author: COX, J,

text:
    Commonwealth v. Novitzke

      C.P. of Lawrence County,
    nos. 524 of 2009 and 525 of 2009.

      Diane Shaffer, assistant district attorney, for Commonwealth.

      Dennis A. Elisco, for defendant Jocelynne M. Novitzke.

      E. Brandt Bythrow, for defendant Julius Ray Novitzke.
    February 3, 2010
   COX, J,

Before the court for disposition is the motion to suppress evidence filed on behalf of the defendant Jocelynne M. Novitzke and subsequently joined by her codefendant Julius Ray Novitzke, which argues that Pennsylvania State Police Trooper Bradley Wagner unlawfully detained the defendants after the completion of a valid traffic stop because the trooper lacked reasonable suspicion that criminal activity was afoot.

On April 23, 2009, Trooper Bradley Wagner was parked between the northbound and southbound lanes of Interstate 79 in the northeastern portion of Lawrence County when he observed a silver Chevrolet Suburban in poor condition with an Indiana license plate traveling on the northbound side of the interstate. Trooper Wagner noticed that there were two occupants in the vehicle, a female was operating the vehicle and a male was in the front passenger seat. He observed two spider-web breaks in the windshield which appeared, at first, to be bullet holes and a necklace hanging from the rearview mirror. These garnered his attention because they are violations of the Motor Vehicle Code. Trooper Wagner pulled onto Interstate 79 and was traveling in the passing lane on the interstate, slightly behind the Suburban, so that he could see the vehicle’s registration plate. Trooper Wagner began following the vehicle and it abruptly exited the interstate to a rest area; however, the turn signal on the vehicle was activated. The trooper decided to park his vehicle on the berm of the interstate beyond the rest area to see if the vehicle would return to Interstate 79, which it did almost immediately after it exited to the rest area. Trooper Wagner followed the vehicle and conducted a traffic stop and found Jocelynne M. Novitzke in the driver’s seat and Julius Ray Novitzke in the front passenger seat.

He asked the defendants why they were traveling on the interstate and they answered, with some hesitation, that they were sightseeing; however, they could not provide any details regarding where they had been or what they had seen. At that point Trooper Wagner received the vehicle’s insurance and registration which were in proper order. The trooper prepared a warning notice for a violation of windshield obstructions and wipers, asked Ms. Novitzke to exit the vehicle and they stood behind her vehicle. He subsequently returned her registration and driver’s license, issued the warning and indicated that Ms. Novitzke was free to leave. She did so and as she approached her vehicle, the trooper asked her to return and speak with him. Ms. Novitzke complied with his request and Trooper Wagner asked if he could search the vehicle. She denied his request and replied that the only reason the trooper wanted to search her vehicle was because of her criminal record. He inquired as to what was her previous criminal history. Ms. Novitzke explained that she was arrested five years prior to the traffic stop for transporting ammonium anhydrous, a chemical component of methamphetamine. She hurriedly walked to her vehicle. Trooper Wagner followed her and was attempting to stop her from leaving because he believed he now possessed enough information to conduct a canine sniff of the vehicle. Ms. Novitzke entered the vehicle and attempted to place it in gear; however, she moved the gear shift to the neutral position, pressed the accelerator and the vehicle’s engine revved loudly. At that time, Trooper Wagner was standing next to the driver’s side door of the vehicle and was holding onto the driver’s side window. Ms. Novitzke placed the vehicle in drive and drove away. The trooper pursued the defendants’ vehicle, which was traveling at approximately 65 to 70 miles per hour. During the pursuit, the vehicle spun off the roadway and came to rest on the median strip.

Upon the trooper’s arrival at the disabled vehicle, Trooper Wagner placed the defendants in custody. He then walked around the vehicle and observed a magazine for a .25 caliber pistol on the ground next to the driver’s side door. Soon thereafter, Corporal Kevin Jazemski arrived with his canine “Ebony” from the Mercer State Police Barracks. A canine sniff was conducted and the dog indicated near the rear of the vehicle. The Suburban was impounded and towed to the Pennsylvania State Police Barracks in New Castle. A search warrant was obtained from Magisterial District Judge Scott A. Mc-Grath to search the vehicle. A search was conducted by Trooper Wagner and Corporal Jeremy Bowser of the Pennsylvania State Police, which revealed that the rear of the vehicle contained a pipe, some razors, a small butane torch and possible components of methamphetamine that included ice packs and ephedrine or pseudoephedrine. These materials were turned over to the clandestine lab response team, who specialize in the investigation of methamphetamine labs.

The defendants were arrested at the scene of the accident. After the search of the vehicle, Jocelynne Novitzke was charged with criminal attempt to manufacture a controlled substance, delivery or possession with the intent to manufacture or deliver a controlled substance, intentional possession of a controlled substance by a person not registered, possession with the intent to use drug paraphernalia, recklessly endangering another person, fleeing or attempting to elude a police officer, disregarding traffic lane, turning movements and required signals, careless driving, reckless driving and possession of red phosphorous, etc. with the intent to manufacture a controlled substance at case number 524 of 2009. In addition, Julius Ray Novitzke was charged with criminal attempt to manufacture a controlled substance, delivery or possession with the intent to manufacture or deliver a controlled substance, intentional possession of a controlled substance by a person not registered, possession with the intent to use drug paraphernalia, recklessly endangering another person and possession of red phosphorous, etc. with the intent to manufacture a controlled substance at case number 525 of2009.

The defendants now argue that they were unlawfully detained when Trooper Wagner followed Ms. Novitzke and attempted to stop her from entering her vehicle, so that he could conduct a canine sniff of the vehicle. The defendants insist the trooper lacked reasonable suspicion that criminal activity was afoot. More specifically, Trooper Wagner did not gamer reasonable suspicion that the defendants were transporting a controlled substance merely because Jocelynne Novitzke mentioned that she had a prior conviction for transporting ammonium anhydrous.

Police officers may stop a motor vehicle for a violation of the Motor Vehicle Code and request license and registration, but must allow the driver to leave once the citation was issued unless the officer has reasonable suspicion to suspect an illegal drug transaction or another serious crime. Commonwealth v. Pless, 451 Pa. Super. 209, 212, 679 A.2d 232, 234 (1996) (citing Commonwealth v. DeWitt, 530 Pa. 299, 304, 608 A.2d 1030, 1032 (1992); Commonwealth v. Talley, 430 Pa. Super. 351, 356, 634 A.2d 640, 643 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d 177, 182 (1992)). Once a traffic stop concludes, the interaction between a police officer and the defendant can occur in three ways:

“The first of these is a ‘mere encounter’ (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an ‘investigatory detention’ must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or ‘custodial detention’ must be supported by probable cause.” Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super. 2000) (citing Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047 (1995)).

The test for determining whether the interaction between a defendant and a police officer following a valid traffic stop is amere encounter or investigatory detention is determined on several factors, which includes:

“(1) the presence or absence of police excesses; (2) whether there was physical contact; (3) whether police directed the citizen’s movements; (4) police demeanor and manner of expression; (5) the location and time of the interdiction; (6) the content of the questions and statements; (7) the existence and character of the initial investigative detention, including its degree of coerciveness; (8) ‘the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless,... thus suggesting to a citizen that his movements may remain subject to police restraint,’ . . . and ... (9) whether there was an express admonition to the effect that the citizen-subject is free to depart, which ‘is a potent, objective factor.’” Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008) (quoting Commonwealth v. Strickler, 563 Pa. 47, 75, 757 A.2d 884, 898-99 (2000)).

In cases where the reason for the initial traffic stop has ended and a reasonable person would not believe they were free to leave, the subsequent round of questioning by the police is characterized as an investigative detention or arrest. Commonwealth v. By, 812 A.2d 1250, 1256 (Pa. Super. 2002) (citing Commonwealth v. Freeman, 563 Pa. 82, 89, 757 A.2d 903, 907 (2000)). If the stop is characterized as an investigative detention, the officer must garner reasonable suspicion that the person seized is engaged in unlawful activity. Commonwealth v. Johnson, 833 A.2d 755, 762-63 (Pa. Super. 2003) (citing Commonwealth v. Reppert, 814 A.2d 1196, 1203 (Pa. Super. 2002)). That means “the facts available to the officer at the moment of the (intrusion) ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156 (2000). (citation omitted) “To establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.” Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa. Super. 2009) (quoting Reppert, supra.).

In Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 (2004), the court addressed the issue of whether a Pennsylvania State Police trooper garnered the requisite reasonable suspicion to further detain an individual after the termination of a valid traffic stop. In that case, the trooper stopped a vehicle for speeding and for displaying an expired temporary Tennessee registration plate. When the trooper approached the vehicle, the appellant was extremely nervous to the point of trembling and he had difficulty retrieving his license from his wallet. The documentation presented to the trooper by the appellant was either incomplete or blatantly fraudulent. The appellant stated that he recently departed from a friend’s residence, but could not recall the address. Moreover, the trooper noticed an open box of Tide powdered laundry detergent, an open box of Bounce fabric softener sheets and Scotch packaging tape in the back seat of the vehicle. He knew, from his experience investigating drug offenses, these items were commonly used in the packaging and distribution of controlled substances. More specifically, they are utilized as masking agents to cover the scent of drugs.

