author: DEL RICCI, J.,

text:
    Commonwealth v. Breyer

      C.P. of Montgomery County,
    nos. 366-00 and 8680-00.

      Bruce L. Castor, district attorney, for Commonwealth.

      Joseph J. Hylan, for defendant.
    October 22, 2001

      EN BANC, NICHOLAS, CORSO AND DEL RICCI, JJ.

   DEL RICCI, J.,

The defendant Barry Lee Breyer has challenged the constitutionality of 42 Pa.C.S. §9791 et seq., commonly known as Megan’s Law II. This is an issue of first impression in Montgomery County.

FACTS AND PROCEDURAL HISTORY

The defendant was charged with involuntary deviate sexual intercourse and related offenses in two separate criminal complaints. The matters were consolidated and the defendant was convicted by a jury of five counts of involuntary deviate sexual intercourse and three counts of corruption of minors.

Immediately following the defendant’s conviction, the court ordered that an assessment be made by the state Sexual Offenders Assessment Board, to determine whether the defendant should be classified as a sexually violent predator, and thereby subject to the notification requirements of 42 Pa.C.S. §9798 and the counseling requirements of 42 Pa.C.S. §9799.4. The board identified the defendant as a sexually violent predator. A hearing was scheduled, pursuant to 42 Pa.C.S. §9795.4(e)(1), seeking a judicial determination of the issue of whether the defendant was a sexually violent predator.

The defendant then challenged the constitutionality of Megan’s Law II by filing his petition to preclude imposition of sanctions provided by 42 Pa.C.S. §9791 et seq. By agreement of the parties, the matter was bifurcated. The court first held a hearing to determine whether the Commonwealth could meet its burden to prove, by clear and convincing evidence, that the defendant was a sexually violent predator. It was agreed that argument on the issue of the constitutionality of Megan’s Law II would be heard following that hearing.

A hearing was conducted on July 24, 2001. The court determined that the Commonwealth met its burden and had proven, by clear and convincing evidence, that the defendant was a sexually violent predator.

. The court then convened, en banc, to consider the constitutional challenge. After reviewing the memoranda filed on behalf of the parties, and hearing argument thereon, the court finds certain portions of Megan’s Law II to be unconstitutional, as discussed below.

THE NATURE OF THE CONSTITUTIONAL CHALLENGE

The defendant presents a single question in his brief, that being whether the sanctions of Megan’s Law II may be imposed in light of the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The defendant claims that such sanctions constitute punishment and cannot be applied in the manner prescribed by the legislature without violating the defendant’s right to procedural due process. More specifically, the defendant asserts that the issue of whether the defendant is a sexual predator must be proved to a jury beyond a reasonable doubt. It cannot be determined by a judge in a post-conviction proceeding, based upon a standard of clear and convincing evidence. The defendant has not challenged the registration provisions of Megan’s Law II. While this court is not called upon to rule upon the constitutionality of the registration requirements, we note that this issue has been raised and addressed by several courts of common pleas within the Commonwealth of Pennsylvania. We shall focus on the question of whether the notification provisions of Megan’s Law II, section 9798, and lifetime monthly counseling at the defendant’s expense, section 9799.4, constitute punishment, thus triggering the application of Apprendi.

DISCUSSION

I. Application of Apprendi

The defendant in Apprendi pleaded guilty to various charges, including two counts of second-degree possession of a firearm for an unlawful purpose. Apprendi, 530 U.S. at 470. The state reserved the right to request the court to impose an enhanced sentence, pursuant to New Jersey’s hate crime statute. Id. Following an evidentiary hearing, the trial court found, by a preponderance of the evidence, that the defendant’s actions fell within the scope of the statute and that the hate crime enhancement applied. Id. Such a finding resulted in the defendant having to face a maximum sentence of 20 years, rather than the maximum sentence of 10 years he faced as originally charged.

The defendant appealed, claiming that the due process clause of the United States Constitution required that the finding of bias, upon which the defendant’s hate-crime sentence was based, must be proved to a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 471. The United States Supreme Court agreed, finding that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In reaching this finding, the court relied, in large part, on its decision in Jones v. United States, 526 U.S. 227 (1999), and, to a lesser extent, In re Winship, 397 U.S. 145 (1970).

In Winship, on its way to finding that proof beyond a reasonable doubt was required at the adjudicatory stage of a delinquency proceeding, the United States Supreme Court discussed whether the reasonable doubt standard was, in general, a requirement of due process. The court resoundingly found that reasonable doubt was part of the protections provided by the due process clause, stating:

“Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. at 364.

The United States Supreme Court in Jones addressed the provisions of a federal car-jacking statute that set higher penalties when the offense resulted in death or serious bodily injury. The defendant was informed at his arraignment that he faced a maximum of 15 years. At his trial, the jury instructions made no mention of serious bodily injury. Jones, 526 U.S. at 231. After conviction, the pre-sentence report recommended that the defendant be sentenced to 25 years, because of the occurrence of serious bodily injury. The trial court found that the allegation of serious bodily injury was supported by a preponderance of the evidence and imposed a 25-year sentence. Id. The defendant appealed, eventually reaching the United States Supreme Court, which agreed with the defendant, finding that serious bodily injury was an element of the offense and, therefore, had to be proven beyond a reasonable doubt and submitted to a jury for its verdict. Jones, 526 U.S. at 252.

After examining due process cases, the Apprendi court found such review confirmed its past decision. The court explained that “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, citing Jones, 526 U.S. at 252-53 (Stevens, J., concurring).

In this case, the defendant asserts that his assessment as a sexual predator and the application of Megan’s Law II that automatically follows such assessment run afoul of Apprendi, and mandates a finding that Megan’s Law II is unconstitutional. This argument is based on the assertion that certain provisions of Megan’s Law II constitute punishment. Therefore, this court is first charged with determining whether such provisions constitute punishment.

We have focused our attention in this case on two key provisions of Megan’s Law II. The first of these is set forth at 42 Pa.C.S. §9798 and addresses public notification of the offender’s status as a sexually violent predator. This notification includes, (1) the distribution to his neighbors of a written notice containing the offender’s name, home address and photograph, plus the statement that he has been judicially declared to be a sexually violent predator; (2) the distribution of this same notice to all public and private school systems, county children and youth service agencies, and licensed day care, preschool and family day care organizations located in the municipality in which the offender resides; (3) distribution of the notice to any college within a thousand feet of the offender’s home; and (4) distribution of the above information to the general public, either upon request or by any “electronic means” that the state may choose. 42 Pa.C.S. §§9798(a), (b) and (d) (West Supp. 2001). Although under the previous statute, the status of an offender as a sexually violent predator could be terminated by the court, under Megan’s Law II, this status is no longer subject to review.

The second provision we have chosen to examine mandates that each sexually violent predator attend monthly counseling sessions at their own expense, subject to compliance supervision by the state police and employees of the parole board during the lifetime term in which they are required to report. See 42 Pa.C.S. §§9795.1(b)(3), 9796, 9799.4 (West Supp. 2001). Should the defendant fail to comply, he is subject to a maximum term of lifetime incarceration. 42 Pa.C.S. §9796(e)(2) (West Supp. 2001).

We do not minimize the importance that these provisions play in serving one of the most basic and important governmental interests, that of protecting the public. With regard to notification, it is self-evident that, if the public is aware of a potential danger, steps can be taken to avoid it. Indeed, it was the unknown presence of a dangerous sexual predator that resulted in the death of Megan Kanka and initiated the enactment in New Jersey of the original Megan’s Law. N.J. Stat. Ann. §2C:7-1, et seq. (West Supp. 2001). Similarly, mandatory lifetime counseling provides the government with an effective method of monitoring the offender’s progress, or lack thereof, while additionally providing structured support to the offender to reduce the likelihood of reoffense. Nevertheless, this court is not called upon,, nor is it empowered to determine whether the notification and counseling provisions are necessary or beneficial. Rather, we must determine whether they constitute punishment imposed upon the offender without such offender being afforded the full panoply of due process rights. We hold that they do, for the reasons stated below.

II. Application o/Verniero and Artway

The defendant faces a maximum sentence of not less than 10 nor more than 20 years on each of five counts of involuntary deviate sexual intercourse. He faces a maximum sentence of not less than two and one-half nor more than five years on each of three counts of corruption of minors. Having been found to be a sexual predator, the defendant now faces the additional imposition of the notification and counseling provisions described above. Unless these provisions constitute punishment, there is no constitutional impact and Apprendi would not apply.

