author: BACKENSTOE, P.J.,

text:
    Commonwealth v. $5,000 in U.S. Currency

      Richard R. Tomsho, deputy district attorney, for the Commonwealth.

      Leighton Cohen, for defendant Nancy Bernstein.
    October 17, 1990
   BACKENSTOE, P.J.,

On December 4, 1978, Sanford Bernstein was arrested and charged with the crime of criminal solicitation after he attempted to hire a “hit man” to kill his wife. He was convicted of the crime in September 1979, and despite numerous appeals, the conviction was never overturned. For the purposes of this forfeiture proceeding, Mr. Bernstein has agreed that the court may accept as proven that the $5,000 at issue here is the “down money” given as the initial payment for the contract killing.

In the present action, three claimants are attempting to show their legal rights to the $5,000. The Commonwealth has petitioned for the forfeiture of the money. In addition, Nancy Bernstein and Sanford Bernstein have each brought their own respective motions for the return of property.

At the hearing on the matter, Nancy Bernstein testified that on December 4, 1978, Sanford Bernstein obtained a check from the couple’s joint savings account which was in both their names. It was in the amount of $5,000. She also testified that she had not consented to this act and that he had forged her name to the check in order to obtain the cash.

The district attorney filed a petition for forfeiture of the $5,000 on June 1, 1990. Mr. Bernstein filed an answer to the Commonwealth’s petition alleging that the action was time-barred by the applicable statute of limitations. His answer also contained a motion for the return of property requesting the return of the $5,000 to him. Mrs. Bernstein filed an answer and a petition for the return of property in her own right. The arguments of the three interested parties were heard by this court.

Nancy Bernstein’s and Sanford Bernstein’s respective motions for the return of property are based on Pa.R.Crim.P. 324, which states:

“Rule 324. Motion for Return of Property
“(a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
“(b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.”

As interpreted by the Superior Court, on any motion for the return of property, the moving party must first establish entitlement to lawful possession, Rule 324(a). If this is shown, the burden then shifts to the Commonwealth to prove that the property at issue is contraband under Rule 324(b). See Commonwealth v. Pomerantz, 393 Pa. Super. 186, 573 A.2d 1149 (1990). As a result of this guidance, we will first examine whether either of the claimants, Sanford Bernstein and Nancy Bernstein, have established entitlement to legal possession of the $5,000. We will then examine whether the Commonwealth has met its burden of proving that the $5,000 is contraband and should therefore be forfeited to the Commonwealth.

Sanford Bernstein

We need not examine whether Sanford Bernstein has shown legal entitlement to the $5,000 because he failed to raise Rule 324 in a timely manner. He did not make any motion for the return of property in the lower court in post-verdict motions following conviction or at the time of sentencing. His right to make such a motion was therefore waived. See Commonwealth v. Setzer, 258 Pa. Super. 236, 392 A.2d 772 (1978).

In addition to Mr. Bernstein’s waiver of the Rule 324 motion, the Superior Court has previously upheld the forfeiture to the Commonwealth of “down money” such as the $5,000 in dispute in this case. In Commonwealth v. Coghe, 294 Pa. Super. 207, 439 A.2d 823 (1982), the appellant Coghe requested the return of money he had paid on a contract to have his wife killed. The Superior Court affirmed the lower court’s denial of the appellant’s petition and granted the Commonwealth’s petition for forfeiture, noting that “we deny the appellant’s outrageous attempts to have the ‘blood money’ returned to him.” Commonwealth v. Coghe, supra, 294 Pa. Super. at 210, 439 A.2d at 824 (1982). In the case at bar we conclude that Sanford Bernstein waived his right to a Rule 324 motion, and even if he had not done so, we would have denied his petition on the basis of the precedent set by Coghe, supra.

Nancy Bernstein

Nancy Bernstein has established her entitlement to lawful possession of the disputed funds through her testimony that the $5,000 was taken from her joint savings account by Mr. Bernstein without her consent. She also testified that Mr. Bernstein forged her name to the check in order to obtain the funds. Under Pennsylvania law, married couples own property jointly as tenants by the entirety. Neither spouse may independently appropriate entireties property to his or her own use to the exclusion of the other. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966). It has also been held that neither spouse, acting independently, may sever the estate by, for example, conveying part of the property away. Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975). Despite the Commonwealth’s claims to the contrary, Mr. Bernstein’s act of withdrawing the $5,000 without Mrs. Bernstein’s consent did not affect Mrs. Bernstein’s ownership of the $5,000 as a tenant by the entirety.

Mrs. Bernstein has a legal right to the $5,000 as a tenant by the entirety, without regard for Mr. Bernstein’s actions. In Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968), a wife authorized her nephew to make withdrawals from a bank account she held jointly with her husband. The Pennsylvania Supreme Court held that the husband was entitled to the disputed funds because he had never consented to the withdrawals. Like the husband in Cohen, Mrs. Bernstein never consented to Mr. Bernstein’s removal of the $5,000 from their savings account. She is still legally entitled to those funds as a result.

The Commonwealth

Having established Nancy Bernstein’s legal rights to the $5,000, under Pa.R.Crim.P. 324(b), the burden now shifts to the Commonwealth to show that the property at issue is contraband. In examining the Commonwealth’s case we must first address the question of whether this forfeiture petition is time-barred by an applicable statute of limitations.

The Commonwealth’s petition for forfeiture was brought on June 1, 1990, some 11 years after Sanford Bernstein was convicted of the crime of criminal solicitation. The applicable statute of limitations is 42 Pa.C.S. §5524(5), titled “Two year limitation,” which reads: “The following actions and proceedings must be commenced within two years: (5) an action upon a statute for a civil penalty or forfeiture.” Although this particular provision would seem to apply to the Commonwealth’s action in the present case, cases construing the statute provide otherwise.

In Commonwealth, Dept. of Transportation v. J. W. Bishop & Co., 497 Pa. 58, 439 A.2d 101 (1981), the Supreme Court of Pennsylvania held that statutes of limitation do not apply to government actions unless the statute under which an action is brought specifically provides for time limitations against the Commonwealth. This case followed the ancient doctrine of nullus tempus occurit regi, meaning “time does not run against the king.” The Commonwealth contends that ho statute authorizing forfeiture applies in this case, because the forfeiture action was brought under the common-law doctrine of derivative contraband. If no specific forfeiture statute applies in this case, the Commonwealth reasons, then no time limitations specifically running against the Commonwealth may apply either.

. The Commonwealth is correct in that this action is not based on any specific provision of a statute authorizing forfeiture, such as 42 Pa.C.S. §6801, which authorizes forfeitures pursuant to the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. §780-113 et seq. But under the doctrine of common-law forfeiture as applied in Pennsylvania, an item may be forfeited only if a statute prohibits the illicit activity in which such an item was used. “In order to determine whether property is contraband, therefore, reference must be made to the statute that outlaws the property or the particular use of the properly. ” Commonwealth v. Landy, 240 Pa. Super. 458, 463, 362 A.2d 999, 1001 (1976). (emphasis supplied) In the case at bar, the $5,000 is forfeitable because it was used to commit the crime of criminal solicitation. See 18 Pa.C.S. §902.

Although the proposed forfeiture in this case was brought in reference to the criminal solicitation statute, it nevertheless appears that the Commonwealth’s case is not time-barred. This is due to the fact that the criminal solicitation statute has no specific provisions conferring time limitations on the Commonwealth. In Commonwealth v. Seymour, 120 Pa. Commw. 423, 549 A.2d 246 (1988), the Commonwealth Court held that no statute of limitations applied to the Commonwealth’s divestment action because no specific time constraints against the Commonwealth were found in the divestment statute itself. Because no period of limitations against the Commonwealth is set forth in the criminal solicitation statute, we find that the Commonwealth’s action is not time-barred under section 5524(5).

Although section 5524(5) does not apply, in the interests of fairness we seek to apply a period of time limitation to the Commonwealth’s petition so that actions such as this may not be brought at any point in time. In an attempt to place some time constraints on the Commonwealth, we refer to 42 Pa.C.S. §5527, which places a six-year statute of limitations on actions not covered by section 5524(5).

The Commonwealth claims that the six-year limitation of actions mandated by section 5527 does not begin to run until Mr. Bernstein’s appeals were finalized. As a general statement this is correct. “In general, an appeal is not regarded as a new suit, but as a continuation of the original action or proceeding.” 24 C.J.S. Criminal Law §1660. See also, U.S. v. Claus, 5 F.R.D. 278 (D.C.N.Y. 1946). Since Mr. Bernstein’s second appeal to the Superior Court was not finalized until 1986, the Commonwealth’s action is not time-barred under section 5527 until 1992. We conclude that the Commonwealth’s action was not time barred by section 5527 at the time the petition for forfeiture was brought.

Having found that the Commonwealth’s petition is not barred by these statutes of limitations, we now turn to the merits of the Commonwealth’s case. The Commonwealth’s petition for forfeiture is not based on a specific provision of a statute authorizing forfeiture, such as that contained in the Controlled Substance, Drug, Devices and Cosmetic Act. (See 35 P.S. §780-113 et seq. and 42 Pa.C.S. §6801.) The principles of common law forfeiture and derivative contraband were enunciated in Commonwealth v. Fassnacht, 246 Pa. Super. 42, 46, 369 A.2d 800, 802 (1977):

“Contrabandperse is property, the mere possession of which is unlawful. Heroin and ‘moonshine’ whiskey are examples of contraband per se. Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. An example of derivative contraband is a truck used to transport illicit goods.” (citations omitted; emphasis in original)

The Commonwealth has brought its petition for forfeiture based on the proposition that Sanford Bernstein’s use of the $5,000 as a down payment on the “contract killing” — the perpetration of an unlawful act — transformed the money from lawful currency into derivative contraband. A number of recent Pennsylvania cases upholding the common-law forfeiture of derivative contraband strengthens the Commonwealth’s position. See Commonwealth v. Crosby, 390 Pa. Super. 140, 568 A.2d 233 (1990); Estate of Peetros v. County Detectives, 341 Pa. Super. 558, 492 A.2d 6 (1985); and Petition of Maglisco, 341 Pa. Super. 525, 491 A.2d 1381 (1985).