The Rogers court noted that the conduct in question does not need to be unquestionably criminal to rise to the level of reasonable suspicion, the true test “requires a suspicion of criminal conduct that is reasonable based upon the facts of the matter.” Id., 578 Pa. at 135, 849 A.2d at 1190. (emphasis in original) The court reasoned that the totality of the circumstances provided the trooper with reasonable suspicion as the appellant was unusually nervous, the paperwork for the vehicle was not completed correctly and he could not provide details regarding the location from which he just departed. Id. Furthermore, the Rogers court stated, “most importantly, the back seat of his car contained products that [the trooper] knew, via his extensive professional experience, are commonly used in the packaging of illegal narcotics.” Id. Thus, the court held that the trooper had reasonable suspicion that criminal activity was afoot and the trial court properly denied his motion to suppress evidence. Id.

Similarly in Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008), a Pennsylvania State Police trooper was monitoring traffic on the Pennsylvania Turnpike when he observed the appellant’s vehicle with tinted windows and he began following the same. The trooper effectuated a traffic stop and noticed that the appellant was the passenger and another individual was driving the vehicle. When the driver opened the window, the trooper immediately noticed a strong odor of air fresheners and dryer sheets, which are commonly used as masking agents for drugs. The trooper asked the driver for registration, but the driver did not respond to his request. She also appeared to be “very nervous” and her carotid artery was pulsating. The trooper also noticed approximately 12 air fresheners in the vehicle. The driver provided the trooper with a New Jersey identification card, which appeared to be counterfeit, and the appellant produced a Florida driver’s license. The trooper also noticed a faint odor of raw marijuana emanating from inside of the vehicle, which is an indication that there may be a large amount of marijuana in the vehicle. It must be noted that the trooper had extensive training in detecting indicators of drug trafficking and was aware that drug traffickers commonly attempt to mask the scent of marijuana with air fresheners. The trooper returned to his vehicle and discovered that the driver was not licensed to drive and the vehicle belonged to a third person. Subsequently, the trooper issued the driver warnings and asked her to exit the vehicle, so he could explain the warnings to her. After the explanation was concluded, the trooper told the driver “to have a nice day.” As the driver began walking away, the trooper asked the driver if he could speak with her again and she agreed. The trooper asked her details of her travels, she responded by explaining that they traveled from Allentown to Pittsburgh and the driver was told she was free to leave. He then approached the appellant and the trooper returned the appellant’s license and told him “to have a nice day.” Again, the trooper re-initiated contact with the appellant and asked details about their travels and inquired as to whether there were any guns, drugs or money in the vehicle. The appellant looked away and responded negatively. The trooper asked to look inside the vehicle and the appellant permitted him to do so. The appellant opened the trunk and the trooper observed a plastic bag, which he grabbed and realized it was full of marijuana. The appellant and the driver were arrested and the appellant sought to have the bag of marijuana suppressed as the fruit of an illegal search because the trooper did not have reasonable suspicion that criminal activity was afoot to re-engage the appellant after the initial traffic stop.

The Kemp court ruled that the facts adduced by the trooper during the valid traffic stop provided him with sufficient reasonable suspicion that the appellant and the driver were in possession of a controlled substance justifying the investigatory detention. Id., 961 A.2d at 1254. First, the trooper noticed the overpowering scent of air fresheners, which he knew were used as a masking agent to hide the scent of drugs. Id. The trooper also noticed that the driver was extremely nervous and was operating a third-party vehicle. Id. Finally, the trooper noticed the odor of raw marijuana and was aware from his training and experience that the source of that smell is from a significant amount of marijuana. Id. The Kemp court reasoned, “[The trooper] not only observed two indicia of a drug courier, the presence of a masking agent and third-party vehicle ownership, he detected an odor of fresh marijuana indicating that a significant amount of that substance was present.” Id., 961 A.2d at 1255. Additionally, the appellant could not provide the correct name of the vehicle’s owner and they were traveling from a source city. Id. The court held that the trooper had sufficient facts to support his reasonable suspicion that the appellant and the driver were in possession of drugs and the investigatory detention that occurred after the valid traffic stop was constitutional. Id., 961 A.2d at 1260.

Conversely, in Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003), the court determined that reasonable suspicion did not exist to justify an investigatory detention after the completion of a valid traffic stop. A police officer was observing traffic exiting the Pennsylvania Turnpike when he noticed excessive tinting on the defendant’s vehicle. The police officer stopped the vehicle and observed the defendant sitting in the driver’s seat. He also noticed several air fresheners hanging from the rearview mirror and elsewhere in the interior. The police officer also smelled a medicine-like aroma, similar to Bactine, emanating from the vehicle. He believed the smell to be a masking agent, but could not definitively relate it to any particular controlled substance. Also, the defendant seemed nervous in responding to the police officer’s questions. The police officer asked the defendant to accompany him to his vehicle and the defendant complied. The proper tinting arrangement was explained to the defendant at that time. The defendant received his license and registration, but the police officer asked him several questions while they were standing beside the vehicle, such as his reasons for visiting New York. The defendant responded that he was visiting his cousin, but had a difficult time indicating the sex of the cousin and eventually explained that the cousin was transsexual, a male dressed as a female. The police officer asked for consent to search the vehicle and the defendant permitted him to do so. During the search, the police officer found approximately one pound of crack cocaine in a duffel bag located in the trunk of the vehicle. The defendant filed a motion to suppress, which the trial court granted. The Commonwealth filed an appeal.

The Dales court ruled that the police officer did not have reasonable suspicion to proceed with an investigatory detention after the completion of the valid traffic stop. Id,, 820 A.2d at 813-14. The police officer justified the detention by citing to the intense smell of Bactine, the use of air fresheners and the defendant’s inconsistent statements regarding his activities in New York. It was noted that the police officer could not determine the cause of the Bactine smell, he thought it may have been caused by some kind of chemical or masking agent. Id., 820 A.2d at 815. The Dales court concluded, “that these facts were insufficient to establish anything more than a hunch of possible criminal activity being afoot. Thus, we find that [the police officer] lacked the reasonable suspicion necessary to conduct the second round of questioning ... .” Id.

In the case sub judice, it has been agreed upon by counsel at oral argument that an investigatory detention occurred when Trooper Wagner attempted to stop Ms. Novitzke from leaving after he issued her the traffic warning. The court concurs that the investigatory detention occurred when the trooper attempted to restrict Ms. Novitzke from leaving; thus, the court is precluded from considering Ms. Novitzke’s attempt to drive away while Trooper Wagner was holding onto the driver’s side window. Therefore, it is necessary for the Commonwealth to establish that Trooper Wagner had sufficient facts that criminal activity, other than the traffic violation, was afoot.

First, the Commonwealth explained that the defendants’ vehicle was in poor condition and there were spider-web breaks in the windshield that appeared to be, but were not, bullet holes covering approximately one square foot of the windshield. There was also a necklace hanging from the rearview mirror. Those facts provided the trooper with reasonable suspicion to effectuate the traffic stop, but did not indicate that other criminal activity was afoot.

Additionally, the vehicle abruptly exited the Interstate 79 when Ms. Novitzke noticed the trooper’s vehicle; however, the turn signal was used during that maneuver. Trooper Wagner proceeded down the highway and parked on the side of the road. Almost immediately, the defendants’ vehicle re-entered Interstate 79. The trooper promptly effectuated a traffic stop. It must be noted that when Trooper Wagner was following the vehicle he noticed it had an Indiana license plate, which prompted him to ask the defendants what they were doing in that area and they responded that they were sightseeing, but did not provide any details regarding any sights they had seen. Trooper Wagner subsequently asked Ms. Novitzke to exit the vehicle and he issued her a warning for the broken windshield and the necklace hanging from the rearview mirror. There does not appear to be a reason why Trooper Wagner asked Ms. Novitzke to exit her vehicle as the traffic violation dealt with the condition of the windshield and the necklace hanging from the rearview mirror. Unlike Kemp, where the trooper felt it necessary to demonstrate to the driver the proper amount of window tinting a vehicle is permitted. There was no apparent reason to require Ms. Novitzke to exit her vehicle at that time because the warning could have been given while she was still seated in the vehicle.

After the warning was issued, the trooper indicated that the defendants were free to leave. As Ms. Novitzke was walking back to her vehicle, Trooper Wagner asked if he could search the vehicle. Ms. Novitzke refused to provide the trooper with consent stating that the only reason he wanted to search the vehicle was her prior conviction for transporting ammonium anhydrous. The trooper recalled that Ms. Novitzke hurriedly returned to her vehicle, but did not run. As a result, Trooper Wagner approached the vehicle to stop the defendants from leaving and he was holding onto the driver’s side window when Ms. Novitzke attempted to place the vehicle in gear and drive away. However, Ms. Novitzke placed the vehicle in neutral and the engine revved loudly. Eventually, she placed the vehicle in drive and began traveling on the highway.

It appears that the Commonwealth has failed to establish that reasonable suspicion existed in the current case. The only indication that the defendants may have been involved in criminal activity was Ms. Novitzke’s statement regarding her prior conviction for transporting ammonium anhydrous. The other factors cited by the Commonwealth may establish that a traffic stop was necessary, but do not indicate any other type of criminal activity. First, the Commonwealth states that the vehicle was in poor condition, but that only provides the trooper with the authority to effectuate a traffic stop. Furthermore, the Commonwealth places an emphasis on the evasive maneuvers utilized by Ms. Novitzke when she abruptly exited the highway and quickly returned to the same. Although this type of conduct is suspicious, the evasive driving could have been due to the defendants’ desire to avoid receiving a traffic citation for the condition of the vehicle and is not necessarily an indicator of illegal drug activity. It must be noted that Ms. Novitzke used her turn signal when exiting the highway and merely pulling into a rest area is not an illegal activity. Also, the Commonwealth stresses that the defendants said they were sightseeing, but could not provide any details as to what sights they had seen or where they were going. Conversely, the Commonwealth failed to establish that they visited a source city or they provided any other information that would indicate that they were involved in drug trafficking.

