improperly failed to offset the judgment for materials supplied by Varish which Marsh was contractually obligated to provide. For the reasons set forth below, it is respectfully requested that judgment be affirmed.

Pennsylvania law is clear that a new trial should not be granted on the basis of a weight of the evidence claim unless the evidence supporting the verdict is so inherently improbable, or at variance with submitted or proven facts, or with ordinary experience as to render the verdict shocking to the court’s sense of justice. King v. Stefenelli, 862 A.2d 666 (Pa. Super. 2004). In reviewing a trial court’s decision to deny a request for a new trial, the decision should only be reversed if the trial court has abused its discretion. Divilly v. Port Authority of Allegheny County, 810 A.2d 755 (Pa. Commw. 2002), appeal denied, 574 Pa. 749, 829 A.2d 1158 (2003). Where the record adequately supports the trial court’s reasons, the trial court did not abuse its discretion. Id. It is not the role of an appellate court to re-weigh the evidence on appeal. Morin v. Brassington, 871 A.2d 844 (Pa. Super. 2005). Rather, the appellate court should defer to the trial court’s discretion unless the trial court has grossly abused its discretion or committed an error of law that controlled the outcome of the case. Colville v. Crown Equipment Corporation, 809 A.2d 916 (Pa. Super. 2002).

In entering judgment in this matter, the court considered the conflicting testimony of the various witnesses. Some of that testimony was considered credible and worthy of belief while other testimony was discounted as self-serving and unsupported by other evidence in the trial. As a result of this determination, the court offset Marsh’s claim in excess of $110,000 for work which Marsh failed to complete despite a contractual obligation to do so. Varish currently takes exception with this court’s refusal to accept all of Varish’s claims for offset. Although not specifically identified in its concise statement, it is this court’s belief that Varish takes exception with the court’s failure to grant offset for the items contained in defense exhibit no. 4 which total $44,644 allegedly paid to four different entities. Additionally, Varish challenges the court’s failure to provide offset for approximately $18,783 in materials.

Initially, I note that Pennsylvania courts have long recognized that the trial court, sitting as fact-finder, is free to believe all, part, or none of the evidence presented. Stokes v. Gary Barbera Enterprises Inc., 783 A.2d 296, 297 (Pa. Super. 2001), appeal denied, 568 Pa. 723, 797 A.2d 915 (2002). This deference recognizes that the trial court is in the best position to observe the demeanor of the witnesses from the witness stand and weigh their credibility appropriately. Although this court found Varish’s testimony, on occasion, to be credible and supported by other evidence, Varish was found to be incredible on other issues. The testimony rejected by the court was unconvincing, lacked corroboration, and was contradicted by other evidence in the case. For instance, testimony on the items which this court did not credit was extremely sparse and significantly lacked in detail. See generally, trial transcript, pp. 115-17. No corroborating invoices were provided. Rather, the only supporting evidence was check statements for fees paid to the respective entities without any indication as to why the payment was made. In fact, there is no corroboration for the conclusion that the labor was even related to the subject job site. Moreover, the dates reflected on the checks were not consistent with other testimony generally describing the time frame with the project. Finally, although it is relatively uncontested that, prior to termination of the contractual relationship, the project had progressed to the third floor construction with materials through and including a portion of the fourth floor having been provided by Marsh. Clearly, more than 50 percent of the project had been performed. Yet, Varish sought offsets equivalent to approximately 73 percent of the original contract price. Importantly, there was no claim of deficient workmanship in the work completed by Marsh. Varish’s testimony that all of the items he claimed as offset were related to the completion of items which were Marsh’s contractual responsibility was neither persuasive nor accepted by this court. As this court has no obligation to accept as true even the uncontested testimony of a witness, Stokes v. Gary Barbera Enterprises Inc., supra, it is respectfully requested that judgment be affirmed.


author: SPATARO, J.,

text:
    Commonwealth v. Lowery

      Francis J. Schultz, for Commonwealth.

      Ross C. Prather, for defendant.
    September 29, 2009
   SPATARO, J.,

We now address petitioner’s second amended petition for post-conviction collateral relief following an evidentiary hearing. Petitioner, Derrick Lowery, was convicted, following a plea of nolo contendere, of one count of aggravated assault by vehicle while DUI and one count of DUI. He was sentenced on March 1, 2007. Petitioner did not file a post-sentence motion with this court, nor was a direct appeal pursued. A pro se petition for post-conviction collateral relief was filed on February 1,2008, followed by an amended petition of the same filed by appointed counsel on March 26,2008. On June 30,2008, this court held a hearing upon consideration of the amended petition and determined that an evidentiary hearing was not necessary at that time and instructed PCRA counsel Ross C. Prather to file a second amended petition after being provided with the same discovery materials trial counsel received from the district attorney’s office.

The second amended petition for post-conviction collateral relief was filed on January 16,2009, and this court held a rule to show cause hearing on March 30, 2009. This court then scheduled an evidentiary hearing in its order of March 30, 2009, to address the issue of whether petitioner’s trial counsel was ineffective for allegedly failing to provide petitioner with discovery materials, which petitioner claims led to him unknowingly entering into a plea of nolo contendré. Petitioner, who is currently on parole, seeks to withdraw his plea of nolo contendere on the grounds that he entered into the plea unknowingly due to his trial counsel’s ineffectiveness. An evidentiary hearing was held on June 30, 2009, and we find that petitioner has failed to establish that his trial counsel rendered ineffective assistance of counsel at any time during his representation of the petitioner.

Petitioner’s second amended petition for post-conviction collateral relief involves a singular issue, that being as follows:

“(1) Whether petitioner’s entry of a plea of nolo contendere was entered into unknowingly due to trial counsel’s alleged ineffectiveness in failing to provide the petitioner with a significant piece of evidence, which may have nullified an element of the offenses charged and was allegedly not brought to the petitioner’s attention until after sentencing.”

In order to obtain post-conviction collateral relief, a petitioner must demonstrate by a preponderance of the evidence, the following:

“(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
“(i) Currently serving a sentence of imprisonment, probation or parole for the crime;...
“(2) That the conviction or sentence resulted from one or more of the following:...
“(h) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place....
“(3) That the allegation of error has not been previously litigated or waived.
“(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. §9543.

To prevail on this claim of ineffective assistance of counsel, the petitioner must be able to overcome the presumption that counsel was competent by showing that:

“(1) [petitioner’s] claim is of arguable merit;
“(2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and
“(3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different.” Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

Petitioner’s failure to satisfy any one of the three prongs of this test requires that the claim for ineffective assistance of counsel be rejected. Hammond, 953 A.2d at 556. The Pennsylvania Superior Court has discussed ineffective assistance of counsel in the context of entering a plea as follows:

“ ‘A criminal defendant has the right to effective counsel during a plea process as well as during trial.’ Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). ‘The law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty[.]’ Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006). (citation omitted) Instead, ‘the defendant must show that counsel’s deficient stewardship resulted in a manifest injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea.’ Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). ‘The voluntariness of [the] plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.’ Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003). (citation omitted) Therefore, ‘[a]negations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowingplea.’ Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 587 (1999).” Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).