In implementing the forfeitures of derivative contraband, two justifications for its existence have been cited. It is meant to impose a penalty while at the same time removing “the operating tools of crime from criminals.” Petition of Maglisco, 341 Pa. Super. at 532, 491 A. 2d at 1385. In order to mitigate the harshness of forfeiture taking place without any statutory safeguards, the Maglisco court endorsed two reforms. The first requires “a minimal showing of blameworthiness — albeit not necessarily criminal culpability — on the part of the object’s [or item’s] owner.” Maglisco, supra, 341 Pa. Super, at 532-3, 491 A.2d at 1385. The second reform imposes a requirement of proportionality in granting such a forfeiture: “even if the requisite minimum of blameworthiness is present, is the value of the forfeited item in any reasonable way commensurate or proportional to the offense?” Maglisco, supra, 341 Pa. Super. at 533, 491 A.2d at 1385.

The Commonwealth has failed to show that Nancy Bernstein is in any way blameworthy for her husband’s actions. It has also failed to demonstrate that forfeiture of the $5,000 would be commensurate with the offense of criminal solicitation. While forfeiture in this case may well remove the “operating tools” of the criminal, Sanford Bernstein, it would also punish an innocent party, Nancy Bernstein, who has already been wronged by her husband’s criminal acts.

Despite Nancy Bernstein’s interest in the money, the Commonwealth attempts to satisfy its burden of proving that the money is forfeitable as derivative contraband by asserting that Sanford Bernstein’s actions “transformed” the money into derivative contraband. It argues that the money is automatically the subject of forfeiture as a result.

Case law does not support the Commonwealth’s contention. In Commonwealth v. Crosby, supra, the appellant was convicted of driving under the influence of alcohol, and the truck he was driving during the commission of the offense was deemed forfeited by the trial court. The Superior Court found that the truck qualified as derivative contraband because it was used in committing an illegal act, and therefore fell under legal authority granting such forfeitures. Despite these findings, however, the court would not permit the truck’s forfeiture without some contemplation of the appellant’s interest in the vehicle and the interest of his family. “Failure to consider these factors concerning legal ownership and use of the vehicle may have the effect of inappropriately penalizing innocent family members.” Crosby, supra, 390 Pa. Super. at 156, 568 A.2d at 241. In the same manner we must weigh the interests of innocent family members in the $5,000. We find that the forfeiture of the $5,000 to the Commonwealth would inappropriately penalize an innocent family member, Nancy Bernstein.

We conclude that the Commonwealth has failed to carry its burden of showing that the forfeiture of this “derivative contraband” is justified in light of Nancy Bernstein’s interest in the money. She has fulfilled her burden of showing her legal entitlement to possession of the property and the money is hereby returned to her.

ORDER

Now, October 17, 1990, upon consideration of briefs submitted by counsel, after oral argument and for the reasons expressed in the accompanying opinion, it is hereby ordered that the Commonwealth’s petition for forfeiture of $5,000 in U.S. currency is hereby denied.

Sanford Bernstein’s motion for return of property pursuant to Pa.R.Crim.P. 324 is hereby denied.

Nancy Bernstein’s motion for return of property pursuant to Pa.R.Crim.P. 324 is hereby granted. The $5,000 in U.S. currency shall be returned to her.


source: Caselaw Access Project

author: SAVITT, J.,

license: Public Domain

text:
    Commonwealth v. Jones

      Charles Ehrlich, assistant district attorney, for the Commonwealth.

      Peter Goldberger, for defendant.
    November 28, 1990
   SAVITT, J.,

Defendant Earl C. Jones was a regular customer of Nick’s Bar located at 5600 Lansdowne Avenue in Philadelphia and was acquainted with the victim, Sabrina Best, who was a barmaid there. On December 3, 1988, a Saturday night, defendant went into the bar, put some money down on the bar and told the victim that it was hers. Sometime later he asked her to return the money, but she refused, saying he had given it to her. At one point he got up, went behind the bar, and showed her a small silver handgun, again saying he wanted the money back. Some of the other customers persuaded him to return to his seat and he remained sitting at the bar for several minutes. When the victim walked to the other end of the bar to serve a customer and to pour herself a drink, defendant followed her, pointed the gun at her and fired, hitting her in the chest and causing her death.

The case was tried by this court with a jury from November 16, 1989 to December 6, 1989 and defendant was found guilty of murder in the third degree and possessing an instrument of crime. On January 4 and January 11, 1990 hearings were held pursuant to 42 Pa.C.S. §9715 to determine defendant’s prior conviction for first-degree manslaughter in New York State. Following these hearings the court determined that defendant’s New York State conviction for first-degree manslaughter was substantially equivalent to voluntary manslaughter and third-degree murder in Pennsylvania, and sentenced defendant to life imprisonment. Hearings on defendant’s ineffectiveness claims were held on October 23 and October 24, 1990.

OPINION

Trial counsel timely filed post-sentence motions and then withdrew. Defendant’s present counsel has filed supplemental motions on defendant’s behalf. In his post-sentence motions, defendant argues that trial counsel was ineffective for not advancing his theory of accident in his opening statement and for his request concerning an instruction on homicide by misadventure. Defendant further argues that the court erred in permitting the Commonwealth to death-qualify the jury, in not declaring a mistrial and not sustaining certain defense objections based on prosecutorial misconduct, for refusing certain rein-struction to the jury and for imposing a sentence of life imprisonment pursuant to 42 Pa.C.S. §9715.

Counsel is presumed to be effective and the burden of proving ineffectiveness is on the defendant. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990); Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Stinnett, 356 Pa. Super. 83, 514 A.2d 154 (1986). In order to carry his burden the defendant must show first, that the claim that counsel failed to present has arguable merit and that counsel’s failure to raise it was without a reasonable basis which would effectuate the defendant’s best interest. Strickland v. Washington, 466 U.S. 468 (1984); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986), cert. denied, 109 S.Ct. 187 (1988); Commonwealth v. Pigg, 391 Pa. Super. 418, 571 A.2d 438 (1990). Second the defendant must show that counsel’s ineffectiveness worked to his prejudice; Strickland v. Washington, supra; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pigg, supra. In order to show prejudice the defendant must demonstrate that there is a reasonable possibility that but for counsel’s unprofessional errors, the result of the trial would have been different, Strickland v. Washington, supra; Commonwealth v. Pierce, supra.

Defendant’s claims, that trial counsel was ineffective for not introducing the theory of accident in his opening statement and for his request regarding a jury instruction on homicide by misadventure, have no merit.

Decisions as to trial strategy are within the exclusive province of counsel. Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974); Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972); Commonwealth v. Petras, 368 Pa. Super. 372, 534 A.2d 483 (1987); Commonwealth v. Metzger, 295 Pa. Super. 267, 441 A.2d 1225 (1982). Counsel may not be declared ineffective where his trial strategy had a reasonable basis designed to effectuate the defendant’s best interests. Commonwealth v. Buehl, supra; Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Further, responsible trial advocacy imposes no inflexible duty upon counsel to contest in his closing all elements of the offense, nor is counsel precluded from conceding what the proof makes evident. Commonwealth v. Hudson, supra.

In the instant case trial counsel chose not to advance the theory of accident in his opening statement. At the hearing on ineffectiveness, trial counsel explained that his reasons for not relying solely on the defense of accident were that on the basis of the facts of the case as well as the findings of his own firearms expert, the accident explanation was not credible. Further, trial counsel explained, to leave the jury with no compromise verdict was to risk their accepting the Commonwealth’s theory of first-degree murder in light of defendant’s kicking and general abuse of the victim’s body after he shot her. Given the fact that defendant was drinking and had been provoked by the victim, there was a chance that the jury could find defendant guilty of voluntary manslaughter. Thus, counsel’s trial strategy had a reasonable basis designed to effect defendant’s best interests and defendant is not entitled to a new trial on this basis.

Defendant’s claim that trial counsel was ineffective for requesting and then not objecting to the instruction “homicide by misadventure” has no arguable merit. The question of whether or not the instruction implies that the defendant need only act with ordinary negligence is moot under the circumstances of the case at bar. Here the evidence shows that defendant pointed the gun at the victim, an unlawful act that negates the first element of the defense. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979): Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975). Therefore, the Commonwealth did not have to find that defendant had not acted with reasonable care to disprove this defense, but only that defendant acted in an unlawful manner. Trial counsel was not ineffective and defendant is not entitled to a new trial on this basis.

It is settled law that the death qualification of a jury does not result in a prosecution-prone jury uncommonly willing to convict a defendant. Lockhart v. McCree, 476 U.S. 162 (1986); Witherspoon v. Illinois, 391 U.S. 510 (1968); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010 (1986); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984). Defendant Jones has presented no data to show that the death qualification resulted in an unrepresentative jury or substantially increased the risk of his conviction and he is not entitled to a new trial on this basis.

A new trial will not be granted on the basis of prosecutorial misconduct absent a showing that the unavoidable effect of the prosecutor’s conduct is to so prejudice the jury that they are incapable of weighing the evidence and rendering a true verdict. Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986); Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. Yabor, 376 Pa. Super. 356, 546 A.2d 67 (1988), alloc. denied, 521 Pa. 620, 557 A.2d 724 (1989). Furthermore, in evaluating a prosecutor’s conduct or remark the court must consider the context in which the conduct or remark occurred. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988); Commonwealth v. Carpenter, supra.

