author: SAIDIS, Member,

text:
    In the Matter of Weitzman
    Disciplinary Board Docket no. 24 D.B. 2000.
    September 17, 2004
   SAIDIS, Member,

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

I. HISTORY OF PROCEEDINGS

Petitioner, Dean Ian Weitzman, filed a petition for reinstatement to the bar of Pennsylvania on March 20,2003. Petitioner was suspended for three years retroactive to March 13,2000, by order of the Supreme Court of Pennsylvania dated February 8, 2002.

A reinstatement hearing was held on August 11,2003, before Hearing Committee 1.10 comprised of Chair Luther E. Weaver III, Esquire, and Members Nancy B.G. Lassen, Esquire, and Robert A. Newman, Esquire. Petitioner was represented by John Rogers Carroll, Esquire.

Following the submission of briefs by the parties, the Hearing Committee filed a report on May 10,2004, and recommended that the petition for reinstatement be granted.

Office of Disciplinary Counsel filed a brief on exceptions on May 28,2004. Petitioner filed a brief opposing exceptions on June 25, 2004.

This matter was adjudicated by the Disciplinary Board at the meeting of July 17, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Dean Ian Weitzman. He was born in 1962 and was admitted to practice law in the Commonwealth in 1987. His current address is 1215 Gilbert Road, Meado wbrook, PA 19046.

(2)Petitioner was suspended from the practice of law for three years, retroactive to March 13, 2000, by order of the Supreme Court of Pennsylvania dated February 8, 2002.

(3) Petitioner was convicted in 1999 of three counts of attempt to evade or defeat tax, in violation of 26 U.S.C. §7201.

(4) Petitioner carried out his tax evasion scheme by receiving clients’ settlement checks and cashing them at a check cashing agency. He then deposited the proceeds into his private escrow account, wrote those clients checks from that escrow account, and kept the remaining cash for himself. He did not report or account for this income to his law firm partners.

(5) Petitioner was fined $30,000 and placed on probation for three years, with home detention and electronic monitoring for the first six months.

(6) Petitioner completed his criminal sentence and paid the $30,000 fine.

(7) Petitioner paid his entire tax debt to the City of Philadelphia of $40,000 as well as all back taxes owed to the Commonwealth.

(8) Petitioner’s original federal tax liability was approximately $198,000; however, by 2003, it had increased to about $400,000 due to interest and penalties.

(9) Petitioner borrowed $ 100,000 to make a down payment of his federal tax debt and has repaid $50,000 of this. He also paid another $35,000 to the IRS for total payments to the IRS of $135,000 prior to offers of compromise.

(10) On his accountant’s advice, petitioner has not made any further payments pending consideration of his second offer in compromise. His first offer in compromise was refused in February 2001, and the second one was filed July 28,2003. This later offer anticipates a lump sum payment of $200,000 on a total debt of approximately $400,000.

(11) Petitioner submitted documentation in October 2003, consisting of a letter from Ivy Mortgage to petitioner, attaching a “good faith estimate” for a loan in the amount of $195,469.89, for the payment of the IRS debt, if the offer in compromise is accepted. He also submitted a letter from Buonomo & Associates, his accounting firm, confirming their efforts to have the offer in compromise approved.

(12) Petitioner has also paid down other indebtedness, including mortgage and credit card balances and is current with all his obligations but for the IRS and money he owes to Saul Langsam, Esquire.

(13) Mr. Langsam and petitioner have agreed that petitioner must repay his federal obligations before paying his debt to the law firm of Silvers & Langsam.

(14) After his suspension, petitioner initially worked for the Silvers & Langsam law firm as a law clerk. His current occupation at that firm consists of administering and maintaining the computer system and all matters related to information flow, such as case management and bookkeeping.

(15) Petitioner fulfilled his Continuing Legal Education requirements for reinstatement. He reads the Legal Intelligencer, PA Law Quarterly and other periodicals on a frequent basis, as well as advance opinions.

(16) Petitioner is a recovering drug addict. This addiction was a causal factor in his misconduct, as petitioner proved in his underlying discipline case.

(17) Subsequent to the time that petitioner’s crime was discovered, he sought help for his drug addiction by receiving inpatient treatment at Father Martin’s Ashley, a rehabilitation center in Maryland. Petitioner then became associated with a lawyers’ therapy group facilitated by Dr. Richard Limoges, as well as a lawyers’ recovery group which met in Philadelphia every week.

(18) Petitioner attends on a regular basis meetings of Alcoholics Anonymous and Narcotics Anonymous, going to meetings four or five times per week for the last six years.