This court has the guidance of two cases, Artway v. New Jersey, 81 F.3d 1235 (3d Cir. 1996) and E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997) in making this determination. In Artway, the court addressed the issue of whether the New Jersey Megan’s Law registration provision constituted punishment. In Verniero, the court confronted a challenge to the same statute’s notification provisions and utilized the Artway analysis.

The manner in which Artway and Verniero found the New Jersey registration and notification schemes to be constitutional is significant. The analysis of punishment and its review of related United States Supreme Court decisions apply directly to the present case. The analysis developed in Artway, and refined in Verniero, to determine whether a particular provision constitutes punishment, involves a three-prong inquiry. To be considered non-punishment, a measure must pass each part of this three-prong inquiry, looking at (1) actual purpose, (2) objective purpose, and (3) effect. Artway, 81 F.3d at 1263.

A. Actual Purpose Analysis

The first prong of the analysis requires the court to examine the actual purpose of the notification and counseling provisions of Megan’s Law II. The issue is whether these provisions relate to a legitimate legislative purpose. The actual purpose prong looks to the legislative intent and, whether the adverse effect on an individual is the result of the legislature’s desire to punish past conduct, or is merely a consequence of a legitimate effort to remedy a particular problem. Artway, 81 F.3d at 1264. We find that both provisions pass this first prong.

1. Notification

In Artway, the court looked at the declared policy of identifying and alerting the public to enhance safety and prevent and quickly resolve incidents. Id. This is the type of language that indicates a regulatory rather than punitive purpose, thus meeting the first prong. Id. The Verniero court looked at the New Jersey legislature’s stated purpose, which was remedial, and found they had no basis for questioning such purpose. Verniero, 119 F.3d at 1097. Both Artway and Verniero found the statute to satisfy the first prong.

The declared policy of Megan’s Law II is to protect public safety. 42 Pa.C.S. §9791(b) (West Supp. 2001). The statute also states that sexually violent predators pose a high risk of reoffense and that “protection of the public from this type of offender is a paramount governmental interest.” 42Pa.C.S. §9791(a)(2) (West Supp. 2001). The protection of the public is a legitimate legislative purpose identified in both Artway and Verniero. The notification requirements of Megan’s Law II include neighbors, schools and day care facilities. 42 Pa.C.S. §9798(b) (West Supp. 2001). Notifying these groups that an individual is a sexual predator puts potential victims on notice. A well-informed and forewarned population is a better protected one.

2. Counseling

The protection of the public, a legitimate legislative purpose, is also well served by the counseling provisions. Megan’s Law II, in its section on legislative findings, states that “sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration . . . .” 42 Pa.C.S. §9791(a)(2) (West Supp. 2001). The counseling provisions require a sexual predator to attend counseling sessions every 30 days in state-approved programs. 42 Pa.C.S. §9799.4 (West Supp. 2001). Such counseling requirements serve to minimize the risk of reoffense, thereby serving the legitimate legislative purpose of protecting the public.

B. Objective Purpose Analysis

The second prong of the analysis requires the court to examine the objective purpose of the notification and counseling provisions of Megan’s Law II. The relevant issue is whether these provisions are reasonably related to a non-punitive and legitimate legislative goal. We find that both the notification and counseling provisions of Megan’s Law II fail to meet this requirement.

1. Notification

Megan’s Law II includes a provision that allows for widespread public notification, including by electronic means. 42 Pa.C.S. §9798(d) (West Supp. 2001). The notification provision is not carefully tailored or limited in any significant way. The notification provisions of Megan’s Law II are unlike the New Jersey scheme that passed constitutional muster in Verniero, where the court noted with favor that “[t]he fundamental premise of Megan’s Law is that registration and carefully tailored notification can enable law enforcement and those likely to encounter a sex offender to be aware of a potential danger and ‘to stay vigilant against possible re-abuse.’ ” Verniero, 119 F.3d at 1098 (citing Artway, 81 F.3d at 1265). In the New Jersey statute, a three-tier system is established that is based upon an assessment of the risk of reoffense. Verniero, 119 F.3d at 1083. Only the highest risk offenders, those classified as tier 3, are subject to the requirement of community notification. Id. The New Jersey Megan’s Law notification provisions were described as “a measured response to the identified problem that does not subject all registrants to dissemination of information beyond law enforcement personnel.” Verniero, 119 F.3d at 1098. Further, even offenders posing the greatest risk of reoffense are not subject to unlimited public dissemination. Id. The New Jersey statute provides further limitation by including the “likely to encounter” requirement. Verniero, 119 F.3d at 1083. Finally, as stated, a New Jersey offender can apply after 15 years, to terminate the registration requirements. Verniero, 119 F.3d at 1083.

In contrast, the notification requirements of Megan’s Law II provide for wide dissemination of personal information. The likelihood exists for possible publication and transmission of such information over the internet. 42 Pa.C.S. §9798(d) (West Supp. 2001).

The stigma of public notification is a major consequence of the application of Megan’s Law II. Stigmatization and the public humiliation that emanates from public notification of criminal behavior, have historically been used as a form of punishment. See e.g., U.S. v. William Anderson Co., 698 F.2d 911, 913 (8th Cir. 1982). Megan’s Law II provides for continuous and unrestricted notification of the offender’s status as a sexually violent predator. Unlike the statute reviewed by the Verniero court, there exists no limited nexus between the widespread dissemination of this information and those whom the government seeks to protect. When coupled with the failure to provide for subsequent judicial review or discontinuance for cause shown, the notification provisions can only be viewed as punitive.

2. Counseling

Although counseling provisions were not at issue in Verniero, the requirements that a statute be carefully tailored and present a measured response in order to avoid failing this second prong, still apply. Once again, however, Pennsylvania has failed to provide any limitations that would preclude a finding that this requirement is punitive.

Counseling is a traditional form of punishment and has been recognized as such by legislative enactment. It is usually ordered as a condition of supervision and the requirement terminates upon the expiration of supervision.

The effect of the structure created by Megan’s Law II is to place the offender under intense supervision for his entire lifetime. There is no opportunity for review or termination. The offender must attend counseling sessions at least monthly, at his own expense. 42 Pa.C.S. §9799.4 (West Supp. 2001). He must verify his compliance to the state police. 42 Pa.C.S. §9796(a) (West Supp. 2001). A maximum term of life imprisonment may be imposed for the failure of the offender to comply. 42 Pa.C.S. §9796(e)(2) (West Supp. 2001).

The failure to provide for a method of periodic review is clear evidence that the effect of this provision is punitive, rather than protective or rehabilitative. Even if a counselor concludes that an offender has been rehabilitated or that there is no risk of reoffense, the offender must continue to attend counseling. There is no method of judicial or administrative proceeding by which it can be determined whether the public is in need of further protection which would be served by continuation of counseling. This is different than similar enactments that have not been found to be punitive. In Kansas v. Hendricks, 521 U.S. 346 (1997), the United States Supreme Court found that a civil commitment procedure that provided for periodic review was not punitive. Though not addressed specifically by the Verniero court, the New Jersey statute also provides for periodic review.

The scope of the mandatory lifetime counseling provisions of Megan’s Law II is so broad that those provisions are not reasonably related to a non-punitive and legitimate legislative goal.

C. Effects Analysis

The third prong of the Artway/Verniero test is identified as the effects analysis. It requires the court to determine whether the effects of either the notification or mandatory lifetime counseling provisions of Megan’s Law II rise to the level of extremely onerous burden, the sting of which is so severe to compel a conclusion that it constitutes punishment.

Having determined that both provisions fail to pass the second prong of the test, as set forth above, we need not specifically conclude that they also fail the third prong in order to conclude that the defendant is entitled to receive the full protection of due process under Apprendi. Nevertheless, an overview of the analysis of these provisions under the third prong of the test is warranted.

1. Notification

The court in Verniero concluded that the effects of the notification requirements of the New Jersey statute did not cause such a significant sting so as to compel a conclusion that it constituted punishment. Verniero, 119F.3d at 1101. In the process, the court looked at both the direct and indirect effects on an offender brought about by notification. The direct effects include the offender’s ability to live and work in a community, to move from place to place, to obtain a professional license and to secure governmental benefits. Verniero, 119 F.3d at 1102. The court concluded that these direct effects were not impacted by the limited notification of the offender’s designation as a sexual offender. Verniero, 119 F.3d at 1107.

