author: COX, J.,

text:
    Commonwealth v. Taylor

      C.P. of Lawrence County,
    no. 191 of 2009.

      William J. Flannery, for Commonwealth.

      Terri Taylor, pro se.
    October 29, 2010
   COX, J.,

In the instant matter, the defendant Terri Taylor is appealing a court order dated June 25,2010, imposing sentence for a conviction of disorderly conduct, in violation of 18 Pa.C.S.A. § 5503(a)(4), and a court order permitting the withdrawal of the defendant’s counsel, Bradley G. Olson, Jr., Esquire, dated October 1, 2010. In her statement of errors complained of on appeal, the defendant asserts the following arguments:

I. there was a violation of the defendant’s constitutional rights;
II. the commonwealth failed to present sufficient evidence that the defendant committed the offense of disorderly conduct; and
III. a conviction for the offense of disorderly conduct was against the weight of the evidence.

On January 14, 2009, officer Fred Buswell of the New CastlePoliceDepartmentwas dispatched to 1803 Hamilton Street, New Castle, Lawrence County, Pennsylvania, in response to a domestic disturbance. When Officer Buswell arrived at that location, Officer Stephen Brooks of the New Castle Police Department was already inside of the residence speaking with Antonio Taylor, the husband of the defendant. A physical altercation ensued between Officer Brooks and Mr. Taylor, which prompted Officer Buswell to exit his vehicle and run into the residence to assist Officer Brooks. Upon entering the residence, Officer Buswell went directly into the kitchen and used his taser gun on Mr. Taylor to stop the altercation. As those events transpired, the defendant, who is Mr. Taylor’s wife, was standing behind Officer Buswell making inflammatory statements towards Mr. Taylor, such as “How do you like that bitch?” and telling Officer Brooks to hit him again. According to Officer Buswell, the defendant’s comments created a hazardous situation as she inflamed Mr. Taylor’s level of agitation and anger. As a result, it was more difficult for the police officers to calm Mr. Taylor. It must be noted that during the entirety of these events there were several children present in the residence.

Eventually, the police officers were able to subdue Mr. Taylor, place him in handcuffs and exit the residence. However, the defendant also walked onto the front porch of the residence and continued to shout at Mr. Taylor, even though the police officers ordered her to cease her actions. In response, Mr. Taylor began shouting at the defendant and he did not respond to the commands of the police officers because his focus was on the defendant. As they attempted to place Mr. Taylor in the police cruiser, the defendant continued to make disparaging remarks to her husband, which made it more difficult for the police officers to convince Mr. Taylor to comply with them as his focus remained on the defendant and he wanted to continue arguing with her. It must be noted that these events occurred in a residential neighborhood. Finally, the police officers were able to place Mr. Taylor into the police cruiser and transported him to the New Castle Police Station. Officer Buswell then turned his attention to the defendant and informed her that she was going to be charged with disorderly conduct because she continued to shout at Mr. Taylor after being asked repeatedly to stop.

The defendant was charged with disorderly conduct, and immediately prior to trial, the commonwealth reduced the charge from a misdemeanor to a summary offense. This court held a bench trial on November 20, 2009; however, the defendant was granted a continuance after the commonwealth completed its case to obtain witnesses. The court scheduled the trial to resume on January 29, 2010, but the defendant requested another continuance, which the court granted and rescheduled the trial for March 1,2010. Again, the defendant filed a continuance because the defendant was enrolled in a college course and could not miss class without a penalty. The trial was rescheduled and completed on June 2,2010. By agreement of counsel, the court took the matter under consideration and, on June 10, 2010, the court convicted the defendant on the charge of disorderly conduct in violation of 18 Pa.C.S.A. § 5503(a)(4). On June 25, 2010, this court sentenced the defendant to a term of non-reporting probation for a period of 90 days under the supervision of the Adult Probation Office of Lawrence County. The defendant subsequently asserted a claim for ineffective assistance of counsel against Larry J. Keith, Esquire, of the Lawrence County Public Defender’s Office, so the Honorable President Judge Dominick Motto appointed Bradley G. Olson, Jr., Esquire, as counsel for the defendant on June 30, 2010. The defendant subsequently filed a petition for leave to appeal nunc oro tunc, which was granted by this court on August 25, 2010. Additionally, the defendant filed a pro se notice of appeal on September 9, 2010. Mr. Olson then filed a petition to withdraw as counsel of record and the court held a hearing on that matter on October 1, 2010. The court permitted Mr. Olson to withdraw as counsel for the defendant and ruled that the defendant was not entitled to court-appointed counsel under Pa.R.Crim.P. 122. Now, the defendant has appealed the court’s decision to permit Mr. Olson to withdraw. Moreover, the defendant claims that the commonwealth failed to present sufficient evidence to establish the charge of disorderly conduct and the verdict rendered by the court was against the weight of the evidence.

First, the court must address whether the defendant was entitled to have counsel pursuant to the Pennsylvania Constitution or the Pennsylvania Rules of Criminal Procedure. The decision as to whether the court will grant or deny a court-appointed trial counsel’s petition to withdraw is within the sound discretion of the trial court and should not be disturbed unless there was an abuse of discretion. Commonwealth v. Tuck, 339, 469 A.2d 644, 650 (Pa. Super. 1983) (citing Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975)). A defendant’s right to have counsel appointed is set forth in Pa.R.Crim.P. 122, which states: “(A) Counsel shall be appointed: (1) in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed.” In the comments following Pa.R.Crim.P. 122, it states that no defendant may be sentenced to imprisonment or probation without being afforded the right to counsel at trial. See also Alabama v. Shelton, 535 U.S. 654 (2002); Scott v. Illinois, 440 U.S. 367 (1979). Additionally, Pa.R.Crim.P. 454 states, “(A) Immediately prior to trial in a summary case: (2) if, in the event of conviction, there is a reasonable likelihood of a sentence of imprisonment or probation, the defendant shall be advised of the right to counsel...” The trial court is not required to appoint counsel when it is determined before trial that a term of imprisonment for that offense was unlikely and, at sentencing, a term of imprisonment was not imposed. Commonwealth v. Blackham, 909 A.2d 315, 318 (Pa. Super. 2006). It has been established that the court is not required to provide court-appointed counsel in summary cases where the criminal defendant is not actually subjected to a term of imprisonment upon conviction. Commonwealth v. Thomas, 510 Pa. 106, 110, 507 A.2d 57, 59 (1986) (citing Scott, supra.; Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972)).

In Thomas, the appellants, who were 16 and 17 years old at the time, pleaded guilty to the summary offense of retail theft without the assistance of counsel. Upon being charged for a second retail theft, the appellants argued that the original conviction for retail theft should not be utilized for enhancing the sentence for the second retail theft from a summary offense to a misdemeanor as they were not represented by counsel when they pleaded guilty, in violation of the Sixth and Fourteenth amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. The Thomas court disagreed and stated that the constitutional right to appointed counsel in state proceedings is inapplicable to cases where the defendant is not actually subjected to a term of imprisonment upon conviction. Id. Furthermore, the courts are not obligated to appoint counsel for defendants who are sentenced to a term of probation. Id., 510 Pa. at 111, 507 A.2d at 59 fn. 7. Thus, the Thomas court held that the appellants’ based upon the retail theft convictions were appropriate as the court was not required to appoint counsel in that matter. Id., 510 Pa. at 111, 507 A.2d at 60.

In the case sub judice, the defendant was provided with counsel during the bench trial in this matter. However, the defendant subsequently argued that her trial counsel was ineffective; thus, her trial counsel was forced to withdraw from this matter. President Judge Motto then appointed Bradley G. Olson, Esquire, to represent the defendant. Mr. Olson later filed a petition to withdraw as counsel of record with this court claiming that the defendant was no longer entitled to court-appointed counsel in this matter as she was sentenced to probation. Hence, there was no likelihood that the defendant would be sentenced to a term of imprisonment. This court granted that petition because the defendant was no longer entitled to court-appointed counsel pursuant to Pa.R.Crim.P. 122 because she was sentenced to non-reporting probation. The court’s decision in Thomas clearly establishes that a defendant who is charged with a summary offense for which it is unlikely that he or she will be sentenced to a term of incarceration is not entitled to court-appointed counsel. It is important to note that the defendant was provided with counsel for the duration of her trial and she had the right to retain private counsel after the office of the public defender withdrew its appearance if she chose to do so. Therefore, the court complied with Pa.R.Crim.P. 122 and the established case law precedent when it granted Mr. Olson’s petition to withdraw as counsel of record and the defendant was not entitled to court-appointed counsel in this matter.

Next, the defendant argues that the commonwealth presented insufficient evidence to establish the charge of disorderly conduct and the guilty verdict rendered by this court was against the weight of the evidence.

A claim challenging the sufficiency of the evidence is a question of law to be decided by the court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). Sufficient evidence to sustain a verdict has been presented when the commonwealth establishes that the accused has committed each material element of the crime charged beyond a reasonable doubt. Id. (citing Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993)). In deciding a post-sentence motion challenging the sufficiency of the evidence, the court must evaluate the entire record and read all of the evidence in a light most favorable to the commonwealth and it is entitled to all reasonable inferences arising therefrom. Commonwealth v. Johnson, 631 A.2d 639, 642 (Pa. Super. 1993) (quoting Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977)). “The effect of such a motion is to admit all the facts which the commonwealth’s evidence tends to prove.” Id., 631 A.2d at 642. A mere conflict in the evidence does not render the evidence insufficient as the fact finder must determine the weight to be given to the testimony and may believe all, part or none of the evidence. Commonwealth v. Walter, 849 A.2d 265, 267 (Pa. Super. 2004) (citing Commonwealth v. Verdekal, 351 Pa. Super. 412, 506 A.2d 415 (1986); Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977)). The court is not to determine the weight or the credibility to assign to the testimony of record. Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). Before granting a post-sentence motion based on the sufficiency of the evidence, the court “must find the evidence supporting the verdict to be so weak and inconclusive that a jury of reasonable persons would not have been satisfied as to the accused’s guily.” Commonwealth v. Bigelow, 611 A.2d 301, 303 (Pa. Super. 1992) (citing Commonwealth v. Blevins, 453 Pa. 481, 487, 309 A.2d 421, 425 (1973)).