Petitioner claims that his plea was unknowing because his trial counsel, Attorney J. Wesley Rowden, withheld from him a significant piece of evidence that would have nullified an element of the charged offenses. Petitioner’s charges arose from a serious motor vehicle accident that occurred on March 6,2006. Petitioner and his girlfriend at the time, Amanda Shumaker, were both under the influence of drugs and alcohol at the time of the accident. Petitioner was on parole for a previous conviction at the time the accident occurred. Petitioner suffered a head injury from the accident and Ms. Shumaker suffered very serious injuries including a broken collarbone, four fractured disks, several fractured vertebrae, a tear in her liver, three broken ribs, and a punctured lung. It appears that neither the petitioner nor Ms. Shumaker were able to clearly recollect who was driving at the time of the accident. Petitioner made an admission to Pennsylvania State Trooper Ott that he was operating the vehicle at the time of the accident, but petitioner now claims that he was disoriented from his head injury and could not have competently made such an admission. Petitioner was believed to be the driver of the vehicle in part from his statement to Trooper Ott and from Ms. Shumaker’s victim impact statement.

Petitioner was faced with multiple charges relating to the accident, including driving under the influence from his use of controlled substances and alcohol, driving with a suspended license, and aggravated assault by vehicle while DUI. Petitioner was also facing consequences from his parole violation because he had been using drugs and alcohol while he was under supervision. Petitioner’s counsel, Attorney Rowden, was faced with the difficult task of defending petitioner in this matter, and petitioner was no stranger to the criminal justice system. Petitioner was a repeat drug and alcohol offender, a parole violator, and had been convicted of many other offenses listed on his record as both a juvenile and an adult. Additionally, Attorney Rowden was dealing with a client who had made an admission to a police officer that he was operating the motor vehicle at the time of the accident. Petitioner later claimed that he was unaware of who was driving, as did Ms. Shumaker, but petitioner decided, on the advice of his counsel, to enter into a plea bargain. Petitioner claims that part of the basis for entering into this plea was Attorney Rowden’s belief that petitioner would lose at trial due to the admission he made to Trooper Ott.

Petitioner testified at the evidentiary hearing and alleged that Attorney Rowden did not share the discovery packet with him, or any other information that the Commonwealth had regarding his case. Petitioner then backtracked on this statement and acknowledged that Attorney Rowden had shared his records, and then alleged that Attorney Rowden did not share the entire discovery packet with him. Petitioner was vexed because he had asked Attorney Rowden in a letter dated November 2, 2006 to “please come out and talk to me, and also could you give me a copy of the discovery packet.” The letter of November 2, 2006 from the petitioner to Attorney Rowden provides significant insight into this matter. Petitioner testified that he would not have entered a plea, but would have gone to trial, if he had known of the information contained in the discovery packet. Petitioner attempted to bolster this claim with the fact that he had stated at sentencing that he did not remember who drove on the night of the accident. Petitioner’s argument is that he was unaware that any medical documentation existed that stated Ms. Shumaker may have been the driver, and that Attorney Rowden was ineffective for failing to provide him with these documents.

Petitioner’s claims during his testimony at the evidentiary hearing are weakened by the fact that he stated in the letter of November 2,2006 that “in [Amanda’s] records she states that she was the driver.” Contrary to his statements at the evidentiary hearing, petitioner was aware that medical documents existed, as stated in his letter, and he was aware from talking to Ms. Shumaker that some of those records referred to her as the driver. Petitioner admitted in his testimony that Attorney Row-den was also a source of his knowledge regarding Ms. Shumaker possibly being the driver during the accident. Petitioner’s claims that he entered into his plea unknowingly because Attorney Rowden failed to give him the entire discovery packet are significantly diminished by his testimony and the contents of his letter.

Attorney Rowden also testified during the evidentiary hearing on this matter. Petitioner retained his services on June 13, 2006, for the preliminary hearing, and also through trial and sentencing. Petitioner told Attorney Rowden that Ms. Shumaker was his girlfriend, and that she had been injured in the accident and had filed a civil suit against him. Petitioner also told Attorney Row-den that Ms. Shumaker had been driving at some point in the evening, but that he could not remember who was driving at the time of the accident. Finally, petitioner told Attorney Rowden that Ms. Shumaker had records saying that she was the driver prior to the preliminary hearing.

Attorney Rowden received discovery materials from the Commonwealth on September 7,2006 and December 8, 2006. The materials received on September 7, 2006, included the crash report, property records, and Ms. Shumaker’s medical records. Attorney Rowden testified that he met with the petitioner three to four times from September 7, 2006 to January 2, 2007. During these meetings they went over the petitioner’s statement to Trooper Ott and also Ms. Shumaker’s medical records. Attorney Rowden testified that he showed petitioner the discovery materials prior to the plea agreement, which included records referring to Ms. Shumaker as the driver during the accident.

The petitioner requested portions of the discoverable material from Attorney Rowden, and Attorney Rowden stated that he gave the petitioner those portions, but did not provide the entire discovery packet to the petitioner because it was voluminous. Attorney Rowden said that providing petitioner with portions of the discovery packet was consistent with his general practice of only giving portions of the discovery packet to his clients. Attorney Rowden and the petitioner later discussed the plea offer from the Commonwealth and the petitioner was advised that he would be serving time regardless of what happened at trial because he had been taking controlled substances in violation of his parole. Attorney Rowden testified that the petitioner expressed remorse at one point over his decision to enter a plea, so Attorney Rowden asked the petitioner if he would like to withdraw his plea. Petitioner stated that he did not want to withdraw his plea, so Attorney Rowden advised him on the discretion a judge has during sentencing in preparation for sentencing.

On cross-examination, Attorney Rowden was questioned about his discussions with the petitioner regarding the case and why the decision was made to enter a plea over going to trial. Attorney Rowden testified that he had discussed the entire case with the petitioner, including the use of Ms. Shumaker’s medical records. Attorney Rowden explained to the petitioner that the medical records never specifically indicated that Ms. Shumaker was the driver. The doctors who had treated Ms. Shumaker merely assumed that she was the driver during the accident. This was evident from the fact that some doctors indicated that Ms. Shumaker was the driver, while another doctor indicated that Ms. Shumaker was the passenger. Attorney Rowden also explained to the petitioner that introducing Ms. Shumaker’s medical records at trial could negatively impact his chances at trial because such evidence opened up a “whole new can of worms.”