Therefore, the only indication Trooper Wagner observed that illegal drug activity was afoot was Ms. Novitzke’s statement that he only wanted to search the vehicle because of her prior conviction. In Kemp and Rogers, the courts focused on the existence of masking agents, such as air fresheners and laundry detergent, which are utilized to eliminate the odor of drugs during transportation. In those cases, the law enforcement officers were able to immediately identify the substances as masking agents. Additionally, those officers pointed to other factors used in their determination that criminal activities were afoot, such as extreme nervousness by the driver or passenger, evasiveness by the defendants in answering questions and improper registration papers for the vehicles being driven. In the current case, Trooper Wagner was unable to identify any factors that indicated the defendants were transporting drugs, other than Ms. Novitzke’s statement regarding a prior conviction. That statement alone is insufficient to establish reasonable suspicion in this case. If a prior drug conviction was sufficient to permit an investigatory detention, then a police officer would be permitted to search the vehicle of a person convicted of a drug offense any time that person committed a traffic violation. Moreover, there was no evidence presented that the defendants exhibited any indication of extreme nervousness. Thus, the Commonwealth failed to prove that Trooper Wagner observed sufficient facts to establish reasonable suspicion that criminal activity was afoot to support an investigatory detention subsequent to the termination of the valid traffic stop.

The Commonwealth also argued that Trooper Wagner’s extensive experience provided him with insight that, in conjunction with the facts of this case, allowed him to gamer reasonable suspicion that illegal dmg activity was afoot. However, the facts in the record do not sufficiently address Trooper Wagner’s experience regarding his expertise in discovering the indicators of dmg trafficking. The record introduced by the Commonwealth merely sets forth that Trooper Wagner has been employed by the Pennsylvania State Police for 12 years in traffic enforcement, which his main duties include investigating crashes and initial investigations in criminal incidents. He also stated that his main duties are speed enforcement and equipment violations. Although Trooper Wagner has extensive experience in traffic enforcement, the record is devoid of any reference to his expertise in the field of drug trafficking or transportation.

Even though the defendants’ actions in this case are peculiar, it does not appear that they provided Trooper Wagner with reasonable suspicion that they were transporting illegal drugs. The facts of this case fall just short of the level of suspicion garnered by the police officers in Kemp and Rogers. Therefore, the court finds that Trooper Wagner did not have reasonable suspicion that the defendants were involved in criminal activity when he attempted to prevent Ms. Novitzke from leaving after she received her traffic warning and the evidence discovered after Ms. Novitzke’s automobile accident must be suppressed.

This was a difficult case to determine if reasonable suspicion existed to support an investigatory detention and it may be in the Commonwealth’s best interest to seek appellate review of this court’s decision. However, for the reasons set forth in this opinion, the defendants’ motion to suppress evidence is granted.

ORDER

Now this February 3,2010, this case being before the court previously for a hearing on the motion to suppress evidence filed by the defendant with all parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Diane Shaffer, Esquire, assistant district attorney for the County of Lawrence and the defendant, Jocelynne M. Novitzke, represented by counsel, Dennis A. Elisco, Esquire and the defendant, Julius Ray Novitzke, represented by counsel, E. Brandt Bythrow, Esquire and after consideration of the testimony, the briefs and oral argument submitted and presented by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) The motion to suppress evidence filed by the defendant is hereby granted.

(2) All evidence seized as a result of the traffic stop and subsequent searches is hereby suppressed and is ruled inadmissible at trial.

(3) The clerk of courts is directed to serve a copy of this order of court upon counsel of record.

      .75 Pa.C.S. §4524.

      . 18 Pa.C.S. §901.

      .35P.S. §780-113(a)(30).

      . 35P.S. §780-113(a)(16).

      . 35 PS. §780-113(a)(32).

      . 18 Pa.C.S. §2705.

      . 75 Pa.C.S. §3733(a).

      . 75 Pa.C.S. §3309(1).

      . 75 Pa.C.S. §3334(a).

      . 75 Pa.C.S. §3714(a).

      .75 Pa.C.S. §3736(a).

      . 35P.S. §780-113.1(a)(3).

      . The police officer in Dales associated the smell of Bactine with possession of cocaine.


source: Caselaw Access Project

author: SCHMEHL, P.W., J,

license: Public Domain

text:
    Fisher v. Fisher

      C.P. of Berks County,
    no. 06-02202, PACSES 162109423

      Berks County Domestic Relations, for plaintiff.

      Lauren M. Applegate and Roarke T. Aston, for defendant.
    February 17, 2010
   SCHMEHL, P.W., J,

This matter came before the court for enforcement/contempt proceedings as the result of the defendant’s alleged violation of his support order. Following a hearing on September 18, 2009, the court ordered the defendant to be imprisoned for three months subject to cash and work release purges. The defendant filed a notice of appeal and a petition for reconsideration. The court granted reconsideration and held a second hearing on November 20,2009. Upon re-hearing, the court amended its order to reduce the purge amounts. The defendant again filed an appeal.

The defendant is subject to a currently charging order for support, which charges at $442 per month with $100 per month on arrears for two children. As of September 18,2009, the arrears totaled $3,907, and as of November 20, 2009, $4,700. The defendant’s last payment was on January 30, 2009, which was made by way of wage attachment; thereafter, the defendant lost his job and failed to report the loss of employment to domestic relations.

The defendant appeared in domestic relations for a contempt conference on May 12, 2009 where he indicated that he was unemployed and had not worked since January. The conference was continued to July 21,2009, and the defendant was ordered to perform a diligent job search and supply proof of his efforts at the July 21 conference. The defendant failed to appear for the conference, made no payments and failed to record any employment. A bench warrant was issued and the defendant was taken into custody on September 3, 2009.

The defendant did not dispute any of these facts at the hearing. His attorney stated that he had no bank accounts, had no cars, and paid no rent. She stated that the defendant lived with his father and had been looking for employment at a variety of employers. She argued that the requested purge amount be lowered from the domestic relations office’s recommended amount of $1,600. In imposing a sentence on the defendant, the court honored his counsel’s request to reduce the recommended purge to $1,000 and set a work release purge of $500.

At the reconsideration hearing on November 20,2009, the domestic relations enforcement officer shared the same set of facts as at the first hearing with the additional information that defendant did receive a work release agreement from the Berks County Prison whereby the defendant would begin an employment assignment. The defendant’s counsel responded by asking for either a lower purge amount than previously set or perhaps a time served release. He argued that defendant had no present ability to pay, did not have a present ability to pay at the previous hearing, and has not been eligible for work release. Given the presence of the work release agreement in the file and the enforcement officer’s recitation of the facts, the court interrupted the defendant’s counsel on the work release issue, and the defendant stated that there was an issue of going through PRC which prevented him from participating in work release. Defendant’s counsel resumed his argument that the defendant had no ability to pay and in fact had gotten rid of all luxuries and had only what he needed to survive while living with his father. The court was not persuaded to reduce the term of imprisonment, however, it did once again cut the purge amounts in half.

The court found the defendant to be in willful civil contempt and ordered incarceration as a result of the defendant’s failure to pay support, to appear for a contempt conference in the domestic relations office when ordered, and to provide a record or other proof of his attempts to find a job as ordered. The defendant failed to meet his burden of demonstrating an inability to comply with the court’s orders and never provided any excuse for missing the July 21, 2009 contempt conference. Despite being ordered in May 2009 to “diligently seek employment,” the defendant was somehow unable to obtain employment over the course of the next four months, but within one month of incarceration was able to obtain the same. It is clear to the court it was simply a matter of motivation.

Additionally, having only minimal self-support obligations while living with his father, the defendant apparently made no attempt, and made no allegations that he had no ability, to borrow money from any source such as, but not limited to, credit cards, friends or family. Furthermore, although reportedly living with his father, there was no indication as to how simply or extravagantly he might have been living in that household. With an evident employment history through January 2009 (no doubt the basis for determining his obligation on the charging order), the court reasonably believed the defendant had some means to meet his purge conditions if he so desired. Additionally, the court believed he had the present ability to participate in work release, which was the alternate purge condition that if fulfilled would result in his release from incarceration. In fact, but for some alleged condition set by the prison, which condition the defendant did not allege was incapable of achievement, the defendant would have been performing work release at a rate of compensation that would have quickly led to his meeting his purge condition. As referenced above, clearly the attempt to coerce the defendant into complying with the support order was working insofar as the defendant was able to find employment from his jail cell, a feat which he apparently could not accomplish from within the confines of the shelter provided by his father. Obviously, as intended by the court, the incarceration served to motivate the defendant from continuing his contemptible conduct.

For the foregoing reasons, the court believes it appropriately exercised its discretion in finding the defendant to be in contempt and in fashioning orders with achievable purges.


author: DANTOS, J,

text:
    Commonwealth v. Valle
    C.P. of Lehigh County,
    no. 2878/2009.