Conversely, a motion for new trial on the ground that the verdict was contrary to the weight of the evidence concedes that the commonwealth presented sufficient evidence to sustain the verdict. Widmer, supra, (citing Commonwealth v. Whiteman, 485 A.2d 459 (Pa. Super. 1984)). The difference between a determination of the weight of the evidence and the sufficiency of the evidence is that the court is not confined to viewing the record in the light most favorable to the commonwealth in a weight of the evidence determination and the court may assess the credibility of the prosecution’s case. Commonwealth v. Vogel, 501 Pa. 314, 323, 461 A.2d 604, 609 (1983) (citations omitted).

Disorderly conduct is defined as:

(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous orphysically offensive condition by any act which serves no legitimate purpose of the actor. 18 Pa.C.S.A. § 5503(a).

The main inquiry when determining if the defendant’s conduct rises to the level of disorderly conduct is whether the defendant’s words or acts cause or unjustifiably risk a public disturbance. Commonwealth v. Fedorek, 596 Pa. 475, 487, 946 A.2d 93,100 (2008) (citing Commonwealth v. Hock, 556 Pa. 409,415-416,728 A.2d 943,946 (1999)). Disorderly conduct is not a catchall for every act that is annoying or disturbing to people, the statute contains a mens rea element “that may be met by a showing of a reckless disregard of the risk of public inconvenience; annoyance, or alarm, even if the appellant’s intent was to send a message to a certain individual, rather than to cause public inconvenience, annoyance, or alarm.” Commonwealth v. Maerz, 879 A.2d 1267,1269 (Pa. Super. 2005) (quoting Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. 1982)). A defendant who exhibits disorderly behavior in a public place has committed disorderly conduct, even if the behavior is directed at a single individual. Commonwealth v. Young, 535 A.2d 1141, 1143 (Pa. Super. 1988) (citing Commonwealth v. Mastrangelo, 489 Pa. 254,414 A.2d 54 (1980)). “The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder.” Fedorek, supra, (citing Flock, supra.).

In Commonwealth v. Roth, 531 A.2d 1133 (Pa. Super. 1987), an organization called the Denomination Ministry Strategy (hereinafter “DMS”) and the network to save the mon valley (hereinafter “the Network”), which included the appellants D. Douglas Roth, Darrell Becker and David Soul, began organizing a protest outside of a church that called for individuals to bring scrap iron that would be placed on the church’s property on Easter Sunday. One of the fliers for the protest warned “don’t make us evict the police on Easter Sunday, it could get messy!” The elders of the church met with members of the network in an attempt to stop the protest from occurring and DMS and the network responded by requesting time to address the congregation on Easter Sunday. However, the church elders did not agree to permit the Network to speak during Easter Sunday church service. On Easter Sunday, police were stationed outside of the church and were informed that a group of 20 to 30 members of DMS and the network were approaching the church. The members of DMS and the network marched up to the entry walkway of the church and were met by the church’s representative, who informed them that they were not welcome at the church. In response, appellant Roth informed the church representative that they were going to enter the church and place scrap metal on the altar. Upon hearing this, the church representative stepped aside and permitted the police officers to deal with the situation. The groups still refused to leave and appellant Roth urged, “Let’s go in.” The members of DMS and the Network took steps onto the church walkway and police officers began placing members of those groups under arrest. Members of DMS and the network, including the appellants, were convicted of disorderly conduct and failure of disorderly persons to disperse upon official order. The appellants later argued that the evidence was insufficient to support the charge of disorderly conduct.

The Roth court explained that the appellants’ disorderly conduct was apparent from the record as their actions caused public inconvenience, annoyance or alarm. Id., 531 A.2d at 1136. The appellants argued that their protest was peaceful and placing the scrap iron on the altar was a method for demonstrating their dissatisfaction with the plight of the poor and unemployed in Mon Valley. The court reasoned that the appellants’ actions of moving toward the church after repeated warnings that they were not welcome there demonstrated an intent to cause public inconvenience, annoyance, or alarm. TV, 531 A.2d at 1137. The court stated that the accepted definition of hazardous condition involves a danger or risk. Id. (citing American Heritage Dictionary; State v. Clark, 39 Or. App. 63, 591 P.2d 752 (1979)). The Roth court also explained events of that day created an emotionally charged atmosphere and some members of the congregation, who were informed of the demonstration, did not attend church because they were frightened for their safety due to the propaganda on the fliers handed out several days before Easter Sunday. Id. Moreover, the court noted that some of the members of the church felt that their church was under siege and were determined not to the “let the battle be fought” inside their church. Id., 531 A.2d at 1137. With those facts in mind, the Roth court ruled that the members of DMS and the network created a hazardous condition when they proceeded to disrupt the church services scheduled for Easter Sunday because altercations could have occurred between the demonstrators and the members of the church. Id. The court also held that the actions of the appellants did not serve a legitimate purpose, which was defined as “conduct which is lawful and constitutionally protected.” Id. (citing Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super. 1976)). The court stated that placing scrap iron on a church altar as a manner of protest where it was clearly unwelcome was unlawful and was not constitutionally protected. Id. Therefore, there was sufficient evidence to establish that the appellants committed the offense of disorderly conduct. Id.

In the current matter, Mr. Taylor and Officer Brooks engaged in a physical altercation inside the residence locatedat 1803 Hamilton Street, New Castle, Pennsylvania, which prompted Officer Buswell to enter the residence and utilize his taser gun to subdue Mr. Taylor. After Mr. Taylor was subdued by the police officers, the defendant repeatedly mocked Mr. Taylor, which agitated and angered him. It must be noted that the events transpired in a residential neighborhood and in front of the defendant’s children. The police officers repeatedly instructed the defendant to stop shouting at Mr. Taylor as they exited the residence, but she did not conform to their instructions. Instead, the defendant continued to agitate and ridicule Mr. Taylor by walking out to the front porch and shouting at him as the police officers attempted to place him into the police cruiser. Officer Buswell testified at trial that the defendant’s comments angered and agitated Mr. Taylor, which caused a hazardous situation for the police officers. In Roth, the appellants created a dangerous situation by attempting to enter the church to place scrap iron on the church’s altar with the knowledge that the members of the church did not want them to do so. The Roth court reasoned that appellants’ action provoked the members of the church and could have caused a physical altercation among the people present. Id. Similarly, the defendant’s actions created a dangerous situation between the police officers and Mr. Taylor. It was apparent that Mr. Taylor was agitated by the words being spoken by the defendant, and she continued to exacerbate the situation by repeatedly shouting at Mr. Taylor. Therefore, the commonwealth presented sufficient evidence to establish that the defendant committed disorderly conduct. Additionally, the verdict rendered by this court was not against the weight of the evidence as the commonwealth presented credible evidence to establish that the defendant created a hazardous condition through her conduct.

For the reasons set forth in this opinion, the defendant’s appeal regarding the court orders dated June 25,2010, and October 1, 2010, should be denied in its entirety.

ORDER OF COURT

Now, October 29, 2010, an appeal having been filed in the above-captioned case by the defendant, Terri Taylor, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(a).

The clerk of courts of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable rules of appellate procedure.

The clerk of courts is directed to serve a copy of this order of court upon counsel of record, William J. Flannery, Esquire and the defendant Terri Taylor, pro se, at her last known address contained in the file.

      . The defendant apparently wanted Officer Brooks to utilize his taser gun on Mr. Taylor, but the police officers refrained from using their taser guns for a second time.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Pagano v. Pennsylvania American Water

      C.P. of Monroe County,
    no. 4001 CV 2010.

      George T. Westervelt Jr., for plaintiffs.

      T. Axel Jones, for defendants.
    October 26, 2010
   ZULICK, J.,

Michael and Susan Pagano have filed an action to quiet title seeking a declaration by the court that they have an easement across lands of Pennsylvania American Water and Metropolitan Edison Company. The Paganos own atract in the Townships of Hamilton and Ross of approximately 100 acres that is allegedly landlocked. The case is now before the court on the preliminary objections of defendant Pennsylvania American Water (PAW) to the amended complaint of plaintiffs Michael and Susan Pagano (the Paganos).

The Paganos’ property, tax ID 15/1/2-1C, is located next to land owned by PAW. The chain of title to PAW’s land reflects that when the land was previously owned by Lehigh University (Lehigh), Lehigh granted two easements over the property to Metropolitan Edison Company (MetEd). The first easement was a right-of-way granted by agreement dated February 13, 1939 (1939 easement). The second was a right-of-way for a power line granted by agreement dated July 14, 1959 (1959 easement). The Pagano complaint alleges that MetEd has agreed by letter to allow the Paganos use of both easements over PAW’s land to access their property.

The Paganos filed a complaint on April 30, 2010 to which PAW timely filed preliminary objections. On July 6, 2010 I sustained PAW’s objections and struck the complaint. At that time, the Paganos were granted leave to file an amended complaint. On July 26,2010, the Paganos filed an amended complaint. PAW timely filed preliminary objections, briefs were submitted, and the case was argued on October 4, 2010.

DISCUSSION

In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995). The “lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (Pa. 1963). Preliminary objections in the nature of demurrers should be sustained where facts averred in a pleading are clearly insufficient to establish the pleader’s right to relief. See HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 397, 652 A.2d 1278, 1279 (Pa. 1995).

The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.C.P. 1019(a). The allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.” Estate of Swift v. Ne. Hosp. of Philadelphia, 690 A.3d 719 (Pa. Super. 1996) appeal denied, 701 A.2d 557 (Pa. 1997). Finally, “[i]f an issue of fact is raised, the court shall consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2).

I. Motion to Strike

PAW asserts that the complaint should be stricken because of variations used in identifying PAW. The caption in both the notice to plead and the amended complaint identifies the water company as “Pennsylvania American Water.” However, paragraph two of the amended complaint identifies the water company as “Pennsylvania American Water American Water Works Service Co. Inc.” The deed which the Paganos have attached as exhibit “B” to the amended complaint identifies the owner of the land across which the easement is sought as “Pennsylvania-American Water Company.”