The prosecutor’s closing discussion of the position of the cash register relative to the pouring device and the bloodstain on the floor was a response to defense counsel’s remarks concerning the credibility of witness Anthony Rankin’s testimony about defendant picking the victim up and dragging her to the cash register. The prosecutor merely set forth inferences that could properly be drawn from the evidence and did not misstate the objective facts. There is no merit to defendant’s averment that this court erred in not sustaining his objection to this portion of the prosecutor’s closing speech. Thus, the prosecutor’s remarks were not of such a nature as to so prejudice the jury that they were incapable of rendering a true verdict and he is not entitled to a new trial on this basis.

Detective Worrel’s testimony regarding his consultation with the Chief of Homicide in the District Attorney’s Office before placing defendant under arrest was not so prejudicial to defendant as to warrant a mistrial. Although the testimony was irrelevant, it was merely a description of the procedure the detective followed prior to defendant’s arrest and did not imply that anyone thought that defendant was guilty of first-degree murder. Furthermore, after sustaining the defense objection, this court instructed the jury to disregard the testimony and reminded them that it is the answers that are evidence, not the questions.

There was no error in the court’s refusal to reinstruct the jury on the definition of reasonable doubt in response to their request for reinstruction on the definition of malice. The jury requested only a definition of malice and that was all that the court was required to give them. Defendant is not entitled to a new trial on this basis.

It was not error to impose a life sentence on defendant pursuant to 42 Pa.C.S. §9715 on the basis of the defendant’s 1963 conviction for first-degree manslaughter in New York State. Under 42 Pa.C.S. §9715(a) a life sentence is mandated for “any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or the same or substantially equivalent crime in any other jurisdiction.”

In order to determine this issue, it is necessary to look at the statutory schemes in New York and in Pennsylvania. In New York, in 1963, which is the year defendant was convicted, both first- and second-degree murder required a design to effect a death, first-degree requiring deliberation and premeditation and second-degree requiring no premeditation or deliberation. N.Y. Criminal Law §§1044, 1046 (Consol. 1909). Manslaughter was defined as a killing other than first- or second-degree murder, which was not justifiable or excusable. The statute under which defendant was convicted defined first-degree manslaughter as follows:

“§1050. Manslaughter in first degree. Such homicide is manslaughter in the first degree, when committed without a design to effect death:
“(1) By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or,
“(2) In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon. . . ’’ N.Y. Criminal Law §1050 (Consol. 1909). (emphasis supplied)

The offense was punishable by imprisonment not to exceed 20 years. N.Y. Criminal Law §1051 (Consol. 1909).

Manslaughter of the second degree in New York in 1963 was defined as follows:

“§1052. Manslaughter in second degree. Such homicide is manslaughter in the second degree, when committed without a design to effect death:
“(1) By a person committing or attempting to commit a trespass, or other invasion of a private right, either of the person killed, or of another, not amounting to a crime; or,
“(2) In the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual; or,
“(3) By any act, procurement or culpable negligence of any person, which, according to the provisions of this article, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.” N.Y. Criminal Law §1052 (Consol. 1909). (emphasis supplied)

Manslaughter in the second degree was punishable by a term of imprisonment not exceeding 15 years. N.Y. Criminal Law §1053 (Consol. 1909).

First-degree murder in Pennsylvania requires a specific intent to kill while second-degree murder is a murder committed during the commission of a felony. 18 Pa.C.S. §2502(a), (b).

Murder in the third degree in Pennsylvania is defined as any murder which is not first- or second-degree murder. 18 Pa.C.S. §2502(c). Murder in the third degree has been further defined by case law. A person may be convicted of third-degree murder where the killing is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice. Commonwealth v. Reilly, 519 Pa. 550, 549 A.2d 503 (1988); Commonwealth v. Pigg, supra. Malice consists of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty. Commonwealth v. Reilly, supra; Commonwealth v. Pigg, supra. Malice may be inferred from the use of a deadly weapon on a vital part of the body. Commonwealth v. Carter, 481 Pa. 495, 393 A.2d 13 (1978); Commonwealth v. Pigg, supra.

A comparison of the New York and Pennsylvania statutory schemes as well as the definitions of the offenses themselves clearly demonstrates that first-degree manslaughter as defined in New York in 1963 is the substantial equivalent of third-degree murder in Pennsylvania. Both are homicides committed without the specific intent to kill, and performed with malice, the malice in the New York statute being set forth by the requirement that the offense be committed in a cruel or unusual manner or by means of a dangerous weapon. That the New York crime must be one committed in the heat of passion is of no moment here as the passion serves only to reduce the crime from first- or second-degree murder to manslaughter. Furthermore, the crimes carry the same penalty of not more than 20 years, which is further evidence that the two crimes are of equivalent seriousness. The New York and Pennsylvania crimes are clearly substantially equivalent and defendant was properly sentenced to life in prison under 42 Pa.C.S. §9715.

The test for sufficiency of the evidence is whether viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990); Common wealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. denied, 110 S. Ct. 1169 (1989).

Viewing the evidence in the case at bar in the light most favorable to the Commonwealth, it is clear that it was sufficient to sustain defendant’s conviction for murder in the third degree and possessing an instrument of a crime. There is no merit to defendant’s claim that the evidence against him was not sufficient.

A defendant may be given a new trial on the ground that the verdict is against the weight of the evidence even where the evidence is legally sufficient to sustain a guilty verdict. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, 465 U.S. 1104 (1984); Commonwealth v. Bowermaster, 297 Pa. Super. 444, 444 A.2d 115 (1982). The decision to grant or deny a motion on this ground is committed to the sound discretion of the trial court. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986); Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Hunter, 381 Pa. Super. 606, 554 A.2d 550 (1989). A new trial should be awarded on the ground that the verdict is so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative. Commonwealth v. Laing, supra.

The record in the instant case discloses that the conviction is sustained by the weight of the evidence. Therefore, defendant’s request for a new trial on this ground is without merit.

In the instant case, the verdict was clearly an alternative left to the court after the presentation of the evidence. Accordingly, the verdict was not contrary to law, see Commonwealth v. Ashford, 227 Pa. Super. 351, 322 A.2d 722 (1974), and defendant is not entitled to a new trial on this basis. Defendant’s other allegations of error have no merit and will not be considered further here.

For the reasons stated herein, defendant’s motions for a new trial and arrest of judgment were denied.


author: JIULIANTE, J.,

text:
    Black v. Driscoll

      Thomas S. Kubinski, for plaintiff.

      Thomas S. Talarico, for defendant.
    January 10, 1991
   JIULIANTE, J.,

In 1983 plaintiff filed an action for the support of one minor child who was born February 22, 1975.

On or about March 8, 1984, and pursuant to defendant’s motion, plaintiff’s complaint was dismissed for failure to comply with the statute of limitations contained in 42 Pa.C.S. §6704(e), which indicated that all actions to establish paternity of a child born out of wedlock must be commenced within six years of the birth of the child.

On October 30, 1985, the legislature of the Commonwealth of Pennsylvania repealed the statute of and provided for an expanded limitations period in paternity actions of 18 years.

In 1988, in the case of Clark v. Jeter, _ U.S. _, 108 S.Ct. 1910, 100 L.Ed. 2d 465 (1988), the United States Supreme Court found the six-year statute of limitations in Pennsylvania unconstitutional.

On or about April 27, 1990, plaintiff filed the instant complaint for support against Leroy Dri-scoll, the same defendant in the previous action. Defendant has raised in his answer and new matter the defense of res judicata and has filed a motion to dismiss plaintiff’s complaint. Blood tests have been stayed pending determination of defendant’s motion to dismiss.

The sole issue is whether plaintiff is barred from refiling this support action in light of the previous dismissal. Plaintiff argues that dismissal of the instant action would produce an unfair result and would be contrary to legislative intent.

Both plaintiff and defendant rely on the same cases in support of their respective positions. Inasmuch as this appears to be a case of first impression, we must engage in a comprehensive review of the cases available which have construed the applicable statutes.

The first case cited is Paulussen v. Herion, 334 Pa. Super. 585, 519 A.2d 473 (1986). In Paulussen, plaintiff filed a petition for paternity and support to which the defendant raised the six-year statute of limitations as an affirmative defense and moved for summary judgment. Summary judgment was granted in favor of the defendant and plaintiff challenged the constitutionality of the statute on appeal. On October 30, 1985, and while the challenge to Pennsylvania’s six-year statute of limitations was pending before the United States Supreme Court, the Pennsylvania legislature repealed the six-year statute of limitations and, under 23 Pa.C.S. §4343(b), extended it to 18 years. In light of this development the Supreme Court remanded the case to the Superior Court, which affirmed the decision of the trial court once again. Defendant states that the court was unimpressed by the passage of 23 Pa.C.S. §4343, as it held:

“[T]he statute in force when the complaint is filed is controlling as to timeliness.” Paulussen, supra.

However, we note that a distinguishing factor between Paulussen and the case at hand is that at the time of the Paulussen decision, the court was unaware of the decision in Clark v. Jeter, supra, which held that Pennsylvania’s six-year statute of limitations was unconstitutional. It is unknown whether Paulussen would have been decided differently had the court been aware of the Clark decision.

Next, in Bowser v. Zachary, 375 Pa. Super. 481, 544 A.2d 1022 (1988), the Superior Court held that a paternity action filed for a child who was born during the time that the six-year statute of limitations was in force but whose initial petition was filed after the effective date of the new 18-year statute of limitations, was entitled to the benefit of the 18-year statute of limitations. It, therefore, denied the defendant’s motion for summary judgment based on the affirmative defense of the six-year statute of limitations. In reliance on Bowser, defendant argues that the statute of limitations in effect at the time this plaintiff filed her initial complaint in 1983 must control the disposition of this case.