(19) Petitioner has been sober for more than six years without a relapse.

(20) Dr. Limoges testified at the reinstatement hearing. He is board certified in addiction medicine as well as psychiatry. Dr. Limoges began treating petitioner in 1997 and has seen him regularly for the past six years.

(21) Dr. Limoges’ current diagnosis is “chemical dependency in long-time stable remission.” Dr. Limoges opined that petitioner is able to be a fully functioning attorney at this time.

(22) Judge Robert Rebstock of the Court of Common Pleas of Philadelphia testified on petitioner’s behalf. He is petitioner’s Alcoholics Anonymous sponsor. Judge Rebstock has known petitioner for approximately 12 years. Judge Rebstock meets with petitioner twice a week and has confidence in his mature dealings with his addiction and his continuing recovery. He observed that petitioner has dealt with his addiction forthrightly.

(23) Thomas J. Duffy, Esquire, knows petitioner through the lawyers’ recovery meeting for the last five years. He has observed that petitioner is a faithful participant in his recovery programs and would not bring disrepute to the bar if reinstated.

(24) Vincent Pileggi knows petitioner through Narcotics Anonymous and sees petitioner at least three times per week at meetings of that group. He believes petitioner is doing well in his recovery and is an active participant in his recovery programs.

(25) David Rapaport, Esquire, rents office space from the Langsam law firm and has employed petitioner as a part-time paralegal to do research and draft documents. Mr. Rapaport is impressed with petitioner’s legal abilities and has noticed a great improvement in petitioner’s attitude towards work since he became sober. He testified that if petitioner was reinstated he would recommend clients to him.

(26) Saul Langsam, Esquire, is petitioner’s former law partner and current employer. He testified he would welcome petitioner back to the firm as a lawyer if he is reinstated and feels that petitioner would be an attribute to the bar. Mr. Langsam is confident that petitioner will stay committed to his recovery program. •

(27) Several other witnesses testified who know petitioner from recovery programs. These witnesses all had positive remarks about petitioner’s commitment to his sobriety and his participation in recovery programs.

(28) Petitioner’s wife, Lisa Weitzman, testified to the positive change she has witnessed in her husband. He is now honest and reliable and involved with family life as never before.

(29) Petitioner testified on his own behalf regarding his recovery from substance abuse. Petitioner recognizes that he is an addict and has worked hard to maintain his sobriety. He believes he is a different person from the man he was in 1997. His relationship with his family has been strengthened since his sobriety and he is now a major participant in his children’s lives.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by Dean Ian Weitzman. By order of the Supreme Court of Pennsylvania dated February 8, 2002, petitioner was suspended from the practice of law for three years retroactive to March 13,2000.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was convicted of three counts of attempting to evade or defeat tax and served a sentence of three years of probation plus a $30,000 fine. All of petitioner’s criminal penalties have been fulfilled. At the proceeding before the Disciplinary Board, which resulted in petitioner’s three-year suspension, petitioner proved by clear and convincing evidence that his addiction to drugs substantially caused his criminal misconduct. Petitioner’s request for reinstatement places squarely before the board petitioner’s efforts at rehabilitation in connection to his psychiatric disorder. The record is clear that petitioner has made substantial and successful efforts at achieving sobriety. Shortly after evidence of petitioner’s criminal acts was discovered, he checked into a rehabilitation center in Maryland. He sought psychiatric treatment with Dr. Richard Limoges, a specialist in addiction issues. He began participation in several recovery programs, including Narcotics Anonymous and Alcoholics Anonymous, which participation continues at the present time. By all accounts, petitioner has been committed to his recovery and has maintained his recovery without relapse to substance abuse. Dr. Limoges, Judge Rebstock, and others involved in petitioner’s recovery testified at the reinstatement hearing as to the positive changes in petitioner, his honest and forthright confrontation of his addiction and his continuing efforts to maintain sobriety.

During petitioner’s suspension he worked as a law clerk and a computer administrator for his former law firm. Petitioner did not practice law while on suspended status. Petitioner kept apprised of the current law through his work and his reading of various periodicals and advance sheets, as well as attendance at his required Continuing Legal Education seminars.

Petitioner has made good faith efforts to repay his debts and obligations. He made payments of approximately $135,000 to the IRS on an original tax liability of $ 198,000. He paid in full his tax debt to the City of Philadelphia. He has submitted good faith offers in compromise to the IRS, including an offer on July 28, 2003, of an additional $200,000 lump sum payment. Petitioner’s most recent offer in compromise was submitted in July of 2003. There is no evidence before the board that this offer was acted on by the government; however, the existence of the offer submitted to the IRS stands as proof of petitioner’s continuing efforts to repay his tax burden.