This discrepancy would ordinarily lead to an order for the filing of an amended complaint. However, the complaint has other shortcomings which will lead to its outright dismissal.

II. Demurrer — Easement by Necessity

PAW has demurred to the Paganos count seeking an easement by necessity. The Paganos have conceded that they do not have a cause of action for an easement by necessity. See answers to preliminary objections, page 1. This objection will be sustained.

III. Demurrer Access to Existing Rights-of-Way

The Paganos assert that they have a right to gain access to their property via the 1939 and 1959 easements granted to MetEd over property presently owned by PAW. This is an argument in the abstract, because at this point, the Paganos do not have a recorded assignment of easement from MetEd, rather they rely upon a letter agreement which is more accurately termed a license.

MetEd has easements from PAW’s predecessor in title that cross PAW’s land. See amended complaint, exhibit “D.” Separately, the easements do not afford access to the Paganos’ property; only when used together do the easements provide access. The Paganos have not alleged that they have an easement, and the pleadings do not provide any basis for the granting of an easement by the court.

a. The 1939 Right-of-Way Easement

PAW cites the language of the agreement conferring the 1939 right-of-way easement which provides in part:

“[T]he right to enter upon and erect, inspect, operate, replace, repair, and maintain a line or lines of poles, and/ or H-frame and/or towers with necessary wires, or cross arms, guy wires, push braces and other usual fixtures and appurtenances used or adapted for the transmission of electric current for light, heat or power.” Amended complaint, exhibit “D,” 1939 agreement. PAW argues that the agreement does not provide access to the PAW property, nor does it use the “usual” terms including “ingress, egress, and regress.” PAW brief in support of preliminary objections, page 5.

The Paganos, in turn, point to language elsewhere in the document which they argue is broader and can be reasonably construed to provide an access easement. That language provides: “[t]he grantor hereby conveys to the Grantee, its successors and assigns an easement, right, privilege and right of way of the width of fifty (50) feet, upon, over and across the lands of the Grantor....” Amended complaint, exhibit “D,” 1939 agreement. In support of a broad reading of the language, the Paganos quote Bowers v. Myers, 237 Pa. 533, 538-39, 85 A. 860, 861 (Pa. 1912):

A right of way granted or reserved in general terms may be used for any purpose reasonably necessary for the party entitled to use it. The fact that the person entitled to such way has used it for one purpose only for a long series does not restrict its use to that purpose only. The grant being in general terms, it must be construed to include any reasonable use to which the land may be devoted.

The Paganos also cite Benner v. Junker, 190 Pa. 423, 43 A. 72 (Pa. 1899) and Piper v. Mowris, 466 Pa. 89, 100, 351 A.2d 635, 641 (Pa. 1976).

Piper, decided in 1976, was the last case to cite Bowman and Benner. As PAW observes, the “vintage of these cases...is significant in the easement context.” PAW reply brief, page 3. Both Bowers and Benner were decided before widespread use of the automobile. In Bowers, the parties’ dispute centered on whether a right-of-way to an alley included use of the alley as a driveway for horses and vehicles. The court found that a right-of-way easement expressed in general terms allowed for reasonable uses. Bowers at 861. In addition to the agreed use of the alley as a footway, the court concluded, it could be used as a driveway for horses and vehicles. Similarly, the Benner court found a right-of-way easement for use of an alley, conveyed in general terms, did not preclude heavy wagon use by a baker in the course of his business. In each case, an existing right-of-way was interpreted to accommodate different reasonable uses.

These cases may assist MetEd in the interpretation of its easement. But the Paganos are asking the court to declare that they have an easement across PAW’s land. The Paganos are attempting to turn a utility’s right-of-way easement into an access easement for themselves. These cases do not support that conclusion.

The MetEd easements also contain language reserving for PAW “the right to cultivate the ground between said poles and towers and beneath said wires, provided that such use shall not interfere with or obstruct the rights herein granted.” Amended complaint, exhibit “D,” 1939 agreement. Cultivating ground and development of a road may be mutually exclusive uses of the right-of-way easement. PAW argues that if the Paganos developed a road, paved or otherwise, the ability of PAW and/or future owners of PAW’s land to exercise the right to cultivate would be compromised. However, the court does not have to decide the extent to which PAW’s right to cultivate trumps MetEd’s use of its easement. The complaint does not set forth any basis upon which the court may declare that the Paganos have or are entitled to an easement from PAW.

b. 1959 Power Line Easement

Similar to the 1939 document, the 1959 agreement conferring the power line easement contains language reserving the right to construct and maintain a power line.

It provides in part:

“[T]he right to construct, maintain and operate an electric line consisting of poles, conductors, overhead and underground lightning protective wires, private communication wires, guys, push braces, and other apparatus and equipment deemed by the Grantee to be necessary therefore, upon, over, across, and under the lands of the Grantor....” Amended complaint, exhibit “D,” 1959 agreement.

Unlike the 1939 document, however, the 1959 agreement does not contain a general grant of a right of way. Cf. Amended Complaint, exhibit “D,” 1939 agreement (“[t]he grantor hereby conveys to the Grantee, its successors and assigns an easement, right, privilege and right of way of the width of fifty (50) feet, upon, over and across the lands of the Grantor....”). The arguments the Paganos make in support of a broad reading of the right-of-way agreement allowing for “any reasonable use,” therefore, gain even less traction from the 1959 agreement than they did from the 1939 document.

The 1959 agreement also contains language similar to the 1939 agreement in reserving “the right to cultivate the ground between the poles or other supporting structures of said lines, provided that such use shall not interfere with or obstruct the rights herein granted.” Amended complaint, exhibit “D,” 1959 agreement.

When an easement is created appurtenant to land, and the deed is to the grantee, “his heirs and assigns” the right to the use of the easement extends to all who, with the permission of the grantee or his successors, may lawfully desire to use it. Seidler v. Wain, 266 Pa. 361, 109 A. 643, 8 A.L.R. 1363. But where the use is specific or limited it is restricted to the use specified in the grant. Shawnee Lake Association v. Uhler, 198 A. 910 (Pa. Super, 1933). Nallin-Jennings Park Co. v. Sterling, 364 Pa. 611, 614, 73 A.2d 390, 392 (Pa. 1950). Here the 1959 MetEd easement was limited to “the right to construct, maintain and operate an electric line...” Amended complaint, Exhibit D. There is no basis in law for the court to “grant the Paganos an easement” for access to their land under these circumstances. Indeed, the letter authorization the Paganos received from First Energy specifically stated: “5. Mr. Pagano, it is your obligation to obtain and (sic) Access Easement from the underlying fee owner for any portion of the proposed access drive which lies outside of your property boundaries.” First Energy letter of December 31, 2007 attached as Exhibit E to the Pagano amended complaint. The Paganos have not alleged any facts which would entitle them to a finding that they now have an easement for ingress and egress across the PAW land or a valid claim to one.

CONCLUSION

The Pagano amended complaint does not set forth a basis in law for the declaration that they have an easement across PAW land for access to a public road.

ORDER

And now, October 26, 2010, upon consideration of defendant Pennsylvania American Water’s preliminary objections to plaintiffs Michael and Susan Pagano’s amended complaint, it is hereby ordered that said preliminary objections are sustained and the complaint is dismissed.


author: SIBUM, J.,

text:
    Kopelson v. Jaiks Perso Corp.

      C.P. of Monroe County,
    no. 5345 Civil 2010.

      David J. Williamson, for plaintiff.

      Robert J. Kidwell, for defendants.
    October 15, 2010
   SIBUM, J.,

I. FINDINGS OF FACT

1. This dispute concerns restrictive covenants contained in the deeds for properties in Shelbrooke Estates, a development located in Stroud Township, Monroe County, Pennsylvania.

2. Sheldon Kopelson is a developer (“developer”) of Shelbrooke Estates. Developer owns two properties in Shelbrooke Estates, one of which he maintains as his personal residence. The other property is a residential building lot.

3. Shelbrooke Estates is located west of Glenbrook Road and also Reish Road as set forth in Plot Book Volume 65, Page 109 of the Monroe County Recorder of Deeds Office.

4. Shelbrooke Estates is a residential subdivision with central sewer and water and contains 45 residential building lots.

5. All roads and utility services within Shelbrooke Estates have been dedicated to local municipalities and municipal entities.

6. The sales price for lots in Shelbrooke Estates has ranged from $45,000.00 to $130,000.00. The combined price for lot and home costs in Shelbrooke Estates has ranged from just under $300,000.00 to more than $500,000.00.

7. On November 12, 1993, Developer recorded a “Declaration of Protective Covenants, Restrictions, Exceptions, Reservations and Conditions” (“original protective covenants”). The original protective covenants were recorded in Deed Book Volume 1919, Page 1243 of the Monroe County Recorder of Deeds Office.

8. Developer recorded an “Amended Declaration of Protective Covenants, Restrictions, Exceptions, Reservations and Conditions” (“amended protective covenants”) on July 15, 1998. The amended protective covenants were recorded in Deed Book 2050, Page 7797 of the Monroe County Recorder of Deeds Office.

9. The original protective covenants filed November 12, 1993 applied to all lots in Shelbrooke Estates. The amended protective covenants filed July 15, 1998 applied to all lots conveyed by developer after that date.

1Ó. The amended protective covenants amend the original protective covenants as to paragraph 5 only, and provide as follows:

5. No building, structure, including a swimming pool or fence, shall be erected on any lot without first obtaining the approval, in writing, of grantor, as to the location, elevation, construction, plans and design. Grantor, his successors and assigns, shall approve or disapprove, in writing, the said location, elevation, / construction, materials, colors, plan and design within fifteen (15) days after the plans and specifications for same have been completely submitted. Exterior construction of any building, structure or any improvement, or backfilling or grading must be completed within one (1) year from the date that construction operations are commenced. The dwelling must have a total minimum of two thousand four hundred (2,400) square feet of living space, excluding underground levels from such space level requirements. Said disapproval may be based on purely aesthetic grounds.

