author: FEUD ALE, </.,

text:
    In re Thirty-Third Statewide Investigating Grand Jury

      George Matangos and Brian Perry, for defendants.
    April 9, 2012
   FEUD ALE, </.,

Before this court is the Joint Motion to Quash Presentment filed by Defendants Graham B. Spanier, Timothy M. Curley and Gary Schultz (herein referred to as “Spanier,” “Curley” and “Schultz”).

I. FACTUAL AND PROCEDURAL BACKGROUND

The Thirty-third Statewide Investigating Grand Jury (“Grand Jury”) conducted an ongoing investigation into the serial child molestation by Gerald A. Sandusky (“Jerry Sandusky”), a former assistant football coach at the Pennsylvania State University (“Penn State”). In June 2012, Jerry Sandusky was convicted of forty-five counts relating to criminal charges of child molestation and in October 2012 he was sentenced to imprisonment for thirty to sixty years. As part of the on-going investigation, the Grand Jury expanded the scope of its investigation to include the involvement of Penn State Officials, namely Spanier, Schultz and Curley, in the handling of reports of Jerry Sandusky’s activities.

On October 26,2012, the Grand Jury Supervising Judge signed an Order Accepting Presentment No. 29 in which the Grand Jury recommended that charges be brought against Spanier, Schultz and Curley for Endangering the Welfare of Children, Obstructing the Administration of Law or Other Governmental Function and Criminal Conspiracy. Additionally, in its Presentment, the Grand Jmy recommended that Spanier be charged with Perjury and Penalties for Failure to Report or to Refer. On November 1, 2012, a criminal complaint was filed against Spanier, Schultz and Curley, memorializing these charges.

On November 26, 2102, Spanier, Schultz and Curley filed a Joint Motion to Quash the Presentment As Defective for Relying on Attorney-Client Privileged Communication and Work Product. In response, on January 2, 2013, the Commonwealth filed its Answer to Motion to Quash Presentment. On January 18, 2013, Spanier, Schultz and Curley filed Replies to Commonwealth’s Answer to Defendants’ Joint Motion to Quash Presentment. Additionally, Curley filed a motion to Join Schultz’s Reply to Commonwealth’s Answer to Joint Motion to Quash and Spanier filed a Supplemental Motion to Quash Presentment, or in the Alternative, to Strike Defendant’s Grand Jury Testimony.

On January 24, 2013, oral argument was held before this court to determine whether the joint motion to quash presentment should be granted. Counsel for Spanier, Schultz and Curley argued that presentment 29 should be quashed because of its reliance on information provided by Attorney Cynthia Baldwin when she testified before the Grand Juiy. As follow-up to the oral argument proceedings, on Januaiy 31,2013, Schultz and Curley filed defendants’ Joint Bench Memorandum Regarding the Admissibility of Expert Testimony on the Attorney Standard of Care Issues Presented in Defendants’ Joint Motion to Quash the Presentment.

II. LEGAL ANALYSIS

Counsel for all parties raised several issues in both the written documents filed with this court and at oral argument. However, this court believes that the singular issue before this court involves the absence of jurisdictional authority for the Grand Juiy Supervising Judge to quash a presentment after steps were properly taken to issue the presentment and to adhere to the statutory procedure following the submission of the presentment.

On December 27, 2010, the Honorable Ronald D. Castille, Chief Justice of the Supreme Court, granted the application of the Office of Attorney General to convene the Thirty-Third Statewide Investigating Grand Jury and with reliance on the Investigating Grand Jury Act, 42 Pa.C.S. § 4541, et seq., ordered the following:

The Honorable Barry F. Feudale, Senior Judge of the Court of Common Pleas, Eighth Judicial District, Northumberland County, Pennsylvania, is hereby designated as Supervising Judge of the Thirty-Third Statewide Investigating Grand Jury. All applications and motions relating to the work of the Thirty-Third Statewide Grand Juiy — including motions for disclosure of grand jury transcripts and evidence — shall be presented to said Supervising Judge....”

See Order at217M.D. 2010 (December27,2010). Underthe Investigating Grand Jury Act (the “Act”), the Supervising Judge is specifically directed to supervise the activities of the Grand Jury. See 42 Pa.C.S. § 4542. Furthermore, it is well established that “[t]he supervising judge of the grand jury is responsible for upholding the rule of secrecy and deciding issues related of the disclosure of grand jury information.” Pennsylvania Grand Jury Practice at 65. Thus, the Supervising Judge acts as the guardian of the vault of grand jury secrecy and must protect and oversee all “matters occurring before the grand juiy.” 42 Pa.C.S. § 4549(b).

One of the concluding matters before the grand jury is the issuing of apresentment. Once the grand juiy completes its investigation and has determined that there is enough evidence presented against an individual, the grand juiy directs the Commonwealth to prepare a presentment. See 42 Pa. C.S. § 4551(a). This presentment is then reviewed and voted upon by the grand jury. See id. If approved, the presentment is submitted to the supervising judge. See Id. Under the act, “the supervising judge shall examine the presentment, and if it is within the authority of the investigating grand jury ... the supervising judge shall issue an order accepting the presentment.” Id. The supervising judge is also required under the act to select the county where the criminal trial will take place after the attorney general initiates criminal proceedings. 42 Pa. C.S. § 4551(d). Then, the act is clear on the procedure following the acceptance of the presentment. “When the attorney for the Commonwealth proceeds on the basis of a presentment, a complaint shall be filed and the defendant shall be entitled to a preliminary hearing as in other criminal proceedings.” 42 Pa. C.S. § 4551(e). Thus, the supervising judge plays a key role in the conclusion of the grand jury process and the presentment acts as the catalyst for instituting criminal proceedings outside the realm of the grand jury.

In the case at hand, the grand jury investigated the actions taken by Spanier, Schultz and Curley in regards to the Jerry Sandusky case and determined that the evidence presented supported the issuance of a presentment against these three individuals. The Commonwealth submitted Presentment No. 29 to the grand jury and after a majority vote approved it, the presentment was submitted to the supervising judge. The supervising judge then issued an Order Accepting Presentment No. 29 authorizing the attorney general oftheCommonwealthtoprosecuteSpanier, Schultz and Curley as recommended in. The presentment by instituting appropriate criminal proceedings in Dauphin County, Pennsylvania. This concluded the supervising judge’s role in the grand jury’s investigation leading up to Presentment No. 29. Per the chief justice’s order, as well as under the act, the remaining responsibility of the supervising judge is to maintain the secrecy by handling any motions for disclosure of transcripts and evidence involved in the grand jury’s proceedings. Neither the chief justice’s order nor the act purport to expand the supervising judge’s authority beyond the statute and thus upon the signing of the Order Accepting Presentment No. 29, the supervising judge’s continuing role in this case is to maintain secrecy and adjudicate disclosure issues. It is not within the supervising judge’s jurisdiction to entertain the join motion to quash presentments put before this court.

III. DISCUSSION

Due to the novel issues presented, and lack of specific statutory or case law precedent and/or guidance this judge has struggled with how to fully and fairly address the motions argued (on January 24, 2013) as well as the pending motions to discover testimony in advance of what is authorized by the law. Such is not a reflection of uncertainty about this courts lack of jurisdiction to rule on the motion; but how to do so without appearing to pass the buck.

Another significant concern was my perception that not only do I as a grand jury judge (for the reasons explained in the legal analysis) clearly and unequivocally lack jurisdiction to decide the motions to quash; there is a distinct possibility that I may be a potential witness in subsequent proceedings before the trial court as to the issues extant.

Finally, my dilemma is further complicated by my statutory role to preserve secrecy. My resolution of these issues as reflected herein, is how I (perhaps erroneously) have decided to resolve such in a way that explains, but does not intrude, on the important determinations that must or may be made by the Honorable Todd Hoover and/ or the Pennsylvania Supreme Court.