The indirect effects examined by the court include humiliation, isolation, the impact on personal and family' relationships, the loss of opportunities and an increased risk of private violence. The court then examined these effects in light of the holdings of the United States Supreme Court in such cases as Paul v. Davis, 424 U.S. 393 (1976), Roe v. Wade, 410 U.S. 113 (1973), and Kansas v. Hendricks, 521 U.S. 346 (1997), and determined that the impact of notification on an offender was not of sufficient magnitude to be worthy of additional protection. In addressing the reputational effects, the court stated:

“It necessarily follows that some limit must be placed on the situations in which a measure’s sting alone, despite its remedial purpose and effect, will constitute punishment under those clauses and that classification as punishment on the basis of sting alone must be reserved for cases involving deprivation of the interest most highly valued in our constitutional republic.” Verniero, 119 F.3d at 1103.

In addressing the risk of vigilante justice that could be caused by notification, the court held:

“Nevertheless, we believe the Supreme Court would not regard this indirect effect of Megan’s Law as sufficiently burdensome to require classification of the law as punitive. Certainly, in terms of the impact on the everyday lives of registrants, the burden of this aspect of Megan’s Law pales by comparison to the civil commitment of sex offenders sanctioned in Hendricks.'’'’ Verniero, 119 F.3d at 1105.

Under Megan’s Law II, the effects of notification are more severe on the offender than those caused by the New Jersey statute. This is due to the more liberal access and broader dissemination provided in our statute. Nevertheless, the nature of the interests that are affected are identical, both as to reputation and the potential for private injury. It must be concluded that under the standard established by the court in Verniero, these effects do not rise to the level of significance necessary to compel a finding that notification constitutes punishment.

We note that a contrary conclusion would likely be reached when viewed through the prism of protection provided by the Pennsylvania Constitution. Our Supreme Court has recognized that the Pennsylvania Constitution may provide greater protection than the minimum guarantees established by the United States Constitution. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). In Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999), our Supreme Court applied the Verniero test in holding that the registration requirement of Megan’s Law did not constitute punishment for the purpose of the application of the ex post facto clause. The court found that it was necessary to examine the claim under both the United States Constitution, as well as the Pennsylvania Constitution, since a disharmony may exist between the protections afforded by each. Gaffney, 557 Pa. at 338, 586 A.2d at 622. This additional level of scrutiny, while not addressed herein, would likely lead to a conclusion that the notification requirements of Megan’s Law II constitute punishment.

2. Counseling

Even under the high threshold of the effects analysis established by Verniero, the requirement of mandatory lifetime counseling in Megan’s Law II would likely constitute punishment. As described above, Megan’s Law II requires an offender to attend counseling sessions not less than monthly and to verify compliance with the state police. This requirement remains in force for the life of the offender and may not be terminated. There is no mechanism for review, even if it were to be concluded that counseling was no longer necessary or of benefit to the offender or the public. The offender faces a penalty of life imprisonment for the failure to comply with these requirements.

One of the highly valued rights recognized by Verniero as worthy of protection is the freedom to move from place to place. Verniero, 119 F.3d at 1101. This is a right that has historically and consistently been characterized as fundamental by the United States Supreme Court. See Attorney General of New York, 476 U.S. 898 (1986); Kent v. Dulles, 357 U.S. 116 (1958).

The mandatory lifetime counseling requirements of Megan’s Law II would interfere with, if not totally preclude, the ability of the defendant to freely relocate or travel. The sting of this provision would appear to be such that it would be deemed to be punishment, hence requiring the protections mandated by Apprendi.

CONCLUSION

There is a strong presumption a statute is constitutional and a heavy burden of persuasion on the party that makes such challenge. Commonwealth v. Williams, 557 Pa. 285, 304,733 A.2d 593, 603 (1999) (citing Commonwealth v. Barud, 545 Pa. 297, 304, 681 A.2d 162, 165 (1996)). This court finds that the defendant here has met this burden as to two parts of Megan’s Law II, the notification and counseling provisions. 42 Pa.C.S. §§9798 and 9799.4 (West Supp. 2001). The notification and counseling provisions constitute punishment by increasing the maximum penalty faced by the defendant on the original charges, while not affording the defendant the protections of the full panoply of due process rights required by Apprendi.

ORDER

And now, October 22, 2001, following argument and upon consideration of briefs, it is hereby ordered and decreed that defendant Barry Lee Breyer’s petition to preclude imposition of sanctions provided by 42 Pa.C.S. §9791 et seq. is granted.

      . 42 Pa.C.S. §9798 (West Supp. 2001).

      . 42 Pa.C.S. §9799.4 (West Supp. 2001).

      . 42 Pa.C.S. §9795.4(e)(1) (West Supp. 2001).

      . The constitutional challenge would be moot if the court determined that the Commonwealth had failed to prove that the defendant was a sexually violent predator.

      . Commonwealth v. Lowery, 2001 WL 1168580 (Pa. Super. October 4, 2001), is the first reported Pennsylvania case to discuss Apprendi. In Lowery, the court adopted the analysis of punishment from Apprendi but found that the Apprendi protections were not triggered under the circumstances in this case.

      . The defendant was convicted of offenses which require automatic registration. See 42 Pa.C.S. §9795.1 (West Supp. 2001).

      . See Commonwealth v. Krouse, trial court opinion, dkt. no. 394 CRIM 2000 (Indiana County, 12/7/00) (registration, notification and counseling found constitutional); Commonwealth v. Wagner, trial court opinion, dkt. no. 2000-734 (Centre County, 4/5/01) (sexually violent predator provisions found to violate due process); Commonwealth v. Stokes, trial court opinion, dkt. no. 729-2000 (Philadelphia County, 4/10/01) (Megan’s Law II found unconstitutional); Commonwealth v. Cain, trial court opinion, dkt. no. 2000-530, 531, 998 (Centre County, 4/17/01) (sexually violent predator provisions found to violate due process); Commonwealth v. Williams, trial court opinion, dkt. no. 2416 of 2000 (June 20,2001) (notification, registration and counseling constitute punishment and therefore the full panoply of rights must be available to defendant); Commonwealth v. Bannigan, trial court opinion, dkt. no. 5733/2000 (Bucks County, 8/18/01) (the sexually violent predator provisions of Megan’s Law II found to violate due process; registration found to be constitutional).

      . 42 Pa.C.S. §9798 (West Supp. 2001).

      . 42 Pa.C.S. §9799.4 (West Supp. 2001).

      . The defendant was ultimately sentenced to 12 years on the enhanced charge. Apprendi, 530 U.S. at 471.

      . U.S. Const. Amend. V. The Fourteenth Amendment requires the states to comply with due process. U.S. Const. Amend. XTV, §1.

      . The report noted that one of the victims testified that another defendant had caused his ear to bleed profusely and a physician had concluded that the victim’s eardrum had been perforated, causing some permanent hearing loss and numbness. Jones, 526 U.S. at 231.

      . 42 Pa.C.S. §9798 (West Supp. 2001).

      . See 42 Pa.C.S. §9794(f) (repealed).

      . The Artway/Verniero test discussed in part II was specifically adopted by the Pennsylvania Supreme Court in Commonwealth v. Gaffney, 557 Pa. 327, 332, 733 A.2d 616, 619 (1999).

      . 42 Pa.C.S. §9791(b):
      “It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and shall not be construed as punitive.”

      . See Sentencing Act, 42 Pa.C.S. §9721(a) (West 1999) (in determining the sentence to be imposed, the court may select probation as one of many alternatives); and 42 Pa.C.S. §9754 (West 1999) (a court may impose such reasonable conditions as it deems necessary to its order of probation).

      . U.S. Const. Art. I, §10, cl. 1.


source: Caselaw Access Project

author: DOBSON, /.,

license: Public Domain

text:
    Setzer v. Mercer County

      C.P. of Mercer County,
    no. 2001-229.

      John A. Tumolo, for plaintiffs.

      Robert G. Kochems, for defendant MCRPC.

      Alan G. Stahl, for defendant Liberty Township and its supervisors.
    September 24, 2001
   DOBSON, /.,

The matters before this court for disposition are: defendants Liberty Township’s and its supervisors, individually, Ron Faull, Robert Gregg and John Lindey’s preliminary objections to plaintiffs’ complaint; defendant Mercer County Regional Planning Commission’s (MCRPC) preliminary objections to plaintiffs’ complaint; and plaintiffs’ preliminary objections to Liberty Township’s and MCRPC’s preliminary objections.