11. The amended protective covenants modify the original protective covenants as to paragraph 5 only in that the minimum square feet of living space shall be two thousand four hundred (2,400) square feet, excluding underground levels, instead of two thousand two hundred (2,200) square feet as provided in the original protective covenants.

12. Houses have been constructed on all lots within the Shelbrooke Estates development with the exception of seven lots.

13. All houses that have been constructed within the development have obtained the required written approval for building plans from developer prior to construction.

14. Developer has previously rejected building plans proposing modular homes. Developer has also previously rejected plans proposing a farmhouse style home with vinyl siding.

15. One current owner in Shelbrooke Estates, Anthony Muscarello, changed his building plans with RGB Builders to conform with plans acceptable to developer.

16. All of the homes within Shelbrooke Estates are of stick-built construction, have architectural features which include colors, contours, and lines that are of a similar style, including hip or gable roofs, and have brick, stone or stucco facades.

17. There are no modular or prefabricated homes located in Shelbrooke Estates.

18. Developer has maintained similar architectural styles and stick-built construction in order to ensure conformity in the development and property values.

19. The homes in Shelbrooke Estates have been built by various home builders, including developer’s company, Affiliated Builders.

20. In 2005, defendant, David Persaud (“Persaud”), became interested in purchasing a lot in Shelbrooke Estates from developer after his cousin had built a home in the development.

21. Persaud’s cousin obtained approval from developer for the cousin’s house plans and designs prior to building.

22. Persaud is a real estate closing agent in New York State for Christopher Lim, Esquire, an attorney practicing real estate law in New York. Persaud has been a closing agent for attorney Lim for the past seven years and has been involved in real estate closings with Mr. Lim.

23. On December 29, 2005, Persaud and Mr. Lim signed an agreement of sale to purchase lot 101 of Shelbrooke Estates from developer. The contract purchase price was $130,000.00.

24. At the time Persaud and Mr. Lim signed the agreement of sale, they were given copies of the original and amended protective covenants pertaining to the property.

25. The agreement of sale at paragraph 5(c) specifically references that the conveyance is under and subject to the restrictions of Deed Book Volume 1919, Page 243, and modifications as pertained to a wetland delineation in Deed Book Volume 2126, Page 2437.

26. Persaud received but did not read the original or amended protective covenants. Rather, since he was buying the property with an attorney, he relied on his co-owner attorney for all legal aspects of the sale.

27. Persaud received the deed from developer at closing and the title policy of American Abstract of Northeast Pennsylvania. Although Persaud received the deed and title policy, he did not review them. Rather, he gave them to his co-owner, Mr. Lim, after which the deed and title policy were placed in Mr. Lim’s office safe where Persaud is employed.

28. The deed from developer to Persaud and Mr. Lim for lot 101, Shelbrooke Estates, was recorded in the Monroe County Recorder of Deeds Office in Deed Book Volume 2254, Page 8718.

29. The deed into Persaud and Mr. Lim specifically references that the transfer is under and subject to the original and amended protective covenants.

30. On March 24, 2010, Persaud and Mr. Lim transferred lot 101 to the Jaiks Perso Corporation, a New York registered corporation owned by Persaud, his wife, and a third family member. The deed into the Jaiks Perso Corporation was recorded in Deed Book Volume 2368, Page 7693, of the Monroe County Recorder of Deeds Office.

31. The deed into the Jaiks Perso Corporation specifically states that the premises are “subj ect to all easements, rights-of-way, protective covenants and mineral reservations of record, if any.”

32. The purpose of the transfer was for Persaud to buy out his co-owner Mr. Lim. Persaud took title to the property in the name of the Jaiks Perso Corporation upon advice of his accountant.

33. Prior to the conveyance from Persaud and Mr. Lim to the Jaiks Perso Corporation, Persaud decided that he would construct a vacation home on lot 101 for use by him and his family. In approximately March or April of 2010, Persaud entered into a construction agreement with Stano Builders, LLC to construct a 2,550 square foot home on Lot 101.

34. At or about the same time, Persaud, through Stano Builders, LLC, ordered a manufactured, modular prefabricated home from Penn Lion Homes to be built on the lot. Persaud obtained zoning and building permits from Stroud Township for the home to be constructed on lot 101 in his individual name as owner on May 27, 2010.

35. Persaud, through Stano Builders, commenced work on the lot for the construction of the home, including site preparation work on or about May 27, 2010.

36. Neither Persaud nor Jaiks Perso Corporation presented building plans or designs to developer prior to starting construction on lot 101 or prior to ordering the modular home from Penn Lion Homes.

37. No one notified developer of the intent to construct on lot 101 prior to starting work.

38. In early June of 2010, developer returned from a trip to Florida and noticed excavation work taking place on lot 101.

39. On or about June 3, 2010, developer met with Mr. contrastano, the owner of Stano Homes, LLC. During the meeting, developer learned from Mr. Contrastano that a home was being constructed on the lot. Mr. Contrastano gave plans for the home to developer for review. At the meeting, developer informed the builder that all plans for homes within Shelbrooke Estates had to be approved by him, and that all homes needed to have a certain style and architectural features in order to receive his approval.

40. Within a few hours of receiving the plans for review, developer called Mr. Contrastano to advise him that the home plans would not be approved because the residence under construction was a modular or prefabricated home.

41. Thereafter, Persaud and developer spoke by telephone, at which time developer confirmed that the home could not be built as designed because it was a modular home and that no other modulars had been approved or built in Shelbrooke Estates. Developer also rejected the plans due to the style and architectural design of the house and the use of vinyl siding.

42. On June 4, 2010, attorney David J. Williamson, counsel for developer, sent a letter to Persaud, together with the original and amended protective covenants, advising that the plans were not approved and that a modular or prefabricated home could not be constructed on lot 101.

43. Persaud acknowledged receipt of attorney Williamson’s June 4,2010 letter and arranged for his New York attorney to respond to the letter by correspondence dated June 9, 2010. Persaud continued construction of the modular home on lot 101, had caused a foundation to be constructed, and had the modular sections for the home delivered to the site at least one week after the notice of the plan denial was received by Persaud.

44. Persaud paid a deposit of $14,900.00 to Penn Lion Homes at the time he placed his order.

45. The balance of the home purchase price to Penn Lion of $88,000.00 was due and paid by Persaud at the time of delivery of the home to lot 101.

46. The modular home remains on lot 101 in four sections on trailers.

II. CONCLUSIONS OF LAW

1. Developer has requested equitable relief in the form of a permanent injunction barring construction of the modular home proposed by defendants.

2. The original and amended protective covenants of Shelbrooke Estates are binding on lot owners in Shelbrooke Estates, including lot 101, owned by the defendants Jaiks Perso Corporation and David Persaud.

3. The original and amended protective covenants are unambiguous and have clear construction and meaning.

4. The original and amended protective covenants clearly and unambiguously require that all plans and designs for homes constructed within the Shelbrooke Estates Development are to be reviewed and approved by . developer.

5. The original and amended protective covenants run with the land and bind all current and future property owners within the development.

6. Developer has the right to approve or disapprove construction plans and designs, materials, and colors. Developer has the right to approve or disapprove proposed home plans and designs on purely aesthetic grounds.

7. The defendants violated Protective Covenant No. 5 by commencing construction of a residence prior to receiving or requesting approval of the construction plans and design from developer.

8. Developer gave proper notice that no approval was given for defendants’ planned construction due to the type of construction, design and materials.

9. The modular home proposed by defendants to be constructed on lot 101 of Shelbrooke Estates is not permitted under the original and amended protective covenants since developer has rejected same.

10. Plaintiff will be irreparably harmed and without a proper remedy at law unless a permanent injunction enjoining defendants’ proposed construction is granted.

III. DISCUSSION

It is a well established principle that restrictive covenants, although not favored by the law, are legally enforceable. Rader v. Deshler, 28 Pa. D. & C.4th 40 (1996). Restrictive covenants are to be strictly construed against the grantor and ambiguities shall be resolved in favor of the property owner. Schulman v. Serrill, 432 Pa. 206, 211, 246 A.2d 643, 646 (Pa. 1968); Burns v. Baumgardner, 449 A.2d 590,593 (Pa. Super. 1982). In addition, the appellate courts of our Commonwealth have consistently held that restrictive covenants which restrict or apply to the erection or use of buildings or other structures are lawful and enforceable. McCandless v. Burn, 104 A.2d 123, 126 (Pa. 1954). Included within restrictive covenants which our courts have held to be enforceable are those which require preapproval of building plans. Estate of Hoffman v. Gould, 714 A.2d 1071,1073 (Pa. Super. 1998); Harmon v. Burow, 263 Pa. 180, 106 A. 310 (Pa. 1919). In construing restrictive covenants, the court shall give effect to the intention of the parties as ascertained from consideration of the surrounding circumstances, the parties’ situation, the objectives they had in view of the development, and the nature of the subject matter. Estate of Hoffman, 714 A.2d at 1073.

In the case now before the court, we find that restrictive covenant 5 states in plain, simple and understandable language that all building plans must be preapproved by developer prior to the commencement of construction. The plans further put all property owners on notice that developer has great leverage and control over the approval or disapproval of building plans and expressly states that plans may be disapproved on purely aesthetic grounds. As such, all property owners are on notice that any and all desired building plans are subject to the subjective discretion of developer.

In reaching this conclusion, we are guided by the Superior Court’s decision in the case of Estate of Hoffman v. Gould, supra., a case which originated from this court. In the Estate of Hoffman v. Gould matter, owners of a lot sought to construct a home on their lot that would have had a vinyl siding exterior. All of the deeds for lots in that subdivision were subject to restrictive covenants requiring submission of plans and specifications to the developer for preapproval. The restrictive covenants did not delineate any criteria or specific conditions necessary for obtaining approval. These restrictive covenants did not specifically prohibit vinyl siding, nor require any specific building or siding materials.