After a careful review of the record, we find that the petitioner has failed to establish that Attorney Rowden rendered ineffective assistance of counsel during the plea process. Petitioner was required to establish that his counsel’s ineffectiveness resulted in his unknowing, involuntary, or unintelligent entiy of a plea. Bedell, 954 A.2d at 1212. Not only has the petitioner failed to establish that his counsel’s ineffectiveness resulted in him entering a plea unknowingly, petitioner has failed to establish that Attorney Rowden rendered ineffective assistance of counsel. Petitioner’s argument that Attorney Rowden’s failure to provide him with the entire discovery packet resulted in his entry of a plea unknowingly is contrary to a clear and transparent record. Petitioner was well aware of the fact that some of Ms. Shumaker’s medical records referred to her as the driver of the vehicle during the accident, and this is evident from petitioner’s own letter to Attorney Rowden. With this knowledge, petitioner still decided to enter a plea in this case. Moreover, petitioner admitted in his testimony at the evidentiary hearing that Attorney Rowden was a source of his knowledge that Ms. Shumaker was possibly driving during the accident.

We find Attorney Rowden’s testimony to be credible regarding the fact that he discussed the entire case with the petitioner, he showed and discussed the discovery packet with the petitioner, and he provided sound advice to the petitioner based upon a proper strategy designed to protect the petitioner’s interests. Attorney Rowden successfully negotiated a favorable plea deal under circumstances that included strong evidence against the petitioner, secondary evidence in the form of medical records that had the potential to do more harm than good at trial, and the fact that the petitioner was in violation of his parole agreement. Defendant received the benefit of the bargain when he entered his plea, and is now attempting to renege on a plea that was based upon negotiations made in good faith. Furthermore, Attorney Rowden told the petitioner that he could withdraw his plea when petitioner expressed regret over his entry of a plea prior to sentencing, but the petitioner decided against taking such action. Petitioner’s claim that he entered his plea unknowingly because his counsel did not provide him with a copy of the entire discovery packet until after sentencing is meritless. Petitioner was established to have had the same knowledge before and after his sentencing with regard to Ms. Shumaker’s medical records, and Attorney Rowden proved to be very effective in the handling of petitioner’s case.

Accordingly, for the reasons set forth in this memorandum, we now enter the following order:

ORDER

And now, September 29, 2009, we find and order as follows:

(1) The petitioner’s second amended petition for post-collateral relief is denied.

(2) The grounds for denying relief are those presented in the attached memorandum.

(3) The petitioner is hereby notified that he has a right to file an appeal of this order, denying his second amended petition, with the Superior Court. Any such appeal must be filed within 30 days from this date.

(4) The clerk of courts shall send a true and correct copy of this memorandum and order to the petitioner at his last known address and to PCRA counsel, Ross C. Prather, both by regular mail, postage prepaid and by certified mail, return receipt requested.


author: ASHWORTH, J,

text:
    Commonwealth v. Schur

      Susan Moyer, assistant district attorney, for Commonwealth.

      Walter R. Schur Jr., pro se.
    December 8, 2009
   ASHWORTH, J,

Walter Schur has filed an appeal to the Superior Court of Pennsylvania from this court’s denial of his pro se “motion to vacate revocation order” on October 13, 2009. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

I. BACKGROUND

On March 15, 2000, a criminal complaint was filed against Schur charging him with indecent assault and corruption of minors. The basis for these charges was an allegation that between August 30,1999 and September 23, 1999, Schur engaged in sexual contact with his daughter, S.S., who was 7 years of age at the time the offenses occurred. These charges were eventually indexed to Information no. 2099-2000.

On March 28,2000, a second criminal complaint was filed against Schur related to the continuing sexual abuse of his daughter, S.S., between April 1,1998 and October 19, 1998. As subsequently amended, the charges included aggravated indecent assault, indecent assault and corruption of minors. These charges were eventually indexed to Information no. 2100-2000.

On March 23,2001, appellant entered a plea of guilty to all of the charges referenced above. The plea was entered pursuant to an agreement calling for specific sentencing terms. This court accepted the guilty plea but deferred sentencing, and ordered appellant to undergo an assessment by the State Sex Offenders Assessment Board to determine whether appellant should be classified as a “sexually violent predator” pursuant to the Registration of Sexual Offenders Act, commonly referred to as Pennsylvania’s Megan’s Law, 42 Pa.C.S. §9791 et seq., because of his plea of guilty to the predicate offenses of aggravated indecent assault and indecent assault.

Thereafter, appellant filed a motion for extraordinary relief on May 3, 2001, requesting the court to strike as unconstitutional the “sexually violent predator” provisions of Megan’s Law and to bar a second prosecution for the same offense. Appellant’s case was consolidated for oral argument on the Megan’s Law issue with four other similar cases in the Court of Common Pleas of Lancaster County. The Honorable Louis J. Farina and the undersigned heard oral argument on July 17, 2001. On August 7, 2001, the court entered an order granting appellant’s motion and declaring the “sexually violent predator” provisions of Megan’s Law constitutionally invalid under the due process clause of the 14th Amendment to the United States Constitution. The Commonwealth appealed that decision to the Supreme Court of Pennsylvania on August 28, 2001.

On September 17, 2001, the court imposed sentence on appellant in accordance with the terms of the March plea agreement. Specifically, appellant received the following sentence on Information no. 2100-2000: (1) Count 1, aggravated indecent assault, two to four years incarceration split sentence of five years consecutive probation; (2) Count 2, indecent assault, five years probation; and (3) Count 3, corruption of minors, five years probation concurrent with Count 2 but consecutive to the Count 1 prison sentence. On Information no. 2099-2000, appellant received a sentence of five years probation on each charge (indecent assault and corruption of minors), concurrent with each other but consecutive to the prison sentence imposed on Count 1 of no. 2100-2000. Appellant was further ordered to pay fines and costs, and to attend sex offender counseling. Schur was represented at the guilty plea and sentencing by the Public Defender’s Office of Lancaster County, specifically, Scott K. Oberholtzer.

Appellant’s five-year probation became effective March 29, 2004. On March 23, 2004, the Pennsylvania Supreme Court issued its order reversing the order of the Lancaster County Court declaring the Registration of Sexual Offenders Act unconstitutional, and remanding this case for further proceedings in accord with Commonwealth v. Gomer R. Williams (Williams II), 574 Pa. 487, 832 A.2d 962 (2003). Accordingly, on April 13, 2004, the court issued a rule to show cause why appellant should not undergo the mandatory assessment by the Sexual Offenders Assessment Board as required by Megan’s Law. On April 27, 2004, appellant filed a “motion to dismiss based on non-retroactive application of the sexually violent predator provisions of Megan’s Law II,” which, after being fully briefed and argued by the parties, was ultimately denied by the court on October 20,2005. Appellant also filed on June 23, 2004, a “motion for evidentiary hearing and argument on remand to address the constitutionality of the sexually violent predator provisions of Pennsylvania’s Megan’s Law II, to suppress evidence, and to bar a second prosecution for the same offense.”