Office of Disciplinary Counsel objects to the Hearing Committee’s finding that petitioner made good faith efforts to pay the IRS and opposes petitioner’s reinstatement. The board is not persuaded by Office of Disciplinary Counsel’s objections. Petitioner’s payment of $135,000, plus his offer of another $200,000 in compromise, constitutes a reasonable good faith effort to satisfy his obligation, considering that petitioner made payments of other debts during that time period. Petitioner has made clear his intention to repay his obligation. Office of Disciplinary Counsel compares the instant matter to that of In re Anonymous No. 74 D.B. 89, (Pa. August 8, 2002). The attorney therein owed a $2 million tax liability to the IRS. The record showed that he made periodic payments for 12 to 18 months according to an installment agreement with the IRS. He then defaulted on that agreement and made an offer in compromise of $30,000, which was rejected by the IRS. The attorney then made an additional 10 payments totaling $1,900 before totally discontinuing his efforts to satisfy the obligation. The board recommended that reinstatement be denied and the court approved this recommendation. The instant matter is not as egregious as the cited case, and more importantly, petitioner has not discontinued his efforts to repay his debt.

Petitioner expressed remorse for his misconduct and has presented conclusive evidence that he has rehabilitated himself and is fit to practice law. Petitioner has met with clear and convincing evidence his burden of proving that he is morally qualified, competent and learned in the law. Furthermore, the board finds that petitioner’s re-admission will not be detrimental to the bar or the public. For these reasons, the board recommends that petitioner be reinstated to the practice of law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, Dean Ian Weitzman, be reinstated to the practice of law.

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

Vice-Chair Rudnitsky dissented and would deny reinstatement.

ORDER

And now, November 17,2004, upon consideration of the report and recommendations of the Disciplinary Board dated September 17, 2004, the petition for reinstatement is granted. We further direct Office of Disciplinary Counsel to consider any future non-payment of tax liability as a ground for discipline.

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


source: Caselaw Access Project

author: CHESLOCK J,

license: Public Domain

text:
    Express Financial Services Inc. v. Gateway Abstract Inc.

      C.P. of Monroe County,
    no. 9144 CV 2001.

      Melissa A. Swauger, for plaintiff.

      James V. Fareri, for defendant.
    August 20, 2004
   CHESLOCK J,

FINDINGS OF FACT

(1) Plaintiff Express Financial Services Inc. is a corporation in the business of securing title insurance and acting as a settlement agent in real estate transactions.

(2) Defendant Gateway Abstract Inc. is a corporation who provides services, including title searches, with respect to real estate transactions.

(3) In the early 1990s, Express has used Gateway to conduct settlement on its behalf, which included attending and witnessing closings, explaining mortgages and other documents.

(4) Since approximately 1994, Express requested Gateway to conduct title report searches for it.

(5) On April 27,1998, Express ordered a current owners title search for Edward Lindor at the property address of 298 Lower Seese Hill Road, Candensis, Pennsylvania, from Gateway.

(6) The current owner search on Lindor was requested via facsimile request form, which had been regularly used between Express and Gateway in their past business dealings.

(7) Gateway completed a title search and forwarded the results to Express in a title report dated April 29, 1998.

(8) The title report form contained the following language:

“This title search is based upon the examination of recorded evidence from courthouse records. This is not a title policy nor is it a commitment for title insurance. Upon payment, liability is assumed by Gateway Abstract Inc., for any negligence, mistakes or omissions as an abstractor and only for the time period searched. This search excepts any defects, liens, encumbrances, adverse claims or other matters, as a result of or caused by computer error, program error, programmer error, or programming limitations, including but not limited to any misspellings or derivations of the surname when searching any courthouse automated system liability hereunder is assumed by the company for its negligence, mistakes or omissions in a sum not exceeding the cost of the search.”

(9) Among other things, Express requested that Gateway search for outstanding mortgages issued on the Lindor property.

(10) The title report prepared by Gateway indicated the only mortgage holder was CoreStates Mortgage Services Corporation.

(11) In April 1998, Lindor requested a mortgage on his property from TMS Mortgage Inc., d/b/a The Money Store in the amount of $220,000.

(12) The title search completed by Gateway missed a mortgage held by Champion Mortgage Servicing Corp. Inc., in the amount of $292,000, recorded in the Monroe County Recorder’s office on November 13, 1997.

(13) Express paid Gateway $40 for the search performed on the Lindor property.