Simply stated, it is this courts view that the various charges against Spanier, Curley, and Schultz reflect their alleged (emphasis added) failure to report Sandusky to the proper authorities when an eyewitness account came to their attention in 2001. Subsequent thereto, they later allegedly lied to investigators, the grand jury (and even arguable PSU Chief Counsel Baldwin) about what they knew, when they knew it, and what they did or did not do about it (alleged unlawful acts of omission/commission).

Again, simply stated it is the view of counsel for Spanier, Curley and Schultz that this court, Judge Hoover and/or the superior and/or supreme court should dismiss all the counts against all these defendants. Such is based on their assertions that then PSU General Counsel (Chief Legal Officer and Vice President Cynthia Baldwin) were misrepresented by Ms. Baldwin who “represented” them before the statewide investigative grand jury. In addition, counsel for each of the defendants asserts that Baldwin violated the attomey/client and/or work product privilege when she provided information and/or testified against the three defendants before the statewide investigative grand jury.

We assume arguendo (as requested by the three defendants) that this court should have decided the present motion before it and granted the defendants’ request to dismiss all the charges pending against them. In consideration of such, which is based on an extensive and careful review of a records that encompasses testimony, judicial colloquies, inquiries, and mlings relevant to attorney Baldwin’s participation in the Sandusky et al investigation; as well as the colloquies and testimony of Spanier, Curley, Schultz and Baldwin; this Judge sets forth the following as an explanation as to why it believes the assertions and motions of counsel for the defendants lack merit and the motions to quash should not be granted:

1. As reflected in the earlier legal analysis it is clear and unequivocal that this court lacks jurisdiction to grant the relief requested. However, the supreme court may disagree.
2. Jurisdiction cannot be placed before this court merely because the defendants’ motions are entitled motion to quash “presentments”.
3. Jurisdiction cannot be placed before this court merely because the office of attorney general does not object to or challenge the filing of the motion, briefs, and presentation of argument. Simply stated, jurisdiction that does not exist cannot be stipulated to and/or conferred in the absence of the law.
4. The lack of jurisdiction before this court is not a final order and thus while appealable; lacks merit in fact and law.
5. The lack of jurisdiction of this court is not a final order since the motion to quash a presentment should and can be filed as a writ of habeas corpus to dismiss the complaints filed subsequent to the presentments. Such should/could be filed in accordance with the rules of criminal procedure as part of an omnibus motion to dismiss the complaint and/or one or more of the pending charges against one or more of the defendants.
6. The motion to disallow the testimony of Cynthia Baldwin before the assigned Magisterial District Judge (with all due respect to learned counsel and/or the presiding Magisterial District Judge and/or Presiding Judge) is itself problematic for the following reasons:
a. The assumption that OAG will, or needs to call, attorney Baldwin in support of a probable cause determination in support of the pending charges against all three defendants; is arguably premature.
b. The complications of grand jury secrecy as to defense counsel’s request for the testimony of attorney Baldwin prior to trial.
7. While the grand jury judge will not grant the defendants’ outstanding motions for the transcripts of Cynthia Baldwin’s testimony before the grand jury, and the colloquy with the court before she testified (since such are violations of the law) absent a stipulation agreeing to such by OAG and approval of this court; this court would entertain the following resolution:
a. A formal request by the trial judge (Honorable Todd Hoover) that the provision of the testimony of attorney Baldwin and the prior colloquy is necessary to the administration of justice and in consideration of such this court would:
i. Turn over the sealed transcript of the testimony of Baldwin and the colloquy prior thereto to Judge Hoover.
ii. Agree that such will be sealed and not made public except to counsel for the defendants at a time either agreed to by counsel for OAG and the defendants, or upon approval of the grand jury judge.
iii. At the time of said in camera and/or preliminary hearing the trial judge (who may choose to hold said in camera hearing himself or assign another member of the Dauphin County Bench) will determine whether to grant a writ of habeas corpus and dismiss some or all the charges against one, more or all of the defendants based on the averments as to alleged violations of the attorney-client privilege supporting such an extraordinary remedy and/or granting defendants outstanding motions in foil or part to disallow the testimony of attorney Baldwin in advance of the preliminary hearing.
8. In the event counsel for the defendants, OAG, and/ or the trial court deem it necessaiy to all the grand jury judge to testify at any habeas corpus hearing or a hearing to preclude he testimony of attorney Baldwin all of the aforegoing should be advised that:
a. Based on this courts review of all of the transcripts of testimony of the efendants, all the record appearance of attorney Baldwin whether before the grand jury with one or more defendants, or arguing legal issues before this judge or Judge Jackson; this court believes there is no factual basis in the record nor legal basis to dismiss the presentment and/or complaints.
b. When attorney Baldwin appeared before this court with witness Curley and Schultz, the court was aware attorney Baldwin was general counsel, Chief Legal Officer and vice president of PSU.
c. Based on this court’s experience with the role of general counsel (albeit limited) the court did not perceive any issue that would require any special inquiry as to the role of attorney Baldwin’s appearance on behalf of Curley and Schultz.
d. On the same day that Curley and Schultz appeared with Baldwin, Joe Paterno appeared with attorney Joshua Lock and his son attorney Scott Paterno.
e. In all candor at the time Joe Paterno appeared with attorney Lock and his son, I was uncertain as to why Mr. Paterno was not represented by Attorney Baldwin. I perceived he (Paterno) along with Curley and Schultz (and later Spanier) were senior executives employed and usually represented by such corporate counsel.
f. At the time I was not advised, nor did I have any reason to believe, Mr. Curley and/or Schultz were targets of the investigation.
g. At the time of their testimony I assumed Curley and Schultz were appearing voluntarily (i.e. there was no motion to quash the subpoena) pursuant to the subpoena (actually as I write this I am not even sure if a subpoena was issued for Curley, Schultz or Spanier or whether they appeared voluntarily at the request of SDAG Jonelle Eshbach or CD AG Frank Fina.
h. Many witnesses (and even lawyers unfamiliar with grand jury practice) are unaware that a grand jury judge is not present in the grand jury room when the witnesses testify.
i. I rarely read the transcripts of witnesses who do testify, (unless I am advised or become aware there is a legal issue that may require such, or suggest such is prudent).
j. The reading of all transcripts by a grand jury judge is neither required, nor is it a wise utilization of judicial resources.
k. At the time Curley, Schultz, Paterno, and Spanier testified, I had no reason to suspect they were being called for any reason other than to move the investigation of Sandusky along. The only issue I was aware of at the time of the testimony of the witnesses Spanier, Curley, Schultz and Paterno; was that the office of attorney general was concerned that the subpoenas and/or court orders to PSU for information relating to Mr. Sandusky was either not being complied with, or was being unduly delayed so as to impact the ability of the OAG to investigate Mr. Sandusky. I and Judge Jackson entered orders relevant to said concerns.
l. I later discerned that Joe Paterno was not a senior executive and arguably that was a possible reason why attorney Baldwin did not appear on his behalf.
m. It is the practice of OAG to at times meet with witnesses in advance of the witness’s testimony either prior thereto, or at the day of their appearance before the grand jury.
n. Based on such, on occasion I am apprised there may be a legal issue regarding the witness (i.e. 5th amendment, attorney-client, multiple representation, marital privilege, etc.) that I may need to address in advance of the testimony.
o. No such issues(s) were brought to my attention by OAG, Attorney Baldwin, Attorney Lock nor by any of the witnesses.
p. Based on such, I proceeded as if all the witnesses had counsel of their choosing and there were no legal issues that needed to be addressed by the grand jury Judge.
q. The only issue that I perceived but did not raise (nor was it raised by any member of OAG) was that of the multiple representation by attorney B aldwin as to Curley and Schultz. While I had no reason to believe there was such an issue, the matter of multiple representation is a sore point with this Judge since the case of Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975) and In Re: Bucks County Investigating Grand Jury, 580 PA. 365, 861 A.2d 876 (2004) which set forth the standards regarding such multiple representation such seem to be honored in its breach, and the wishes of witnesses to have counsel of their choosing, which has been given the conflicted imprimatur of our appellate courts, at times seems contrary to the facilitation of a grand jury investigation and secrecy.
r. Despite such, and despite being a former public defender, it is not this judge’s practice to “get down into the arena” and raise issues sua sponte absent a written or verbal motion, or a very strong factual basis suggesting I should do so in the interest of justice.
s. When CDAG Barker called the case indicating “we have some witnesses to be sworn, Mr. Curley and Mr. Schultz.” I stated, “represented by” and Ms. Baldwin stated “my name is Cynthia Baldwin, General Counsel for Pennsylvania State University.” I asked “will you be providing representation for both of those identified witnesses.” Ms. Baldwin responded, “Gary is retired but was employed by the University and Tim is still an employee.”
t. I asked no further questions nor was any further information regarding the representation provided by OAG or Ms. Baldwin.
u. I proceeded to give the standard colloquy regarding rights and responsibilities to witnesses Curley and Schultz and also at a later date, Spanier.
v. It is my practice and such occurred as to Curley, Schultz, Spanier and Paterno (as, well as all other witnesses in all proceedings before the grand jury) to also explain that “if a witness answer untruthfully he may be subjected to prosecution for perjuiy which is punishable under the Crimes Code of Pennsylvania” and I always also state even though it’s not a part of the standard colloquy “it’s (perjuiy) a veiy serious offense. It’s a felony.
w. In hindsight, perhaps I erred in not asking follow up questions about the role of corporate counsel Baldwin. I regret and perhaps committed error in not asking any follow up questions but while I am unaware what the response would have been, I fail to discern how such would persuade me at this stage why presentments should be dismissed
x. Subsequent to the testimony of Spanier, Curley, Schultz and Paterno, I did some research on the role of corporate counsel such as Baldwin.
y. My research included an article entitled “The discreet roles of general counsel” by Debra A. DeMott. Therein, I learned that a “contemporary general counsel often occupies other roles as well (besides advising the board of directors and senior executives such as Spanier, Curley and Schultz); each complex and additionally interlinked in many ways.” The article further noted general counsel’s position has often been characterized as ambiguous. A characterization that suggests that not all occupants of the positions succeed in balancing its multiple roles in either a professional or socially satisfactoiy manner”. The article concluded by indicating “some general counsel appear to have erred in a basic respect by misidentifying their clients as individual members of the corporation senior management in contrast to the corporate organization, an error shared by members of senior management (emphasis added).
z. After reviewing all of the relevant transcripts it was also my impression that attorney Baldwin lacks substantive experience with grand jury and/or criminal investigative matters. My observation was related to the issues involving securing compliance with grand juiy subpoenas and court orders and the apparent failure to engage in aggressive efforts beyond alleged inquiries of Spanier, Curley, and Schultz as to evidence/documents relevant to the Sandusky investigation.
aa. After reviewing all of the relevant transcripts and documents related to the legal issues extant, it was my view that at worst attorney Baldwin arguably knowingly failed to comply with Rule of Professional Conduct 3.3- Candor Toward the Tribunal.
bb. The assertion in paragraph an was mitigated when I subsequently learned that Mr. Freeh prior to the issuance of his report (report of the special investigative counsel regarding the actions of the Pennsylvania State University related to the Child Sexual Abuse Committed by Gerald A. Sandusky-July 12,2012) acquired emails and other information in his investigation involving Spanier, Curley and Schultz, that reflected that said witnesses Spanier, Curley and Schultz allegedly withheld relevant evidence from investigators, the grand jury, and Attorney Baldwin, as well as allegedly lied before the grand jury, (emphasis added)
cc. Even if attorney Baldwin exercised poor judgment and/or improper ethical conduct in her handling of the Sandusky investigation; such does not (in this courts view) provide a defense to any crimes.
dd. A careful review of the testimony of attorney Baldwin before the grand jury (as structured/based on the earlier colloquy) reflects that Baldwin’s testimony did not (in this courts view) violate any attorney-client or work product privilege.
ee. Even if this court were to infer that such as violation occurred, this court would not quash the presentments nor grant a writ of habeas corpus. The defendants’ remedy, if any, to their averments regarding alleged violations of attorney-client privilege and work-product privilege; belong before the attorney disciplinary board or a civil court and not before any grand jury or trial court judge presiding in these criminal cases.
ff. In this court’s view, all properly admitted evidence by the trial judge including any alleged acts of omission/ commission by attorney Baldwin should be fairly and fully placed before the only appropriate tribunal; which in this case is a jury properly empaneled in the Court of Common Pleas of Dauphin County.
gg. Finally and in conclusion, this court notes that Spanier, Curley and Schultz are “highly educated” men who had positions of considerable influence at PSU as well as inferentially, knowledge about important events that impact the reputation of the university; and it therefore strains credulity to infer that they were somehow deluded or misrepresented by attorney Baldwin.
hh. In the view of this court, the motions extant are in effect legal chimera’s (concepts perceived by this judge as legally creative, imaginative but implausible and serve only to delay the administration of justice in this simple case involving whether Spanier, Curley, and Schultz did or did not commit the crimes alleged.