In that case, the developer denied the plans on the basis that the exterior of the home must be sided with wood siding and not vinyl. The owners refused to comply. This court denied the developer’s request for an injunction, finding in favor of the owners, in part because the home proposed would look similar to or better than others in the development. On appeal, the Superior Court overruled this court’s decision holding that the developers had the absolute right to decide the materials to be used in construction, including exterior siding.

In reaching its decision, the Superior Court noted that although restrictive covenants are to be construed strictly and in favor of the property owner, the Pennsylvania Supreme Court in Harmon v. Burow, supra., had previously established that a covenant requiring the preapproval of plans and specifications for a residence by a developer prior to construction is valid and enforceable. Estate of Hoffman, 714 A.2d at 1073 (citing Harmon v. Burow, 106 A. 310 (Pa. 1919). Based upon Harmon, the Estate of Hoffman court held that as long as the developer’s refusal to approve building plans was not based on a capricious or unreasonable act, in view of the circumstances and evident purpose of the restrictive covenant as determined by the facts of each specific case, the owner is bound by the term of the covenant and the resulting decision of the developer after review of the building plans. Id.

In the case at bar, the defendants are in violation of covenant 5 as a result of their failure to submit plans and receive developer’s approval for same prior to the commencement of construction. In addition, the decision of developer to deny defendants’ building plans in this case after construction had started was not capricious or unreasonable. Developer testified credibly in this matter that he denied the building plans in order to ensure conformity in the character of the neighborhood and to preserve and protect property values. Developer also testified that he had previously denied building plans for modular homes in the past and that there are no modular or prefabricated homes within the Shelbrooke Estates Development.

The testimony of the plaintiff’s expert, Thomas McKeown, also indicated that there is a negative stigma in the marketplace with respect to modular homes. Such stigma often results in stick-built homes and properties which neighbor modular homes having lesser resale values than those that are not near modular residences.

The fact that developer has consistently turned down requests for construction modular homes in the development in the past further evidences the reasonableness of developer’s actions in denying defendants’ request to do so. If defendants’ plans had not been denied, those individuals who had been turned down in the past and were required to modify their building plans could come forward with complaints.

The aesthetics of defendants’ proposed home also support the reasonableness of developer’s decision to reject the defendants’ plans. As testified to by the plaintiff and Mr. McKeown, the homes in Shelbrooke Estates have similar and distinctive architectural features, including hip or gable roofs, multiple roof lines, brick, stone or stucco facades and no large front porches. Furthermore, none of the homes within the Shelbrooke Estates Development are of a single, rectangular shape and style like that being proposed by defendants. Pursuant to the protective covenants in effect in this case, developer was within his rights to reject defendants’ plans based solely on the rectangular shape and style of the proposed residence.

We also feel compelled to address several of the issues defendants have raised in their defense, none of which we find to have any merit. First, the defendants claim ignorance of the plan review requirement. However, we find that the evidence presented supports a conclusion that the defendants knew or should have known of the covenant requiring plan approval. Persaud acknowledged receiving copies of the restrictive covenants at the time he and Mr. Lim signed the agreement of sale and again at the time of closing. The fact that he chose not to read the covenants cannot now be raised as a shield to protect him from his own shortcomings. Additionally, defendant’s cousin had built a home in Shelbrooke Estates and had received prior plan approval from developer before commencement of construction. Additionally, the deed into Persaud and Mr. Lim for the lot contained notice of the applicability of the restrictive covenant as did the deed from Persaud and Mr. Lim to Persaud and Jaiks Perso Corporation. Further, Persaud, as an individual who earns a living handling real estate closings, either knew of the covenant or should have known better. Regardless, his ignorance of recorded covenants which were referenced in the chain of title is not an excuse as a mere recording is sufficient notice.

Finally, defendants also claim that conformance with the requirements of developer is an economic hardship. The Superior Court in the Estate of Hoffman case specifically addressed this issue. In that case, the court required adherence to the requirement of developer to utilize wood siding instead of vinyl, despite the owner’s contention that doing so was an economic burden. In addition to refusing to accept an economic hardship excuse for not conforming to a developer’s requirement, the Superior Court in the Estate of Hoffman matter also refused to be swayed by the owner’s argument that its proposed residence was compatible and in some cases more attractive than others in the development. The Superior Court clearly held that building plan approval reserved to the developer by restrictive covenant is entirely enforceable, despite economic hardship or the owner’s own aesthetic view. Estate of Hoffman, 714 A.2d at 1073.

Based on the Superior Court’s holding in the Estate of Hoffman, we find that defendants in this matter bore full responsibility for any economic hardship they may claim. As indicated above, defendants had ample notice of the covenants prior to construction and purchase of the modular home. Testimony at the hearing indicated that defendants had expended $14,000.00 as a deposit on the home in March or April of 2010, but that the home could be cancelled prior to deliveiy suffering a forfeit of the deposit. Regardless of this option, the defendants chose to pay for the home in full and have it delivered despite having been put on notice by developer that the plans required prior approval. As such, defendants are responsible for any economic hardship which they have imposed upon themselves. Accordingly, we enter the following order.

ORDER

And now, October 15, 2010, following hearing in this matter, it is hereby ordered that defendants, Jaiks Perso Corp. and David Persaud, are hereby permanently enjoined from construction of a residence located on lot 101, Reish Road, Shelbrooke Estates, Stroud Township, Monroe County, Pennsylvania without obtaining prior written approval from developer of defendants’ construction and site development plans as required in the restrictive covenants of record. In addition, defendants are enjoined from constructing a modular home on the premises in question and shall remove the modular home components presently existing on the lot within thirty (30) days of the date of this order.


author: BOCCABELLA, J,

text:
    Commonwealth v. Crespo

      C.P. of Berks County,
    no. 4611/09.

      Douglas A. Rhoads, assistant district attorney, and Alisa R. Hobart, district attorney, for Commonwealth.

      Eric J. Taylor, for defendant.
    October 28, 2010
   BOCCABELLA, J,

On February 19, 2010, following an omnibus pretrial hearing in the above captioned matter, this court denied the defendant’s motion for suppression of evidence regarding his statement made during initial detention, but granted the motion for suppression of evidence regarding his statement at the hospital, and the matter was listed for trial. On March 9, 2010, after a one (1) day bench trial, the defendant was found guilty of two (2) counts of driving under the influence of alcohol and accidents involving damage to unattended vehicle or property.

On April 29, 2010, this court sentenced the defendant, Hemy Alcide Crespo, to not less than ninety (90) days nor more than six (6) months incarceration in the Berks County Jail System and a fifteen hundred dollar ($1,500.00) fine for the DUI and a three hundred dollar ($300.00) fine for accidents involving damage to unattended vehicle or property.

On May 5, 2010, the defendant, by and through his counsel, Eric J. Taylor, Esquire, filed a post-sentence motion, which was denied by this court on June 7,2010. On July 2, 2010, the defendant, by and through counsel, filed a notice of appeal to the Superior Court of Pennsylvania. On July 9, 2010, this court ordered the defendant as appellant to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On July 20, 2010, defendant, through his counsel, filed his concise statement. Defendant raises the following issues for appellate review:

1. Whether the evidence was insufficient to establish that sppellant was guilty of driving inder the influence of alcohol or controlled substance, highest rate of alcohol, 75 Pa.C.S.A. § 3802(c), because there was insufficient evidence that appellant’s alcohol concentration was . 16 or higher within the requisite two hours after he had driven, operated, or been in actual physical control of the vehicle.
2. Whether the evidence was insufficient to establish that appellant was guilty of accidents involving damage to unattended vehicle or property, 75 Pa.C.S.A. § 3745(a), because there was no evidence that the car appellant was driving collided with any vehicle or other property which was unattended, that this collision resulted in any damage to that property, and/or that the owner of the property was not notified.
3. Whether the suppression court erred by denying appellant’s motion to suppress appellant’s statements in violation of Miranda v. United States, 384 U.S. 436 (1966), and its federal and Pennsylvania progeny, where appellant was in police custody, the police asked questions which were likely to elicit incriminating answers, and where the police did not inform him of his Miranda rights and/or where the commonwealth failed to present any evidence regarding the challenged statements from May 21,2009, the day in question, but rather only presented evidence regarding statements that appellant gave on May 20, 2009.

FACTUAL SUMMARY

On May 21, 2009, at approximately 1:22 a.m. Officer Michael Perkins of the Reading Police Department was on patrol when he was detailed to respond to a hit and run crash on the 400 block of South 5th Street. Upon arriving, Officer Perkins did not see an accident, but saw that there was debris around a tree and a trail of fluids from that tree heading north on South 5th Street. Officer Perkins Stated that he followed the trail of fluids to the intersection of Wood and Bingaman Streets, where he located a blue Ford pickup truck with heavy front-end damage. Officer Perkins said that he found pieces of the vehicle like the bumper, grill, and possibly the undercarriage laying in the street and on the sidewalk. He also observed that the car was leaking fluids and that there was still steam and smoke coming from the engine compartment of the vehicle.

Officer Perkins ran the license plate of the truck, which came back to the defendant. Officer Perkins put out a broadcast for possible driver information, and shortly thereafter, Officer Perkins was radioed by Officer James Burkhardt and Officer Eric Suydam in regards to two (2) people detained at the intersection of Riverfront and South 5th Streets. Officer Perkins responded to the radio broadcast and found the defendant, Henry Alcide Crespo, and Melissa Prestash, whom the defendant lives with. Officer Perkins stated that the defendant had several lacerations on his forehead and right side of face, which were still bleeding, along with some blood on his shirt, and that Ms. Prestash had just a few scrapes. He then inspected the interior of the truck, observing that both air bags were deployed and that there was some blood on the driver side air bag, steering wheel, and dashboard. Officer Perkins also stated that there was blood on the center console.