      Tonya H. Tharp, deputy district attorney, for Commonwealth.

      Michael E. Brunnabend, for defendant.
    January 30, 2010
   DANTOS, J,

Defendant, Louis Valle, has filed an appeal from this court’s judgment and sentence entered on October 9, 2009. Accordingly, we are issuing this opinion pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925.

On August 26, 2009, the defendant entered a plea of guilty to the charges of fleeing or attempting to elude police officer, driving with a suspended or revoked license, and accidents involving damage to unattended vehicle or property. In exchange for defendant’s guilty plea, the Commonwealth agreed to withdraw the charges of driving on roadways laned for traffic, turning movements and required signals, reckless driving and careless driving. Pursuant to the plea agreement, the defendant’s minimum sentence was to be capped at the midpoint of the standard range of the sentencing guidelines, with concurrency in sentencing among the three counts. A pre-sentence investigation report was ordered and subsequently prepared. Thereafter, on October 9, 2009, in compliance with the plea agreement, the defendant was sentenced to a term of state imprisonment of not less than one year nor more than three years in a state correctional institution on the charge of fleeing or attempting to elude police officer, as well as a fine in the amount of $500. Additionally, the defendant was sentenced to a term of imprisonment of 60 days on the charge of driving with a suspended or revoked license, and an attendant fine of $500. This sentence was ordered to run concurrently to sentence imposed on the fleeing or attempting to elude police officer count. On the same date, the defendant was ordered to pay a $300 fine on the charge of accidents involving damage to unattended vehicle or property. The defendant did not file any post-sentence motions. Defendant’s within appeal followed on November 9, 2009.

On November 12, 2009, this court instructed the defendant to file of record and serve upon this court a concise statement of errors complained of on appeal no later than December 3,2009, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). Defendant complied with this order. In his concise statement of errors complained of on appeal, the defendant asserts one main allegation of error. Specifically, the defendant contends that this court erred in imposing an illegal sentence because the defendant believes that, factually and legally, the charge to which he pled guilty rises only to the level of a misdemeanor charge. We cannot agree with the defendant’s assertion.

Initially we note that a driver is guilty of fleeing or attempting to elude police officer if the driver of a motor vehicle “willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop.” 75 Pa.C.S. §3733(a). Additionally, an offense under subsection (a) constitutes a felony of the third degree “if the driver while fleeing or attempting to elude a police officer . . . endangers a law enforcement officer or member of the general public due to the driver engaging in a high speed chase.” 75 Pa.C.S. §3733(a.2)(2)(iii).

In the instant case, contrary to the defendant’s contention, the facts establish and support a grading of the eluding and fleeing offense as a felony of the third degree. Defendant entered a guilty plea to the following factual scenario: On July 9, 2009, at approximately 2 a.m., Trooper Robert Hooper of the Pennsylvania State Police Bethlehem Barracks was on patrol. (N.T. 8/26/09, p. 5.) He was dispatched to a report of a domestic disturbance at the Scottish Inn located at 1701 Catasauqua Road, Hanover Township, Lehigh County. (N.T. 8/26/09, p. 5.) Prior to his arrival at the scene, Trooper Hooper was notified by another Pennsylvania State Police Trooper, Trooper Figarowski, that he had responded to the same hotel room earlier due to the same type of call involving the same people. (N.T. 8/26/09, p. 5.) Upon arrival at the scene, Trooper Hooper met with Manager Rowhad Panda, who related to him that the defendant, Louis Valle, had an argument with his girlfriend. (N.T. 8/26/09, p. 5.) Manager Panda further stated that the defendant had left in a blue Volvo station wagon. (N.T. 8/26/09, p. 5.) A canvas of the area was conducted and yielded negative results. (N.T. 8/26/09, pp. 5-6.) The manager was given Pennsylvania State Police contact information and Trooper Hooper left. (N.T. 8/26/09, p. 6.)

Thereafter, at approximately 2:10 a.m., the Pennsylvania State Police Bethlehem Barracks was notified that the defendant had returned. (N.T. 8/26/09, p. 6.) Upon arrival at the Scottish Inn, the troopers observed a 1998 Volvo V70, blue in color, at the front of the business. (N.T. 8/26/09, p. 6.) The vehicle then attempted to leave the scene by traveling back on Catasauqua Road to Airport Road. (N.T. 8/26/09, p. 6.) Then, the vehicle entered 22 West from Airport Road North and proceeded up the ramp to Airport Road South on 22 West. (N.T. 8/26/09, p. 6.) The vehicle traveled from a right lane into the left lane without using a turn signal and proceeded to turn left onto Catasauqua Road, again, without using a turn signal. (N.T. 8/26/09, p. 6.) At that point overhead lights and a siren were activated, and a traffic stop was attempted on the vehicle in the parking lot of the Red Roof Inn on Catasauqua Road. (N.T. 8/26/09, p. 6.) The vehicle pulled into a parking stall momentarily before placing the vehicle in reverse and fleeing the scene. (N.T. 8/26/09, p. 6.) The vehicle then traveled through the parking lot of Valley Plaza at a high rate of speed before turning south onto Catasauqua Road. (N.T. 8/26/09, pp. 6-7.) The subj ect vehicle then turned right onto Pennsylvania Avenue and attempted to turn right onto Clarence Avenue. (N.T. 8/26/09, p. 7.) While attempting to turn right onto Clarence Avenue, the vehicle left the roadway, traveled up a curb and impacted two trees located at 2054 Clarence Avenue in front of a comer home. (N.T. 8/26/09, p. 7.) After coming to rest, the defendant exited the vehicle and fled to an unknown location. (N.T. 8/26/09, p. 7.)

Prior to the vehicle traveling in reverse, Trooper Hooper was able to identify the individual operating the vehicle and the clothes that he was wearing. The individual was the defendant. (N.T. 8/26/09, p. 7.) At the time the defendant was driving the vehicle, his license was suspended for DUI. (N.T. 8/26/09, p. 7.)

In light of the foregoing facts to which the defendant pled guilty, the grading of the offense is properly a felony of the third degree. Indeed, the defendant, while fleeing and eluding the police officer, endangered the officer and the general public by engaging in a high-speed chase. These facts support the grading of the offense as a felony of the third degree. Consequently, the defendant’s argument that this court imposed an illegal sentence is baseless. The defendant’s appeal should be dismissed.

      . 75 P.S. §3733(a) (a felony of the third degree).

      . 75 P.S. § 1543(b)(1).

      . 75 P.S. §3745(a).

      . The defendant was granted a week’s extension in which to file his concise statement of errors complained of on appeal.

      . The defendant avers in his concise statement of errors complained of on appeal that he was sentenced to fleeing or attempting to elude police officer, graded as a felony of the second degree. However, this is not factually accurate. The defendant was sentenced to fleeing or attempting to elude police officer, graded as a felony of the third degree.


author: SPATARO, J,

text:
    Commonwealth v. McKinley

      C.P. of Crawford County,
    no. CR 690-2006.

      Douglas W Ferguson, for Commonwealth.

      Gary M. Alizzeo, for defendant.
    February 2, 2010
   SPATARO, J,

We now address petitioner’s amended petition for post-conviction collateral relief following an evidentiary hearing. As part of a plea deal with the Commonwealth, the petitioner, Deborah McKinley, plead guilty to eight counts of theft by unlawful taking, 18 Pa.C.S. §3921(a), and agreed to pay $850,000 in restitution. She was sentenced on April 10,2007. Petitioner filed a motion for reconsideration of her sentence, and an amended motion for reconsideration of her sentence, both of which were denied. Petitioner filed a timely appeal to the Superior Court of Pennsylvania, arguing that her sentence was excessive, and on February 22, 2008, the Superior Court affirmed this court’s sentence. Petitioner filed a pro se petition for allowance of appeal with the Supreme Court of Pennsylvania, which was denied. On February 20, 2009, petitioner filed a pro se petition for post-conviction collateral relief, followed by an amended petition of the same filed by appointed counsel, Daniel A. Durst, on May 15,2009.

This court held a rule to show cause hearing and subsequently scheduled an evidentiary hearing in its order of September 2, 2009, where we narrowed the issue to be addressed to the following:

“Whether petitioner’s trial counsel, M. Dan Mason, Esquire, was ineffective for allegedly failing to take into account the possible application of the statute of limitations and failing to discuss the timeliness of the charges with petitioner?”

Petitioner argues that her plea was invalid because the statute of limitations defense was waived without petitioner’s consent. Petitioner seeks an order vacating her sentence due to ineffectiveness of counsel and to be re-sentenced, or have an order entered vacating her sentence with respect to Counts I and II in the criminal information; neither of which are remedies allowed by the Post Conviction Relief Act. 42 Pa.C.S. §9541 et seq.

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:...

“(ii) 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 [her] 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.’ Com monwealth 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 unknowing plea.’ Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 587 (1999).” Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).

Furthermore, in order for petitioner to show that she was prejudiced, it must be demonstrated that it is “reasonably probable that, but for counsel’s errors, [s]he would not have pleaded guilty and would have gone to trial.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Petitioner claims that her plea was unknowing because her trial counsel failed to discuss the timeliness of the charges with her and did not inform her that two of the counts she was pleading to were barred by the statute of limitations. Petitioner’s charges arose from the embezzlement of funds from the personal care home, Quality Living Center of Crawford County, where she was employed. The Quality Living Center is a non-profit corporation that provides a residence to low-income citizens, primarily senior citizens, who require care in an assisted living facility. Between the years of 1999 and 2006, petitioner embezzled money from the operating funds of the facility, and personal allowance accounts of the residents, while destroying and altering records to cover up her activities. Petitioner was estimated to have embezzled over $ 1,000,000 from the Quality Living Center during the course of her employment.