IV. CONCLUSION

Defendants Spanier, Schultz and Curley seek to have presentment No. 29 quashed; however, this court has carefully considered the jurisdictional issue which can’t be waived or stipulated to, and has concluded that the Joint Motion to Quash Presentment was inappropriately placed before this court. Once the supervising judge signs the order accepting the presentment and authorizes the attorney general for the Commonwealth to initiate criminal proceedings, the trial court (the Honorable Todd Hoover) becomes the overseer of the pending trial issues and the supervising judge continues the important role as the guardian of secrecy with regard to disclosure of grand jury transcripts and evidence. Simply stated, the grand juiy judge no longer has jurisdiction over this case since the defendants were arraigned and are awaiting a preliminary hearing. In the event I am wrong and the grand jury judge does have jurisdiction; then I have set forth inmy discussion why I would deny the motion to quash. I believe I have done so without implicating secrecy (i.e. revealing the content of attorney Baldwin’s testimony before the grand jury) but have explained most of my reasons for indicating why I would deny the motions. Such was done in fairness to the defendants, who are on notice to my analysis (in the event I am called as a witness) and also to avoid delay which is also fair to the many actual and/or alleged victims of the alleged acts of omission/commission by Spanier, Curley, and Schultz.

As to Attorney Baldwin, I have explained why her alleged acts of commission/omission are not dispositive as to being a legally persuasive basis to dismiss one or more of the charges. Whether defendants’ assertions should be the subjects of disciplinary proceedings and/or some type of civil action, is not within this or even the trial courts purview.

Finally, my review of the testimony of Attorney Baldwin before the grand jury persuaded me (perhaps not Judge Hoover or other members of the Dauphin County Bench, or the Superior or Supreme Court) that her testimony was circumspect and circumscribed. It was not a violation of the attorney-client privilege, but rather was related to her belated awareness of the commission of alleged criminal acts and was in accordance with her responsibilities as an officer of the court. Finally, attorney Baldwin testified as approved by her then client (PSU) the organization for which she was employed.