Finally, in Nichols v. Horn, 363 Pa. Super. 301, 525 A.2d 1242 (1987), the plaintiff instituted an action for support in September 1985, only one month prior to the enactment of the 18-year statute of limitations under 23 Pa.C.S. §4343. As in Paulus sen, supra, the defendant raised the statute of limitations as an affirmative defense. In January 1986, the plaintiff moved for a discontinuance of the support action so that she might reinstitute the action under the new 18-year statute of limitations. While the motion was granted at the trial level, on appeal the Superior Court reversed. Reiterating the sentiments of Paulussen, supra, the court held:

“[I]f the action would have been barred under the old statute of limitations (six years), new life cannot breathed into the barred action retroactively, by enactment of a new longer statute of limitations (18 years). Thus, in this action, the matter was barred by the six-year statute of limitations and discontinuance of the present action and reinstituting the action under the 18-year statute (if ultimately approved) would be of no avail.” Nichols, supra.

Plaintiff argues that the results of these three decisions created an obviously unfair treatment to some children seeking to have paternity established for them. A child who is born during the pendency of the six-year statute of limitations was able to take advantage of the 18-year statute if the child’s initial paternity complaint was filed after the six-year statute was found unconstitutional. The child was then able to use the 18-year statute. But if the child’s paternity petition was filed prior to the decision finding the six-year statute unconstitutional, and the charge was dismissed at that stage, the child was unable to take advantage of the 18-year statute of limitations by refiling his complaint.

As the issue sub judice remains unresolved by these cases, we must look to the statute, 23 Pa.C.S. §4343, for guidance.

Pennsylvania’s 18-year statute of limitations was adopted on October 30, 1985. It was inspired by the 1984 Child Support Enforcement Amendment to the Social Security Act, 42 U.S.C. §666(a)(5), which required all states to institute procedures to establish paternity for children at any time prior to a child’s 18th birthday.

Responding to the confusion engendered by a plethora of cases which were filed and dismissed under shorter state statute of limitations, then refiled under the procedures instituted by several states to comply with the above act, Congress clarified the act and its application on October 13, 1988. The amendment reads:

“As of August 16, 1984, the requirement of clause (i) shall also apply to any child for whom paternity has not yet been established and any child for whom a paternity action was brought but dismissed because of a statute of limitations of less than 18 years was in effect in the state.” 42 U.S.C. §666(a)(5)(A)(ii).

Shortly after Congress acted, the Pennsylvania Senate submitted a proposed amendment to 23 Pa.C.S. §4343 which provided for unlimited retroactive application of the new 18-year statute of limitations. The proposed amendment read as follows:

“(b) Limitation of Actions — An action or proceeding under this chapter to establish the paternity of a child born out of wedlock must be commenced within 18 years of the date of birth of the child. Any action dismissed on the basis of previous limitations may be reintroduced. ” S.B. 885, The General Assembly of Pennsylvania, Session of 1989. (The proposed amendment is emphasized.)

On June 5, 1989, the Pennsylvania House of Representatives submitted its own proposed amendment to the 18-year statute of limitations which tracked the language of the federal amendment verbatim. (CHRB 1633, the General Assembly of Pennsylvania, Session of 1989.) While both the Senate and House versions were submitted to the judiciary, the proposal submitted by the House of Representatives was ultimately adopted on December 20, 1989 in the form of 23 Pa.C.S. §4343(b)(2). Like its federal counterpart, subsection (b)(2) of section 4343 was adopted in part to address the indiscriminate application of the 18-year statute of limitations to actions which had been filed, but dismissed, prior to the enactment of the statute and those which were filed subsequent to enactment of the statute.

On December 20, 1989, the Pennsylvania legislature amended the 18-year statute of limitations under 23 Pa.C.S. §4343, by adding subsection (b)(2). The amendment states:

“(b)(2) As of August 16, 1984, the requirement of paragraph (b)(1) shall also apply to any child for whom paternity has not yet been established and any child for whom a paternity action was brought but dismissed because of a prior statute of limitations of less than 18 years.” 23 Pa.C.S. §4343(b)(2).

Plaintiff argues that the amended language, grounded in public policy considerations, was intended to apply to cases such as hers. Defendant takes the position that under subsection (b)(2) of 23 Pa.C.S. §4343, actions for support and paternity dismissed subsequent to August 16, 1984 may be refiled and reheard regardless of the statute of limitations in effect at the time the action is filed. On the other hand, actions for paternity or support dismissed prior to August 16, 1984 under Pennsylvania’s old six-year statute of limitations may not be refiled or reheard subsequent to August 16, 1984.

This court cannot agree with defendant’s position. A plain reading of Pa.C.S. §4343(b) illustrates that the legislature recognized the unfairness and bad public policy of the above-cited decisions and accordingly amended the statute.

It is obvious to this court that section (b)(2) applies to this case. Plaintiff’s original petition for support and paternity was denied solely because of the six-year statute of limitations. Section 4343(b) plainly states that the 18-year statute of limitations is to apply to any child for whom a paternity action was brought but dismissed because of a prior statute of limitations of less than 18 years. Therefore, we conclude that the plaintiff is entitled to refile her paternity action in this case and it should be heard without regard to any prior dismissal based on the prior statute of limitations.

The stay imposed on the blood testing is lifted. Defendant’s motion to dismiss is denied.

ORDER

And now, January 10, 1991, after argument on defendant’s motion to dismiss plaintiff’s complaint for support, it is hereby ordered, adjudged, and decreed that said motion is denied. The stay regarding paternity determination is lifted.


author: SOKOLOVE, J.,

text:
    Kubitsky Estate

      Peter J. Verderame, for guardian.

      Emil L. Iannelli, for accountant.
    January 24, 1991
   SOKOLOVE, J.,

Upon petition of the guardian of the estates of Crystal Rose Kubitsky and Laura Maureen Kubitsky, minor children of the decedent Steven J. Kubitsky, we held a hearing and directed Stephen J. Kubitsky and Bessie W. Kubitsky, co-administrators of the decedent’s estate, to file an account of their administration. The co-administrators did file an account, which did not comply with our forms. They then filed an amended account, stated in appropriate form, to which the guardian, the First National Bank and Trust Company of Newtown, filed objections. After hearing on the objections and review of mem-oranda of law presented by the parties, we enter the following

FINDINGS OF FACT

(1) Steven J. Kubitsky was killed in an automobile accident on August 2, 1982.

(2) At the time of his death, the decedent was married to Mary D. Kubitsky, and the couple had two children, Crystal R. Kubitsky, born June 12, 1978 and Laura M. Kubitsky, bom October 28, 1979.

(3) The decedent’s wife, Mary D. Kubitsky, was also injured in the automobile accident which killed him. She died as the result of her injuries the next day, August 3, 1982.

(4) At the time of his death, the decedent, his wife and children resided with his parents, Stephen J. and Bessie W. Kubitsky, in his parents’ house at 23 Bittersweet Road, Levittown, Bucks County, Pennsylvania. The decedent and his family had lived with his parents for the previous 14 months.

(5) The Bucks County Register of Wills granted letters of administration over the decedent’s estate to his parents, Stephen J. Kubitsky and Bessie W. Kubitsky, on September 2, 1982.

(6) At the time of his death, the decedent was covered by an insurance policy issued pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §1009.101 et seq., which was then in effect but was repealed by legislation effective October 1, 1984. The insurer, Metropolitan Property and Liability Insurance Company, paid out basic benefits under the policy, consisting in pertinent part of a $1,500 funeral benefit, a $5,000 survivors’ benefit and a $15,000 wage-loss benefit. The $5,000 survivors’ benefit was paid directly to the decedent’s children. The $1,500 funeral benefit was paid to the co-administrators and applied by them to the decedent’s funeral bill. The $15,000 wage-loss benefit was paid by check, dated March 16, 1983, payable to “Stephen Kubitsky as administrator of the estate of Stephen John Kubitsky and Isacoff & Iannelli Attorneys at Law.”

(7) The co-administrators did not open a bank account for the estate. Instead, they placed the $15,000 wage-loss benefit into their own personal savings account and paid debts and expenses they deemed to be the estate’s from that fund.

(8) The co-administrators received a funeral bill from Beck-O’Neill-Strouse Funeral Directors Inc., dated October 1, 1982, which showed a beginning balance for the decedent’s funeral expenses of $4,569. The bill also showed “Expenses Mary Kubitsky” — $2,432, “Haky Funeral Home” — $420, and “12 certified copies” — $24, for a total balance of $7,445. The bill showed payments of Bessie Kubitsky in the amount of $5,016.45 on August 17, 1982 and from Fidelity Bank in the amount of $874.83 on August 31, 1982. The Fidelity Bank funds came from a joint savings account in the names of the decedent and his wife. The bill did not reflect the payment of the $1,500 insurance proceeds but showed a balance due of $1,553.72. The bill did reflect that there was no charge for the care and funeral arrangements for the unborn child of the decedent and his wife, who was stillborn after his parents’ fatal automobile accident.

(9) The co-administrators paid $345 to Martin Lautz and Son Memorials for a headstone for decedent’s grave, and they paid $135 to Resurrection Cemetery for a foundation for the headstone.

(10) The co-administrators incurred $1,160 in administration expenses, including $147 to the Register of Wills, $113 for advertising and $900 for attorney’s fees. These expenses were fair and reasonable for this estate.

(11) The co-administrators filed an amended account of their administration, stated to February 17, 1988. The account showed principal receipts of $15,000, being solely the wage-loss benefit paid by Metropolitan. The account claimed principal disbursements of $20,950.45, consisting of the aforementioned $1,160 in administration expenses; the following funeral expenses for which the co-administrators claimed reimbursement: the aforementioned $480 for the headstone and its foundation, $5,016 for the Beck-O’Neill-Strouse funeral bill, and $85 for “food for mourners following burial services”; and the following debts of decedent: $1,000 to George W. Swift for car repair, $1,850 to the co-administrators for reimbursement for Sears, Roebuck & Co., $750 to Visa, $1,400 for rental of 19 Beechtree Road, Levittown, Pa., $7,200 for 18 months’ room and board at 23 Bittersweet Road, Levittown, Pa., and $2,000 for miscellaneous loans from the co-administrators. The account, therefore, showed a negative balance for distribution of $5,950.45 or, in other words, an insolvent estate.