Plaintiffs are property owners in the Liberty Gait subdivision located in Liberty Township, Mercer County, Pennsylvania. The developer of the Liberty Gait development never completed the roadways in the development. Plaintiffs allege that the defendants failed to force the developer to follow Mercer County’s specifications for the roadways in the development when it was constructed in 1983-1984.

On December 4, 1958, Mercer County adopted a Subdivision and Land Development Ordinance to regulate the development of land within Mercer County. Plaintiffs complain that the defendants improperly failed to enforce the ordinance and that the defendants have wrongly refused to accept the roadways in the development as public roads which would thereby cause the defendants to accept the financial burden of maintaining the roads.

On February 18, 1983, Liberty Township accepted a letter of credit from the developer to guarantee completion of the roads within the development, however, plaintiffs contend that Liberty Township improperly allowed the bond to expire without requiring the developer to post a new bond to insure that the roads were built to the proper specifications. Plaintiffs’ complaint seeks equitable relief demanding that defendants accept responsibility for and maintain the roadways in the Liberty Gait development. Liberty Township and MCRPC have each filed preliminary objections to plaintiffs’ complaint.

Liberty Township’s first objection is in the form of a demurrer contending that plaintiffs’ claims are legally insufficient under the Municipalities Planning Code (MPC). Plaintiffs allege that Liberty Township failed to follow or enforce the provisions of the MPC because defendant Mercer County adopted a qualifying Subdivision and Land Development Ordinance pursuant to the MPC, 53 PS. §10502, and Liberty Township has not enforced this ordinance.

Liberty Township argues that pursuant to 53 P.S. § 10502(a) Mercer County’s Subdivision and Land Development Ordinance controls unless Liberty Township adopts its own subdivision and land development ordinance. Liberty Township further argues that plaintiffs do not allege that Liberty Township enacted its own subdivision and land development ordinance, therefore, Mercer County is the only entity that had jurisdiction to approve or reject a plan submitted under its Subdivision and Land Development Ordinance.

In support of its objection, Liberty Township cites Wilson v. Jefferson Township, 86 Pa. Commw. 511, 485 A.2d 861 (1984). In Wilson, the plaintiffs were homeowners in a development located in Jefferson Township, Green County. The plaintiffs sought to hold the developers and Jefferson Township individually and severally liable for the completion of the roadwork in a development.

The factual history in Wilson reveals that in 1970 Jefferson Township enacted an ordinance governing construction, minimum widths, materials and drainage provisions which had to be met as a condition for acceptance by Jefferson Township of roads to be built by developers. In 1974, the Board of County Commissioners of Green County adopted a subdivision and land development ordinance requiring certain drainage and road construction standards for land subdivision developments. Therefore, at that time both the Jefferson Township and the Green County ordinances were in effect. Both Jefferson Township and Green County approved the developers’ plan, subject to the ordinances.

The developers failed to comply with the requirements relating to road and street work imposed by the ordinances. The plaintiffs brought an action against the developer and Jefferson Township on the theory that Jefferson Township had a duty to enforce both ordinances.

The Wilson court had two issues to address to determine Jefferson Township’s liability in that case. First, it had to be determined if Jefferson Township’s ordinance was a “subdivision and land development ordinance” as described in the MPC. Second, did Jefferson Township have a duty to enforce the Green County ordinance which was found to be a subdivision and land development ordinance under the MPC. If the Jefferson Township ordinance was a subdivision and land development ordinance under the MPC, an absolute duty to enforce the ordinance is imposed upon Jefferson Township under section 10509 of the MPC.

Wilson, however, held that Jefferson Township’s ordinance was not an MPC subdivision ordinance. The Jefferson Township ordinance merely provided the standards to be followed when building streets and roads which must be met before Jefferson Township would accept them. The ordinance mentioned nothing about subdividing land or the development thereof.

In ruling upon Jefferson Township’s alleged duty to enforce the Green County ordinance, the Wilson court, relying on 53 P.S. §10502, provided: “[t]he enactment of a subdivision and land development ordinance by any municipality, other than a county, whose land is subject to a county subdivision and land development ordinance shall act as a repeal pro tanto of the county subdivision and land development ordinance within the municipality adopting such ordinance.” Wilson, 86 Pa. Commw. at 516, 485 A.2d at 863. Wilson held that since Jefferson Township’s road ordinance was not a subdivision ordinance under the MPC, there was no preemption of the Green County subdivision ordinance. The court further held that “until that time when a municipality other than a county enacts its own subdivision ordinance thereby preempting (or repealing pro tanto) the county ordinance, the county’s ordinance is in effect and the county has jurisdiction over the land and in turn, the enforcement of its own ordinance. [Jefferson] Township had no duty to enforce [Green] County’s ordinance.” Id. at 517, 485 A.2d at 863.

Liberty Township argues that plaintiffs’ complaint in the instant case is the same claim that failed in Wilson. Liberty Township contends that Mercer County’s Subdivision and Land Development Ordinance controls until Liberty Township adopts its own subdivision plan, which it has not done, therefore, Liberty Township should not be required to enforce Mercer County’s ordinance.

MCRPC’s first objection to plaintiffs’ complaint is identical to Liberty Township’s first objection, with the substitution of MCRPC for Liberty Township. MCRPC argues that it has not enacted its own subdivision and land development ordinance under 53 P.S. § 10502(a), therefore, Mercer County is the only entity that had jurisdiction to enforce its ordinance on a plan submitted under its Subdivision and Land Development Ordinance.

In response to Liberty Township’s and MCRPC’s preliminary objections that they cannot be required to enforce a subdivision ordinance which they did not pass, plaintiffs have filed a preliminary objection in the nature of a demurrer alleging that Liberty Township and MCRPC are required to enforce the subdivision ordinance because they acted jointly with Mercer County under a joint municipal planning commission. Plaintiffs agree with both Liberty Township and MCRPC that Mercer County adopted a qualifying Subdivision and Land Development Ordinance, however, plaintiffs contend that Liberty Township, along with 31 other local governmental bodies, formed MCRPC, which is a joint municipal planning commission pursuant to 53 P.S. §11101 et seq. Therefore, plaintiffs allege that Liberty Township and MCRPC are required to jointly administer the Mercer County Subdivision and Land Development Ordinance.

This court agrees with Liberty Township’s analysis of Wilson and the fact that until a municipality other than a county enacts its own subdivision ordinance thereby preempting (or repealing pro tanto) the county ordinance, the county’s ordinance is in effect and the county has jurisdiction over the land, and in turn, the duty to enforce the ordinance. There is no doubt that the Wilson decision is controlling in 65 out of the 67 counties within the Commonwealth of Pennsylvania. Mercer County, however, is one of only two counties in the Commonwealth of Pennsylvania to adopt a joint municipal planning commission. Therefore, this court must determine whether Liberty Township, along with 31 other local governments, joining with Mercer County to form a joint municipal planning commission, causes Liberty Township to have a duty to enforce Mercer County’s subdivision ordinance.

Upon review of the statutory and common law regarding joint municipal planning commissions, it is apparent that this case is a case of first impression. This court, however, finds that it is not necessary to rely upon the statutory law for the establishment of joint municipal planning commissions to render its decision. On January 13, 1983, Liberty Township approved the subdivision plan for the Liberty Gait development, with final approval contingent upon completion of the roads or a bond or letter of surety from a bank in the amount of 110 percent of the bid for road completion. On February 18, 1983, the developer of the Liberty Gait development issued to Liberty Township an irrevocable letter of credit in the amount of $23,500 for the completion of the roads. The MPC provides in pertinent part:

“[I]n lieu of the completion of any improvements required as a condition for the final approval of a plat, including improvements or fees ... the subdivision and land development ordinance shall provide for the deposit with the municipality of financial security in an amount sufficient to cover the costs of such improvements or common amenities including, but not limited to, roads, storm water detention and/or retention basins and other related drainage facilities, recreational facilities, open space improvements, or buffer or screen plantings which may be required.” 53 P.S. § 10509(a). Furthermore, the MPC provides that the municipality may adjust the amount of financial security, or require the developer to post additional security to assure that the security equals said 110 percent. 53 P.S. § 10509(f).

In this case, the letter of credit violated the MPC because it failed to secure completion of the roads. The letter of credit expired, by its terms, on August 29, 1983 rather than at the date of completion. The developer never completed the roads and Liberty Township never required the posting of any additional security to guarantee the completion of the roads. Liberty Township accepted the developer’s letter of credit on February 18, 1983 and pursuant to the MPC, Liberty Township had a duty to the public to secure the credit to guarantee the completion of the roads in the development. By allowing the letter of credit to expire on August 29, 1983 without guaranteeing the completion of the roads in the Liberty Gait development, Liberty Township breached that duty and is subject to liability. Therefore, Liberty Township’s preliminary objection will be overruled and plaintiffs’ preliminary objection to Liberty Township’s preliminary objection will be sustained.