Petitioner was arrested and charged with nine counts of theft by unlawful taking, two counts of forgery, two counts of tampering with records, and two counts of state income tax evasion. Her counsel at the time, Attorney M. Dan Mason, successfully negotiated a plea bargain with the Commonwealth where petitioner was only required to plead to eight counts of theft by unlawful taking and pay restitution of $850,000. Assistant District Attorney Ferguson stated that this plea bargain came as a result of extensive negotiations between Attorney Mason and the Commonwealth. A lengthy plea colloquy was undertaken and petitioner pleaded guilty to eight counts of theft by unlawful taking.

In determining whether Attorney Mason was ineffective in counseling the petitioner during the plea process, we must first analyze whether a challenge to the timeliness of Counts I and II would have had arguable merit. Count I in the criminal information filed against petitioner was a charge for theft by unlawful taking, 18 Pa.C.S. §3921(a), for actions undertaken by the petitioner during the time period of January 1, 1999 to December 31, 1999. Count II in the criminal information filed against petitioner was a charge for theft by unlawful taking, 18 Pa.C.S. §3921(a), for actions undertaken by the petitioner during the time period of January 1, 2000 to December 31, 2000. Charges were filed against the petitioner on August 1, 2006.

The statute of limitations for prosecution of theft by unlawful taking can be found at 42 Pa.C.S. §5552(b)(l), which reads in pertinent part as follows:

“(b) Major offenses. — A prosecution for any of the following offenses must be commenced within five years after it is committed:

“(1) Under the following provisions of Title 18 (relating to crimes and offenses):...

“Section 3921 (relating to theft by unlawful taking or disposition) through section 3933 (relating to unlawful use of computer).” 42 Pa.C.S. §5552(b)(l).

Counts I and II in the criminal information filed against petitioner designate that the crimes of theft by unlawful taking committed by petitioner between 1999 and 2000 occurred more than five years before prosecution had commenced; therefore, these two charges were barred by the statute of limitations unless an exception to the five-year time limitation applied. Attorney Mason testified at the evidentiary hearing that he evaluated all defenses in the petitioner’s case, and as a matter of course, always looks to see if there is a statute of limitations defense when reviewing a criminal information. Attorney Mason assumed that the statute of limitations was not a defense because the exceptions to the statute applied.

The exceptions reviewed by Attorney Mason were as follows:

“(c) Exceptions. — If the period prescribed in subsection (a), (b) or (b.l) has expired, a prosecution may nevertheless be commenced for:

“(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

“(2) Any offense committed by a public officer or employee in the course of or in connection with his office or employment at any time when the defendant is in public office or employment or within five years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than eight years.” 42 Pa.C.S. §5552(c).

Theft by unlawful taking does not possess a material element to the crime involving either fraud or a breach of fiduciary obligation, so it is clear that the first exception does not apply. The second exception involving an offense committed by a public officer or employee does not apply either, but we arrive at this conclusion only after a more detailed analysis. The Quality Living Center of Crawford County is a private non-profit organization; therefore, petitioner was not a public employee. Attorney Mason interpreted this statutory section to read that the exception applies to public officers and employees — both public and private — and not just to public employees. Attorney Mason testified that he informed the petitioner that pleading guilty waives any available defenses, but did not recall discussing the statute of limitations defense with the petitioner because he did not think it was applicable due to the exceptions.

Petitioner argues that it was not reasonable to interpret the exceptions to the statute of limitations to include private employees because the clear reading of the statute is that public applies to both officers and employees. The disjunctive “or” in the phrase, “offense committed by a public officer or employee,” found in section 5552(c) (2), supra, appears to be the basis for the confusion; however, it is clear from a brief look into the time limitations statutes that the extension of time for prosecution involves public officers or public employees, and not employees in general, both public and private. Section 5552, supra, dealing with time limitations for prosecutions, is derived from a prior version of section 108 in the Pennsylvania Crimes Code at 18 Pa.C.S. § 108, which defined time limitations for prosecutions. Section 108 has been amended and now reads “[ejxcept as set forth in subsection (b), a prosecution for any offense under this title must be commenced within the period, if any, limited by Chapter 55 of Title 42 (relating to limitation of time).” 18 Pa.C.S. § 108(a).

The Official Comment — 1972, providing historical context to section 108 of the Pennsylvania Crimes Code, discusses the subsection dealing with time limitations for public officers and public employees, and reads as follows:

“Subsection (c)(2): This subsection changes the existing limitations statute which provides that in cases of offenses by public officers, the prosecution may be commenced within two years after the officer or public employe leaves office or public employment, but in no event more than six years from the time of the commission of the offense. Act of 1860, March 31, P.L. 427, §77, as amended 1939, April 6, P.L. 17, §1 (19 P.S. §211) [42 Pa.C.S. §§5551-5553].” 18 Pa.C.S. §108, Official Comment — 1972. (emphasis added)

The exceptions dealing with public officers and employees in the old version of 18 Pa.C.S. § 108(c)(2), and the current time limitations exceptions for the same in 42 Pa.C.S. §5552(c)(2), are almost identical in language, with the only difference being the number of years within which the prosecution may be commenced. The language involving a public officer or employee is the same, and the Superior Court stated that the statute of limitations may be extended an additional period of time in cases where a public employee commits an offense in connection with his office when discussing the old version of section 108(c)(2). Commonwealth v. Walker, 298 Pa. Super. 387, 391-92, 444 A.2d 1228, 1230 (1982).

It is apparent that the tolling provisions for the statute of limitations for theft by unlawful taking would not have applied in petitioner’s case because she was not a public officer or public employee acting in connection with her employment when she committed these offenses. Attorney Mason’s testimony at the evidentiary hearing regarding his decision not to challenge the timeliness of Counts I and II, nor discuss the statute of limitations with the petitioner because he believed the tolling provisions applied, demonstrates that there is arguable merit to the claim that petitioner’s counsel was ineffective for failing to raise and discuss the statute of limitations with her. Moreover, Attorney Mason’s testimony did not indicate that he decided to waive the statute of limitations defense based upon some reasonable strategy involving plea negotiations, but instead because he believed the exceptions applied to the time limitations. However, petitioner must still establish that she has been prejudiced by her counsel’s errors, and but for these errors, she would have gone to trial. Hickman, 799 A.2d at 141.

Attorney Mason represented petitioner prior to the charges ever being filed against her, and he gave her legal advice during the period of time when the investigation into her embezzlement was just beginning. Attorney Mason talked to the investigating officers on behalf of the petitioner, and was present when the petitioner decided to admit to the police that she had stolen money from the Quality Living Center from 1999 to 2006. Attorney Mason was able to reach a plea agreement with the Commonwealth, after extensive negotiations, where the petitioner would only plead to eight counts, and the remaining seven counts were to be nolle pressed. Attorney Mason also negotiated down the amount of restitution petitioner owed. Petitioner never expressed her innocence at any time and never denied taking money from her employer from 1999 to 2006.

Petitioner never expressed any dissatisfaction with Attorney Mason and looked to him for support throughout the entire process. Petitioner only expressed being disappointed with her sentence because this court sentenced her in the aggravated range. At the PCRA evidentiary hearing, petitioner testified that she did not recall discussing the charges as being untimely, and she testified that if Attorney Mason had told her that two of the counts were untimely, she would not have plead guilty to those two charges. The relief petitioner seeks in her pro se PRCA petition and her amended PCRA petition is some form of a corrected sentence. Petitioner received the benefit of her bargain when she entered her plea, and is now attempting to renege on a plea that was based upon extensive negotiations made in good faith. Petitioner has never stated or established that she would have gone to trial if not for her counsel’s errors, she has only stated that she is unhappy with her sentence and wishes to be resentenced after a challenge to the timeliness of Counts I and II; however, such relief cannot be granted because she entered into a plea bargain after extensive negotiations and cannot withdraw her plea as to only Counts I and II and then be resentenced.

We also observe that the relief requested by petitioner is patently unfair to the Commonwealth. Petitioner wants her sentence vacated as to the two counts that implicate the statute of limitations, while either letting the sentence for the remaining six counts stand or appearing again before this court to be resentenced on only the remaining six counts. Petitioner seeks to cherry pick those features of her plea deal that she likes while discarding the others. The PCRA court has the following authority:

“Section 9546. Relief and order.

“(a) General rule. — If the court rules in favor of the petitioner, it shall order appropriate relief and issue supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that are necessary and proper.” 42 Pa.C.S. §9546(a).

Although the PCRA court has relatively broad authority to provide relief, the relief must be fair to both the petitioner and the Commonwealth. The Commonwealth negotiated a plea agreement in good faith, which included seven counts being nolle prossed and a significant reduction in the amount of restitution. Neither of the attorneys raised the issue of the statute of limitations at the time of the plea or during the sentencing hearing. Issues relating to the statute of limitations may be waived. See Commonwealth v. Stover, 372 Pa. Super. 35, 538 A.2d 1336 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988). Therefore, the sentence imposed for the two counts that involve the statute of limitations is a legal sentence. If the sentence had been illegal, then the court would be permitted to afford relief in the form of a new sentencing hearing, or employ some other methodology to correct the illegality. Commonwealth v. Bartrug, 732 A.2d 1287 (Pa. Super. 1999). No such remedy is available for a legal sentence that was imposed upon a conviction that involved a waivable defense.