(12) There is no record before us of the filing any Pennsylvania inheritance tax return or the payment of inheritance tax, presumably because the co-administrators assert that the estate is insolvent.

(13) The First National Bank & Trust Company of Newtown as guardian of the estates of the decedent’s surviving minor children filed objections to the amended account. The objections alleged that the wage-loss benefits were wrongfully appropriated by the estate when under the terms of the Pennsylvania No-fault Motor Vehicle Insurance Act they were payable directly to the decedent’s survivors, the estate of Mary Kubitsky and the children. The Objections further stated that the co-administrators had failed to account for all of the decedent’s assets, that the debts for which the co-administrators claimed reimbursement were improper charges against the estate, that the funeral expenses were payable by insurance and that the attorney’s fees were excessive.

(14) At hearing on the objections, Ellen Burke, Mary Kubitsky’s mother, testified that the decedent’s assets which were missing from the account were a component stereo and a portable stereo. She valued these items respectively at $300 and between $80 and $100.

(15) Co-administrator Bessie W. Kubitsky was the only witness for the co-administrators at the hearing. We permitted her to testify over the guardian’s objections under the Pennsylvania Dead Man’s Rule, 42 Pa.C.S. §5930.

(16) Mrs. Kubitsky testified that she allowed the decedent and his wife to make purchases on her Sears and Visa charge cards and then pay her back. She stated that the Sears debt arose from the purchase of a bedroom set, stereo and car battery and tires. She did not date or itemize these purchases. The Visa debt, she claimed was for a recliner chair and a seven-piece dinette set.

(17) Mrs. Kubitsky also testified that she paid $1,140 for the rental of property at 19 Beechtree Road, where decedent and his family had lived as tenants.

(18) Mrs. Kubitsky testified that she would not have sued the decedent for the debts had he lived.

(19) Mrs. Kubitsky testified that she provided two bedrooms and food for the decedent and his family for an unspecified period of time.

(20) Mrs. Kubitsky could not detail the $2,000 in miscellaneous loans to decedent, aside from the purchase of a rug at one time.

(21) Mrs. Kubitsky testified that George Swift loaned the decedent money when the decedent was about 16 or 17 years old to enable the decedent to have a car, titled in the name of co-administrator Stephen J. Kubitsky, repaired. In June 1985, Mr. Swift approached the co-administrators for repayment. They paid Mr. Swift and sought reimbursement from the estate. Mrs. Kubitsky could not specify what repairs were made to the automobile.

(22) Mrs. Kubitsky did not explain the funeral bill from Beck-O’Neill-Strouse.

DISCUSSION

We will address the easiest issue first. The guardian of the minor children alleged that the co-administrators failed to account for all of decedent’s assets. Specifically, Mrs. Burke testified that she thought the decedent and his wife possessed a component stereo and a portable stereo which remained at the Kubitsky residence after their deaths. Mrs. Burke attempted to estimate the value of these stereos. We find that Mrs. Burke’s description of the missing articles and opinion as to their value were too indefinite and imprecise to enable us to assign additional principal to the estate with any degree of accuracy. We must dismiss these objections for failure of the guardian to meet its burden of proof.

The most significant question before us concerns the status of the $15,000 in wage-loss benefits, the only possible asset of the estate. We must decide whether these benefits properly belonged in the estate or whether, pursuant to the Pennsylvania No-fault Motor Vehicle Act, 40 P.S. §1009.101 et seq. which was then in effect, the benefits should have been paid directly to the decedent’s survivors (the estate of his wife who survived him by less than 24 hours and/or his minor children). We conclude from our research that this narrow question in its exact posture is an issue of first impression never specifically resolved by the appellate courts of our Commonwealth.

We are, however, assisted in our deliberations by several higher court cases which have analyzed the No-fault Act and the recovery of work-loss benefits by decedents’ survivors and estates. A summary of these cases is useful. In Allstate Insurance v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), the Supreme Court held that survivors of deceased motor vehicle accident victims were entitled to recover work-loss benefits as well as survivor’s benefits under the No-fault Act. In reaching this decision, the court reasoned that the legislature did not intend to treat accident victims differently than survivors of deceased accident victims. The court emphasized that its ruling best fulfilled “the legislature’s express intention to provide ‘compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents’ by providing ‘adequate basic loss benefits [to] . . . the survivors of deceased victims.’” Id., 491 Pa. at 460, 421 A.2d at 636, quoting from 40 P.S. §1009.102(a)(3) and (b). While the Heffner court spoke of maximizing allowable benefits to survivors, it did not draw a technical distinction between survivors as individuals and the decedent’s estate. The decision actually involved two separate cases, one in which the decedent’s wife individually claimed benefits as a survivor and one in which the administrator of the - decedent’s estate made the claim. The court granted work-loss benefits to both claimants indiscriminately.

In Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983), the Supreme Court held unequivocally that the estate of a deceased child could recover work-loss benefits under the No-fault Act. There, the decedent’s father, acting as administrator of his son’s estate, filed suit against the no-fault insurer for work-loss benefits. The insurer demurred on the grounds that only the statutorily defined class of “survivors,” which did not include the decedent’s estate, could qualify for work-loss benefits and that work-loss benefits were not available to the survivors of a child who had never worked. The trial court sustained the demurrer but granted the plaintiff father leave to amend his complaint to seek survivor’s benefits and funeral expenses. The Supreme Court affirmed the Superior Court decision overruling the lower court. In doing so, the Supreme Court explicitly rejected the insurer’s argument that Allstate Insurance Co. v. Heffner, supra, restricted work-loss benefits to “survivors,” a group to which the estate did not belong. The court explained:

“In Heffner, it was decided that the right to work-loss benefits is not terminated by the demise of a victim. We held that ‘survivors’ of deceased victims are entitled to these benefits under the terms of the No-fault Act. It follows then that, if work-loss benefits do not terminate upon the death of a deceased victim, absent a statutory bar those benefits are recoverable by the deceased victim’s estate. This is the natural, logical and compelling extension of our holding in Heffner. Upon a close and careful examination of the No-fault Act, we find no language which precludes the recovery of work-loss benefits to the estate of a deceased victim.” Freeze v. Donegal Mutual Insurance Co., supra, 504 Pa. at 222, 470 A.2d at 960.

The court considered that the No-fault Act provided for basic loss benefits for “any victim or any survivor of a deceased victim,” 40 P.S. §1009.201, and made the following analysis:

“The appellant’s argument, however, overlooks the very basic and fundamental fact that a person who dies as a result of injuries sustained in a motor vehicle accident is, within the meaning of the No-fault Act, a victim. That an injured victim is entitled to basic loss benefits under the act is beyond question. The fact that a ‘victim’ dies as a result of his injuries and becomes a ‘deceased victim,’ makes him no less a ‘victim’ entitled to benefits under the provisions of the act. A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned. The event of a victim’s death activates the rights of statutory survivors to benefits under the act. However, the activation of survivors’ rights .does not diminish or erase the victim’s rights even though he now be a deceased victim. If it was intended that a victim’s rights to benefits be extinguished at his death, the legislature could have and would have said so directly.” Id., 504 Pa. at 223, 224, 470 A.2d at 961. (footnote omitted)

Thus, the Supreme Court, without establishing any sort of priorities, confirmed the implication of Heffner — that either the victim’s estate or his survivors could recover work-loss benefits pursuant to the No-fault Act.

The Commonwealth and Superior Courts have followed the holdings of Heffner and Freeze. In Billman v. Pennsylvania Assigned Claims Plan, 355 Pa. Super. 524, 513 A.2d 1046 (1986), alloc. den. 527 A.2d 533, and Patterson v. Nationwide Mutual Insurance Co., 358 Pa. Super. 167, 516 A.2d 1235 (1986), alloc. den. 527 A.2d 543, the Superior Court approved the payment of work-loss benefits to the decedents’ survivors in circumstances where the estates did not qualify for those benefits. The court in Patterson specifically refused to analogize work-loss to a common-law survival action designed to compensate a decedent’s estate for the loss of earning power caused by death. The court pointed to the Heffner dichotomy:

“Since the Heffner case was consolidated on appeal with one of an administrator of a decedent’s estate seeking the same benefits (Pontius v. United States Fidelity and Guaranty Co.), the court had the opportunity to deny the receipt of benefits to Mrs. Heffner, in her individual capacity, while permitting an estate of the deceased victim to receive the same. It did not, and we will not debilitate the decision by doing so now.” Patterson v. Nationwide, supra, 358 Pa. Super. at 172-3, 516 A.2d at 1238.

Finally, in the last case of note, the Commonwealth Court in Estate of Nichols, 97 Pa. Commw. 402, 509 A.2d 967 (1986), denied the claim of the Pennsylvania Department of Revenue for the assessment of inheritance tax on work-loss benefits paid to the parents of deceased accident victims. The parents in those matters were also the administrators of their children’s estates and did not include the work-loss benefits as taxable assets on their inheritance tax returns. The Department of Revenue asserted that the personal representative of a decedent’s estate was the proper party to bring suit to recover the work-loss benefit and, therefore, that the work-loss, as a chose in action of the decedent or his personal representative, was an asset of the estate subject to state inheritance tax. The court, in reviewing Heffner and Freeze, rejected the notion that the estate was the only proper party to recover work-loss benefits under the No-fault Act and found that the parents as survivors were equally entitled to the benefits.