We therefore enter the following order:

ORDER

And now, April 9,2013, in consideration of the attached opinion, it is ordered and directed that:

1. The motions of defendants Spanier, Curley and Schultz to quash the presentment are denied;
2. The motions to quash the presentment or strike defendant Spanier’s grand jury testimony on the grounds of attorney Baldwin’s alleged conflicts of interest are denied;
3. The motions for disclosure of various documents including transcripts of attorney Cynthia Baldwin’s testimony before the grand jury and the colloquy with the court before she testified are denied;
4. As reflected in the analysis within the opinion, the motions to quash the presentment, (which never should have been filed with the grand jury judge), as well as the courts assertions that its findings and reasons therefore should be fully disclosed to the defendants as a matter of fundamental fairness; and the courts careful review of the content of the opinion as not implicating secrecy (notwithstanding the courts proposal to potentially allow the transcripts of attorney Baldwin’s testimony and colloquy to be disclosed) this opinion and order will not be sealed and may be released to all those cc’d in the order and other interested parties.

      . The key term of, “shall be entitled to a preliminary hearing” is a definitive result which precludes any discretionary authority after the presentment is launched.

      . “Pass the buck” - evade responsibility by passing it on to someone else, herein the Honorable Todd Hoover. See www.phrase.org. I will address the motions for discovery later in this decision and final order.

      . Once again I commend and publicly acknowledge the invaluable assistance of attorney Brianna and Michael Apfelbaum. This daughter and father team have rendered invaluable assistance to this court. I also thank Supreme Court Administrator Zyg Pines who authorized this grand jury judge to retain legal research and writing assistance at a rate of $20 an hour. I take great pleasure in pointing out that (with one exception) over the three years of their service they have only requested compensation on one occasion. I am fortunate to have the services of such able and generous lawyers who help me facilitate the administration of justice.

      . Since my only substantive decision is relevant to the lack of jurisdiction (which is not appealable since it is not a final order) what I say, assert, claim is clearly not law of the case nor should it even be arguably persuasive; since I have not set forth the factual basis upon which all of my assertions are based. If need be, such will be done on the record if I am called as a witness. However, I do note that my assertions are based on a careful review of an extensive record over the last two months. As to the defendant’s motions for certain discovery of testimony, etc., I am going to order such be turned over to Judge Hoover if “he” requests I do so, even if it is contrary to the specific statutory and case law. Fundamental fairness to the defendants and an informed Judge support my position even though the office of attorney general may disagree.

      . See Pa.R.Crim.P. 230(B)(2). When a witness in a criminal case has previously testified before an investigating grand jury concerning the subject matter of the charges against the defendant, upon application of such defendant the court shall order that the defendant be furnished with a copy of the transcript of such testimony; however, such testimony may be made available only after the direct testimony of that witness at trial. CTrial — not preliminary hearing) emphasis added.

      . This Judge was off sick for approximately three months and a review of the record reflects Judge Ricardo Jackson did preside over one proceeding involving alleged non-compliance by PSU with prior subpoenas and orders of this court relevant to the provision of information regarding the investigation of Mr. Sandusky.

      . Generally it has been this courts experience that general counsel hired by a corporation as an employee officer is responsible for how the corporation’s legal matters are handled. Whethera private or public corporation, the general counsel usually offers legal advice to the board of directors, CEO/President of the corporation and other senior executives.

      . “A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”. Rule 3.3 (a)(1).


source: Caselaw Access Project

author: WILLIAMSON, J,

license: Public Domain

text:
    Abuiso v. PennDOT

      C.P. of Monroe County,
    No. 08-CV-8334.

      Kevin Conaboy, for plaintiffs

      John W. Stahl, for defendant.
    January 17, 2013
   WILLIAMSON, J,

This matter comes before the court on post-trial motions following a jury trial. The plaintiffs, Michael Abuiso and Stephanie Abuiso, brought suit for injuries as a result of a motor vehicle accident allegedly caused by an object bouncing out of a Pennsylvania Department of Transportation (PennDOT) truck and striking the plaintiff’s vehicle. Plaintiff, Michael Abuiso, sought damages for injuries he sustained. Plaintiff, Stephanie Abuiso, withdrew her claims for loss of consortium before the start of trial.

Plaintiff, Michael Abuiso, (“plaintiff’) was following what he believed to be a PennDOT truck on State Route 447 near Canadensis, Pennsylvania. The plaintiff alleged a piece of guardrail fell off of the PennDOT truck and struck his car, causing him to swerve off of the road and hit an embankment. There were no witnesses to the accident. Plaintiff did not immediately report the incident to the police or to PennDOT. Plaintiff testified that immediately after the accident, he called a family member, changed the flat tire that had occurred in the accident, and then drove the vehicle to a gas station. Minor repairs were made, and the plaintiff then drove home. Plaintiff testified that he later reported the matter to his insurance company.

Plaintiff testified that his head, neck and back began to hurt after the accident. He sought and started treatment for the injuries three days after the accident. A week after the accident, the engine seized in plaintiff’s vehicle, which he attributed to the accident. As a result, the vehicle was junked as a total loss.

Plaintiff waited nearly eleven (11) months before filing a police report. No report was made to PennDOT directly by the plaintiff; however, plaintiff’s counsel sent a notice of the accident to PennDOT more than six (6) months after the accident. During direct examination, the plaintiff testified that since 1988, he had at least two (2) work-related accidents resulting in injury and at least three (3) motor vehicle accidents.

Plaintiff testified that his first work-related accident resulted in his being out of work for over six (6) years. This injury occurred when the elevator he was repairing went into a free fall and stopped abruptly. Plaintiff then testified about an injuiy suffered while working for a resort, and injuries from several car accidents. Finally, plaintiff testified to the current accident and injury. Plaintiff testified on cross-examination that he injured his knee in the elevator accident and had a workman’s compensation claim as a result. Defense counsel asked if the plaintiff also brought a civil lawsuit as a result of the elevator accident, and plaintiff’s counsel objected as to relevance. Defense counsel responded that it showed plaintiff was familiar with the process of making claims. The objection was overruled.

Plaintiff was also asked on cross-examination if he had an additional workman’s compensation claim and whether or not it settled. Plaintiff’s counsel objected as to relevance and defense counsel responded it also went to familiarity with the process of accidents and claims. The objection was overruled.

Plaintiff testified on direct about his service at Ground Zero in New York City following 9/11 in assisting with recovery efforts. The plaintiff then testified on cross-examination, without objection, that as a result, he suffered from post-traumatic stress and received disability (SSI). Finally, defense counsel asked the plaintiff if he made a claim to his insurance company for car damage in this matter. The case was sent to a jury, and the jury returned a verdict in favor of the defendant, PennDOT, finding no liability.

Plaintiff filed timely post-trial motions objecting to the court’s allowance of admission into evidence of plaintiff’s prior lawsuits, worker’s compensation claims and Social Security claims. Defendant also filed a post-trial motion objecting to this court’s refusal to allow into evidence plaintiff’s guilty plea to unsworn falsification in an insurance claim that was entered more than ten (10) years prior to trial in this matter. Both matters were heard together at argument held January 7, 2013. The parties filed briefs and we are ready to rule on both post-trial motions.

Plaintiff claims the admission into evidence of prior lawsuits, worker’s compensation claims and social security claims was an error of law and/or abuse of discretion. Plaintiff cites DeFrancesco v. Exeam, Inc., 642 A.2d 529 (Pa. Super. 1994) for the proposition that attempting to paint an opposing party as litigious to undermine credibility is reversible error due to its potential prejudicial impact on the jury. In DeFrancesco, the Superior Court refused to grant the defendant a new trial where the trial court refused to allow evidence of plaintiff’s prior motor vehicle accident in a gun product’s liability case. There simply was no connection between the prior motor vehicle accident, and the claims brought forth in a product’s liability case involving a gun. Id. The Superior Court held that the trial court did not abuse its discretion by refusing to allow testimony of the prior car accident in that particular case. Id.