The duty and potential liability that MCRPC owes to plaintiffs is different than the duty owed by Liberty Township. MCRPC did not accept a letter of credit guaranteeing the completion of the roads in the Liberty Gait development, nor does the MPC provide that MCRPC is required to collect such security. Furthermore, neither the MPC, specifically Article XI establishing joint municipal planning commissions, nor the articles of agreement establishing the MCRPC, provide whether MCRPC has a duty to enforce a subdivision ordinance that it did not create.

In this case, Mercer County adopted a subdivision and land development ordinance on December 4, 1958. MCRPC was created on November 15, 1971 pursuant to 53 P.S. §11101 et seq., and is the successor to the Shenango Valley Regional Planning Commission which was created on December 22, 1952. MCRPC’s function is to administer the Mercer County Subdivision and Land Development Ordinance and to approve subdivision plans within Mercer County. MCRPC’s duties are administrative in nature and neither the MPC nor the articles of agreement creating the MCRPC establish any duties for the MCRPC to enforce subdivision ordinances. Since MCRPC does not have a duty to enforce subdivision ordinances, plaintiffs have failed to state a claim against MCRPC. Therefore, MCRPC’s first preliminary objection will be sustained and the complaint as it relates to MCRPC will be dismissed with prejudice. All other prehminary objections brought by MCRPC are now moot.

Liberty Township’s second preliminary objection is in the nature of a demurrer and it claims that plaintiffs failed to exercise and exhaust an administrative remedy. Liberty Township claims that plaintiffs failed to file a timely appeal of its refusal to accept the roads under the Second Class Township Code because this Code provides for the acceptance and dedication of public roads in a township of the second class. Plaintiffs have not addressed this statute in their complaint, and Liberty Township alleges that plaintiffs have not satisfied the requirements of this statute because they failed to file a timely appeal of defendant’s refusal to accept the roads under this statute. Therefore, Liberty Township argues that plaintiffs’ claims are barred in equity for failure to exercise or exhaust a statutory remedy.

In response to Liberty Township’s second preliminary objection, plaintiffs have filed a preliminary objection alleging that there are no administrative remedies that plaintiffs did not exhaust. Plaintiffs allege that they never raised in their complaint any issue under the statute for second class townships relating to roads, streets, bridges and highways, and that statute has nothing to do with anything that is pled in the complaint nor anything to do with the facts of this case. Plaintiffs further allege that even if the statute had relevance, since it is not mentioned in the complaint, it could only, under certain circumstances, be raised by an objector in a new matter pursuant to Pa.R.C.P. 1030.

Plaintiffs allege that 53 P.S. §67301 et seq. says that Liberty Township can, if it wants to, enact an ordinance by which roads are laid out, opened, widened, straightened, vacated, etc. Thereafter, citizens can petition the board of supervisors to open or vacate a road and upon failure of the municipality to act, the citizens can proceed into the court of common pleas. There are no aver-ments that Liberty Township ever enacted such an ordinance; no pleading that any or all of the plaintiffs ever petitioned the supervisors to open, vacate, or otherwise effect the road in question; and therefore there was no proceeding under this statute.

Liberty Township specifically relied upon section 67309 of the Second Class Township Code. Section 67309 provides that “when proceedings have been initiated under this Act for the opening and laying out of any public road in the township, the road shall be physically opened for use by the public within a period of five years after completion of the proceeding.” 53 P.S. §67309. There was never any proceeding, nor is any proceeding alleged by the objectors, therefore, not only is the statute irrelevant, even if it were germane, the requirements to state an objection are not set forth.

Pennsylvania Rule of Civil Procedure 1509(b) regarding actions in equity provides “[t]he objections of laches and failure to exercise or exhaust a statutory remedy may be raised by preliminary objection, answer or reply, but are not waived if not pleaded.” Pa.RC.P. 1509(b). Therefore, this court finds that Liberty Township properly brought its allegation that plaintiffs failed to exercise or exhaust a statutory remedy as a preliminary objection.

Although this court finds that Liberty Township’s allegation that plaintiffs failed to exercise or exhaust a statutory remedy was properly brought as a preliminary objection, this court, however, finds Liberty Township’s reference to the Second Class Township Code to be irrelevant. The Second Class Township Code simply gives to the board of supervisors of a township the power to enact an ordinance to lay out, widen, straighten, etc., the roads and bridges located wholly or partially within the township.

In this case, Liberty Township never enacted an ordinance to layout, open or construct the roads in the Liberty Gait development pursuant to the Second Class Township Code. The developer was responsible for construction of the roads within the development. Furthermore, there was never any proceeding initiated under the Second Class Township Code in this case.

Plaintiffs are not attempting to require Liberty Township to enforce an ordinance enacted under the Second Class Township Act. Plaintiffs brought this action against Liberty Township, and other defendants, for their failure to enforce the Mercer County Subdivision and Land Development Ordinance against the developer pursuant to the MPC. Hence, the Second Class Township Act is irrelevant and it is not an administrative remedy that plaintiffs failed to exercise or exhaust. Therefore, Liberty Township’s preliminary objection will be overruled and plaintiffs’ preliminary objection will be sustained.

Liberty Township’s third preliminary objection is in the nature of a demurrer and it alleges that plaintiffs’ claims for equitable relief are barred by the doctrine of laches. Plaintiffs complain that final approval of the subdivision plan was denied in 1983 and the bond issued by the developer to ensure the completion of the roadways expired on August 29, 1983. Plaintiffs fail to demonstrate a reason why they waited 18 years to bring this suit. Liberty Township alleges that plaintiffs’ action, or inaction, demonstrates a lack of due diligence in pursuing a cause of action and as a result, Liberty Township has been prejudiced. Therefore, Liberty Township alleges that plaintiffs’ claims are barred by the doctrine of laches.

Plaintiffs have filed a preliminary objection in response to Liberty Township’s preliminary objection that plaintiffs’ claims for equitable relief are barred by the doctrine of laches. Plaintiffs assert that if the defense of laches is applicable at all, Liberty Township is applying the wrong standard for laches. Plaintiffs assert that they are bringing a public interest lawsuit in this instance and laches are disfavored because the public’s interest and rights are important and should not be compromised or forfeited by the negligent or illegal acts of public officials who fail to carry out their government obligations. Therefore, plaintiffs allege that the doctrine of nullum tempus occurrite reipublicae should apply, and since public rights are at stake in this case, this court should disfavor the defense of laches. Plaintiffs also assert that it would be impossible to make a judicial determination on the application of laches without a factual review.

“ ‘For laches to apply, there must be a lack of due diligence in pursuing a cause of action and resulting prejudice to the other party.... ‘The party asserting laches ... must establish that they are prejudiced by the period of inordinate delay by the other party .... ‘Moreover, the question of laches is a factual one and is determined by examining the circumstances of each case.’ ... Proof of the elements of laches must be clear on the face of the record. . . . The factual nature of the defense of laches generally requires a hearing.” Sedor v. West Mifflin Area School District, 713 A.2d 1222, 1225 (Pa. Commw. 1998). (citations omitted) Although the defense of laches may be an applicable defense for Liberty Township, this court lacks sufficient factual information to determine if the elements of that defense have been satisfied. An evi-dentiary hearing is necessary to rule upon the applicability of the defense of laches. As a result, Liberty Township’s preliminary objection will be overruled without prejudice and plaintiffs’ preliminary objection will be sustained.

Liberty Township’s fourth preliminary objection is in the nature of a demurrer as to plaintiffs’ claims based upon the MPC. Plaintiffs allege that Liberty Township violated its duties to plaintiffs under the MPC. Liberty Township, however, asserts that pursuant to 53 P.S. § 10515.3(c) no private cause of action is created under the MPC. Accordingly, plaintiffs’ alleged claims based upon the MPC fail to state a cause of action upon which relief may be granted.

Plaintiffs filed a preliminary objection in response to Liberty Township’s preliminary objection based on 53 P.S. § 10515.3(c). Plaintiffs allege that53 P.S. § 10515.3(c) allows a municipality to enforce the MPC against a private individual who violates it, but this section does not grant to any person other than the municipality the right to commence any action for enforcement. Plaintiffs agree with Liberty Township that this section prohibits plaintiffs from bringing a private action against the developer for enforcement under the MPC; however, plaintiffs, in this case, have not filed a private action against the developer.