“Since the survivors in the present cases were proper parties to receive the work-loss benefits under the no-fault insurance policies, the work-loss benefits received by them did not become assets of the estates. . .” Estate of Nichols, 97 Pa. Commw. at 406, 509 A.2d at 968-9.

We are left with the ambiguity created by the legislature and advanced by the appellate courts that both the decedent’s estate and defined survivors are authorized recipients of work-loss benefits under the No-fault Act. Although the courts have not before been faced with the competing claims of opposing estates and survivors, we see no reason to favor one over the other. Particularly in light of Estate of Nichols, supra, either the estate or the survivors may collect the benefits, and the payment to either may not be overturned or redesignated. While this creates an ad hoc, first-in-time approach, we cannot deviate from the dictate of the law. We perceive no intent by the legislature to prefer the decedent’s survivors at the expense and sacrifice of the legitimate claims against the decedent’s estate, or vice-versa. Thus, we are constrained to hold that the $15,000 insurance payment for the decedent’s wage loss to the administrator of the estate was proper. We dismiss the guardian’s objection that these funds should have been paid directly to the survivors.

Our holding in this regard does not end our inquiry and does not endorse the co-administrators’ account. The funds were properly in the estate, but we must scrutinize the disbursements made therefrom.

We find the administration expenses, consisting of $900 in attorney’s fees, $147 to the Register of Wills and $113 in advertising, to be appropriate, and we allow them. We approve the payments for the decedent’s headstone and its foundation. We approve the estate’s payment of $3,217 of the funeral bill, representing the decedent’s funeral expenses as shown on the bill of $4,569 plus one-third of the fees for Haky Funeral Home and certified copies (since three bodies were involved), minus the $1,500 insurance payment. We did not deduct the payment in Fidelity Bank funds from the estate’s obligation because these funds belonged to the survivor on the joint account, the decedent’s wife, and should have been credited toward her expenses which were reflected on the funeral bill. We find that the charge for food for mourners after the burial service was not sufficiently established by the evidence.

We will disallow the remaining disbursements of the estate, all of which were claimed reimbursements to the co-administrators for debts of the decedent. In seeking such reimbursement, the co-administrators have become claimants against the estate and have subjected themselves to an extremely strict standard. A claim against a decedent’s estate can be established and proved only by evidence which is clear, direct, precise and convincing, and the burden of proof lies upon the claimant. Estate of Allen, 488 Pa. 415, 412 A.2d 833 (1980); Dart Estate, 426 Pa. 296, 232 A.2d 1724 (1967); Petruzzi Estate, 410 Pa. 554, 190 A.2d 314 (1963); In re Estate of Cecchine, 336 Pa. Super. 111, 485 A.2d 454 (1984). “Claims against a dead man’s estate which might have been made against himself while living are always subject to just suspicion, and our books . . . are full of expressions by this court of the necessity of strict requirements of proof . . ..” Galbraith’s Estate, 270 Pa. 288, 113 Atl. 361 (1921). The co-administrators utterly failed to satisfy this burden of proof.

First, upon reflection and review of the notes of testimony from the hearing on this matter, we believe that we were mistaken in overruling the guardian’s Dead Man’s Rule objections and permitting Mrs. Kubitsky to testify about events occurring before the decedent’s death. We were plainly in error. As a claimant and adverse party, she was incompetent to testify about matters before decedent’s death pursuant to the Dead Man’s Rule, 42 Pa.C.S. §5930. A surviving party is not permitted to testify as to any relevant matters occurring before the decedent’s death, even though they be independent matters or facts which in no way can be regarded as transactions with, or communications by, the decedent. Lieber v. Eurich, 201 Pa. Super. 186, 188, 192 A.2d 159, 160 (1963), cited in In re Estate of Cecchine, supra, 336 Pa. Super, at 117, 485 A.2d at 458. Mrs. Kubitsky’s testimony did not fall within any exception to this prohibition and was certainly not saved by the egregious conflict she created as co-administrator of the estate. Since we presided over this matter without a jury, we may properly strike her testimony about the pre-death debts and refuse to consider it. Without her testimony, the record is devoid of evidence on the debts, and the co-administrators’ claim for these items must fail.

Even were we to consider Mrs. Kubitsky’s testimony, it was far too vague to substantiate the claims. The credit card bills were not dated or itemized, nor was any explanation given for the estate’s failure to include the assets allegedly purchased with the cards. There was absolutely no evidence of any rental agreements, the rental amounts were not defined and the time periods of the rentals were not presented. We are especially skeptical of the rental claim because the parent-child relationship creates a presumption that the room and board was gratuitous. Compare Gibb’s Estate, 266 Pa. 485, 110 Atl. 236 (1920); Visco Estate, 2 Pa. Fiduc. 2d 327 (Allegheny Co., 1982); In re Rodgers Estate, 34 Delaware L. Rep. 412 (1947). The car repair bill was too remote in time and in relationship to be recognized, even were we inclined to accept Mrs. Kubitsky’s testimony in its best light. Mr. Swift’s claim could not have been successfully asserted against this estate, and the co-administrators paid it at their risk and to their detriment. The decedent was a minor at the time of the alleged transaction, the car which was repaired was not his and the claim was stale, coming well after the statute of limitations would have run.

We are left with an estate with principal receipts of $15,000 and permitted principal disbursements of $4,857, leaving a net estate of $10,143. The estate is not insolvent, and the co-administrators will be required to file a Pennsylvania inheritance tax return, if they have not already done so, and pay the tax due thereon. The estate will be liable only for the actual tax due as of nine months after death, May 2, 1983, which presumes a timely return. The co-administrators shall be personally liable for all penalties and interest assessed thereafter. We attribute their wrongful, failure to file a return or pay the tax due to their deliberate mishandling of this estate and surcharge them accordingly.

We will also personally surcharge the co-administrators for interest, at the maximum legal rate of 6 percent compounded annually, which the net estate should have earned from May 2, 1983. Where the administration of an estate is delayed, it is the duty of the personal representative to invest the estate funds, and where he breaches this duty he may be charged with appropriate interest, not to exceed the legal rate. Estate of Vaughn, 315 Pa. Super. 354, 461 A.2d 1318 (1983). Generally, the representative of an estate is chargeable with interest where he uses estate funds for his own benefit or profit. In re Meyer’s Estate, 173 Pa. Super. 592, 98 A. 2d 444 (1953). The co-administrators never placed the funds into an estate account and blatantly misappropriated those funds. They must pay the estate for the interest it lost.

CONCLUSIONS OF LAW

(1) The court has jurisdiction over this matter.

(2) The guardian failed to prove that the estate included additional assets which were not listed in the co-administrators’ account.

(3) The $15,000 in insurance proceeds for decedent’s work loss were properly paid to the estate pursuant to the No-fault Act.

(4) The administration expenses shown in the account, expenses for the headstone and foundation and $3,217 of decedent’s funeral expenses were proper charges against the estate.

(5) The co-administrators failed to meet their burden of proof as claimants against the estate for the additional funeral expenses and the alleged debts of the decedent.

(6) The testimony of co-administrator Bessie W. Kubitsky concerning occurrences before the decedent’s death was barred by the Dead Man’s Rule but was, in any event, insufficient to prove the co-administrators’ claims.

(7) The co-administrators are personally liable for any interest and penalties assessed by the Pennsylvania Department of Revenue for late filing of the inheritance tax return and/or payment of the tax.

(8) The estate is liable for any inheritance tax determined to be due had the return been filed and the tax paid on a timely basis, as of May 2, 1983.

(9) The co-administrators breached their fiduciary duty to reasonably invest the estate’s funds, and they improperly used estate funds for their own benefit. As a result, they are personally liable to the estate for interest at the maximum legal rate of 6 percent, compounded annually, on the net estate as we have determined it from May 2, 1983 until the estate funds are distributed to the rightful heirs.

Accordingly, we enter the following

DECREE NISI

And now, January 24, 1991, upon consideration of the objections of the First National Bank and Trust Company of Newtown, guardian of the estates of Crystal R. Kubitsky and Laura M. Kubitsky, minors, to the amended first and final account of Stephen J. Kubitsky and Bessie W. Kubitsky, co-administrators of the estate of Steven J. Kubitsky, it is hereby ordered and decreed that the objections concerning missing assets and the receipt by the estate of the insurance proceeds for work-loss benefits are denied and dismissed. It is further ordered and decreed that the objections concerning the claims of the co-administrators against the estate are granted in part. The administration expenses in the amount of $1,160 are approved and allowed. Funeral expenses are allowed only in the amount of $3,217 for the funeral bill and in the amount of $480 for the headstone and foundation. The remaining claims of the co-administrators are denied. The estate shall be liable for any Pennsylvania inheritance tax determined to be due as of May 2, 1983, but the co-administrators shall be personally liable, jointly and severally, for any and all interest and penalties assessed thereon from that date. The co-administrators are surcharged for interest on the net estate (the amount remaining after the deduction from the $15,000 in principal receipts of the credits allowed above and the basic inheritance tax) from May 2, 1983 at the rate of 6 percent compounded annually until distribution to the heirs. The co-administrators are jointly and severally liable for the payment of this interest to the estate. If no objections are filed to this decree nisi within 10 days of the date hereof, the clerk shall enter this decree nisi as the final decree of the court.

       In Billman, the estate could not recover basic loss benefits because it stood in the shoes of the deceased victim, who was uninsured. The statute of limitations had run on the estate’s cause of action in Patterson but was tolled by the survivor’s minority so as to allow her claim.


author: SHENKIN, J.,

text:
    Mountain View Condominium Owners’ Association v. Mountain View Associates

      Steven L. Sugarman, for plaintiff.