The defendant testified and stated that he and Ms. Prestash were drinking at a bar called Maria’s that night. He stated that he had about seven (7) drinks that night and that Ms. Prestash had about three (3) drinks. He said that he drove in his truck to the bar, but that Ms. Prestash drove after they left. The defendant stated that he didn’t drive since he had a CDL license and that he had drank too much. He stated that they got into a verbal argument while Ms. Prestash was driving. The defendant testified that after she refused to stop the vehicle, that he took his seat belt off and grabbed the steering wheel with his right arm, in an attempt to pull the vehicle over. He stated that this caused Ms. Prestash to hit the gas. The defendant testified that he blacked out on impact. He said that he met the police officers after Ms. Prestash flagged them down in order to get help, since he was bleeding heavily. The defendant stated that he left the scene of the accident since nobody was around and that it was dark. He also admitted to stating that he didn’t want to get Ms. Prestash in trouble, in order to protect her, since she is a recovering addict who requires methadone.

Officer Perkins attempted to speak to the defendant, who he found to have a heavy odor of alcohol coming from his person. Officer Perkins attempted to ask the defendant some questions, but after the first question, he said that the defendant replied with some derogatory remarks and was uncooperative. Officer Perkins stated that it was clear to him that the defendant didn’t want to speak to him and was walking towards Ms. Prestash in an attempt to talk to her, when the defendant screamed continuously that he didn’t want to get Ms. Prestash in trouble and that he would take the “rap” for whatever happened. Officer Perkins stated that the defendant was not in handcuffs at the time of the statement and that it was not in response to a question posed to him. Officer Perkins said that he does not believe the defendant was read his Miranda rights and that he was not free to walk away at that point.

Defense counsel stipulated that the defendant appeared highly intoxicated andthathe couldn’t safely drive. Further, both parties stipulated that the defendant was taken to St. Joseph Medical Center for his blood to be tested, it was drawn at 3:03 a.m. and it revealed a BAC of 0.259.

DISCUSSION

The defendant has raised three (3) separate and distinct issues for appellate review. The first claim is that there was insufficient evidence to establish that the defendant’s alcohol concentration was .16 or higher within the requisite two (2) hours after he had driven, operated, or been in actual physical control of the vehicle. “In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inference therefrom, the trier of fact could have found every element of the crime charged beyond a reasonable doubt.” Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008) (citation omitted).

In applying this standard, we bear in mind that the Commonwealth may sustain its burden by means of wholly circumstantial evidence; that the entire trial record should be evaluated and all evidence received considered, whether or not the trial court’s rulings thereon were correct; and that the trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence. Commonwealth v. Kennedy, 598 Pa. 621, 629-30, 959 A.2d 916, 921 (Pa. 2008).

“The established facts and circumstances do not have to be absolutely incompatible with the accused’s innocence, but any doubt is for the factfinder unless the evidence is so weak and inconclusive that no probability of fact can be drawn from the totality of the circumstances as a matter of law.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (internal citations and quotations omitted).

The motor vehicle code provides in pertinent part:

(c) Highest rate of alcohol. — An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 75 Pa. C.S.A. § 3802 (c).

“The Commonwealth can establish that a defendant had ‘actual physical control’ of a vehicle through wholly circumstantial evidence.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008), quoting Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa. Super. 1995). A determination of actual physical control is based on the totality of the circumstances. Commonwealth v. Williams, 941 A.2d 14,27 (Pa. Super. 2008), quoting Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005). “Our precedent indicates that a combination of the following factors is required in determining whether a person had ‘actual physical control’ of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008), quoting Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005).

Here, through testimony, the commonwealth has presented evidence in order to show that the defendant had actual physical control of the vehicle. First of all, the defendant admitted that he “grabbed the steering wheel before the accident.” Notes of Testimony, March 9, 2010, p. 37. Fie stated that he did this in order to “try to pull her over.” N.T. at p. 32. That is in itself sufficient to show actual physical control. Flowever, the commonwealth also presented other testimonial evidence from Officer Perkins to show that the defendant was the driver of the truck and sitting behind the wheel. Officer Perkins stated that there was blood found on the driver side airbag, steering wheel, and dashboard the car. N.T. at p. 8-9, 13. Officer Perkins testified that when he first saw the defendant, the defendant had several lacerations on his forehead and right side of the face, which were still bleeding, along with some blood on his shirt, while Ms. Prestash had just a few scrapes. N.T. atp. 8, 23; See also Commonwealth Exhibit No. 3, March 26,2010, photo #9-# 11. Thus, its reasonable to infer based on the blood on the driver side of the defendant’s truck and the defendant’s injuries, that the defendant was driving while sitting behind the wheel. As such, there is ample evidence to satisfy the critical element of physical control. Next, this court must evaluate whether the commonwealth can make out the critical time element.

The seminal case regarding this type of factual situation and the time element is Commonwealth v. Segida, 912 A.2d 841 (Pa. Super. 2006), reversed in part, 985 A.2d 871 (Pa. 2009). In Segida, the officer received a dispatch to investigate a one (1) vehicle accident. Segida, 912 A.2d at 842. Upon arriving, the officer observed the defendant’s car in some brush, with the defendant and his brother standing outside the car. Id. The defendant admitted that he had been driving from a local club when he had lost control while arguing with his brother. Id. The defendant admitted to drinking alcohol that night and the officer testified to detecting a strong odor of alcohol coming from him. Id. The defendant’s blood was eventually drawn at an unknown time, which test revealed a BAC of .326. Id. The defendant was subsequently found guilty of 3802(c), among other charges. Id. at 842-43.

The Superior Court stated that “[w]hile it may not be absolutely essential to draw blood within two hours from the time appellant last drove to satisfy the elements of 75 Pa.C.S. § 3802(a)(2), (b) or (c), the Commonwealth would certainly be obligated, as a prerequisite to conviction, to establish that appellant had a BAC of. 16 or higher within two hours of driving.” Id. at 845. Discussing the timing element, the Superior Court stated that “it would be essential to establish, within some degree of reasonable certainty, the time appellant last drove, as well as when the blood or breath sample was taken.” Id. at 846; see also Segida, 985 A.2d at 879 (“The necessity for the two hour time limit in subsections 3802(a)(2), (b), and (c) is grounded in the practical impossibility either of measuring blood alcohol level precisely at the time of driving or of calculating the exact blood alcohol level at the time of driving from a single blood alcohol measurement taken at some point in time after driving.”) (emphasis in original)); see also Commonwealth v. Duda, 592 Pa. 164, 170, 923 A.2d 1138, 1141 (Pa. 2007).

In a challenge to the sufficiency of the evidence, the Superior Court reversed the defendant’s conviction as to 2802(c). Id. at 844. The Superior Court stated that the commonwealth could not prove that the blood was drawn within the two (2) hour window, especially in light of their failure to indicate the time of the blood draw. Id. at 845. The Superior Court noted that the commonwealth was also unable to prove, with reasonable certainty, when the defendant last drove. Id. at 846. In discussing what must be shown to imply that an accident occurred recently in order to establish a time window, the Superior Court stated:

Officer Hillyard did not provide testimony from which recency wouldbe implied, such as the factthatthe engine was warm, or for example, that a damaged radiator was still steaming. Evidence such as this would have allowed the inference that the accident had occurred very recently and allow the factfinder to conclude that appellant’s intoxication at that time, proven by Officer Hillyard’s observations and failing field sobriety tests, was indicative of his state of intoxication at the time he was driving. Id. at 848; See also Commonwealth v. Rakowski, 987 A.2d 1215 (Pa. Super. 2010) (finding that the Commonwealth provided adequate circumstantial evidence in order to establish a time window).

This court finds that this case is distinguishable from Segida, as the commonwealth offered evidence to prove when the blood draw occurred and also evidence that the accident occurred recently. Officer Perkins was dispatched to respond to the scene of the accident at approximately 1:22 a.m. N.T. at p. 4. He saw debris from the accident and followed a trail of fluids to the defendant’s vehicle. N.T. at p.5. Officer Perkins testified that upon observing the defendant’s vehicle, he found pieces of the defendant’s vehicle laying on the street and sidewalk. N.T. at p.5. He stated that the defendant’s vehicle was leaking fluids and that there was still steam and smoke coming from the engine compartment. N.T. at p. 6. The defendant’s blood was drawn at 3:03 a.m. and resulted in a BAC of 0.259. N.T. at p. 12; see also Commonwealth Exhibit No. 2. The defendant also testified that he first met the police officers after Ms. Prestash flagged them down in order to get him help, since he was bleeding heavily. N.T. at p. 33-34.

In this case, due to the 3:03 a.m. blood draw, in order to prove the time element, the commonwealth must prove that the defendant last drove within approximately nineteen (19) minutes from the dispatch that occurred at 1:22 a.m. This court, based on the testimony of Officer Perkins and the defendant, finds that the commonwealth can prove that the accident occurred shortly after the dispatch. As such, there is ample evidence to satisfy the critical time element and to sustain a conviction regarding the 3802(c) charge.

The defendant’s second claim is that the evidence was insufficient to establish that the defendant was guilty of accidents involving damage to unattended vehicle or property. Defendant argues that there is no evidence proving that the property, the tree, was damaged, and if the tree was damaged, that it was unattended or that someone other than the defendant or Ms. Prestash owned the tree.

See defendant’s post-sentence motions, May 5, 2010, p. 4.

The motor vehicle code provides in pertinent part:

(a) General rule.-The driver of any vehicle which collides with or is involved in an accident with any vehicle or other property which is unattended resulting in any damage to the other vehicle or property shall immediately stop the vehicle at the scene of the accident or as close thereto as possible and shall then and there either locate and notify the operator or owner of the damaged vehicle or other property of his name, address, information relating to financial responsibility and the registration number of the vehicle being driven or shall attach securely in a conspicuous place in or on the damaged vehicle or other property a written notice giving his name, address, information relating to financial responsibility and the registration number of the vehicle being driven and shall without unnecessary delay notify the nearest office of a duly authorized police department. Every stop shall be made without obstructing traffic more than is necessary. 75 Pa.C.S.A. 3745(a).

The commonwealth must prove that: “1) someone was operating a motor vehicle when an accident occurred causing damage to property, and 2) the operator of the motor vehicle fled the scene of the accident.” Commonwealth v. Verticelli, 550 Pa. 435, 445, 706 A.2d 820, 824 (Pa. 1998).