This court agrees with Liberty Township that this section prohibits any person or entity other than the municipality, to commence any action for enforcement pursuant to this section. This court, however, does not believe that plaintiffs have filed an enforcement action under the MPC, in this case. An enforcement action under the MPC would be any action brought against the developer of the Liberty Gait development for failure to comply with the subdivision ordinance. Plaintiffs have not filed a private action against the developer, to the contrary, plaintiffs brought this action against the municipal defendants for their failure to enforce the subdivision ordinance against the developer. Therefore, this action is not an action for enforcement under the MPC, which is prohibited by 53 P.S. §10515.3(c) and plaintiffs’ preliminary objection will be sustained and Liberty Township’s preliminary objection will be overruled.

Liberty Township’s fifth preliminary objection is in the nature of a demurrer as to the legal sufficiency of plaintiffs’ claims of negligence, gross negligence and/or reckless indifference. In their complaint, plaintiffs aver that Liberty Township is liable for plaintiffs’ injuries due to the alleged negligence, gross negligence and/or reckless indifference of its supervisors. Liberty Township alleges that pursuant to 42 Pa.C.S. §8541 et seq., the Political Subdivision Tort Claims Act, a local agency is immune from liability for civil damages, with limited exceptions found at 42 Pa.C.S. §8542(b)1-8. Liberty Township asserts that none of the exceptions found at 42 Pa.C.S. §8542(b)1-8 are applicable with the only arguably applicable exception being the real estate exception at 42 Pa.C.S. §8542(b)(3). Plaintiffs’ allegations in their complaint fall outside the real estate exception because the real estate described in the complaint is outside of Liberty Township’s care, custody and control. Therefore, Liberty Township asserts that all claims against it sounding in negligence, gross negligence and/or reckless indifference should be dismissed for failure to state a claim against it.

Plaintiffs have filed a preliminary objection to Liberty Township’s preliminary objection relating to the sufficiency of plaintiffs’ claims for negligence, gross negligence and/or reckless indifference. Plaintiffs contend that this action is grounded in the common law of Pennsylvania which allows citizens to enforce a statute passed for their benefit when governmental bodies fail to do so. Plaintiffs allege that no personal injuries were pled or even inferred, therefore, the Political Subdivision Tort Claims Act has no application because the actions described are not a tort. Additionally, plaintiffs allege that even if tort based immunity could be raised, it must, as a matter of law, be raised in a new matter.

Pennsylvania Rule of Civil Procedure 1030 provides in pertinent part “[a]ll affirmative defenses including but not limited to the defenses of . . . immunity from suit . . . shall be pleaded in a responsive pleading under the heading of ‘New Matter.’ ” Pa.R.C.P. 1030. Pennsylvania Rule of Civil Procedure 1501 provides “Except as otherwise provided in this chapter, the procedure in an action in equity shall be in accordance with the rules relating to a civil action.” Pa.R.C.P. 1501. Pennsylvania Rule of Civil Procedure 1509 provides for preliminary objections for actions in equity. Rule 1509 does not provide that the defense of immunity from suit may be brought as a preliminary objection; therefore, the rules relating to a civil action apply and pursuant to Rule 1030 the defense of immunity from suit should be pleaded in a responsive pleading under the heading of New Matter.

In Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990), the court held: “[t]he affirmative defense of governmental immunity may be raised by preliminary objections in the nature of a demurrer where that defense is apparent on the face of the pleading; that is, that a cause of action is made against a governmental body and it is apparent on the face of the pleading that the cause of action does not fall within any of the exceptions to governmental immunity. Further in the absence of this circumstance, preliminary objections raising the immunity defense may be considered if the opposing party waives the procedural defect.” Id. at 638, 584 A.2d at 407.

In this case, it is not apparent on the face of the pleading that this cause of action does not fall within any of the exceptions at 42 Pa.C.S. §8542(b)1-8. Furthermore, plaintiffs have not waived this procedural defect. Therefore, Liberty Township should have raised the defense of immunity from suit in a responsive pleading as a new matter, rather than as a preliminary objection. Hence, plaintiffs’ preliminary objection will be sustained, and Liberty Township’s preliminary objection will be overruled.

Liberty Township’s sixth preliminary objection in the nature of a demurrer as to the legal sufficiency of plaintiffs’ claims of negligence, gross negligence and/or reckless indifference is brought on behalf of defendants Faull, Gregg and Lindey for acts in their official capacities. In their complaint, plaintiffs aver that defendants Faull, Gregg and Lindey are liable for plaintiffs’ injuries due to their alleged negligence, gross negligence and/or reckless indifference. Defendants Faull, Gregg and Lindey allege that, pursuant to 42 Pa.C.S. §8541 et seq., the Political Subdivision Tort Claims Act, employees of a local agency are immune from liability for civil damages, with limited exceptions found at 42 Pa.C.S. §8542(b) 1-8. Defendants Faull, Gregg and Lindey assert that none of the exceptions found at 42 Pa.C.S. §8542(b) 1-8 are applicable with the only arguably applicable exception being the real estate exception, 42 Pa.C.S. §8542(b)(3).

This sixth preliminary objection brought by defendants Faull, Gregg and Lindey is the same objection as Liberty Township’s fifth preliminary objection. As this court found in its ruling on Liberty Township’s fifth preliminary objection, Liberty Township should have raised the defense of immunity from suit in a responsive pleading as a new matter, rather than as a preliminary objection. Hence, plaintiffs’ preliminary objection will be sustained, and defendants Faull, Gregg and Lindey’s preliminary objection will be overruled.

This court, in ruling upon Liberty Township’s second preliminary objection found that there was never any proceeding initiated under the Second Class Township Code in this case. Plaintiffs are not attempting to require Liberty Township to enforce an ordinance enacted pursuant to the Second Class Township Act.

Liberty Township’s seventh preliminary objection is for plaintiffs’ nonjoinder of a necessary party. Liberty Township asserts that plaintiffs failed to join the developer of the Liberty Gait development, and the developer is a necessary party to this suit. Plaintiffs assert that they can only be made whole by Liberty Township completing the roads in the Liberty Gait development, and that the reason the roads were not accepted by Liberty Township is because they were not built to the proper specifications. Plaintiffs, however, have not sued the developer nor have they explained why they could not be made whole by an award of monetary damages from the developer who failed to build the roads without conformity to Liberty Township’s specifications.

Liberty Township asserts that a lack of a full and adequate legal remedy is a requirement to a complaint in equity and an award of monetary damages from the developer would allow plaintiffs to have the road rebuilt in conformity with Liberty Township’s specifications. Therefore, Liberty Township requests that plaintiffs be required to either join the developer as a necessary party or certify this case for the law side of the docket.

Plaintiffs have filed a preliminary objection to Liberty Township’s preliminary objection relating to the nonjoiner of a necessary party. Plaintiffs assert that Liberty Township’s preliminary objection entirely mixes up an indispensable party with Liberty Township’s right to join the developer. Furthermore, pursuant to 53 P.S. §10515.3(c), plaintiffs are statutorily precluded from initiating a lawsuit against the developer under the MPC. Therefore, the developer cannot be an indispensable party and plaintiffs cannot institute an action against the developer. Liberty Township has a right against the developer pursuant to 53 P.S. §10511 and the common law, however, it is up to them to assert that right.

Liberty Township alleges that plaintiffs failed to join the developer of the Liberty Gait development, who is a necessary party to this action. Liberty Township also alleges that this court does not have equity jurisdiction because plaintiffs have a full and adequate remedy at law against the developer. “[A] court of equity lacks jurisdiction to entertain a cause of action for which there exists a full, complete and adequate remedy at law.” Tulio v. Commonwealth, State Horse Racing Commission, 19 Pa. Commw. 305, 308, 470 A.2d 645, 647 (1984).

Liberty Township does not allege, and the record does not contain, any information about the developer other than his identity. Although plaintiffs may have an adequate legal remedy in this case, neither Liberty Township nor the record provide this court with sufficient factual information to rule upon whether any action at law against the developer would be adequate. This court could not determine such without an evidentiary hearing. Furthermore, pursuant to Pa.R.C.P. 1030 the defense of collateral estoppel shall be pleaded in a responsive pleading under the heading “New Matter.” Pa.R.C.P. 1030. Liberty Township’s preliminary objection will be overruled and plaintiffs’ preliminary objection will be sustained.