      William J. Taylor, for defendant.
    January 8, 1991
   SHENKIN, J.,

In this case we are faced with the all too common situation in which one party serves interrogatories (or initiates some other facially appropriate discovery request) and the other party totally ignores the interrogatories until the party serving them has filed a motion for sanctions. Then the recipient serves answers and/or attempts to lodge objections, actions which should have been taken without requiring the other party to have gone to the time, trouble and expense of filing the additional motion.

In this case, interrogatories and a request for production of documents were served upon counsel for plaintiff on October 18, 1990. There was no response, even though counsel for plaintiff had sent a letter to counsel for defendants concerning other discovery matters. On November 20, 1990, counsel for defendants wrote to counsel for plaintiff requesting responses and advising that if counsel for defendants did not “hear from” counsel for plaintiff, a motion to compel would be filed. Still there was no response.

This motion for sanctions was then filed on December 4, 1990, and only then did counsel for plaintiff respond by filing, on December 19, 1990, an answer to the motion to which was appended partial answers and responses together with objections to certain of the requested discovery. In its answer to the motion plaintiff states that “defendants’ counsel knew or should have known that plaintiff’s responses to defendants’ discovery requests (other than objections thereto) would require” more than 30 days to answer, (emphasis supplied) Nowhere does counsel for plaintiff state that he contacted counsel for defendants and advised him of this time requirement or that he requested additional time to respond or that he filed those objections which by his own answer did not require more time or even that he advised counsel for defendants of his intention to object to some of the requested discovery. In spite of the fact that counsel for plaintiff was in contact with counsel for defendants with regard to discovery which he — counsel for plaintiff — wished to pursue, he made no effort to acknowledge the defendants’ outstanding discovery requests. Instead, he followed the unfortunate and unacceptable practice of ignoring that discovery until defendants were forced to file the motion here under consideration. In defense, counsel for plaintiff argues that the discovery could not reasonably be expected to have been answered within 30 days.

We emphasize that it was not the failure to file answers and produce documents which is so objectionable, since a good-faith effort to respond to discovery can indeed take more time than allowed by the Rules of Civil Procedure as of course, but rather the failure to have acknowledged in any way even the existence of the outstanding discovery. There is no indication in this record of so much as a phone call, let alone a letter, acknowledging the receipt of the discovery, requesting additional time to consider the discovery and respond or object thereto, or indicating an intention to answer and respond in part and to object in part. And, we repeat, in the answer to this motion, counsel for plaintiff acknowledges that there was no reason whatsoever why the objections were not filed within 30 days. Under these circumstances, we deem any objections to the requested discovery to have been waived.

Pa.R.C.P. 4019(a)(2) provides that failure to serve answers, sufficient answers or objections to written interrogatories or to respond to a request for production of documents “may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.” Accordingly, we hold that an objection to interrogatories or other discovery or an application for protective order must be filed before the party seeking discovery has filed a motion for sanctions, or other motion seeking to enforce compliance with the discovery request, or else such objection or the grounds upon which the protective order is sought shall be waived. See Nissley v. Pennsylvania Railroad Company, 435 Pa. 503, 510, 259 A.2d 451, 455 (1969); J.J. White Inc. v. Buckley and Company Inc., 65 D.&C. 2d 794 (1974); Bonk v. Block, 12 D.&C. 3d 749 (1980).

We are not here faced with the situation in which an objection was filed or protective order sought more than 30 days after the discovery request was served but before the party seeking the discovery had taken any action to compel compliance with the discovery request. It may be that the objection or request for protective order will not be required — upon penalty of waiver — to be filed within the same time period as is allotted for the response to the discovery request, but we are not here faced with that precise issue. Here we have the situation in which no objection was lodged until after the party promulgating the interrogatories had been forced to file a motion for sanctions in order to get any response at all from opposing counsel, and our decision is limited to that situation.

We recognize that in Hall v. Sears Roebuck & Company, 14 D.&C. 3d 231 (1980) the court held that objections to interrogatories may be considered so long as filed prior to disposition of a motion to compel answers. In the Hall case, supra, the defendant served interrogatories; seven months later the defendant filed a motion for sanctions seeking full and complete answers to the interrogatories; after the motion had been filed but prior to the hearing on the motion, plaintiffs filed general objections to the interrogatories. The court noted that although Pa.R.C.P. 4006(2) provides that objections to interrogatories shall be filed within 30 days, the rule does not expressly state that any objections not so filed are waived. The court also noted that although Pa.R.C.P. 4019(a)(2) provides that failure to answer interrogatories cannot be excused on the ground that the discovery sought is objectionable if a party has not filed objections or applied for a protective order, it does not specifically state when such objections must be filed. The court then did consider the objections and sustained them in part, ruling that such objections could be considered so long as they were filed at any time prior to the hearing on the motion for sanctions.

In the Hall case, the court was concerned that it could find no basis for disregarding the protections of Pa.R.C.P. 4011 and ordering discovery of matters which it considered to be outside the scope of the discovery rules. We find Pa.R.C.P. 4019(a)(2) to be ample basis. Pa.R.C.P. 4011 is not self-executing; a party wishing the benefit of the protections of that rule must seek to invoke them in a timely fashion. And we do not find that the Rules of Civil Procedure set forth a list of such matters as may be inquired into; rather the general philosophy is that everything is presumed to be discoverable, subject to specific limitations set forth in various rules. As we perceive the situation, nothing is per se outside the scope of the rules. Much evidence is given in court which would be inadmissible if objected to but which comes in and is fully probative because no objection is made. Just so, we find that any interrogatory is required to be answered unless a timely objection thereto is lodged or protective order sought. Rights, slept on, are lost every day and we see nothing to be gained by encouraging dilatory and discourteous behavior. Discovery received is entitled to a response before the party proffering the discovery must seek the court’s assistance.

The decision in Hall v. Sears Roebuck & Company, supra, gives primacy to the protections of Pa.R.C.P. 4011 over the obligations of Pa.R.C.P. 4006(2) and the directive of Pa.R.C.P. 4019(a)(2), and the court stated that its decision was consistent with most cases which considered the issue under the previous rules of discovery. However, all of the cases cited in Hall v. Sears Roebuck & Company, supra, were decided prior to the adoption of Pa.R.C.P. 4019(a)(2). Also we note that under the previous rules, it was stated that a party may file objections within 10 days after service of the interrogatories; the present rule states that objections shall be filed within 30 days. And the previous rules required a willful failure to respond before sanctions could be imposed; under the present rules sanctions may be imposed merely upon the failure to respond, whether willful or not (willfulness being only a factor to be considered in determining whether a sanction is to be imposed and, if it is, what sanction is appropriate). It is clear to us that the intention of Rule 4019(a)(2) is to prevent just the situation which occurred in this case. Otherwise the rule would be practically meaningless; its only effect would be to preclude a party from defending against a motion for sanctions on the basis that the discovery is objectionable when no objection had actually been filed or protective order applied for.

Permitting objections to be lodged or protective orders to be applied for at so late a time (that is, after a motion for sanctions or other motion to enforce discovery has been filed) would vitiate Pa.R.C.P. 4019(a)(2) but requiring such action before the court’s assistance is invoked to enforce discovery rights gives effect and a proper balance both to those rules which limit the scope of discovery as well as to those rules requiring diligence in response to discovery requests received. Our ruling in this case does not diminish any limitation imposed upon the scope of discovery; it requires only that such limitations be raised in a timely fashion. Moreover, our ruling will encourage parties to make discovery disputes known to each other before the court becomes involved and will further the policy that parties ought to make a good-faith effort to resolve such disagreements before invoking the assistance of the court. How can one party examine objections to its discovery (and possibly reconsider the propriety thereof in the face of such objections) before coming into court if the other party is not even required to make such objections known?

For the reasons set forth above, we enter the following

ORDER

And now, January 8, 1991, upon consideration of defendants’ motion for sanctions, it is hereby ordered that plaintiff shall serve upon defendants’ counsel full and complete answers to interrogatories numbers 1, 2, 6 through 58 inclusive, including all sub-parts thereof, 59(b) and (c), 60(b) and (c) and 61 through 71 inclusive, including all sub-parts thereof, of defendants’ first set of interrogatories addressed to plaintiff, and interrogatories numbers 1 through 9 inclusive of defendants’ expert interrogatories directed to plaintiff, within 30 days of the date of this order, and shall produce to defendants’ counsel for inspection and copying all documents in its possession or within its control responsive to defendants’ first request for the production of documents addressed to plaintiff within 30 days of the date of this order or suffer such sanctions as this court may thereafter deem appropriate.


author: FARINA, J.,

text:
    Commonwealth v. Harvey

      Brian E. Chudzik, assistant district attorney, for the Commonwealth.

      Douglas H. Cody, for defendant.
    July 12, 1990
   FARINA, J.,

Before the court is defendant Samuel W. Harvey’s post-trial motion challenging his conviction at a summary bench trial of driving during suspension in violation of section 1543(a) of the Vehicle Code, 75 Pa.C.S. §101 et seq. Prior to trial, defendant filed a timely motion to dismiss the summary charge as time-barred under section 5553(a) of the Judicial Code, 42 Pa.C.S. §101 et seq., which motion was denied. For the reasons that follow, we grant defendant’s post-trial motion and discharge defendant.

This case requires us to examine the effect on section 5553(a) of the Judicial Code on section 1543(d) of the Vehicle Code, which requires a prosecuting police officer to “verify” with the Department of Transportation the basis for the license suspension prior to filing a citation for driving during suspension and, upon receiving such “verification,” to identify on the citation the subsection violated. Section 5553(a) of the Judicial Code requires that a citation in a summary case be filed within 30 days of the offense or discoveiy of the identity of the offender. The issue presented is whether section 1543(d) of the Vehicle Code can operate to extend the time limitation of section 5553(a) of the Judicial Code.