While these matters were pending before the court, appellant was discharged from sex offender treatment at T. W. Ponessa & Associates for failure to comply with the treatment contract. As a result, a capias was filed on February 25, 2005, charging Schur with violating the rules and regulations of probation as a result of having been discharged from treatment, a specific condition of his probation. On April 28, 2005, appellant appeared before this court for a probation violation hearing. At that time, a violation was found and Schur’s probation was revoked. Sentencing was deferred pending the filing of a presentence investigation report.

Thereafter, pursuant to the Supreme Court order of March 23, 2004, a “sexually violent predator” hearing was scheduled for September 16,2005, then rescheduled for October 27,2005 and finally moved to December 8, 2005. On November 17, 2005, however, the Commonwealth filed a motion to withdraw the request for a “sexually violent predator” hearing after having been notified that the Sexual Offenders Assessment Board determined that Schur did not meet the criteria to be classified as a sexually violent predator, as set forth in 42 Pa.C.S. §9795.5.

Appellant stood for sentencing on his probation violation on December 8, 2005, and received concurrent sentences of two and one-half to five years incarceration for the offenses of indecent assault and corruption of minors at no. 2099-2000 and concurrent sentences of two and one-half to five years incarceration for the offenses of aggravated indecent assault, indecent assault and corruption of minors at Information no. 2100-2000. The sentences at no. 2099-2000 were concurrent with the sentences imposed at no. 2100-2000. Schur did not file any post-sentence motions, nor did he file an appeal with the Superior Court of Pennsylvania from his judgment of sentence. Appellant was represented at the probation violation hearing and sentencing by the Public Defender’s Office of Lancaster County, specifically, Charles Thomas, Esquire.

On August 21, 2009, eight years after entering his original guilty plea, Schur filed a motion to withdraw guilty plea. In his pleading, Schur averred that the 2001 negotiated plea agreement was for “two-four years incarceration to be followed by 10 years special probation and 10 years of registration under Megan’s Law.” Appellant claimed to have been informed by the Pennsylvania State Police and the Pennsylvania Department of Corrections that he is subject to lifetime registration under Megan’s Law. Schur argued that had he known he would be subject to lifetime registration, he would not have pled guilty and, therefore, that he did not knowingly and intelligently enter his guilty plea. (See appellant’s motion for clarification at ¶¶1-4.)

In an opinion and order entered on September 2,2009, this court denied Schur’s pro se motion to withdraw his guilty plea. A timely appeal to the Superior Court of Pennsylvania was filed on October 2, 2009.

On the same day that the notice of appeal was filed from the denial of the motion to withdraw guilty plea, appellant filed a pro se “motion to vacate revocation order.” In this motion, appellant raised two issues: (1) whether the court violated appellant’s due process rights when it revoked appellant’s probation based on inadmissible unreliable polygraph evidence; and (2) whether the court improperly sentenced appellant to a term of total confinement in violation of 42 Pa.C.S. §9771(c). Appellant’s request to vacate the April 28,2005 order revoking his probation was denied by order dated October 13, 2009. Appellant filed a timely notice of appeal to the Superior Court.

By order dated November 4, 2009, appellant was directed to furnish a statement of errors complained of on appeal no later than November 30, 2009. No 1925(b) statement has been received as of this date. In an effort to comply with the Superior Court’s directive in Schur’s first appeal that the lower court record be sent to the appellate court by December 8, 2009, and to expedite this second appeal, this opinion will be filed addressing the two issues raised by Schur in his pro se “motion to vacate revocation order.”

II. DISCUSSION

Appellant began serving his five-year probation on March 29,2004. A special condition of his probation was that he attend sex offender counseling with T. W. Ponessa & Associates. According to appellant, he was dismissed from treatment “on the basis of an ‘interpretation’ of a polygraph examination.” (See appellant’s motion to vacate revocation order at ¶3.) The polygraph examiner allegedly determined that appellant was “employing ‘counter-measures’ to frustrate the polygraph.” (Id. at ¶4.) Appellant claims he was told that the polygraph would be re-administered “in the interest of accuracy” but that another test was never performed. (Id. at ¶9.) Instead, appellant was discharged from the sex offender treatment program, arrested for a technical violation of his probation, and subjected to a probation revocation hearing. Initially, appellant claims that it was “improper” for this court to find that he had violated his probation on the basis of a polygraph examination, evidence that appellant argues “would be considered inadmissible in any court in the United States.” (See appellant’s motion to vacate revocation order at ¶¶5-8, 11.) Appellant concedes that while he was “technically in violation of his probation because he was dismissed from the court-mandated T.W. Ponessa Sex Offender treatment program,” it would be “unacceptably short-sighted of this honorable court to ignore the fact that this technical violation was the result of a questionable ‘interpretation’ of the results of a [polygraph] examination that this honorable court could never use to justify any sentence in any other context.” (Id. at ¶12.)

It is well-settled that “[d]ue to the unreliable nature of polygraph tests, the results of such tests that raise inferences of guilt or innocence are inadmissible at trial.” Commonwealth v. Watkins, 750 A.2d 308, 315 (Pa. Super. 2000) (quoting Commonwealth v. Camm, 443 Pa. 253, 269, 277 A.2d 325, 333 (1971)). In fact, because of “the well-known unreliability of the tests, our courts uniformly have been ‘reluctant to permit any reference to a polygraph examination to be made before the finder of fact.’” Commonwealth v. Hetzel, 822 A.2d 747, 767 (Pa. Super. 2003) (quoting Commonwealth v. Miller, 497 Pa. 257, 263, 439 A.2d 1167, 1170 (1982)).

Relying upon these general principles of law, appellant contends that his probation revocation was impermissibly grounded upon an impermissible scientific test. (See motion to vacate revocation order at ¶¶5-8.) Appellant’s argument, however, fails to recognize the vast difference between an accusatory polygraph and a therapeutic one. “With respect to the former, the polygraph is used as a confrontational tool to extract evidence of uncharged criminality. In the latter, the polygraph is used as a tool to identify risk behaviors and encourage honesty.” Commonwealth v. Camacho-Vasquez, 81 D.&C.4th 353, 359 (2007). Our Superior Court only recently addressed, for the first time, the propriety of therapeutic polygraphs in sex offender cases in Commonwealth v. Shrawder, 940 A.2d 436 (Pa. Super. 2007). In analyzing the issue, the Superior Court cited to a federal decision in United States v. Johnson, 446 F.3d 272 (2nd Cir. 2006), cert. denied, Johnson v. U.S., 549 U.S. 953 (2006), which acknowledged that:

“polygraph results are inadmissible as evidence. But that does not much bear on the therapeutic value of the tool: [T]he polygraph test... is inadmissible in nearly every circumstance at trial. Obviously, however, evidentiary cases do not govern our evaluation of the use of polygraphs in connection with the treatment of an offender. The use of a polygraph test here is not aimed at gathering evidence to inculpate or exculpate [the offender]. Rather, the test is contemplated as a potential treatment tool upon [an offender’s] release from prison .... ” 940 A.2d at 442 (quoting Johnson, 446 F.3d at 278 (citation omitted) (emphasis in original)).