Hence, this order:

ORDER

And now, September 24, 2001, it is hereby ordered that defendant Mercer County Regional Planning Commission’s first preliminary objection in the nature of a demurrer is sustained and the complaint as to it is dismissed with prejudice.

It is further ordered that defendant Liberty Township’s and its supervisors’ preliminary objections are overruled.

      . 53 P.S. § 67301 et seq.

      . Nothing contained in this section shall be construed or interpreted to grant to any person or entity, other than the municipality, the right to commence any action for enforcement pursuant to this section. 53 P.S. §10515.3(c).

      . The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: Real property- — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall not include: (i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems; (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way; (iii) streets; or (iv) sidewalks. 42 Pa.C.S. §8542(b)(3).


author: HERRON, J.,

text:
    Temple University v. Americhoice of Pennsylvania Inc.

      Matthew Strickier, for plaintiffs.

      Manuel Delvalle, for defendant.
    September 17, 2001
   HERRON, J.,

This matter arises from a dispute between health care provider(s) of emergency hospital and physician services and a health maintenance organization where the parties no longer have an effective contract, but patients of the health maintenance organization continue to seek treatment from the hospital(s). The hospitals continue to treat these patients for emergency services both before and after the patients are “stabilized” and the hospitals seek payment for these services but the parties cannot agree on whether to pay the hospitals or what the rate of payment should be.

Presently before this court is the motion of plaintiffs, Temple University — Of the Commonwealth System of Higher Education et al., for partial summary judgment on Count I of their complaint, seeking declaratory judgment in their favor. Defendant, Americhoice of Pennsylvania Inc., opposes this motion.

For the reasons set forth, the court is denying plaintiffs’ motion for partial summary judgment on Count I.

BACKGROUND

Temple provides emergency hospital and physician care at six locations in Philadelphia and Bucks counties. Compl. and answer ¶¶1 -11. Americhoice is a health maintenance organization which has contracted with the Pennsylvania Department of Welfare (DPW) to pay for medical care for persons eligible for the Medical Assistance Program (Medicaid) known as HealthChoices. Compl. and answer ¶¶12-14. DPW pays Americhoice a capitation fee based on the number of Medicaid beneficiaries enrolled with Americhoice, and Americhoice pays for the medical care, including emergency inpatient and outpatient medical care, of its enrollees. Compl. and answer ¶14.

Prior to August 1, 2000, Temple had a contract with Americhoice under which Temple and Americhoice agreed on a discounted rate of payment from Americhoice to Temple for medical care provided to persons insured by Americhoice. Compl. and answer ¶15. The contract expired on August 1, 2000 and the parties have been unable to successfully negotiate the terms of a successor agreement. Id. Notwithstanding the expiration of that contract, Americhoice members continue to come to Temple hospital facilities seeking emergency medical care. Compl. and answer ¶16. Temple hospitals have been admitting approximately 60 Americhoice members per month. Id.; Compl., exhibit E

Temple and Americhoice agree that, under the federal Emergency Treatment and Active Labor Act Temple hospital facilities have the same legal obligations to Amer-ichoice members as they have to others who come to their emergency rooms with an apparent medical emergency, prior to stabilization. Compl., exhibit A; pis. brief in support of their motion at 3; def. supplemental mem. in opposition to the pis. motion at 2-3. The parties, however, cannot agree on whether Americhoice has a financial obligation to Temple for services rendered to Americhoice members after they are “stabilized” or what rate of payment, if any, would be owed to Temple by Americhoice for services provided to patients after stabilization.

With this background, plaintiffs filed their complaint, stating counts for declaratory judgment and breach of an implied contract. Defendant filed its answer. Soon, thereafter, plaintiffs filed their motion for partial summary judgment as to Count I, seeking a declaration that:

“(1) Temple may not transfer an Americhoice member, who seeks emergency medical treatment at a hospital in the Temple University Health System, without the informed consent of the Americhoice member or member of that member’s family, regardless of whether the transfer occurs before or after the patient has been “stabilized” within the meaning of EMTALA;
“(2) Americhoice, who seeks to transfer its member from Temple to another hospital, has the responsibility for obtaining the informed consent of the Americhoice member or member of that member’s family; and
“(3) Where an Americhoice member seeks emergency medical treatment at a hospital in the Temple University Health System, Americhoice must pay Temple for medically necessary services provided to that member, regardless of whether Americhoice has a contract with Temple governing the rate of payment and regardless of whether services are provided before or after the patient has been ‘stabilized’ within the meaning of EMTALA.” See pis. proposed order.

Defendant opposes this motion, asserting that genuine issues of fact exist regarding the rate of payment and whether the purportedly emergent care was warranted.

DISCUSSION

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure allows a court to enter summary judgment “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action.” A court must grant a motion for summary judgment when a non-moving party fails to “adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042(1996) cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). A motion for summary judgment must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law will summary judg-merit be entered. Skipworth v. Lead Industries Ass’n Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997).

The issues of the present motion include: (1) whether Temple is obligated to transfer Americhoice members to an in-network hospital after the member’s emergency medical condition has “stabilized;” (2) whether Temple may not transfer the Americhoice member to another hospital, at the direction of Americhoice, without the informed consent of the Americhoice member or member of that member’s family; (3) whether Americhoice or Temple is responsible for obtaining the informed consent; and (4) whether Americhoice is obligated to pay Temple for medically necessary services provided to the Americhoice member who seeks medical treatment at a hospital in the Temple University Health System, regardless of whether there is a contract governing the rate of payment or whether services were provided before or after the patient has been stabilized.

This court found no Pennsylvania or out-of-state case, nor did either party cite one, which has ever decided these precise issues. However, there are certain areas of law which provide guidance.

I. The Parties’ Obligations Under EMTALA

First, the present action does not arise under EMTALA, but this statute is cited by both parties in regard to the hospitals’ duties with respect to rendering emergency care. Certain provisions of EMTALA are relevant for ruling on the present motion.

This federal statute places obligations of screening and stabilization upon hospitals and emergency rooms that receive patients suffering from an “emergency medical condition.” Roberts v. Galen of Virginia Inc., 525 U.S. 249, 250 (1999) (holding that plaintiff need not show an improper motive in order to state a violation under EMTALA for failure to “appropriately” stabilize a patient). The purpose of EMTALA is to prevent hospitals from refusing to provide emergency medical treatment or transferring patients before their emergency conditions are stabilized. Slabik v. Sorrentino, 891 F. Supp. 235, 236 (E.D. Pa. 1995). Congress passed EMTALA “amid growing concerns of inadequate emergency room care for poor and uninsured patients.” H.R. no. 241, 99th Cong.,1st Sess., Part 3 at 5, U.S. Code Cong. and Admin. News, pp. 42, 726, quoted in Slabik 891 F. Supp. at 237. The growing concern was that hospitals were “dumping” patients unable to pay for emergency treatment. Doe v. Montgomery Hospital, 1996 WL 745524 at *7 (E.D. Pa. December 23, 1996). The Act “was designed to create a new cause of action for failure to screen and stabilize patients, not to federalize traditional state-based claims of negligence or malpractice.” Id.

To make out a violation of EMTALA, a plaintiff must demonstrate the following: “(1) the patient had an emergency medical condition; (2) the hospital actually knew of that condition; (3) the patient was not stabilized before being transferred; (4) prior to transfer of an unstable patient, the transferring hospital did not obtain the proper consent or follow the appropriate certification and transfer procedures.” Id. at *8. (citations omitted)

Under EMTALA, if a patient presents with an emergency condition, the hospital either must treat and stabilize the patient if the hospital’s staff and facilities are available for such treatment or the hospital must transfer the individual. 42 U.S.C. §1395dd(b)(l). Transfer is allowed only if the receiving facility has the available space and qualified personnel for treatment of the individual and the facility has agreed to accept the transfer and provide appropriate medical treatment. 42 U.S.C. §1395dd(c)(2). To transfer an unstabilized patient, the hospital is required to obtain the informed consent of the patient or member of the patient’s family. 42 U.S.C. § 1395(b)(2), (3).