In this case, the citation charging defendant with driving during suspension was filed more than 30 days after the offense and discovery of defendant’s identity, but within 30 days of receipt from the department of written “verification” of the basis of defendant’s prior suspension. The written verification was received within the 30-day period following the offense, but that period lapsed six days later. The citation was filed October 30, 1989.

The Commonwealth contends that the Judicial Code section 5553(a) time requirement for commencing prosecution is tolled by section 1543(d) of the Vehicle Code and so does not begin to run until written “verification” is received from the department. Section 1543(d) provides:

“Prior to filing a citation for a violation of this section with the issuing authority named in the citation, the police officer shall verify the basis for the suspension with the department. Upon receiving the verification, the officer shall cite the appropriate subsection of this section on the citation.” 75 Pa.C.S. §1543(d).

Nothing in the language of this section supports the Commonwealth’s interpretation. Section 1543(d) simply instructs the police as to what must be done prior to filing the citation. It says nothing about extending the time for filing, nor can we determine any compelling reason why an extension should be implied.

In Commonwealth v. Larson, 299 Pa. Super. 252, 445 A.2d 550 (1982), the Superior Court held that discovery of the offense of driving during suspension and identification of the offender by radio and computer check with the department at the time of the traffic stop started the 30-day clock of section 5553(a) and that it was not tolled while the prosecuting authority awaited written confirmation of the defendant’s driving record from the department. Although Larson was decided prior to the enactment of section 1543(d) in 1987, Commonwealth v. Alessi, 389 Pa. Super. 497, 567 A.2d 713 (1989), reached the same result as Larson without reference to section 1543(d).

We find Larson and Alessi controlling. Both cases held that verbal confirmation of offense and identity was sufficient to start the 30-day time clock. The fact that section 1543(d) directs the police to “verify” the basis of the suspension and upon “verification” to cite the appropriate subsection does not mean that the verification must be in writing, any more than confirmation of the suspension and identity of the offender had to be in writing under Larson and Alessi. Webster’s Ninth New Collegiate Dictionary defines “verify” as: “(1): to confirm or substantiate in law by oath (2): to establish the truth, accuracy, or reality of”; and “verification” as: “the act or process of verifying: the state of being verified.” Webster’s Ninth New Collegiate Dictionary 1310 (9th ed. 1985). Nothing in these definitions requires a writing. If the legislature intended section 1543(d) to require written verification, it could have so provided. Without evidence of such a legislative intent, the Commonwealth’s position has no merit.

Therefore, we conclude that under section 5553(a), as construed in Commonwealth v. Larson, supra, and Commonwealth v. Alessi, supra, a citation for driving during suspension must be brought within 30 days of the offense or discovery of the identity of the offender and this time period is not extended by section 1543(d) of the Vehicle Code.

Accordingly, we enter the following

ORDER

And now, July 12, 1990, upon consideration of defendant’s post-trial motion, the motion is granted, the verdict of guilty and sentence imposed are vacated, and the summary charge of driving during suspension in violation of section 1543(a) of the Vehicle Code, 75 Pa.C.S. §101 et seq., is dismissed as time-barred.

       On September 23, 1989 the offense was committed and defendant’s identity was discovered by radio/computer check with the department. On October 17, 1989 written confirmation was received from the department.


author: BRADLEY, J.,

text:
    Bowie v. Slick

      Robert M. DiOrio, for plaintiff.

      Martin R. Lentz, for defendants.

      Thomas P. Hamilton Jr., for intervenors.
    January 16, 1991
   BRADLEY, J.,

An action for mandamus and/or injunctive relief was filed by a taxpayer in the Wallingford-Swarthmore School District to enjoin defendants, the superintendent and Board of School Directors of said district, from levying taxes for the 1990-91 school year. Plaintiff contends that the district imposed a tax rate in excess of the limit imposed by section 6-672(a) of the Public School Code. This court agreed.

School districts are permitted to levy annually a tax on each dollar of assessment not to exceed 25 mills. 24 P.S. §6-672a. There are four exceptions to the 25-mill limitation:

(a) to pay salaries and increments of the teaching and supervisory staff;

(b) to pay rentals due any municipality authority, non-profit corporation or the State Public School Building Authority:

(c) to pay interest and principal on any indebtedness incurred under the Local Government Unit Debt Act; and

(d) to pay for the amortization of a bond issue which provided for a school building prior to the first Monday of July 1959.

The controversy in this action arose in connection with the provision allowing an unlimited increase in millage where necessary “to pay salaries and increments of the teaching and supervisory staff.” Plaintiff argues that the school tax in excess of 25 mills may not include employee and fringe benefits. Fringe benefits are not “salary or increments,” and plaintiff contends that the tax rate is illegal and, as such, these taxes may not be collected.

The district asserts that fringe benefits are a part of the salary exception to the 25-mill limitation. However, if fringe benefits are not to be considered as part of salary, then section 6-672 of the code is unconstitutional as it will not allow the district to maintain a “thorough and efficient system” as provided in Article 3, section 14 of the Pennsylvania Constitution. Thus, there are two issues that the court addressed: (1) Whether fringe benefits are a part of salary and (2) if fringe benefits are not considered to be salary, whether the code provision is unconstitutional.

I

Section 6-672 of the code does not define the term “salary.” The district asserts that even though not specifically defined in the code, the language of the code when taken as a whole and interpreted in accordance with the rules of statutory construction, the term “salary” should encompass all manner of payments paid directly or indirectly to teachers and supervisory staff provided for in collective bargaining agreements and federal law. The district further notes that when the legislature amended section 6-672(b)(l), the word “minimum” salary was deleted. This, the district reasons, indicated the legislative intent to authorize the school district to levy taxes necessary to fund all payments on account of teachers’ employment.

The district argues that strict interpretation of the term “salary” to exclude fringe benefits would deprive the district the right to fund compensation paid to its teachers and supervisory staff merely on account of the form in which it taxes. The district states that such a result elevates form over substance and could not be the intent of the legislature.

The district cited the case of Appeal of Cumberland Valley School District, 483 Pa. 134, 394 A.2d 946 (1978), which held that fringe benefits such as health and life insurance are wages within the meaning section 301(14) of the Pennsylvania Employee Relations Act.

Plaintiff asserts that the statute is clear and unambiguous and should be construed accordingly. Since the use of the funds by the district are not used in accordance with the code, the district’s tax imposition is illegal. While the code does not define salary, plaintiff contends that the Pennsylvania Supreme Court in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986), did define the term. The court in that case defined it as a “fixed payment at regular intervals for services especially if clerical or professional.” The court never considered any other form of compensation such as unemployment compensation, health benefits, etc. Citing Central Dauphin Education Association v. Central Dauphin School District, 28 Pa. Commw. 36, 367 A.2d 385 (1976), plaintiff states that the Commonwealth Court held that fringe benefits are not part of the salary for teachers on sabbatical leave.

It must first be noted that pursuant to 1 Pa.C.S. § 1928(b)(3), a provision imposing a tax must be strictly construed. A taxing statute must not only be strictly construed but all reasonable doubt must be resolved in favor of the taxpayer. Estate of Rose, 465 Pa. 53, 348 A.2d 113 (1975). The Code offers no guidance as to how the term “salary” should be defined.

Allowing the term “salary” to encompass fringe benefits would be inconsistent with a strict interpretation of the statute. To hold that the deletion of the word “minimum” shows the intent of the legislature to authorize the school district to levy taxes necessary to fund salaries it is obligated to pay to teachers would again be contrary to a narrow interpretation of the term.

The district argues that Appeal of Cumberland Valley School District, supra, requires this court to conclude that fringe benefits are wages and salary. That case, however, made no distinction between wages and fringe benefits because the legislation in question defined wages as hourly rates of pay, salary, or other forms of compensation for services rendered. This legislation, therefore, broadened the concept and concluded that fringe benefits were included in wages. No such distinction between salary and fringe benefits exists in section 6-672(b) of the Public School Code. While the district asserts that a strict interpretation produces an “absurd” result, it is the court’s duty to interpret a statute imposing a tax strictly.

Construing the statute material, this court finds that fringe benefits may not be construed a part of salary. To interpret the section to the contrary would be in violation of section 1928(b)(3). Further, it is not the court’s duty to legislate. It is the legislature’s duty to amend or change the statute. A court should not broadly define a term in a statute simply because a school district chooses to ignore a law, no matter how ancient, that was enacted to serve as a protection to the taxpayers. Where the legislature has the constitutional power to regulate the manner in which school districts tax, should the districts not appeal to the legislature to consider whether any relief should be allowed?

I — I

Since this court finds that fringe benefits are not a part of salary, the constitutional argument raised by the district must be addressed. The district argues that the code must be unconstitutional since it will not allow the district to maintain a “thorough and efficient system” required by Article 3, section 14 of the Pennsylvania Constitution. It asserts that due to the failure to reassess in Delaware County, this school district cannot raise sufficient money to fund school operations. However, it is parenthetically noted that the legislature has considered failure to reassess and has crafted a manner in which such alleged unfairness may be addressed in property assessment. 72 P.S. §4656.16a. This district nowhere argues that it requested legislative help in this matter.

Plaintiff contends that legislation may not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.

The term “efficient” refers to the qualification of teachers. Ebert v. School District of Borough of Dulpmont, 333 Pa. 518, 5 A.2d 188 (1939). We do not believe it refers to the funding or lack of funding of teacher’s salaries. This court does not consider section 6-672 of the Public School Code to be in violation of the Pennsylvania Constitution; The district simply wants to be absolved from its failure to consider a proper way to address the alleged unfairness of the code provision. Should it be permitted simply to avoid the legislative protection of the taxpayers?

This court concludes that the statute is clear and the term “salary” does not include the many benefits provided in addition to salary. The statute is constitutional. The district should be required to request that the legislature consider its plight and craft relief if appropriate. Taxpayer protection should not simply be ignored by any governmental entity.