The Johnson court further observed that

“[t]he polygraph can help penetrate deception and encourage an offender to confront his own motivations and behaviors. These outcomes further sentencing objectives such as rehabilitation and deterrence, with reasonably small incremental deprivations of liberty. We therefore conclude that polygraph testing can, and in this case does, further sentencing goals without excessive deprivations of liberty.” Id.

Our Superior Court similarly concluded in Shrawder that

“[t]he therapeutic polygraph is an essential tool for a therapist whose job it is to reveal an offender’s deception and encourage him or her to confront his or her urges and deviant behavior. The test results further the primary goal of counseling as part of a sexual offender’s sentence, which is to rehabilitate the offender and prevent recidivism, with reasonably small incremental deprivations of the offender’s liberty. We also note that... the candor of appellant or any other probationer is always expected during a probation inquiry, whether or not his responses are being recorded through a polygraph test. We therefore conclude that polygraph testing can, and in this case does, further sentencing goals without excessive deprivations of liberty and hold that a therapeutic polygraph is a proper element in a sex offender treatment program for a convicted sexual offender and does not violate a probationer’s rights under the Fifth Amendment to the United States Constitution or under Article One, Section Nine of the Pennsylvania Constitution, so long as the inquiries made pursuant to it relate to the underlying offense for which an offender has been sentenced and do not compel him or her to provide information that could be used against him or her in a subsequent criminal trial.” Id. at 443. (footnote omitted)

Thus, our appellate court has determined that, while polygraph results are inadmissible as evidence injudicial proceedings, they serve as an essential therapeutic tool in sex offender treatment programs, and requiring a convicted sexual offender to participate in such polygraph testing does not violate a probationer’s constitutional rights, so long as inquiries do not compel him to provide information that could be used against him in a subsequent criminal trial. Accordingly, appellant’s claim that it was error for the court to rely upon the results of the therapeutic polygraph administered to him in determining whether he is in violation is without merit and must be dismissed.

In the instant case, as part of the negotiated plea agreement and as a condition of his probation and parole, appellant was to attend “any counseling as deemed necessary, to include sex offender counseling.” (See plea agreement of March 23, 2001.) Sex offender treatment was, in fact, recommended by the court’s probation professionals, a significant component of which required appellant to admit to his behavior. Because appellant continued to deny the sexual nature of the crimes for which he was convicted, a therapeutic polygraph was ordered by the treatment staff. (N.T., PV hearing at 7-8.) As noted by our sister court in Camacho-Vasquez, supra: “A person who admits under oath that he is guilty of a crime may be made to confront the details of that crime in a therapeutic setting and, if necessary, submit to a polygraph as part of the therapeutic process.” 81 D.&C.4th at 366. In preparation for the therapeutic polygraph assessment, the staff received police records which included a signed statement by appellant. In the statement, appellant admitted that on three separate occasions his minor daughter had caught him masturbating. During one of those episodes, appellant admitted to instructing his daughter to ingest his ejaculation, which the victim did. Following the third incident, appellant admitted to engaging in additional sexual contact, specifically, cunnilingus and vaginal and anal intercourse. (N.T., P.V. hearing at 8-9.) During his four years in prison and during his first five months of treatment with T.W. Ponessa while on probation, appellant refused to disclose these facts that he admitted to in his signed statement to the police. (Id. at 9.)

When appellant was confronted with the information contained in his statement at his therapeutic polygraph assessment, appellant denied that he remembered signing the statement and he denied the factual basis for the crimes to which he pleaded guilty. (N.T., PV hearing at 9.) Appellant was found to be deceptive in that polygraph test. (Id.) At follow-up group therapy sessions, appellant was confronted with his statement until he eventually admitted that these three incidences of masturbation did, in fact, take place with his minor daughter. (Id.) Appellant continued, however, to deny the additional charges of oral sex and vaginal and anal intercourse. (Id. at 9-10.)

The record establishes that it was because of appellant’s steadfast refusal to accept responsibility for his confessed actions that he was discharged from sex offender treatment and not simply because of a failed therapeutic polygraph test. (N.T., PV hearing at 10.) In any event, the questions posed to appellant during his polygraph assessment related only to the underlying offenses for which probation had been imposed, and did not compel him to provide information that could be used against him in a subsequent criminal trial. Thus, the polygraph’s sole purpose was to further the primary goal of counseling to rehabilitate the probationer and prevent recidivism, and not for incriminatory purposes. Accordingly, it was proper for the court to admit and rely upon the results of a therapeutic polygraph assessment in determining whether appellant was in violation of his probation.

Next, appellant claims the court improperly sentenced him to a term of total confinement in violation of 42 Pa.C.S. §9771(c). When considering an appeal from a sentence imposed following the revocation of probation, the appellate court’s “review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing.” Commonwealth v. Perreault, 930 A.2d 553, 557 (Pa. Super. 2007) (citation omitted); 42 Pa.C.S. §9771(b). It is well-settled that the imposition of sentence following revocation of probation is vested within the sound discretion of the trial court, and that court’s decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion. Id. at 558 (citing Commonwealth v. Smith, 447 Pa. Super. 502, 507, 669 A.2d 1008, 1011 (1996)). It is clearly stated in the Sentencing Code not only that the court may revoke a defendant’s probation if appropriate, but also that “upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing.” 42 Pa.C.S. §9771(b). See Commonwealth v. Wallace, 582 Pa. 234, 241-42, 870 A.2d 838, 842-43 (2005). Likewise, the Superior Court has stated that “upon revocation of probation, a court possesses the same sentencing alternatives that it had at the time of the initial sentencing.” Commonwealth v. Smith, 447 Pa. Super. 502, 507-508, 669 A.2d 1008, 1011 (1996). This principle applies even if the original sentencing was pursuant to a negotiated plea, as in this case. In Wallace, the Supreme Court noted:

“As it is well-established that the sentencing alternatives available to a court at the time of initial sentencing are all of the alternatives statutorily available under the Sentencing Code, these authorities make clear that at any revocation of probation hearing, the court is similarly free to impose any sentence permitted under the Sentencing Code and is not restricted by the bounds of a negotiated plea agreement between a defendant and prosecutor.” 870 A.2d at 843. (footnotes omitted)

However, it is also the law of this Commonwealth that once probation has been revoked, a sentence of total confinement may be imposed only if one of the following conditions exist in accordance with section 9771(c) of the Sentencing Code:

“(1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or (3) such a sentence is essential to vindicate the authority of the court.” 42 Pa.C.S. §9771(c).