However, in this case, there was a connection between the prior accidents and claims and the present automobile accident claim. First, there was a history of injuries and claims of injuries, relevant for the jury to consider. The injuries and extent of the injuries that occurred in this accident were in dispute. The plaintiff and his medical expert testified to the extent of his injuries. The claims of prior injuries and whether those injuries resolved were at issue. It was relevant to consider the claims and status of the claims to determine if those injuries still existed, were aggravated, or if the plaintiff had new injuries. For example, whether or not the worker’s compensation matters were closed or resolved, could help determine the status of those injuries. Therefore, it was proper for the jury to consider the extent of prior injuries through claims submitted, including the impact of this accident on preexisting injuries.

Second, and more importantly, plaintiff’s familiarity with insurance companies, claims and lawsuits was relevant as to his actions following this accident. In closing to the jury, defendant’s counsel questioned the credibility of the defendant, not because of the number of accidents, claims, or suits; but the fact plaintiff knew the process of reporting and following up on claims. Defense counsel then questioned the failure of the plaintiff to follow-up and report this accident timely. The questions to the plaintiff were not to show he was prone to accidents or that he was litigious; rather, they were relevant to show credibility of the plaintiff, which was called into question by the defense because there were no witnesses to the accident, and because of the plaintiff’s failure to immediately report the accidents. In other words, the defense was calling into question whether the events occurred as stated since it was reasonable to expect the plaintiff would report the accident and follow-up on a claim based on familiarity with prior claims, and reporting those claims, even to insurance carriers.

The Pennsylvania Rules of Evidence 401 states: “... relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa. R. E. 401. Here, plaintiff’s history of accidents, claims and suits was relevant in evaluating his credibility where he did not report the accident to police for almost eleven (11) months, and never reported it to PennDOT. It was reasonable to inquire into plaintiff’s prior reporting of claims in his other matters, and being represented by counsel, as proof that plaintiff understood the importance of reporting this accident timely, and to the parties involved. The admission of the testimony was within the discretion of the trial court, and the admission of it outweighed the danger of unfair prejudice or confusion of the issues. Pa. R. E. 403. It was important the jury consider evidence necessary to determine the plaintiff’s credibility. Therefore, the plaintiff’s post-trial motion will be denied.

Defendant also filed a post-trial motion. In the event plaintiff is granted a new trial, the defendant argues the plaintiff’s guilty plea on July 12, 2001 to unsworn falsification to authorities/written statement, should have been allowed into evidence. The Pennsylvania Rule of Evidence 609 prohibits testimony of prior convictions, except those involving fraud or dishonesty, or crimen falsi. Plaintiff has two convictions for a crime involving crimen falsi; one conviction in 2001, and one in 2005. This court allowed evidence of the 2005 conviction, but not the 2001 conviction.

Pennsylvania Rule of Evidence 609(b) limits evidence of crimen falsi convictions to those occurring within ten (10) years prior to the testimony. Here, the 2001 conviction occurred more than ten (10) years ago. Such a conviction will only be allowed if the court finds the probative value of the conviction outweighs the prejudice to the party.

In this case, the prejudice to the plaintiff would have been greater than the probative value. The plaintiff was convicted in 2001 of a crime arising out of an insurance fraud case. Plaintiff allegedly participated in insurance fraud by making a report to police and the insurance carrier that the car was stolen. The plaintiff allegedly set the car on fire and then made a false report. Such a conviction, while relevant for purposes of credibility, would prejudice the plaintiff too much. The plaintiff stood a strong chance of being disbelieved just because he had been convicted in an insurance fraud case in the past. The jury could infer, based on the prior conviction, that the plaintiff was making the same false claim. With credibility being such an important issue in this case, the prejudice to the plaintiff would have been overwhelming and unfair.

Furthermore, the defendant could obtain the same probative value from the 2005 conviction. The 2005 conviction was admissible and allowed into evidence. It is specifically allowed as evidence under Rule 609. The evidence of the 2005 conviction allowed the defendant to make the same argument with regard to credibility without the overkill of a conviction specifically for automobile insurance fraud, which potentially taints the jury’s perception. Therefore, the probative value did not outweigh the prejudice to the plaintiff to allow the 2001 conviction into evidence. Thus, the decision to exclude evidence of the conviction occurring more than ten (10) years ago will not be disturbed.

ORDER

And now, January 17, 2013, following submission of briefs, and arguments held, it is ordered and decreed as follows;

1. Plaintiff’s motion for post-trial relief is denied.

2. Defendant’s motion for post-trial relief is denied.


author: DOMALKES, J.,

text:
    Hoy v. Holmes

      C.P. of Schuylkill County,
    No. S-57-12.

      Michael E. Kosik, for plaintiff.

      Scott D. McCarroll, for defendant.
    January 31,2013
   DOMALKES, J.,

The matter before the court is a motion to compel discovery responses filed by the defendant, Stephen Holmes (hereinafter ‘Holmes’). The plaintiffs, Sonya Hoy and Brock Herb, her son (hereinafter ‘Hoy’ and ‘Herb’), have filed an answer to the motion. The parties have presented written arguments to the court concerning their positions. The court has reviewed the foregoing and the relevant record.

The underlying lawsuit involves an automobile accident. Hoy and Herb filed suit against Holmes claiming damages from the accident, she for present and future mental suffering, present and future pain and suffering, medical expenses, lost earning capacity, and uncompensated work loss, and he for present and future mental suffering, present and future pain and suffering, medical expenses, lost earning capacity, and uncompensated work loss. Holmes has sought discovery from Hoy and Herb in three particular areas, those being: social media, prior or subsequent accidents, and income tax records. The court will discuss the discovery requests seriatim as hereinafter set forth.

Social Media

Holmes wants access to information of any social media internet accounts of Hoy, for example Facebook. He argues that, by filing a lawsuit and claiming certain injuries, both physical and mental, he is entitled to view the social media accounts of Hoy for information that may help his defense or which concerns her damage claims, or he may find information that might lead to discoverable material. He argues that such discovery is authorized by certain federal lower court decisions from other states but has not cited any Pennsylvania appellate court or Pennsylvania federal court decisions.

Hoy argues, in opposition to this request, that it is overly broad and does not seek relevant and discoverable information. There has been no showing that any of the information requested is relevant or will lead to relevant or discoverable information. Plaintiff argues that the majority of cases of Pennsylvania Common Pleas Courts on this issue hold that discovery of social media is only permitted after a showing that the public portion of a person’s internet profile supports an argument that relevant information may be available on the private portion. Holmes cites Trail v. Lesko, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194 (C.P. Allegheny 2012). That case held that a threshold showing of relevance is necessary prior to permitting discoveiy of the non-public portions of the social media. Plaintiffs argue that Holmes is simply on a fishing expedition, has not articulated a factual basis for his social media requests and only intends to harass, embarrass, and unduly burden Hoy.