Realistically, the only fair relief that the PCRA court could impose would be to vacate the sentence order in its entirety, along with petitioner’s pleas to all eight counts and restore for the prosecution all of the nolle prossed counts, i.e., return the matter to the way things were before the plea. Petitioner has not asked for such relief; most likely because she faces a high likelihood of conviction and could end up worse off than she is now. Moreover, because petitioner never requested such relief, the court cannot award such relief sua sponte, for to do so would undermine the Commonwealth’s right to have the court consider whether the Commonwealth is prejudiced by the delay that would result from such a grant of relief. See 42 Pa.C.S. §9543(b).

We find that petitioner has not established that she has been prejudiced by her counsel’s failure to challenge the timeliness of Counts I and II. The petitioner was faced with 15 total counts, 11 of which were felony charges, and was only required to plead to eight of those counts. Petitioner admitted that she committed these crimes to the police during their investigation, and has never expressed her innocence or expressed a desire to go to trial. Withdrawing her plea, a plea negotiated in good faith and accepted by petitioner voluntarily will not benefit the petitioner in any manner. Prejudice cannot be established by arguing that she would like to withdraw her plea so she can renegotiate a new plea deal, especially considering that the likelihood of receiving such a favorable plea bargain from the Commonwealth, or a reduced sentence, is very unlikely. Unhappiness with the length of sentence received from a plea entered in good faith is not a basis to claim prejudice, and couching such dissatisfaction with her sentence in the context of an ineffectiveness claim is meritless.

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

ORDER

And now, February 2,2010, we find and order as follows:

(1) The petitioner’s 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 she has a right to file an appeal of this order, denying her 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 her last known address and to PCRA counsel, Daniel A. Durst, both by regular mail, postage prepaid and by certified mail, return receipt requested.

      . The Commonwealth’s failure to acknowledge this issue was most likely due in part to the belief that the public employee exception applied to private employees as well, which can be surmised from Assistant District Attorney Ferguson’s argument at the PCRA evidentiary hearing that the tolling exception was applicable in petitioner’s case.


author: TODD, Member,

text:
    In re DeSimone Petition for Reinstatement

      Disciplinary Board Docket no. 11 D.B. 2002.
    September 23, 2009
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TODD, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Mark Anthony DeSimone, petitioner, was suspended from the practice of law for a period of two years and eight months by order of the Supreme Court of Pennsylvania dated February 4,2004, retroactive to January 31, 2002. This suspension followed petitioner’s criminal conviction of one count of income tax evasion. On August 26, 2004, petitioner filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. The petition was denied on the basis that petitioner had failed to satisfy the continuing legal education requirements.

On March 27, 2008, petitioner filed a second petition for reinstatement. Office of Disciplinary Counsel filed a response on September 26,2008 and did not take a position on reinstatement.

A reinstatement hearing was held on December 18, 2008, before a District IV Hearing Committee comprised of Chair Laura Ann Ditka, Esquire, and Members Anthony R. Himes, Esquire and Henry M. Casale, Esquire. Petitioner was represented by John E. Quinn, Esquire. Petitioner testified on his own behalf, presented the testimony of two witnesses, and submitted four letters of reference.

Following the submission of a brief by petitioner, the Hearing Committee filed a report on April 22,2009 and recommended that the petition for reinstatement be denied.

Petitioner filed a brief on exceptions and request for oral argument on May 12, 2009. Office of Disciplinary Counsel did not file a brief.

Oral argument was held before a three-member panel of the Disciplinary Board on June 16, 2009.

This matter was adjudicated by the Disciplinary Board at the meeting on July 18, 2009.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Mark Anthony DeSimone. He was bom in 1955 and was admitted to practice law in the Commonwealth of Pennsylvania in 1980. His current address is 17566 Circle Pond Court, Boca Raton, Florida.

(2) Petitioner is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) In 2002 petitioner entered a plea of guilty in the United States District Court for the Western District of Pennsylvania to one count of income tax evasion.

(4) Petitioner was sentenced to 12 months and one day in federal prison, with two years of supervised release following his imprisonment, a fine of $30,000 and a special assessment.

(5) Petitioner completed the terms of his sentence without incident.

(6) By order of the Supreme Court of Pennsylvania dated February 4, 2004, petitioner was suspended from the practice of law for a period of two years and eight months, retroactive to January 31, 2002.

(7) Petitioner filed a petition for reinstatement in 2004, which was denied due to petitioner’s failure to complete required CLE courses.

(8) Petitioner filed a second petition for reinstatement on March 24, 2008.

(9) Petitioner has fulfilled his CLE requirements for reinstatement.

(10) Petitioner has reviewed numerous legal periodicals and advance sheets to keep apprised with the current state of the law.

(11) For the past seven years, petitioner has been engaged in real estate development projects in Florida and in other business activities.

(12) Petitioner has not engaged in the practice of law since his suspension.

(13) Petitioner has volunteered his time to charitable and social service activities since his suspension, including C.C. Riders, a charity that raises money for Make A Wish Foundation, and the American Heritage Father’s Club, an organization that provides outings for fathers and their children.

(14) Petitioner expressed sincere remorse for his misconduct.

(15) Petitioner desires reinstatement so that he can perform legal services to the various business interests in which he is involved as an owner/investor.

(16) Petitioner presented two witnesses, each of whom has known petitioner for more than 20 years.

(17) J. Michael Sabatini is a CPA. Mr. Sabatini provided credible testimony as to petitioner’s good reputation in the community for integrity and honesty. Mr. Sabatini would not hesitate to hire petitioner as his attorney.

(18) David Cherup is a real estate developer and has been involved in various real estate transactions with petitioner since 2004. He is also involved in charitable endeavors with petitioner. Mr. Cherup would trust petitioner to provide good legal services to him.

(19) Petitioner presented four letters of reference, including a former law partner who was a federal prosecutor; a personal friend; and two past or present business partners. Each of these individuals found petitioner to be competent, reliable and trustworthy.

(20) In response to question 10(c) of the reinstatement questionnaire, petitioner failed to disclose that a confession of judgment was entered against him on January 18, 2008.

(21) Petitioner owed a debt to American Manufacturers Mutual Insurance Company, which was confirmed by a letter of June 4,2007 from Amy Bentz, legal counsel to the insurance company.

(22) The letter stated that petitioner agreed to repay a $60,000 debt in two installments: $42,000 was paid immediately and $ 18,000 was to be paid on or before August 3, 2007.

(23) Petitioner executed a promissory note, dated June 4, 2007, which stated that he unconditionally promised to pay the insurance company $ 18,000 on or before August 3, 2007.

(24) Petitioner failed to pay the $18,000 by the due date.

(25) At some point prior to November 28,2007, petitioner made a payment in the amount of $6,000.

(26) As a result of petitioner’s failure to pay the $12,000 balance, on January 18, 2008, a confession of judgment was entered against petitioner.

(27) Petitioner made an additional payment of $6,000 on February 29, 2008.

(28) Petitioner paid the final $6,000 at the end of April 2008.

(29) In response to question 11 (a) of the reinstatement questionnaire, petitioner did not provide detailed information as to the compensation earned from 1997 to present, specifically as to his investment in a company called HIS and his ownership of HIS LLC.

(30) Petitioner provided additional information on his investment in HIS and HIS LLC, to the satisfaction of Office of Disciplinary Counsel and the Hearing Committee.

(31) Office of Disciplinary Counsel does not oppose the petition for reinstatement.

III. CONCLUSIONS OF LAW

(1) Petitioner has presented clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for reinstatement to practice law in the Commonwealth. Pa.R.D.E. 218(c) (3).

(2) Petitioner’s resumption of the practice of law in the Commonwealth will be neither detrimental to the integrity and standing of the bar or administration of justice nor subversive of the public interest. Pa.R.D.E. 218(c)(3).

IV. DISCUSSION

Petitioner seeks reinstatement to the bar of the Supreme Court of Pennsylvania following his suspension for two years and eight months. After a reinstatement hearing during which petitioner testified and presented two witnesses and four letters of reference, and after considering petitioner’s brief, the Hearing Committee recommended denying the petition for reinstatement..

The committee based its recommendation on two issues. First, the committee found that petitioner omitted information concerning his ownership of HIS in response to question 11(a) of the questionnaire. The committee concluded that this omission raises doubts as to petitioner’s moral qualifications.

The board’s review of the record shows that while petitioner did fail to disclose his ownership interest, he subsequently provided additional information regarding HIS, which was found satisfactory by both Office of Disciplinary Counsel and the Hearing Committee. Indeed, the committee states in the discussion portion of its opinion that nothing in the information provided caused the committee any significant concern. Thus, there is no basis to find that petitioner’s omission constitutes a lack of moral qualification.