Appellant contends that “[gjiventhe circumstances of the technical violation of probation in this case, and the underlying reason for that technical violation, it appears that none of these three justifications applies.” (See appellant’s motion to vacate revocation order at ¶13. (emphasis in original))

To the contrary, the imposition of a sentence of total confinement after revocation did not violate the requirements of 42 Pa.C.S. §9771(c) in the instant case because Schur’s probation failed to achieve its rehabilitative purposes; hence, it was likely that he would commit another crime if he was not imprisoned. Our Supreme Court has explained that “[pjrobation is a rehabilitative device to be used to assist the offender in his adjustment to life within society.” Commonwealth v. Cottle, 493 Pa. 377, 385, 426 A.2d 598, 602 (1981). In deciding the sentence following a probation revocation, “the court balances the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison.” Commonwealth v. Ballard, 814 A.2d 1242, 1245 (Pa. Super. 2003) (quoting Commonwealth v. Del Conte, 277 Pa. Super. 296, 302, 419 A.2d 780, 783 (1980)). “When it becomes apparent that the probationary order is not serving this desired end (of rehabilitation) the court’s discretion to impose a more appropriate sanction should not be fettered.” Id.

Schur failed to accomplish that which the probation was designed to achieve — rehabilitation of his sexually deviant behavior. Without rehabilitation, appellant remained a danger to the community and society needed to be protected. Thus, having found that parole and probation were ineffective in rehabilitating Schur and that further incarceration was appropriate, the court’s sentence of two and one-half to five years incarceration was in accordance with section 9771(c) of the Sentencing Code.

III. CONCLUSION

For the reasons set forth above, appellant’s issues on appeal are meritless and his conviction should be affirmed.

Accordingly, we enter the following:

ORDER

And now, December 8,2009, the court hereby submits this opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      . 18 Pa.C.S. §3126(a)(7) and 18 Pa.C.S. §6301(a), respectively.

      . 18 Pa.C.S. §3125(7), 18 Pa.C.S. §3126(a)(7), and 18 Pa.C.S. §6301(a), respectively.

      . A sexually violent predator is defined as “[a] person who has been convicted of a sexually violent offense as set forth in [42 Pa.C.S. §9795.1 (relating to registration)] and who is determined to be a sexually violent predator under [42 Pa.C.S. §9795.4 (relating to assessments)] due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §9792.

      . Those related cases were: Commonwealth v. Murray, no. 1367-1999; Commonwealth v. Gaytan, no. 1103-2000; Commonwealth v. Acklin, nos. 3944-2000, 3946-2000, 3947-2000; and Commonwealth v. Peters, no. 1553-2001.

      . The notice of appeal is docketed October 9, 2006, the date of receipt in the clerk of court’s office. Said notice of appeal, however, shall be deemed filed as of the date it was deposited with prison authorities and/or placed in the prison mailbox, that is, October 2,2009. See Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423, 426 (1997) (stating language of Pa.R.A.P. 903 is amenable to exception for pro se prisoners, and extending prisoner mailbox rule to all appeals by pro se prisoners; holding “justice requires the appeal to be deemed ‘filed’ on the date that the appellant deposits the appeal with prison authorities and/or places it in the prison mailbox”). See also, Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002).

      . Section 9771 of the Sentencing Code provides, in pertinent part:
      “(b) Revocation. — The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b).


author: KWIDIS, J,

text:
    Grieco v. Sean & Co. L.P.

      Daniel McLane, for plaintiffs.

      Harry Kunselman, for defendants.
    October 15, 2009
   KWIDIS, J,

Before this court are the defendants, Sean & Co. L.P. and Demetrios Pappan’s preliminary objections as to the legal sufficiency of Counts II, III, and IV of the plaintiffs’, Robert and Nancy Grieco’s, amended complaint. The defendants’ preliminary objections to Counts II, III and IV are denied as the gist of the action doctrine does not apply, and thus, Counts II, III and IV are not legally insufficient pursuant to Pa.R.C.P. 1028(a)(4).

On April 28,2008, the defendants purchased from the plaintiffs a parcel of land at 142 McKinley Road, Chippewa, Pennsylvania with the intent of developing the land into the future site of a Tractor Supply Company store. The plaintiffs own and reside on the property at 132 McKinley Road, which is located between the parcel purchased by the defendants and State Route 51. Prior to the purchase of the 142 McKinley Road property, a row of pine trees existed on the plaintiffs’ property, separating the property from Route 51. This row of trees, if left unaltered, would have obstructed the view from Route 51 of any future signage erected by the Tractor Supply Company Store.

In February of 2008, the defendants entered into a contract with the plaintiffs to remove the pine trees which would negatively impact the visibility of the proposed Tractor Supply Company store at the defendants’ cost. The parties made further oral agreements regarding other specifics of the tree removal process. Specifically, the parties agreed: that Richard Cox was to remove the trees sometime after June 15, 2008; that the plaintiffs would supervise the tree removal; that the defendants would replace the pine trees with mounds of dirt and shorter trees; and that no other vegetation would be removed from the plaintiffs’ property.

On approximately June 10, 2008, while the plaintiffs were on vacation in California, the defendants authorized contractors, not Richard Cox as agreed upon, to enter upon the plaintiffs’ property to remove the pines trees. In addition to removing the pine trees specified in the agreement, the defendants’ contractors removed or damaged numerous other trees, shrubs, and landscaping.

On February 17,2009, the plaintiffs filed an amended complaint alleging: breach of contract, trespass, conversion and fraud in the inducement.

On November 21,2008, the defendants filed preliminary objections to the plaintiffs’ amended complaint, arguing that Counts II, III and IV are legally insufficient. The defendants argue that these three counts are barred by the gist of the action doctrine as Count I is a breach of contract claim and Counts II, III and IV are tort claims.

The Pennsylvania Rules of Civil Procedure provide that any party may file preliminary objections to a complaint for legal insufficiency, commonly referred to as a demurrer. Pa.R.C.P. 1028(a)(4). The question presented by demurrer is whether on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). “A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. .. . ‘Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.’.. . All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild LLP, 925 A.2d 798, 805 (Pa. Super. 2007). (citations omitted)

Under these guidelines, this court has proceeded to analyze the controlling cases involving the gist of the action doctrine.

The Superior Court defined the gist of the action doctrine in Hart v. Arnold, 884 A.2d 316 (Pa. Super. 2005), stating that the doctrine bars tort claims:

“(1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.” Id. at 340.