In Trail, supra, the Allegheny County court explained that social media, such as Facebook, contains a public profile open and available to anyone and a non-public profile which is considered to be private. The court reviewed a number of trial court Pennsylvania cases and reached a conclusion on the very issue presently before this court. Its conclusion was in accord with Hoy’s argument as to the correct discovery standard to be applied. The court wrote: “The courts recognize the need for a threshold showing of relevance prior to discovery of any kind, and have nearly all required a party seeking discoveiy in these cases to articulate some facts (emphasis added) that suggest relevant information may be contained within the non-public portions of the profile. To this end, the courts have relied on information contained in the publicly available portions of a user’s profile to form a basis for further discovery.” In McMillen v. Hummingbird Speedway Inc., 2010 WL 4403285, No. 113-CD (Jefferson CP. Sep. 9, 2010), the Jefferson County trial court held that, because the public profile showed that relevant information might have been contained in the private profile demonstrating that the plaintiff’s injuries were exaggerated and because there exists no privilege between friends on the social media account, and even if such a privilege did exist, it was waived by posting on that account, it was proper for the court to order the requested discovery. In Zimmerman v. Weis Markets, Inc., 2011 WL 2065410, No. CV-09-1535 (Northumberland CP. May 19, 2011), the Northumberland County court decided that, on the basis of publicly-available information, it was reasonable to infer the existence of added relevant content within the private profile of the plaintiff’s profile. The court noted that, although the plaintiff had argued that he had a reasonable expectation of privacy on this matter, the plaintiff consented to share the information when he created the account and voluntarily posted the information. It thus ordered that plaintiff comply with the discovery request. Here, too, in accordance with McMillen, supra, the court limited its holding to requests founded on “some factual predicate gleaned from the publicly available pages (emphasis added),” requiring some threshold that the public portions of an internet profile contained information that points to additional relevant information in the nonpublic portions of the profile. In Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Franklin CP. Nov. 8, 2001), the Franklin County court held that, because non-public information on a Facebook account is shared with others, there exists no reasonable privacy expectation. The very purpose for a Facebook account is to share information with others, which purpose nullifies any claim of privilege. As in the two prior cases, the Largent court confined its holding to those cases whereby the party seeking discovery can articulate in good faith that further discovery will lead to relevant information. In Arcq v. Fields, No. 2008-2430 (Franklin CP. Dec. 2011), the Franklin County court held that this type of request was predicated on a showing that the public portions of the subject profile contained relevant information establishing a gateway to the nonpublic portion and that there had to be articulated some reasonable, good-faith basis for thinking that the private profile contained relevant information for the discovery request for the non-public information to be granted.

This court has also reviewed the article on local court cases pertaining to this issue published in Pennsylvania Law Weekly, December 11, 2012, Vol. XXXV No. 50, entitled Trial Courts Yet to Find Consistency in Facebook Race In this article, it is noted that there is presently no Pennsylvania appellate court decisions on this question, and the trial court decisions dealing with it are divided, some allowing, some denying the discovery. However, it is noted in the article that there is a common ground among the decisions. The article contains the following observation: “If there’s been a common thread among courts landing on both sides of the issue - though not universal - it’s the public-to-private rationale. Judges have, in most cases, granted access to a party’s private account when something available on their “public page” indicates that more discovery is warranted, or denied for the same reason.” The article goes on to explain that the trial court opinions continue to be both pro and con the factual predicate standard. A recent case out of the Indiana County Court of Common Pleas, Simms v. Lewis was cited as being in favor of the standard. In this case, the court ordered discovery as to one social media account of Simms but not as to others where the defendant had not set forth a factual predicate as the basis of the request for those other accounts. The court did offer to the defendant as to these other accounts leeway to provide the “factual predicate” necessary for requesting non-public access to these accounts. Another case from Monroe County, Mazzarella v. Mt. Airy #1, was on the other end of the spectrum and did not appear to require any factual basis from a public page in order to allow discovery of private information. That court wrote as part of its order granting discovery that “Those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy.”

There exists no constitutional right of privacy that prohibits the type of discovery sought concerning social media nor is such social media protected by an established privilege. Thus, such legal concepts are not determinative of the issue before us today. The basis for our decision is determined by Pennsylvania Discovery Rules, see Pa.R.C.P. 4001 et. seq, Pa.R.C.P. 4011, Pa.R.C.P. 4019, and decisions pursuant thereto and related to social media information. We agree that a factual predicate has to be shown by the party seeking discovery for non-public information posted on social media. Such a factual predicate has not been identified in the present motion to compel. The mere allegation that a lawsuit has been commenced against the defendant and that the plaintiffs are claiming certain damages does not identify nor establish such a factual predicate. The motion must be denied. However, this court’s order, as was the order of the court in the Monroe County case, will be without prejudice, and, if a factual predicate can be asserted consistent with this decision, either party may pursue a similar motion upon filing of the same and having the matter praeciped to the court for disposition.

Prior or Subsequent Accidents

Holmes had asked of Hoy to produce any records she had in her custody or control of prior or subsequent automobile accidents in which she had been involved. Hoy had responded that she had none. Defendant discovered she had a prior automobile accident and that her present counsel, Angino and Rovner, represented her in a lawsuit arising from that accident. Angino and Rovner then answered that Hoy was not aware she had any records. The previous accident happened in 2000, and litigation on the matter was discontinued on May 27, 2004. Plaintiffs’ counsel only kept records for seven (7) years, and counsel’s office experienced flooding, the most recent in Sept of 2011, when files were lost, including those of Sonya Hoy. Thereafter, Holmes asked for the file on Sonya Hoy’s prior accident as well as medical records counsel might have on her from that file. Counsel for Hoy responded that it had no physical file but had checked its computer and had a list of her medical records, retrieved them, and provided them to Holmes’ counsel. All the other information the law firm had on its computer on this prior accident was also available to defense counsel at the Schuylkill County Courthouse records office. Angino and Rovner did not have in its possession or under their control any other documents beyond those already provided.

This court does not have the power to order Hoy or her counsel to produce that which they aver does not exist and the court cannot find from the record before it that they have failed to provide requested discovery. A court cannot grant a motion to compel unless such a finding can be made. Pa.R.C.P. 4019 (a)(l)(viii). However, plaintiffs should provide written releases to defendant’s counsel so that defendant can obtain the missing medical records.

Income Tax Records of Herb Requested

Holmes requested income tax records for the past five (5) years of Herb in possession or under control of Herb. Herb supplied only one document, and Holmes asks the court to compel him to supply this material. Herb initially responded to the request by stating the one document was all he had in his possession or control. He subsequently was able to supply income tax records for some years, and these were provided to Holmes. Herb argued that he was not obligated to gather information that is not in his possession. Holmes can obtain additional records from the internal revenue service. Herb is not required to gather information that is not in his possession or control especially when he claims it is not relevant because he was a student and was training for a new occupation and was working as an unpaid apprentice in a new occupation at the time of the accident. Herb was not in possession of, nor did he have under his control, tax returns. All that he had he already provided to Holmes. Herb was an unpaid apprentice from March 2008 until March 2010. Before that he was attending classes, and he was not in possession of tax returns for 2008 and 2009. Holmes can obtain authorizations to obtain information which Herb does not have in his possession.

It does not appear from the answer or the written arguments of Hoy and Herb that they object to providing any needed authorizations to secure income tax records or medical records or any records of the prior accident. Once more, the court cannot find, based on this record, that either plaintiff has failed to provide requested discovery.

Accordingly, the court enters the following:

ORDER OF COURT

And now, January 31,2013, the Motion of the Defendant to Compel Discovery Responses is denied and dismissed without prejudice to either party. Any future motion related to discoveiy of social media must reference a factual predicate necessary for requesting non-public access to these accounts consistent with the terms of this Court’s Opinion accompanying this Order. The public portions of social media are discoverable. Plaintiffs are directed to provide releases to defendant’s counsel with respect to medical and income tax records.


author: WILLIAMSON, J.,

text:
    In re Estate of Bates

      C.P. of Monroe County,
    No. 127 O.C. 2012.

      Elizabeth Benisnger Weeks, for executor Frank M. Brown, for plaintiff.

      Mary C. Kenney, for defendant.
    February 6, 2013
   WILLIAMSON, J.,

This matter comes before this court on the objections to the first and final account of Frank M. Bates, executor of the estate of Jack H. Bates, brought by the Commonwealth of Pennsylvania, through the Office of Attorney General, acting as parens patriae for charitable beneficiaries under the Will. Ahearing was scheduled for October 16,2012, and continued once at the request of counsel for the executor, and once at the request of counsel for the Commonwealth. Hearing was held December 18, 2013. We are now ready to rule on the objections.