The committee next found that petitioner failed to disclose a confession of judgment against him in response to question 10(c) of the questionnaire. As the facts above demonstrate, petitioner agreed to pay a settlement to American Manufacturers Mutual Insurance Company on June 4, 2007. Petitioner paid part of the debt but failed to pay the balance by August 3, 2007. At the time that judgment was entered on January 18, 2008, petitioner owed $ 12,000. He paid an additional $6,000 in February 2008. At the time petitioner filed his petition for reinstatement on March 27,2008, he owed $6,000, which he paid by April 2008. While technically petitioner should have answered the questionnaire more fully on this subject, the fact remains that by the date of the reinstatement hearing on December 18, 2008, the judgment was paid. Petitioner conceded that the debt to the insurance company should have been included and provided a reasonable, logical and honest explanation for his handling of the debt and failure to disclose the confession of judgment in the questionnaire. The board finds that petitioner’s failure to disclose this judgment does not constitute a lack of moral qualification.

The totality of the record shows that petitioner met his burden under Pa.R.D.E. 218. Petitioner fulfilled his CLE requirements and has kept apprised of the law. Petitioner has been gainfully employed in a non-legal capacity and has not engaged in the practice of law nor held himself out to be a licensed lawyer. Petitioner has remained committed to charitable activities. Petitioner’s character witnesses provided credible evidence of his good reputation in the community for honesty and integrity. Importantly, petitioner has shown sincere remorse and conducted himself in a candid fashion throughout these proceedings. For these reasons the board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Mark Anthony DeSimone, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Expenses Incurred in the Investigation and Processing of the above Petition for Reinstatement*

02/03/2004 14 copies of Supreme Court order $ 7.00

02/27/2006 14 copies of Supreme Court order 7.00

03/27/2008 14 copies of petition for reinstatement and reinstatement questionnaire 553.00

09/26/2008 14 copies of Office of Disciplinary Counsel’s response to petition for reinstatement 21.00

04/22/2009 14 copies of Hearing Committee report 105.00

11/17/2009 Transcripts of prehearing conference held 11/05/2008 119.00

01/07/2009 Transcripts of hearing held 12/18/2008 347.00

$1,159.00 TOTAL AMOUNT DUE

Make check payable to PA Disciplinary Board

Payment is required upon receipt of order

* Submitted pursuant to Rule 208(g) of the Pa.R.D.E and §93.111 of the Disciplinary Board Rules.

ORDER

And now, December 16, 2009, upon consideration of the report and recommendations of the Disciplinary Board dated September 23, 2009, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: WECFIT, A.J.,

text:
    Abel v. Sciubba

      C.P. of Allegheny County,
    no. FD 01-4352-003.

      Cassandra Abel, pro se.

      Jerome DeRiso, for defendant.
    January 21, 2010
   WECFIT, A.J.,

Defendant Richard Sciubba (Father) filed exceptions to recommendations issued by Hearing Officer Bingman following a July 15, 2009 child support hearing. Plaintiff Cassandra Abel (Mother) appeared for that hearing. Father did not. The hearing officer developed the record, and subsequently recommended an attachment of Father’s lump sum settlement payment from a civil lawsuit, with the amount in excess of the arrears going into escrow. The escrow would cover Father’s support obligation at the current support rate until the children are no longer minors. The hearing officer found that Father was capable of full-time minimum wage employment, but that he currently was not working and was on assistance.

Father argued on exceptions that the hearing officer erred in establishing the escrow for the lump sum payment and that the order is not “within the range of the appropriate guidelines.” Father asserts that there is no statutory or decisional law supporting establishment of this escrow. Father acknowledges that there are decisions allowing escrow in support cases. But Father argues that these cases are inapposite because the escrow in those instances was established through equitable distribution, and also because there is no history of non-payment here as there was in those cases. Father also complains that the hearing officer deviated upward from the guideline amount because Father was receiving the lump sum.

In the Petto case, the mother was directed to pay the father $12,419 as part of equitable distribution. Petto v. Petto, 372 Pa. Super. 558, 560, 539 A.2d 1337, 1338 (1988). The mother filed a petition asking the trial court to use the amount due the father from equitable distribution to ensure future child support payments. Id. The trial court denied the request. Id. At the time of that denial, the father had been sporadically employed for years prior to entry of the divorce decree, had moved to Brazil after the separation, had taken money from the parties’ and children’s bank accounts without the mother’s knowledge or consent, and had failed to report any income since his move to Brazil. Id. Additionally, at the time of the denial, the father was months in arrears on his child support payments. Id. at 564, 539 A.2d at 1339.

The Superior Court reversed, finding authority in 23 Pa.S. §403(a) (now 23 Pa.C.S. §3505(a)), which allows issuance of an injunction to prevent a party from alienating property in order to defeat a child support award. Id. The Superior Court found section 403(a) applicable through Pa.R.C.P. 1910.43, which allowed the mother’s petition for special relief. Id. Relying on the father’s history of not making payments and of removing marital funds from the jurisdiction, and recognizing his lack of income, the Superior Court ordered the money the mother owed through equitable distribution to be paid into a sequestered account to ensure future child support payments. Id. at 565, 539 A.2d at 1340.

In the Nika case, the trial court ordered that the husband’s proceeds from the sale of the marital home were to be held by his attorney to pay off his support arrearages. Nika v. Nika, 382 Pa. Super. 551, 554, 555 A.2d 1337, 1339 (1989). The trial court further ordered that any amount over his arrearages was to be held in escrow by the attorney and was not to be paid directly to the husband due to husband’s continued contempt and failure to pay. Id. The trial court further asserted that the husband was a gambler who was likely to squander the proceeds and had caused his business to fail in order to discourage claims for support. Id. The trial court ordered that the money be deposited with the domestic relations office to create a credit from which the wife’s alimony could be paid. Id. at 555, 555 A.2d at 1340.

The Superior Court upheld the trial court’s decision under the court’s equity power to protect the interests of the parties, in accordance with 23 Pa. S. §401(c), now 23 Pa.C.S. §3323(f). Id. at 558, 555 A.2d at 1341. In so . ruling, the Superior Court relied upon the wife’s history of mental problems that affected her economic opportunities as well as the husband’s record of failing to meet his support obligations. Id.

In another case, the Supreme Court allowed workers’ compensation lump sum payments to be placed in escrow to ensure alimony payments. Dudas v. Pietrzykowski, 578 Pa. 20, 27, 849 A.2d 582, 586 (2004). The husband had not paid alimony for over a year and a half prior to paying off his arrears from his lump sum payment. Id. at 24, 849 A.2d at 584. The trial court put the rest of the lump sum into escrow to ensure future payments. Id. at 25, 849 A.2d at 584-85. The court relied on parts of the alimony statute that allow income to be attached when there are arrears, and considered the workers’ compensation award to be an income substitute. Id. at 27, 849 A.2d at 5 86. The Supreme Court concluded that the trial court had the authority to place assets in escrow to ensure alimony payments, even though it concluded that the trial court had not exercised that authority properly. Id.

In the instant case, Mother argued that the escrow would save Father from worrying about contempt exposure that she predicted he would face because, as she testified, “he’s on drugs” (Tr., at 4) and “[h]e’s always in jail” (Tr., at 6).

There is not enough similarity to the above-discussed cases to allow the escrow here. This court cannot rely on the statutory provisions cited in those appellate cases, which deal with the court’s equity powers concerning divorce and property rights, to find authority for the escrow. There are two prior contempt orders in this case. But both of those orders are almost five years old. Further, there was no notice to Father that an escrow account might, be used to secure future payments. The Superior Court has held that an obligor was not afforded a full and fair opportunity to air all his claims when he had no notice of an attempt to guarantee future child support payments through an escrow account. Rittel v. Rittel, 335 Pa. Super. 550, 558, 485 A.2d 30, 35 (1984). While it is plain and understandable that the hearing officer sought in this case to ensure support for the children, there was no applicable authority for her to do so.

The case will be remanded, but only for re-calculation. Because Father failed to appear, he waived any opportunity for a de novo hearing.

An order in accordance with this memorandum follows.

ORDER

And now, January 21, 2010, following due consideration and for the reasons set forth in the accompanying memorandum, it is hereby ordered, adjudged, and decreed that defendant’s exceptions to the recommendations of Flearing Officer Bingman, Esquire dated July 15,2009 are granted. The hearing officer shall determine defendant’s monthly support obligation and arrears based upon his earning capacity, and shall make a recommendation for his monthly payment, including a payment on arrears.


author: SCHMEHL, J.L., P.J.,

text:
    Lambert v. Katz

      C.P. of Berks County,
    no. 05-2599.

      Thomas R. Hurd and ChristinE. Deacon, forplantiffs.

      John W. Stahl, for defendant.
    February 5, 2010
   SCHMEHL, J.L., P.J.,

Dianna Lambert, executrix of the estate of Edward A. Lambert, and Mary Elizabeth Katz, executrix of the estate of Robert W. Wilsbach, Sr., plaintiffs/appellants in the above-captioned case, appeal this court’s November 30, 2009 order which granted summary judgment in favor of defendant/appellee PennDOT, and against all other parties.

I. FACTUAL AND PROCEDURAL BACKGROUND

The present action was commenced with this court when it was transferred from the Court of Common Pleas of Philadelphia County. The action stems from a car accident which occurred on January 18,2004 on Route 73 in Ruscombmanor Township, Berks County, a highway which was constructed in 1959. The accident resulted in the deaths of three individuals riding in an SUV together, including both appellants’ decedents. In their complaints, appellants described the accident as having occurred when the SUV left its travel lane, crossed over the northern (right side) shoulder, knocked down and went over an old post and cable guard fence, and struck a tree.