(14) Gateway did not provide title insurance or a binder for title insurance on the Lindor property.

(15) Express provided title insurance for the Lindor property in 1998.

(16) Express had an underwriting contract with Chicago Title Insurance Company in regards to title policies it wrote in 1998.

(17) Champion Mortgage Servicing Corp. Inc. foreclosed on the Lindor property and a sheriff’s sale held on October 25, 2001, divested The Money Store of its mortgage on the Lindor property.

(18) As a result of the missed mortgage on the Lindor title search, Express paid Chicago Title Insurance Company $220,000.

DISCUSSION

Express brought this action to recover the sums paid to Chicago Title Insurance Company as a result of Gateway’s failure to disclose an outstanding mortgage of Champion Mortgage Servicing Corp. Express hired Gateway to perform a title search of the premises owned by Lindor. Express maintains that the parties entered into a “contract” and that Gateway is in breach of that contract for failing to disclose the Champion mortgage in the title search results.

To determine if an enforceable contract exists, all essential elements of a contract must be present. Johnston the Florist Inc. v. Tedco Construction Corp., 441 Pa. Super. 281, 657 A.2d 511 (1995). The essential elements of an enforceable contract are: “[1] whether both parties have manifested an intent to be bound by the terms of the agreement; [2] whether the terms are sufficiently definite; and [3] whether consideration existed.” Id. at 291, 657 A.2d at 516. There is no dispute between the parties that a written contract does not exist.

While a written contract does not exist which would specifically set forth each party’s respective duties and responsibilities, Express maintains that a contract, nevertheless, did exist between the parties. Gateway, on the other hand, denies the existence of a contract. Therefore we must now look to whether an oral contract existed between the parties.

To establish the existence of an oral contract, one must show that (1) both parties have manifested an intent to be bound by the terms of the agreement; (2) the terms of the agreement are sufficiently definite to be specifically enforced; and (3) there is a mutuality of consideration. Redick v. Kraft Inc., 745 F. Supp. 296 (E.D. Pa. 1990), citing Channel Home Centers v. Grossman, 795 F.2d 291, 298-99 (3d Cir. 1986). The existence and terms of an oral contract must be established by clear and precise evidence. Id., citing Browne v. Maxfield, 663 F. Supp. 1193, 1197 (E.D. Pa. 1987).

Instantly, we believe that both parties manifested an intent to be bound by the terms of an agreement or contract. When Express would send a request, whether by facsimile or other means, Gateway would conduct a title search on the property. This is clearly demonstrated by the number of searches requested from Express and completed by Gateway. Robert Sumbury, a branch manager for Express, testified that Gateway performed approximately 416 title searches for Express in 1997 and approximately 381 title searches in 1998. Based upon the testimony and the volume of title searches requested and performed, we believe that the parties had an ongoing agreement or contract.

Next, we find that the terms of the agreement are sufficiently definite to be specifically enforced. Express, in making their request to Gateway, expected a report which set forth the mortgages, judgments, liens, encumbrances, etc., regarding a particular property. In return, Gateway would provide a title search report which set forth that information. Mr. Sumbury testified that there were no written terms or correspondence containing terms between the parties, only the title search form provided by Gateway. Michele Roberts, president of Gateway, testified that Gateway would use its forms in sending a title search report to Express. Gary Roberts further testified that the fee for the title searches was fixed at $40. Mr. Roberts did not testify as to how the fee was fixed. We will not surmise whether Express set the fee or if the fee was negotiated between the parties. Further, Mr. Roberts testified that the limitation of liability language was contained on Gateway’s form and that no one from Express objected to Gateway using its own forms for the reports.

Finally, we find that there was a mutuality of consideration. Express received the title search information it requested and Gateway was paid for providing such information. Express presented sufficient evidence that the parties orally agreed to terms of an agreement, which constituted an oral contract. We find that Express has established by clear and precise evidence the existence of an oral contract.

Next we must consider whether the language contained in the title report form limits the liability of Gateway. Gateway maintains that it is only liable for an amount not exceeding the cost of the search. Express maintains that the language is ambiguous because a plain reading of the limitation suggests that the limitation applies only to errors while searching any courthouse automated system.