JackH. Bates (“decedent”) died February 10,2008. His death was the result of an arson at his real property that was started by his caregiver. The decedent’s wife predeceased him by four (4) years. The decedent had no children.

Approximately two (2) years after his wife’s death, the decedent had a new Will drafted which he signed on December 4, 2006. The Will set forth certain specific bequests including “cash bequests” under clause 4. The Will then provided for charitable bequests through the establishment of “scholarships” under clause 5 of the Will. The residue of the estate was devised in clause 6 to “... such organization or organizations as are described in Sections 170(c), 170(b)(l)A, 2055 (a) and 2522 (a) of the Internal Revenue Code of 1986, as amended from time to time, or in corresponding provisions of any successor thereto, as my executor may select.” The Will stated that “[s]uch distributions shall be in such amounts and such proportions as my executor shall determine.”

The Will also provided at clause 8, “death taxes”, that “[a] 11 taxes (and interest and penalties thereon) imposed as a result of my death upon any property passing under my Will and upon proceeds of insurance on my life, but not otherwise, shall be paid out of my residuary estate.” At clause 11 of the Will, the decedent appointed Frank M. Brown as executor.

The following language at clause 2 of the Will regarding tangible personal property is also significant:

“B. I give all my remaining tangible personal property owned by me at my death to those individuals who survive me by thirty days who are designated on a list or memorandum signed by me which refers to this Will or is found with a copy thereof, the items listed beside their names. If no such list is found within thirty days of my death, it shall be presumed that no such list exists. Any tangible personal property not so listed shall be distributed at the sole discretion of my executor, and any tangible personal property not so distributed shall be sold by my executor, and the proceeds thereof shall become a part of the residue of my estate.”

Finally, the decedent’s Will set forth the following specific bequest to Frank M. Brown under clause 4, “cash bequests”, Item L:

“L. The sum of Two Hundred Thousand ($200,000.00) Dollars to Frank M. Brown provided he survives me by a period of thirty (30) days. I have named Frank M. Brown as beneficiary of two life insurance policies, and I direct that the sums paid under these policies, as well as any other monies paid directly to Frank M. Brown from whatever source as a result of my death, be deducted from this bequest, and the actual cash amount paid to him under this bequest be the sum required to make a total distribution to the said Frank M. Brown of $200,000.00, taking into account the other monies paid directly to him.”

As noted, Frank M. Brown, is both a listed beneficiary and an executor under the Will. The executor is a licensed certified public accountant with an accounting office in Stroudsburg, Pennsylvania. The executor was also a family friend of the decedent, and helped the decedent with various matters during the decedent’s lifetime.

The executor testified that no written list of the decedent as to distribution of personal property was ever found. The fire that caused the decedent’s death also destroyed items of personal property at the decedent’s residence. The only personal property salvaged from the fire were coins and firearms belonging to the decedent. The decedent also had a 2004 Lincoln automobile that was not damaged.

As a result of the fire, the estate sought and obtained an insurance settlement of $160,000 for the loss of decedent’s life. The estate sought and obtained $90,138.36 in insurance proceeds for the loss of personal property damaged in the fire. The estate also sought and received $81,209.59, $18,700, $50,000 and $70,040.47 in insurance proceeds for the value of the damages sustained to the decedent’s dwelling as a result of the fire.

The executor, as a beneficiary of the estate, received $103,628.39 from the decedent’s death from the specific bequest. This amount was the balance due him after the offset called for in the specific bequest in decedent’s Will under clause Four, Item L. The executor also received the decedent’s 2004 Lincoln automobile, coins, firearms, a $2,000 bequest to place flowers on the graves of Hyland and Ann Metz, and the insurance proceeds from the loss of personal property. The total value of all probate and non-probate assets passing to the executor as beneficiary was $315,118.88.

The Commonwealth filed objections to the first and final account of the executor. The Commonwealth objected to the following:

1. The executor, as beneficiary, receiving distributions from the estate in excess of $200,000;
2. The executor’s commission of $61,656.05 because of breach of fiduciary duty;
3. The payment of $122,652.97 in inheritance tax on non-probate assets;
4. Transfer of the Ness Road real estate for $30,000. (This objection was withdrawn at time of hearing and is moot).

I. Claim Of Excess Distributions

As cited by the parties, it is a cardinal rule that a will is to be construed according to the intent of the testator. Hamilton Estate, 454 Pa. 495, 312 A.2d 373 (1973). The Superior Court has set forth the standard for interpretation of wills as follows:

“The Testator’s intent is the polestar in the construction of every will and that intent, if it is not unlawful, must prevail. In order to ascertain the testamentary intent, a court must focus first and foremost on the precise wording of the will, and, if ambiguity exists, on the circumstances under which the will was executed, and only if the testator’s intent remains uncertain may a court then resort to the general rules of construction. The words of a will are not to be viewed in a vacuum but rather as a part of an overall testamentary plan.” In Re: Estate of Rider, 711 A.2d 1018 (Pa. Super. 1998).

Furthermore, every word and clause in a will must be given effect. Houston Estate, 491 Pa. 339, 421 A.2d 166 (1980). Therefore, all clauses of decedent’s Will must be read in conjunction with each other.

Here, Frank M. Brown was to receive a specific “cash bequest” under clause Four, Item L. of $200,000, less proceeds of two life insurance policies, and “any other monies paid directly to Frank M. Brown from whatever source as a result of my death...” The executor received this specific bequest from the estate as set forth in the account. The total paid under the bequest was calculated and paid as set forth in clause Four, Item L.

The second clause, Item B, as cited herein, left tangible personal property pursuant to any written memorandum left by the decedent, and if none, then to be distributed at the sole discretion of the executor. There was no separate memorandum of the decedent that was discovered. Therefore, the executor had sole discretion pursuant to the second clause, Item B to distribute personal property. He then distributed the personal property not destroyed by the fire to himself per his sole and absolute discretion. He did the same with the Lincoln automobile. Finally, he did the same with the insurance proceeds on the personal property destroyed by the fire.

The miscellaneous personal property and the Lincoln automobile were items of personal property the executor had sole discretion to distribute, if he chose to do so. Otherwise, personal property was to be sold. The insurance proceeds for the destroyed personal property was also retained by the executor. We are not convinced that the executor’s actions, in doing this, constituted any prohibited self-dealing. Prohibited self-dealing occurs when a fiduciary had a personal interest in a matter of such a substantial nature that it may have affected his judgment in a material way. In re Estate of Noonan, 361 Pa. 26, 63 A.2d 80 (1949).

Here, the executor was given the sole and absolute authority to distribute personal properly as he saw fit. The executor had discussed aspects of the decedent’s Will with the decedent, including distribution of personal property, prior to the signing of the Will. There was no contrary intent evidenced at the hearing or in the plain language of decedent’s Will. If the decedent was concerned who the executor would distribute personal property to, he would have so stated in the Will, or by separate memorandum, or he would not have given the executor the absolute discretion per the language of the Will. As there was no evidence of coercion or undue influence in the drafting of decedent’s Will, we are constrained to the plain language of the Will. As such, the executor could distribute personal property to anyone. Therefore, there was no prohibited self-dealing in distributing personal property to himself.

The insurance proceeds retained by the executor in lieu of the personal property destroyed in the fire, was also allowed under the Will. The Will stated the executor could distribute all tangible personal property at his sole discretion. The probate code at §2514 provides as follows:

“(18) Nonademption; balance.-A devisee or legatee of property specifically devised or bequeathed has the right to any of that property which the testator still owned at his death and...;
(iii) any proceeds unpaid at the testator’s death on fire or casualty insurance on the property;...”