Further, the hospital is deemed to meet EMTALA’s requirements “with respect to an individual if the hospital offers the individual further medical examination and treatment and informs the individual (or a person acting on the individual’s behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or person acting on the individual’s behalf) refuses to consent to the examination and treatment.” 42 U.S.C. §1395dd(b)(1)(B)(2). The burden rests on the hospital to “take all reasonable steps to secure the individual’s (or person’s) written informed consent to refuse such examination and treatment.” Id. Similarly, the hospital is deemed to meet the requirements “if the hospital offers to transfer the individual to another medical facility. . . and informs the individual (or a person acting on the individual’s behalf) of the risks and benefits to the individual of such transfer, but the individual (or person acting on the individual’s behalf) refuses to consent to the transfer.” 42 U.S.C. §1395dd(b)(1)(B)(3). “The hospital shall take all reasonable steps to secure the individual’s (or person’s) written informed consent to refuse such transfer.” Id.

In addition, an “emergency medical condition” is defined as “a medical condition which manifests itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in the following:

“(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
“(ü) serious impairment to bodily functions, or
“(in) serious dysfunction of any bodily organ or part...42 U.S.C. §1395dd(e)(1)(A).

Stabilization under the Act requires such medical treatment of the emergency medical condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta). 42 U.S.C. §1395dd(e)(3)(A).

Clearly, it is the hospital’s obligation, and not that of the HMO or health care insurer, to obtain the patient’s informed consent to treat or transfer or refuse such treatment or transfer prior to stabilization. However, EMTALA’s provisions do not state what the hospital must do after the patient is stabilized. Indeed, EMTALA is silent about what to do once a patient is stabilized in regard to transferring that patient or in regard to obtaining consent. Therefore, this statute does not provide any authority for this court to grant the declaratory relief sought by the plaintiffs.

II. Parties’ Obligations Under Quality Health Care Accountability and Protection Act

Defendant argues that the parties’ obligations are governed by Act 68, which is known as the Quality Health Care Accountability and Protection Act, codified at 40 P.S. §991.2101 et seq. Specifically, section 2116 of the Act requires that when an enrollee (of a managed care plan) seeks emergency services and the health care provider determines that such services are necessary, the health care provider shall initiate necessary intervention to evaluate and, if necessary, stabilize the condition of the enrollee without seeking or receiving authorization from the managed care plan. 40 P.S. §2116. The managed care plan must pay all reasonably necessary costs associated with the emergency services provided during the emergency, and must consider both the presenting symptoms and the services provided when processing claims. Id. The emergency health care provider must notify the enrollee’s managed care plan of its provision of emergency services and the condition of the enrollee. Id. “If the enrollee’s condition has stabilized and the en-rollee can be transported without suffering detrimental consequences or aggravating the enrollee’s condition, the enrollee may be relocated to another facility to receive continued care and treatment as necessary.” Id. (emphasis added) The Act also provides for the continuity of care by a health care provider at the enrollee’s option for a transitional period of up to 60 days from the date the enrollee was notified by the plan of the termination or pending termination of its contract with a participating health care provider. 40 P.S. §221.2117.

This Act does not say the hospital or health care provider must transfer the patient once stabilized. The Act also does not refer to informed consent of the patient and who must obtain it. Rather, the clear wording of the Act is permissive as to transferring a patient after stabilization. This Act, like EMTALA, does not provide any authority for this court to grant the declaratory relief sought by the plaintiffs.

III. Parties’ Obligations Under Common Law

Plaintiffs argue that the default rule would be to rely on Pennsylvania’s malpractice law for what to do once the patient is stabilized. See Bryan v. Rectors and Visitors of Univ. of Virginia. 95 F.3d 349, 351 (4th Cir. 1996). Assuming, arguendo, that the court may rely on Pennsylvania common law, it is still not clear what hospitals are required to do with respect to the transfer of stabilized patients. Nor is it clear that this court has authority to say what the rule should be.

Plaintiffs rely on Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984) for the proposition that hospitals are obligated to act reasonably and not to act in a manner which would increase the risk of harm to their patients by transferring them even if “stabilized.” In that case, the hospital had transferred a patient to another hospital at the direction of his personal physician, after confirming that the man had had a heart attack. During the transfer, the man died. The Supreme Court affirmed the finding of the trial court that Riddle Memorial was legally responsible for the man’s death.

Plaintiffs also rely on out-of-state cases for the proposition that it is unreasonable for a hospital to transfer a patient because of concern for whether the hospital will be paid and such transfer may subject the hospital to liability for damages suffered by the patient as a result of the transfer. See Brownsville Medical Center v. Gracia, 704 S.W.2d 68, 77 (Tex. Ct. App. 1985) (holding that evidence supported finding of negligence on part of doctor and hospital who transferred patient, in part, because of concern of patient’s ability to pay); Thompson v. Sun City Community Hosp. Inc, 141 Ariz. 597, 604, 688 P.2d 605, 612 (1984) (holding that hospital breached its duty, as a matter of law, where it transferred patient for financial reasons while emergency care was medically indicated); Corten v. Harbor Hospital Inc., 279 A.D. 673, 108 N.Y.S.2d 352, 353 (1951) (evidence showed that patient was removed following surgery, against wishes of doctor and patient, for administrative purposes in breach of hospital’s duty). These cases do not persuade this court that plaintiffs are entitled to the declaratory relief which they seek.

The Pennsylvania Supreme Court holds firmly that a physician must obtain informed consent from a patient before performing a surgical or operative procedure. Morgan v. MacPhail, 550 Pa. 202, 205, 704 A.2d 617, 619 (1997). However, informed consent has not been required in cases involving nonsurgical procedures.

Though a hospital may be liable if it transfers a patient and that patient is injured following the transfer, there seems to be no authority for the proposition that informed consent must be obtained from the patient once the patient is stabilized. Further, there seems to be no authority that the HMO or health care insurer should be charged with the responsibility of obtaining the informed consent, even though it is the one insisting upon the transfer of a “stabilized” patient.

The issue of whether patients, whom plaintiffs allegedly refuse to transfer to defendant’s in-network hospitals, were or were not “stabilized” presents a genuine issue of material fact and cannot be disposed of by the present motion. Moreover, this issue is encompassed by Count II of the complaint (assumpsit — implied contract) and should be addressed under that claim. Moreover, the issue of whether defendant is obligated to pay plaintiffs for medically necessary services rendered to patients whether or not they were stabilized depends, in part, on the determination of whether the patient was stabilized. This issue, as well, cannot be disposed of by the present motion.

CONCLUSION

Having found no authority for granting the declaratory relief sought by the plaintiffs, the court cannot now grant plaintiffs’ motion for partial summary judgment on Count I of the complaint. For this reason, the court is issuing a contemporaneous order, denying the motion.

ORDER

And now, September 17, 2001, upon consideration of plaintiffs’ motion for partial summary judgment as to Count I (declaratory judgment) of the complaint, defendant’s response in opposition thereto, having heard oral argument on the matter, all other matters of record, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered that plaintiffs’ motion for partial summary judgment on Count I of the complaint is denied.

      . EMTALA was enacted as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, 100 Stat. 164, and as amended, 42 U.S.C. §1395dd.

      . Plaintiffs, however, are not seeking relief under EMTALA. See 7/24/01 N.T. 7.

      . Here, notwithstanding defendant’s assertions, this court is not being asked to resolve what is the appropriate rate of payment or the reasonableness of Temple’s charges or the medical necessity of care rendered by Temple, since those issues are encompassed by Count II of the complaint and are not subject to the present motion. Rather, summary judgment may be appropriate to resolve the count for declaratory judgment which focuses on defining the legal rights and obligations between the parties.
      The Declaratory Judgment Act gives the court “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” 42 Pa.C.S. §7532. The Act is remedial and is to be liberally construed and affords “relief from uncertainty and insecurity with respect to rights, status and other legal relations.” 42 Pa.C.S. §7541. See also, Juban v. Schermer, 751 A.2d 1190, 1193 (Pa. Super. 2000).

        Ironically, the parties had previously litigated the matter of the correct rate of payment in Temple University Hospital Inc. v. Healthcare Management Alternatives Inc., 764 A.2d 587 (Pa. Super. 2000). In that case, the Superior Court reversed the trial court’s finding of an implied contract in favor of the managed care company and the denial of the hospital’s motion for judgment n.o.v. 764 A.2d at 595. The Superior Court reasoned that Temple had explicitly manifested its intention not to accept HMA [Americhoice’s predecessor’s offer of the base Medicaid DRG rates for treatment to eligible persons. Id. at 594. It further reasoned that HMA did not consistently comply with the terms of the 1991 contract by occasionally paying the $705 per diem rate instead of the adjusted DRG rate. Id. That case could be relevant for deciding Count II in the present case, but it is not dispositive of the present motion before this court.