As discussed above, the commonwealth has proven that the defendant was operating the motor vehicle. In regards to damage to the property, Officer Perkins testified that he saw debris around a tree and a trail of fluids that led to the defendant’s vehicle. N.T. at p. 4-5. Upon arriving at the vehicle, Officer Perkins observed that the truck had heavy front-end damage, and that pieces of the vehicle like the bumper, grill, and possibly the undercarriage were laying in the street and sidewalk. N.T. at p. 5. In regards to fleeing the scene of the accident, the defendant’s car was found at the intersection of Wood and Bingaman Streets, whereas the accident with the tree occurred on the 400 block of South 5th Street. N.T. at p.4-5. Also, the defendant testified that he left the scene of the accident since nobody was around and it was dark. N.T. at p. 34. Lastly, this court notes that ownership of the tree is irrelevant. As such, the evidence is clearly sufficient to sustain the conviction of 3745 (a).

Lastly, the defendant contends in his third and final claim that this court erred by denying the defendant’s motion to suppress regarding his statement during initial detention. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); see also Pa.R.Crim.P. 581(H). "[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); see also Commonwealth v. CostaHernandez, 802 A.2d 671, 675 (Pa. Super. 2002); see also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993), citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

Pennsylvania courts have held that there are three levels of interaction between citizens and police officers: (1) mere encounter, (2) investigative detention, and (3) custodial detention. See Commonwealth v. Krisko, 884 A.2d 296 (Pa. Super. 2005), citing Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005). “A mere encounter between police and a citizen need not be supported by any level of suspicion, and carries] no official compulsion on the part of the citizen to stop or to respond.” Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000), citing Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa. Super. 1998). “However, [i]f the police action becomes too intrusive, a mere encounter may. escalate into an investigatory [detention] or seizure.” Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000), citing Commonwealth v. Boswell, 554 Pa. 275,283, 721 A.2d 336, 339-40 (Pa. 1998). To determine whether a mere encounter rises to the level of an investigatory detention, “the pivotal inquiry is whether, considering all the facts and circumstances evidencing the exercise of force, a reasonable man would have thought he was being restrained.” See Commonwealth v. Mendenhall, 552 Pa. 484, 489, 715 A.2d 1117, 1120 (Pa. 1998), citing Commonwealth v. Jones, 474 Pa. 364, 372-73, 378 A.2d 835, 840 (Pa. 1977); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980).

“In this Commonwealth, the test for custodial interrogation is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by said interrogation.” Commonwealth v. Proctor, 657 A.2d 8, 10 (Pa. Super. 1995) citing Commonwealth v. Gonzalez, 519 Pa. 116, 124, 546 A.2d 26, 29 (Pa. 1988), Commonwealth v. Jermyn, 516 Pa. 460, 481, 533 A.2d 74, 84 (Pa. 1987), Commonwealth v. Reed, 583 A.2d 459, 462-63 (Pa. Super. 1990). “A person is deemed in custodial interrogation if he is placed in a situation in which he reasonably believes that his freedom of action is restricted by the interrogation.” Commonwealth v. Zogby, 689 A.2d280,282 (Pa. Super. 1997) citing Commonwealth v. Williams, 539 Pa. 61, 74, 650 A.2d 420 (Pa. 1994), Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (Pa. 1977). “[T]he test focuses on whether the individual being interrogated reasonably believes his freedom of action is being restricted.” Commonwealth v. Gibson, 553 Pa. 648, 662-63, 720 A.2d 473, 480 (Pa. 1998), quoting Commonwealth v. Williams, 539 Pa. 61,74, 650 A.2d 420, 427 (Pa. 1994).

“Once it is established that a defendant is in custody (or his freedom of movement is curtailed in any significant way), Miranda warnings are necessary as a condition precedent to the admission of the accused’s inculpatory statements.” Commonwealth v. Proctor, 657 A.2d 8, 10 (Pa. Super. 1995), citing Commonwealth v. Gonzalez, 519 Pa. 116, 124, 546 A.2d 26, 29 (Pa. 1988), Commonwealth v. Jermyn, 516 Pa. 460, 481, 533 A.2d 74, 84 (Pa. 1987), and Commonwealth v. Reed, 583 A.2d 459, 462-63 (Pa. Super. 1990). While this was not a traffic stop case, the United States Supreme Court has stated that the “noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988) quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984). “The court reasoned that:

[A]though the stop was unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops typically are brief, unlike a prolonged station house interrogation. Second, the court emphasized that traffic stops commonly occur in the “public view,” in an atmosphere far “less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.” Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988) citing Berkemer v. McCarty, 468 U.S. 420, 438-39 (1984).

Miranda warnings are required “only if the police questioning constitutes interrogation; that is, likely or expected to elicit a confession or other incriminating statements.” Commonwealth v. Bracey, 461 A.2d 775, 780 (Pa. 1983) (citations omitted). The Pennsylvania Supreme Court has recognized that “procedural safeguards were necessary to protect a suspect from the inherently compelling pressures of in-custody interrogations ‘which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’” Commonwealth v. Bracey, 501 Pa. 356, 365, 461 A.2d 775, 780 (Pa. 1983) (emphasis supplied), quoting Miranda v. Arizona, 284 U.S. 436,467(1966).

In considering the voluntariness of a confession and/ or waiver of Miranda rights, the trial court makes an evaluation under a totality of the circumstances analysis. Commonwealth v. Gwynn, 555 Pa. 86, 101, 723 A.2d 143, 150 (Pa. 1999) citing Commonwealth v. Goodwin, 460 Pa. 516, 519, 333 A.2d 892, 894-95 (Pa. 1975). Regarding admissibility, confessions are to be considered based “on their evidentiary trustworthiness.” Commonwealth v. Graham, 408 Pa. 155, 182 A.2d 727 (Pa. 1962). “The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily.” Commonwealth v. Watts, 465 A.2d 1288 (Pa. Super. 1983), affirmed, 489 A.2d 747 (Pa. 1985). The Pennsylvania Supreme Court has stated that an “ [interrogation occurs where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the subject.” Commonwealth v. Gwynn, 555 Pa. 86, 99, 723 A.2d 143, 149 (Pa. 1999) citing Commonwealth v. Hughes, 536 Pa. 355, 370, 639 A.2d 763, 111 (Pa. 1994).

However, the Pennsylvania Supreme Court has stated that “[I]t is well established in Pennsylvania that volunteered or spontaneous utterances are admissible even though the declarant was not ‘Mirandizedffi Commonwealth v. Baez, 554 Pa. 66, 85, 720 A.2d 711, 720 (Pa. 1999) (citations omitted). Thus, if defendant makes speaks, unsolicited by police, Miranda warnings are unnecessary. Commonwealth v. Gibson, 553 Pa. 648, 663, 720 A.2d 473, 480 (Pa. 1998) (“Furthermore, Gibson’s statements to the police during the search of his vehicle were made voluntarily and were not responsive to any queries by the officers; rather Gibson initiated the conversation.”) citing Commonwealth v. Abdul-Salaam, 544 Pa. 514, 532, 678 A.2d 342, 351 (Pa. 1996), certiori denied, 520 U.S. 1157 (1997); See also Commonwealth v. King, 554 Pa. 331, 335, 721 A.2d 763, 775 (Pa. 1998). “It is well established that a statement which is spontaneously volunteered is admissible notwithstanding a prior assertion of constitutional rights.” Commonwealth v. Bracey, 501 Pa. 356, 370, 461 A.2d 775, 782 (Pa. 1983) citing Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (Pa. 1980).

It is the defendant’s position that once he was detained at the intersection of 2nd and Riverfront Streets and questioned, that he was entitled to Miranda warnings. See defendant’s memorandum of law in support of defendant’s omnibus pretrial motion, p.2. However, this position must fail for several reasons. To begin, the police had sufficient facts to conduct an investigatory detention, as a vehicle registered to him was recently involved in a vehicle accident and nobody was at the scene. N.T. February 3, 2010, p. 4-5. Also, the defendant was not in custody, as the stop of the defendant was temporary and noncoercive, much like a traffic stop. See Bruder, 488 U.S. at 10. Also, the defendant was not in handcuffs during the detention. N.T. at p.7. However, even if the defendant was in custody, the defendant was not being questioned when he made his statements. Officer Perkins only asked the defendant one (1) question since the defendant replied with some derogatory remarks. N.T. at p. 9. As the defendant was walking away, the defendant made his statements, screaming continuously that he did not want to get Ms. Prestash in trouble and that he would take the “rap” for whatever happened. N.T. at p.6-7.

As such, the evidence is clearly sufficient to conclude there the defendant’s stop was under the category of an investigative detention. However, even if the defendant was in custody, he made his statements when he wasn’t being spoken to, making his statements a gratuitous utterance, where Miranda warnings are unnecessary. See Gibson, 720 A.2d at 480.

The defendant also seeks relief due to Officer Perkin’s statement during the suppression hearing that the defendant’s statements occurred on May 20,2009, not May 21, 2009. This court finds that there was ample testimony provided that the statements in relation to the incident happened on May 21,2009 and that the misstatement was not prejudicial to the defendant. As such, the evidence is clearly sufficient to conclude that the defendant’s Miranda rights were not violated.

For the foregoing reasons this court respectfully requests defendant’s appeal be denied and his judgment of sentence affirmed.

      . No evidence was presented regarding any statements made at the hospital.

      . 75 Pa.C.S.A. § 3802(a)(1) and (c).

      . 75 Pa.C.S.A. § 3745(a).

      . When the Supreme Court in Segida granted the commonwealth’s allowance of appeal in the case, the commonwealth only sought review of the 3802(a)(1) charge, leaving the Superior Court’s analysis regarding the 3802(c) charge to stand. See Segida, 985 A.2d at 874.

      . This court recognizes that during the February 3, 2010 hearing, it was under the impression that the defendant had been arrested at the time of the statements and made its legal findings with that fact in mind. After viewing the transcript and finding that the defendant was in fact not in handcuffs, the court will proceed in this appeal considering the defendant was only being detained, not arrested. See order regarding the defendant’s motion for suppression of evidence, dated February 19, 2010.


text:
    McGinn, Smith & Co., Inc. v. Chang

      Christine M. Debevec, Michael B. Tolcott, and Gilbert B. Abramson, for plaintiffs.