20 Pa.C.S.A.§2514 (18).

A devisee or legatee is entitled to the insurance proceeds of personal property or other loss from a fire or other accident, resulting in the loss of that property. See In re: Estate of Henry K. Sagel, Deceased, 2006 Pa. Super. 134, 901 A.2d 538 (Pa. Super. 2006); Humphrey’s Estate, 21 Fid. Reptr. 509 (1971). Flere, the executor, who had sole discretion to distribute personal property, distributed the insurance proceeds of the personal property lost in the fire. Under the probate code, these proceeds were to be distributed in the same manner as the personal property that was destroyed. The executor had sole discretion in distributing personal property, and he chose to distribute it to himself. Therefore, the executor’s actions conformed with the probate code.

The Commonwealth contends the insurance proceeds retained by the executor in lieu of the personal property destroyed in the fire, and the other items of personal property not destroyed, should count against the $200,000 total “cash bequest” to the executor. Flowever, the Commonwealth fails to take into account that the distributions in question arise out of different sections of decedent’s Will. The second clause, Item B, specifically devised remaining tangible personal property, other than the 1978 Cadillac, in a manner of distribution as the executor so desired. Clause Four, Item L of the Will, dealt with a specific “cash bequest” from the estate. The two clauses are separate and distinct bequests under the Will. Thus, one cannot count against the other absent language to the contrary.

Under the clause Four, Item L, Frank M. Brown was to receive the sum of $200,000. The Will directs that the sums paid under the two life insurance proceeds to Frank M. Brown, “...as well as any other monies paid directly to Frank M. Brown from whatever source as a result of my death, be deducted from this bequest, and the actual cash amount paid to him under this bequest be the sum required to make a total distribution to the said Frank M. Brown of $200,000, taking into account the other monies paid directly to him.” (emphasis added).

The language of the Will clearly sets forth monies received from a source as a result of my death. Here, the insurance proceeds were not paid as a result of the decedent’s death; rather, they were paid as a result of a fire that destroyed personal property that would have been distributed under a separate clause of the Will. The decedent died as a result of the fire, but the death itself did not create the insurance payment for the personal property lost.

Furthermore, there is no limiting language in the Will that would prohibit the executor from receiving the personal property under the second clause of the Will, in addition to the “cash bequest” set forth in the Fourth clause of the Will. In fact, the Fourth clause, Item L, states that the actual cash amount paid under this bequest be the sum calculated therein. This clearly sets forth the procedure for determining the amount to be paid under the Fourth clause only, and left open the ability of the executor to be a beneficiary under other bequests in the Will. The insurance proceeds and personal property were payable under a separate bequest. Therefore, the distribution of personal properly was not meant to count as a reduction to the specific bequest made in the Fourth clause, Item L.

II. Inheritance Tax Paid on Non-Probate Assets

The Commonwealth seeks a surcharge against the executor for inheritance taxes paid on non-probate assets. The executor received $20,776.28 as named beneficiary, on accounts owed by the decedent at time of death. These were non-probate assets. However, this amount was part of the reduction to the specific bequest to the executor as beneficiary under the Will at clause Four, Item L. By the terms of the Will, these assets, passing in full to the executor at decedent’s death, were a part of the $200,000 specific bequest. Had the executor not received these funds, he would have received additional funds from the estate, all of which were probate assets. As the estate was responsible for all inheritance tax on assets passing by the estate, any funds comprising a portion of a specific bequest from the estate would have inheritance tax paid by the estate. The decedent’s intent to include the non-probate assets received by the executor in the specific bequest of the Fourth clause of the Will, evidences an intent that those assets be aportion of the $200,000 specific bequest. As such, the decedent intended the $3,116.44 for inheritance tax due on the non-probate accounts be paid by the estate.

The Commonwealth also seeks to surcharge the executor for $16,944.63 in inheritance tax paid on the alleged excess distribution of $112,964.24 in personal property assets to the executor as beneficiary. This included the value of the personal property that was not lost in the fire, the 2004 Lincoln automobile, and the insurance proceeds paid for the value of the personal property destroyed in the fire. We have already found that the executor properly distributed these estate assets to himself in accordance with the provisions of the Will. These were estate assets and the Will provided for payment of inheritance tax of all estate assets from the residue of the estate. Therefore, no surcharge will be made.

III. Executor’s Commission

The executor received a commission for duties rendered to the estate in the amount of $61,656.05. The Commonwealth argues such compensation was not reasonable. The Commonwealth also alleges that the executor breached his fiduciary duty in distributing personal property to himself. However, as we previously noted, the executor was within his right to do so under the terms of the Will. Therefore, there will be no deduction for breach of fiduciary duty.

In deciding whether or not the commission charged was reasonable, we look to the total circumstances of administering this estate. The executor testified he spent considerable time administering the estate. He valued his time at $100 per hour, considering the complexities involved and his experience and position as a certified public accountant. The executor was a close friend of the decedent, and provided assistance to the decedent during his lifetime when needed. Clearly, the decedent intended Mr. Brown to act as his executor and carry out the terms of his Will, including the good intentions of charitable giving. The executor made arrangements for scholarship funds to be established pursuant to specific bequests. He also researched other charities, and determined which ones should receive a portion of the residuary estate per his knowledge of the decedent’s wishes.

The executor also had to handle various insurance matters in settling the estate. There was a wrongful death and survival action filed, which netted the estate $ 160,000. The executor filed, negotiated and settled the insurance claims for loss of personal property and the decedent’s home. There were four (4) distributions alone negotiated and received by the estate, and distributed to the beneficiary, Robert Early, for the loss of the house. The decedent had arranged distribution of twelve specific “cash bequests”, some of which involved finding someone to carry out the wishes of the decedent to place flowers at various grave sites. All of those matters required a lot of time on the part of the executor, and all were very important to the successful administration of the estate.

The gross estate value at decedent’s death was $2,028,690.72 per the first and final account. The standard for determining whether a commission was properly charged is whether or not it was reasonable. See 20 Pa. C.S.A. § 3537; Reed Estate, 462 Pa. 336 (1975). It is a common practice to adopt the fee schedule set forth in Johnson Estate, 4 Fiduc. Reptr. 2d 6 (O.C. Chester Cty. 1983) for setting an executor’s commission. However, we note that such guidelines are not the guidelines of the attorney general’s office and such a commission schedule has been rejected where objections were made by the Commonwealth on behalf of charitable beneficiaries. See Preston Estate, 385 Pa. Super. 48, 560 A.2d 160 (1989). In such instances, the courts should review the overall reasonableness of the fee as set forth in Reed, supra.

Here, the executor’s commission of $61,656.05 was calculated on a percentage basis similar to the Johnson Estate, schedule. We find that the commission charged by the executor in this case was reasonable. We find the time necessary to administer the Estate, the various undertakings to preserve assets of the estate, obtain insurance settlements, pursue litigation, locate beneficiaries, make arrangements per the terms of the Will, distribute assets to numerous beneficiaries, establish scholarships and research and select charities, was out of the ordinary. The executor had to spend a great deal of time doing this, and as a certified public accountant, had to use his expertise in managing and accounting assets. Considering the size of the estate, the complexities involved, the time required, and the numerous bequests to manage, the executor’s commission as charged was reasonable.

For these reasons, we issue the following order:

ORDER

And now, February 6, 2013, the objections of the Commonwealth of Pennsylvania by the office of the attorney general, to the first and final account of Frank M. Brown, executor of the estate of Jack H. Bates, are denied.

      . The executor was a named beneficiary on two (2) credit union accounts and two (2) life insurance policies for a total of $96,371.61. Subtracting this amount from the $200,000 bequest as required by the Will left a balance for distribution of $103,628.39.