The Superior Court has explained, “When a plaintiff alleges that the defendant committed a tort in the course of carrying out a contractual agreement, Pennsylvania courts examine the claim and determine whether the ‘gist’ or gravamen of it sounds in contract or tort.” Pennsylvania Manufacturers’ Association Insurance Company v. L.B. Smith Inc., 831 A.2d 1178, 1182 (Pa. Super. 2003). (citation omitted)

In the instant matter, the plaintiffs allege both contractual and tortuous claims. In Count I, the plaintiffs claim that the defendants intentionally, willfully and knowingly breached the pine tree removal agreement. However, the contract is extremely vague. It merely states that:

“I, Robert Grieco, authorize Sean & Co. LP or any of its agents or contractors to remove the trees along the border with 132 McKinley and Prestons which negatively impact the visibility of the Tractor Supply development to be located on 142 McKinley Road, Chippewa Twp., Beaver Falls, Pennsylvania.”

This is the entire contract, and it does not specifically state what types of or number of trees were to be removed by the defendants. Further, the agreement does not specifically state when and by whom the trees were supposed to be removed.

Based on this agreement, it is unclear whether a breach of contract occurred. This court, therefore, cannot declare that the torts complained of in the plaintiffs’ amended complaint were committed during the course of carrying out any of the contractual duties. The gist of the action doctrine does not bar the plaintiffs’ tortuous claims of trespass, conversion and fraud in the inducement.

This court enters the following order.

ORDER

And now, October 15, 2009, after argument and consideration of the defendants’ preliminary objections in the above-captioned case, it is hereby ordered and directed as follows:

The defendants’ preliminary objections are denied. The case will proceed on Counts II, III and IV of the plaintiffs’ amended complaint.


author: KWIDIS, J.,

text:
    Hardy v. Big Beaver Falls School District

      Joseph E. Hardy, pro se.

      Nancy Winschel, for defendant.
    October 15, 2009
   KWIDIS, J.,

Before this court are the defendant, Big Beaver Falls School District’s preliminary objections as to the legal sufficiency of the complaint filed by Joseph E. Hardy, pro se. The defendants’ preliminary objections are granted as the plaintiff’s complaint is legally insufficient pursuant to Pa.R.C.P. 1028(a)(4).

On April 7,2009, the plaintiff filed a complaint alleging injuries arising from his attendance on October 6, 2006 at an intramural volleyball game at the defendant’s gymnasium. Specifically, the plaintiff alleges several theories of liability, including, but not limited to: (1) negligent care and concern in allowing him to be struck by an “errant” volleyball during the game; (2) failure to protect him from risk of harm of being struck by volleyball; (3) recklessly, negligently, purposefully, and maliciously refusing to reduce the volume of the sound system; (4) conspiring to imprison and maliciously imprisoning him in the gymnasium; (5) assault upon his person by Superintendant Nugent; (6) accomplice to battery perpetrated upon him; (7) conspiracy to bully, threaten, strike, hold and push him; and (8) conspiracy to deny plaintiff “his civil rights as to age discrimination, disabilities statutes; public access, safety considerations, decibel levels and facilities access.”

On May 11, 2009, the defendant filed preliminary objections to the plaintiff’s complaint, arguing that it is legally insufficient. Specifically, the defendant alleges that the plaintiff’s claims are barred by the Political Subdivision Tort Claims Act at 42 Pa.C.S. §8541 etseq., specifically section 8545.

The Pennsylvania Rules of Civil Procedure provide that any party may file preliminary objections to a complaint for legal insufficiency, commonly referred to as a demurrer. Pa.R.C.P. 1028(a)(4). The question presented by demurrer is whether on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). “A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. . . . ‘Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.’. . . All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild LLP, 925 A.2d 798, 805 (Pa. Super. 2007). (citations omitted)

Under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541, “no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” In order for liability to be imposed on a local agency, 42 Pa.C.S. §8542(a) sets forth three conditions that must be met: First, the damages must be recoverable under common law or a statute creating a cause of action if the injury was caused by a person not having available a defense under 42 Pa.C.S. §8541. Second, the injury must have been caused by the negligent acts of the local agency or an employee of the local agency acting within the scope of his or her office or duties. Finally, the negligent action must fall within one of the exceptions to governmental immunity set forth in 42 Pa.C.S. §8542(b). Lindstrom v. City of Corry, 563 Pa. 579, 584, 763 A.2d 394, 397 (2000).

Exceptions to governmental immunity include: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks, and (8) care, custody or control of animals. 42 Pa.C.S. §8542(b).

In the instant case, the plaintiff alleges negligent and willful misconduct against the defendant in negligently allowing him to be struck by a volleyball; negligently rendering aid after he was struck with said volleyball; and willfully and maliciously failing to reduce the volume on the gymnasium’s sound system. However, the plaintiff fails to meet his burden of showing that a common-law or statutory cause of action for negligence is even present. Therefore, it is unnecessary to analyze whether an exception to governmental immunity exists.

Further, pursuant to 42 Pa.C.S. §8550, a local agency cannot be liable for an injury caused by the criminal, fraudulent, malicious or willful/intentional misconduct of the employee. See Acker v. Spangler, 92 Pa. Commw. 616, 500 A.2d 206 (1985).

In the instant matter, the plaintiff alleges that Superintendent Nugent intentionally assaulted, battered, falsely imprisoned and maliciously conspired to harm him. However, under 42 Pa.C.S. §8550, the defendant cannot be liable for the intentional/willful misconduct of its employees.

This court enters the following order.

ORDER

And now, October 15, 2009, after argument and consideration of the defendants’ preliminary objections in the above-captioned case, it is hereby ordered and directed as follows:

The defendants’ preliminary objections are granted, and the plaintiff’s complaint is dismissed.


author: PANCHIK, J,

text:
    Amsler v. Hollabaugh

      R. Jerry Little, for plaintiff.

      Jason R. Lewis, for defendants.
    July 24, 2009
   PANCHIK, J,

Before the court for disposition is defendants’ summary judgment motion in two consolidated actions alleging breach of contract and violation of the Unfair Trade Practices Consumer Protection Law (CPL). The defendants are a husband and wife who allegedly operate a horse farm together and the cases involve a dispute concerning the sale of a horse to plaintiff. The two cases have been consolidated for non-jury trial.

In the first action, plaintiff’s complaint alleged the following. Kara Hollabaugh, doing business as Sky Bar Farms, owned and operated a horse farm where she was in the business of selling and breeding horses. On June 8, 2007, plaintiff met with Kara for the purpose of purchasing a female paint horse for $900. During the negotiations, Kara represented to plaintiff that the horse was approximately 9 years old and had the appropriate registration papers.

Plaintiff explained to Kara that she wanted a horse with registration papers so it could be bred and the foal could be registered. Kara assured plaintiff that the paint horse had registration papers and that she would deliver the registration papers to plaintiff. Plaintiff relied on Kara’s representation that the horse was registered and that Kara would give plaintiff the necessary registration papers. As a result, plaintiff purchased the horse.