      Garth Noyt and Glenn S. Gitomer, for defendants.
    November 16, 2010
   FOX/.,

FACTS and PROCEDURAL HISTORY

William Lex, appeals this court’s order of August 25, 2010 which partially granted the petition to confirm arbitration award filed by Duckyu Chang’s and Kee Chang, and denied petition to vacate the arbitration award filed by Lex. The petitions before this court originated from an arbitration proceeding (“arbitration”) before the Financial Industry Regulatory Authority (“FINRA”). The Changs’ filed an action raising claims of breach of contract and fraud against McGinn, Smith & Co., Inc. (“MSC”), David L. Smith and William Lex. The Changs filed a proceeding before the FINRA arbitration. The allegations claimed are related to the conduct of MSC, Smith and Lex in the securities industry. On December 31, 2009, after a ten-day evidentiary hearing, the FINRA arbitration panel unanimously rendered an award finding MSC, Smith, and Lex, jointly and severally liable to the Changs in the amount of $805,110. On January 29, 2010, MSC, Smith, and Lex filed a joint petition to vacate the arbitration award. On February 18, 2010, the Changs filed an answer to the joint petition to vacate and filed a petition to confirm arbitration award.

During the pendency of these cross petitions, the U.S. District Court entered a temporary restraining order in the case of Securities and Exchange Commission v. McGinn, Smith & Co., Inc., et. al., Civil Action No. 10-CV-00457-GLS-RFT, on April 20, 2010. At the oral argument before this court, MSC and Smith contended that the District Court order resulted in a stay in all pending actions including these cross petitions. The Changs’ argued that the District Court order should not stay this court’s determination as to whether the arbitration award should be confirmed or vacate; that the stay only affected the payment of any such award. The arbitration award found against MSC/Smith and Lex jointly and severally. Lex argued that should this court find that the District Court order did in fact result in a stay of these proceeding, then he should have the benefit of that stay and this court should not enter a partial order. This court directed the parties to submit to memorandum on this issue. In addition to arguing the effect of the District Court order, this court also heard argument on the underlying petitions to vacate and confirm. Thereafter, this court entered an order which stayed the petitions pending as to MSC and Smith. This court found that the District Court order did not affect the Petitions regarding Lex. This court denied the Lex petition to vacate and granted the Changs’ petition to confirm. Lex. This appeal followed.

DISCUSSION

I. Issue ofU.S. District Court Order

In a matter involving MSC and Smith, the District Court entered an order which stated:

[N]o person or entity...shall take any action...to interfere with the taking control, possession, or management of the assets, including but not limited to the filing of any lawsuits, liens or encumbrances or bankruptcy cases to impact the property and assets subject to this order.

Lex was not a party in that action. That action involved a complaint by the SEC against MSC and Smith. Although Lex does not contend that he was a party in that action, he argues that any decision by this court on the underlying arbitration award would in all likelihood affect MSC and Smith, thus violation the District Court order. He further argued that even though the arbitration award held MSC/ Smith and Lex jointly and severally liable, it would be unfair and have a devastating effect on him should this court allow the matter to proceed and find against him. This court does not agree. A review of the case law clearly does not support Lex’s position. The Changs’ argued that the District Court order should not stay this court’s determination even as to MSC/Smith.

The Changs’ directed this court’s attention to Commodity Futures Trading Com. v. Chilcott Portfolio Mgmt. ,713 F.2d 1477 (10th cir. 1983). In Chilcott, the United States Tenth Circuit Court reversed the District Court’s grant of stay, and allowed individual investor actions against the company and third parties to proceed, despite a receivership being in place. Id. The language of the order in Chilcott is similar to the language in the receivership order inhere. The Chilcott court held, “the right to proceed in court should not be denied except under the most extreme circumstances.” Id. (quoting Klein v. Adams & Peck, 436 F.2d 337, 339 (2d Cir. 1971)), and that “these precautions are of particular importance where, as here, restraints on other courts are contemplated.” Id. Lex does not cite any case law with facts similar to this case.

Instead, both parties compare the SEC stay at issue herein, to the stay under section 362 of the Bankruptcy Code. Upon review of section 362, and McCartney v. Integra Nat’l Bank North, 106 F.3d 506, 509 (3d Cir. 1997), a case both parties cite, this court does not find reason for the stay to apply to Lex. “Although the scope of the automatic stay is broad, the clear language of section 362(a) stays actions only against a ‘debtor.’” Id. at 509; see also In re Exide Techs., 544 F.3d 196, 2008 (3d Cir. Sept. 19, 2008) (citing Collier on Bankruptcy for the proposition that when one defendant files a bankruptcy petition, the suit may proceed against non-debtor co-defendants). It is “universally acknowledged” that an automatic stay under § 362 may not be invoked by entities such as sureties, guarantors, co-obligors, or others with a similar legal or factual nexus to the debtor. McCartney, 106 F.3d at 509-510 (quoting Maritime Elec. Co., Inc., v. United Jersey Bank, 959 F.2d 1194, 1205 (3d Cir. 1991) (internal quotations omitted). This rule helps to insure that creditors obtain “the protection they sought and received when they required a third party to guaranty the debt.” Id. at 510 (quoting Credit Alliance Corp. v. Williams, 851 F.2d 119,121 (4th Cir. 1988). Lex is clearly not a debtor.

The prohibition against extending the automatic stay to non-debtor co-defendants has been liberalized in some cases where courts have found “unusual circumstances” exist. Id. The U.S. Court of Appeals for the Third Circuit has recognized two situations that constitute “unusual circumstances.” First, such circumstances exist where “there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be aj udgment or finding against the debtor.” Id. (quoting A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 999 (4th Cir. 1986)). These circumstances have generally been limited to actions against non-debtors who are entitled to absolute indemnity by the debtor for a judgment against them. In re Mid-Atlantic Handling Sys., LLC, 304 Bankr. 111, 128 (Bankr. D.N.J. 2003); see also McCartney, 106 F.3d at 510 (citing cases). Here, unusual circumstances do not exist. Lex is not entitled to absolute indemnity by MSC and Smith. Lex is an independently licensed broker, found liable for his own conduct by the arbitration panel in an award that found joint and several liabilty. Clearly the stay does not apply.

II. Confirmation of the Arbitration Award

Lex also contends that this court erred in its decision to deny his petition to vacate the award and grant the Changs' petition to confirm. An arbitration award cannot be vacated unless “it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” Borgia v. Prudential Insurance Company, 561 Pa. 434, 440, 750 A.2d 843, 846-847 (2000), citing Runewicz v. Keystone Ins. Co., 476 Pa. 456, 461, 463, 383 A.2d 189,192,193 (1978); see also 42 Pa.C.S.A. § 7341; Snyder v. Cress, 791 A.2d 1198 (Pa. Super. 2002), at 1201. Additionally, appellant “bears the burden to establish both the underlying irregularity and the resulting inequity by ‘clear, precise and indubitable evidence.’” Gargano v. Terminix International Co., 2001, 784 A.2d 188, 193 (Pa. Super. 2001). In light of the applicable standard of review in this matter, it is clear that this court’s order should be affirmed.

Lex raises various arguments in his contention that the award should be vacated, none of which permit this court to vacate the award. Lex contends that the arbitration panel incorrectly applied Pennsylvania Contributory Negligence Law to the case, and that such ignorance of the law should cause this court to vacate the award. Lex cites Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585, 589 (Pa. 1973), for the contention that our Supreme Court has stated that the phrase “other irregularity” in the process employed imports “such bad faith, ignorance of the law and indifference to the justice of the result” as would cause a court to vacate an arbitration award. Id. Lex misstates the law. In this context, irregularity refers to the process employed in reaching the result of the arbitration, not the result itself. A cognizable irregularity may appear in the conduct of either the arbitrator or the parties. McKenna v. Sosso, 745 A.2d 1, 4 (Pa. Super. 1999). Here, Lex has clearly not raised an issue of fraud, misconduct, corruption, or bad faith. Lex is left with the contention that the arbitrator’s interpretation of the law is so wrong that it is a “manifest disregard” of justice. Lex points to Alaia v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 928 A.2d 273 (Pa. Super. Ct. 2007), in support of this contention. This case is clearly distinguishable from the case here. There, arbitrators altered the plaintiffs’ claim by entering an award against a party from whom claimants had sought no relief, while, at the same time, failing to enter an award against a party from whom claimants had requested relief based upon the doctrine of respondent superior. The court held that “Thus, this procedural irregularity in the arbitration process itself warranted the judicial intervention of the lower court to rectify an unjust, inequitable and unconscionable award, in accordance with 42 Pa. C.S.A. § 7341.” Id. Importantly, the court in Alaia noted that “Our decision today does not in any way affect or undermine the vitality of our previous decisions in F.J. Busse Co., Inc. v. Sheila Zipporah, L.P, 879 A.2d 809 (Pa. Super. 2005), and Bridges PBT v. Chatta, 821 A.2d 590 (Pa. Super. 2003), in which the court concluded that the arbitration awards (if defective in any respect) involved permissible errors of law, and not an impermissible irregularity in the conduct of the arbitration process itself as is the case in this matter.” Id.

The arbitration panel conducted an evidentiary hearing which lasted ten days. The Changs contended they lost $3 million. They sought damages under theories of breach of contract and fraud. The arbitration panel found the Changs were in “definitive fault” and awarded $805,110. The arbitration award did not specify under which claims damages were awarded. Lex argues the factual and legal merits of the case. The arbitrators are the final judges of both law and facts. 42 Pa.C.S.A. §7341; Prudential Property and Cas. Ins. Co. v. Stein, 683 A.2d 683, (Pa. Super. 1969). Lex does not allege an impropriety in the arbitration process; instead he argues there were irregularities and inconsistencies in the award. Lex has failed to meet his burden. This court’s order of August 25, 2010 should be affirmed.

      . Duckyu Chang petitions this court as an individual and as trustee for Cumberland Pathology Associates, LLC