In their respective complaints, the appellants alleged virtually identical claims of negligence against appellee PennDOT. Those allegations consisted chiefly of the claims that damages sustained by the parties were a direct and proximate cause of the negligence of defendant/appellee Pennsylvania and its various agents in: failing to replace outdated I-beam guard rails on Route 73 with updated W-beam rails, concrete barriers, or other appropriate guards; failing to properly inspect and maintain the guard cables on Route 73; and designing and maintaining Route 73 with a shoulder which was too narrow for a driver to recover from a skid or loss of control. Plaintiffs submitted an expert report which alleged that a different highway design would have allowed the vehicle occupants to regain control of the subject vehicle.

Early on in the litigation, in 2005, the action by Lambert against Katz was settled between the two parties, leaving their action against appellee PennDOT. This latter action continued, and on March 19, 2009, appellee PennDOT filed a motion for summary judgment against appellants.

In its motion for summary judgment, appellee asserted that there were no facts set forth in plaintffs’ expert’s report to support any discussion of speed or the driver’s supposed ability to regain control if the shoulders were wider, and thus such discussion constituted impermissible speculation. Further, appellee asserted that it has no duty running to specific individuals to remove natural accumulations of snow and ice from highways in its jurisdiction. Appellee also stated that there are no regulations requiring the department of transportation to provide shoulders of any width along the subject highway. Appellee also claimed that it is clearly protected by sovereign immunity, and although nine narrow exceptions exist, plaintiffs did not meet the criteria to meet any of those exceptions. Finally, appellee asserted that appellants had failed to produce facts essential to their cause of action which would require the issue to be submitted to a jury, and had failed to produce facts essential to proving that the accident was caused by a dangerous condition of the highway under the jurisdiction of appellee, thus entitling appellee to summary judgment.

After appellee’s motion for summary judgment, the parties filed responsive pleadings. On December 1,2009, following argument, this court ruled on the motion for summary judgment, and entered an order granting same in favor of defendant PennDOT and against all other parties.

Plaintiffs/appellants filed their notice of appeal to Superior Court on December 29, 2009, appealing this court’s December 1, 2009 order. Plaintiffs/appellants filed their timely concise statement of matters complained of on appeal on January 20, 2010. The appeal was then transferred to Commonwealth Court by order of Superior Court on January 29,2010, based on Commonwealth Court’s exclusive jurisdiction of appeals involving tort claims against Commonwealth or local government defendants.

II. DISCUSSION

In appellants’ concise statement of matters complained of on appeal, filed on January 20,2010, appellants raised the following three issues and subparts:

“(1) That the court erred in determining that no genuine issue as to any material fact existed and that the defendant was entitled to summary judgment as a matter of law, where:

“(a) Plaintiffs have established a prima facie case of negligence against defendant;

“(b) Plaintiffs have shown that the cause of action falls within one of the exceptions to sovereign immunity set forth in 42 Pa.C.S. §8522(b);

“(c) Plaintiffs have proffered a report signed by an expert witness that complies with the rule governing the discovery of expert testimony through interrogatories (Pa.R.C.P. 4003.5(a)(1)) in support of its claim, and the report establishes a chain of causation demonstrating the dangerous conditions of this Commonwealth highway which caused the deaths of three people; and,

“(d) Defendant has made no effort to show, through his own expert report or other evidentiary record, that the defendant is entitled to summary judgmentQ

“(2) The cases relied upon by the defendant in its motion for summary judgment, including Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000), and its progeny, are not dispositive as to whether the court should grant the defendant’s motion for summary judgment. While Pennsylvania appellate courts have held that the failure to install a guardrail is not actionable, they have not precluded claims such as plaintiffs’, which allege a shoulder of insufficient width to meet PennDOT’s internal standards and the failure to adequately inspect and maintain an existing guardrail.

“(3) PennDOT is not entitled to summary judgment where the initial determination of whether a ‘dangerous condition’ was present, as that term is used in the 42 Pa.C.S. §8522(b), is a question of fact that must be determined by a jury. The court erred in granting summary judgment because the determination of whether the narrow shoulder and improperly inspected and maintained guardrail constituted a ‘dangerous condition’ under 42 Pa.C.S. §8522(b) lies appropriately within ajury’s province.”

This court addresses appellant’s matters complained of on appeal collectively, below.

In reviewing a motion for summary judgment, “[t]he entry of summary judgment is proper whenever no genuine issue of any material fact exists as to a necessary element of the cause of action. . . . The moving party’s right to summaiy judgment must be clear and free from doubt.” LJL Transportation Inc. v. Pilot Air Freight Corporation, 599 Pa. 546, 559, 962 A.2d 639, 647 (2009). (internal citations omitted) A court reviews the record in the light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.... Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.” Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001). (internal citations omitted) This court applied the described standard of review when reviewing the case at hand, and found that there was no genuine issue of material fact, such that summary judgment in favor of the defendant was appropriate.

The Commonwealth of Pennsylvania is protected from civil suit under the doctrine of sovereign immunity, except in those instances where a waiver of immunity is specifically provided for. 1 Pa.C.S. §2310. Sovereign immunity is only waived for damages arising from a negligent act where the damages would be recoverable under the common law or statute if the injury were caused by a person not protected by sovereign immunity. 42 Pa.C.S. §8522(a). Such waivers only occur when the cause of action against the Commonwealth party could fall under one of nine specifically enumerated categories. 42 Pa.C.S. §8522(b). As such, sovereign immunity applies here to the department of transportation, an agency of the Commonwealth of Pennsylvania, and thus protects it from civil suit, except in the nine specifically enumerated and construed categories.

Appellant asserted, through pleadings and at argument, that 42 Pa.C.S. §8522(b)(4) provided appellant with a means to pursue the claim against appellee PennDOT. This section, Commonwealth real estate, highways and sidewalks, permits an exception where there is a claim for damages caused by an “(a) dangerous condition of Commonwealth agency real estate. . . .” Id. (emphasis added) However, as this court details below, this exception is inapplicable to the present action, and neither 42 Pa.C.S. §8522(b)(4), nor any of the other eight subsections which waive sovereign immunity, are effective here.

The appellate courts have previously ruled on cases with facts similar to those in the case at hand. In one prior case before the Pennsylvania Supreme Court, the appellee was a vehicular passenger on a Pennsylvania roadway, in a vehicle that fishtailed on snow, left the highway, and went over the embankment. Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000). The accident resulted in serious bodily injuries to the appellee. Id. The trial court denied PennDOT’s motion for summary judgment, holding that it was for the jury to decide whether the absence of a guardrail constituted a dangerous condition of Commonwealth realty. Id. The Supreme Court vacated the trial court order and granted summary judgment in favor of appellant PennDOT. Id. at 1135. The court reasoned that “the legislature did not intend to impose liability upon the government whenever a plaintiff alleged that his or her injuries could have been avoided or minimized had the government installed a guardrail alongside the roadway.” Id. at 1134. Further, the court held that the exceptions to sovereign immunity should be narrowly construed, and that the General Assembly could correct any misinterpretation of the immunity provisions by amending the statute so as to explicitly waive immunity for dangerous conditions of guardrails, as with the exception that specifically relates to potholes. Id. at 1134.

In a subsequent case before the Commonwealth Court, which relied in part on the reasoning in Dean, the court again there held that PennDOT could not be held liable for injuries when incurred when a vehicle left the roadway. Fagan v. PennDOT, 946 A.2d 1123, 1124 (Pa. Commw. 2008). In Fagan, the undisputed facts showed that the fatal accident occurred when a vehicle traveling on a state highway left the roadway, “ramped” a turned-down guardrail terminal, and became airborne, subsequently striking a utility pole and two trees. Id. The trial court there also granted summary judgment in favor of PennDOT, and plaintiffs appealed, arguing that the shoulder of the road and the guardrail constituted dangerous conditions. Id. at 1126. The Commonwealth Court there affirmed the lower court’s ruling. The court clearly reasoned that, following precedent “where a guardrail existed, the failure to design it differently or the failure to maintain it were not dangerous conditions of roadways for which immunity was waived either for the Commonwealth or for local government.” Id. At 1127, citing Simko v. County of Allegheny, 869 A.2d 571 (Pa. Commw. 2005), appeal denied, 587 Pa. 703, 897 A.2d 462 (2006). The court continued that Dean and its progeny had laid out a clear edict which the court then followed, stating, “we discern no error in the grant of summary judgment based on immunity from suit regarding the design and maintenance of the guardrail.” Id.

Obviously, the state of the law remains that if PennDOT has no liability for not constructing a guard (guide) rail, then it is also not responsible for one negligently designed or in disrepair. Therefore, an appellant who leaves the roadway is then responsible for what occurs thereafter. Although the above cases and the present case arose from slightly different facts, by using reasoning similar to that in the Dean and Fagan cases, this court found that the facts in the present case did not rise to conduct actionable against PennDOT. Whether the guardrail at issue was part of the state-owned highway or not, the guardrail itself did not render the highway unsafe for purposes for which it was intended, i.e., travel on the roadway. As such, even though the appellant claimed that her injuries would have been minimized had appellee installed a new guardrail, this court found that this guardrail was not a “per se” dangerous condition of the roadway, or the real estate, which resulted in a reasonably foreseeable injury to appellant.

For the above-stated reasons, this court respectfully recommends that the instant appeal be denied.

The prothonotary shall forward the remainder of the file to the Commonwealth Court.