However, despite repeated requests, plaintiff did not see any registration papers for the horse for 17 months, and only then, during an arbitration proceeding. When plaintiff was finally provided with a copy of the registration, the registration was in the name of a third party. The registration had never been transferred to her. Plaintiff sued for breach of contract.

Plaintiff also alleged in her complaint that Kara “intentionally, recklessly, negligently and/or deceptively” made material misrepresentations by representing and guaranteeing that she would be able to deliver registration papers for the horse, that the misrepresentations were made for the express purpose of inducing plaintiff to purchase the horse, and that plaintiff relied on those representations, which representations induced her to buy the horse. This is the basis of the CPL claim.

In her answer, Kara denied that she had made any misrepresentations or promised to provide the registration papers to plaintiff in plaintiff’s name. Kara averred that plaintiff was aware from the beginning that a third party had the registration papers and would need to be contacted. According to Kara, plaintiff received the benefit of the bargain, which was to purchase a horse with registration papers. Therefore, there was no breach of contract, deception, or damage suffered.

Subsequent to filing the first action, plaintiff learned that Kara’s husband, Jeff Hollabaugh, was also involved in the horse breeding and selling business, was named on Sky Bar Farms’ business card with Kara, and was named on the farm’s business web site with Kara. Thus, on December 17, 2008, plaintiff filed a second action against Jeff, essentially repeating the same allegations she had already made against Kara. Plaintiff also alleged that Jeff was jointly and severally liable as co-owner of the horse breeding and selling business, or alternatively, that Kara was the agent, servant and employee of Jeff with the full authority to bind Jeff to the contract.

Jeff filed an answer to the complaint in which he denied generally that he owned and operated a horse farm with Kara. He admitted that Kara offered to sell the paint horse to plaintiff for $900. He further admitted in paragraph 7 that Kara had represented to plaintiff that the paint horse had the appropriate registration papers and that they would be transferred to plaintiff subsequent to the sale and delivery of the horse.

At paragraph 8, Jeff admitted that plaintiff had explained to Kara that she wanted a horse with registration papers so that it could be bred and the foal could be registered. In paragraph 9, Jeff admitted that Kara had assured plaintiff that the paint horse in question had registration papers and that the same would be transferred to plaintiff, and further that plaintiff had relied upon said representations when she purchased the horse.

In paragraph 11, Jeff admitted that his wife had been repeatedly requested by plaintiff to provide plaintiff with the appropriate horse registration papers. At paragraph 13, Jeff also admitted that plaintiff had written to Kara and requested a full refund and return of the horse.

DISCUSSION

Having discussed the factual and procedural background, we now address defendants’ motion for summary judgment. The standard for considering a motion for summary judgment is as follows. Under Pa.R.C.P. 1035.2, summary judgment shall be granted “(1) whenever there is no genuine issue of any material fact as to a necessary element of a cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion,..., 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.” The court must review the record in the light most favorable to the moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Atcovitz v. Gulph Mills Tennis Club Inc., 571 Pa. 580, 585-86, 812 A.2d 1218, 1221 (2002).

In their summary judgment motion and supporting brief, Kara and Jeff deny that a term of the contract between the parties was that Kara would transfer the registration papers for the horse to plaintiff. They claim plaintiff is unable to adduce any evidence that transfer of registration papers was an essential term of the contract. Because the transfer of the papers allegedly was not a term, defendants claim, plaintiff received the benefit of the bargain when she received a registered horse and has no case. On those grounds, they ask the court to grant their request for summary judgment.

However, Jeff admitted in his answer that transfer of the registration papers was in fact a term of the contract between Kara and plaintiff. Plaintiff avers the same in her affidavit in opposition to summary judgment. Thus, a genuine issue of material fact does exist as to that issue, and summary judgment will not be granted on it.

Jeff further seeks summary judgment on the basis that plaintiff cannot possibly prove that he was co-owner of the farm. Jeff filed an affidavit in which he averred that he sometimes helped with the business, but was not co-owner. However, the copy of the couple’s business card and the printout of the home page of the couple’s web site attached to plaintiff’s affidavit certainly create a genuine issue of material fact on that issue. Thus, Jeff’s request for summary judgment on that basis is denied.

Finally, Kara and Jeff seek summary judgment on the CPL count on the grounds that plaintiff has failed to proffer any evidence as to all the elements of common-law fraud. Defendant claims that plaintiff must offer proof of all the elements of common-law fraud in order to make out a case under the CPL. That is not an accurate statement of the law. There is actually a split of authority on that issue.

In Commonwealth v. Percudani, 825 A.2d 743 (Pa. Commw. 2003), 844 A.2d 35 (Pa. Commw. 2004), the Commonwealth Court found that because the legislature amended the CPL in 1996 to include “deceptive conduct” in addition to “other fraudulent conduct,” the legislature must have meant to include conduct other than fraudulent conduct. We agree with the Commonwealth Court’s detailed analysis and find that plaintiff need not plead the elements of common-law fraud in order to state a claim under the CPL.

In any event, there is evidence of all of the elements of common-law fraud on the record. Plaintiff alleges that Kara materially misrepresented that she would provide registration papers to plaintiff in plaintiff’s name. This creates a genuine issue of material fact as to whether Kara represented to plaintiff that she could provide such papers, knowing or not being certain that she could not do so, and that she made this representation in order to induce plaintiff to buy the horse. Thus, the court will allow the CPL count to proceed.

For all the above reasons, Kara and Jeff’s motions for summary judgment are denied in their entirety.

An appropriate order will be entered.

ORDER

And now, July 24,2009,after careful consideration of the entire record, it appearing to the court that genuine issues of material fact exist in all of plaintiff’s claims against defendants, it is ordered, adjudged and decreed that defendants’ motion for summary judgment in the above two consolidated cases be and is hereby denied.

      . After Kara would not take the horse back and did not refund plaintiff’s money, plaintiff revoked her acceptance under article 2 of the Uniform Commercial Code. Plaintiff ultimately sold the horse at a loss, since she was paying to board the horse and did not consider the horse breedable without the registration papers.

      . See Commonwealth v. Percudani, supra; Weiler v. SmithKline Beecham Corp., 53 D.&C.4th 449 (Phila. Cty. 2001); Flores v. Shapiro & Kreisman, 246 F. Supp.2d 427 (2002); Stephen Buckingham, Distinguishing Deception and Fraud, 78 Temp. L. Rev. 1025 (2005), all finding that due to the amendment of the CPA in 1996, the CPA is not limited to common-law fraud allegations. Cf. Booze v. Allstate Insurance Co., 750 A.2d 877 (Pa. Super. 2000), and cases cited therein, which found that in order to state a claim under the CPA, a plaintiff must prove the elements of common-law fraud.