The limitation of liability language contained in the report is akin to an exculpatory or indemnity clause. The Superior Court has stated that, “[wjhile an exculpatory clause . . . differs somewhat from an indemnity clause ... there is such a substantial kinship between both types of contracts as to render decisions dealing with indemnity clauses applicable to decisions dealing with exculpatory clauses and vice versa.” Warren City Lines Inc. v. United Refining Company, 220 Pa. Super. 308, 311 n.1, 287 A.2d 149, 150 n.1 (1971). In determining the validity of an exculpatory clause, it must not contravene any policy of law and it must be a contract between individuals relating to their private affairs. Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 478, 385 A.2d 437, 439 (1978). Each party must be a free bargaining agent, and not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction. Id. As we have set forth above, the parties entered into a valid contract. The report sent by Gateway set forth terms for the contract. Although Express does not argue that a contract did not exist, it does not want to be bound by the limitation of liability language contained in Gateway’s written report.

The specific language sets forth that Gateway is liable for negligence, mistakes or omissions for the time period searched. Gateway agrees that it was negligent in failing to include the Champion mortgage in its report to Express. The second part of the language indicates that Gateway “excepts” any defects, liens, encumbrances, adverse claims or other matters as a result of computer, program, programmer or programming error. “Excepts” has been defined as “to leave out” or “with the exclusion of.” Webster’s II New Riverside University Dictionary, 1984. The residue of the language in the last sentence of Gateway’s form states that liability hereunder is assumed by the company for its negligence, mistakes or omissions in a sum not exceeding the cost of the search. Express argues in its trial brief that if clear ambiguity exists with regard to the language . . . then an issue of fact is present. We do not believe that an ambiguity exists because the language clearly excepts any error in the courthouse records. The language is clear that the company will be liable for its own negligence, mistakes or omissions in a sum not exceeding the cost of the search. We are required to use common sense in interpreting the language contained in the form. Id. Even if an issue of fact is present, we are the fact-finder. The credibility of witnesses and the weight to be accorded their testimony is for the trial judge as the finder of fact. Rosine v. Gerlach, 173 Pa. Super. 240, 98 A.2d 436 (1953). The court in a non-jury trial is free to believe some, all or none of the proffered testimony. Psi Upsilon v. University of Pennsylvania, 404 Pa. Super. 604, 591 A.2d 755 (1991). We find the testimony of Gary Roberts credible that the form was never objected to by Express. We find that the liability of Gateway is limited by the language contained in the title search form.

CONCLUSIONS OF LAW

(1) Express and Gateway were parties to an oral contract.

(2) Gateway was negligent in failing to disclose the Champion mortgage to Express in the title search report dated April 29, 1998.

(3) The contract terms included a limitation of liability as set forth in the title search form used by Gateway.

(4) Gateway’s liability to Express is in a sum not to exceed the cost of the search.

VERDICT

And now, August 20,2004, this court finds in favor of the plaintiff, Express Financial Services Inc., and against the defendant, Gateway Abstract Inc., in the amount of $40 plus record costs.


author: BLACK, J,

text:
    Freedman v. Tozzoli

      C.P. of Lehigh County,
    no. 2004-C-2305.

      Kimberly D. Borland, for plaintiff.

      Jeffrey S. Stewart, for defendants.
    February 17, 2005
   BLACK, J,

This case arises from the termination of the plaintiff’s employment. The plaintiff, Dr. Kristen Freedman, a podiatrist, seeks to recover money damages from the defendants, Douglas Tozzoli D.P.M., PC., a professional corporation (the P.C.), and Douglas Tozzoli, the sole shareholder and director of the P.C. The plaintiff claims breach of her employment contract with the P.C. (Count I) and also sex discrimination in violation of the Pennsylvania Human Relations Act (the PHRA), 43 Pa.C.S. §951 et seq. (Counts II and III).

Before the court are the defendants’ preliminary objections to the complaint on the ground that the parties’ dispute must be submitted to arbitration in accordance with the rules of the American Health Lawyers Association (AHLA), pursuant to paragraph 17 of the employment contract. For the reasons stated, we sustain the preliminary objections and direct the case to arbitration in accordance with the AHLA rules, but only if the defendants file a written stipulation agreeing to certain modifications of these rules. If the defendants do not agree to these modifications, the preliminary objections are overruled; and since the plaintiff’s claim does not exceed $50,000, the case will then proceed through court-attached arbitration.

FACTS

The pertinent facts, as set forth in the complaint, are as follows: The P.C. is a professional corporation engaged in the practice of podiatric medicine in Allentown, Lehigh County, Pennsylvania. Tozzoli is the sole shareholder and director of the P.C.

On May 28, 2002, the plaintiff entered into a written employment agreement with the P.C. to work as a doctor of podiatric medicine. The agreement provided that the term of employment would be one year commencing on July 1,2002, and that the plaintiff would be paid a salary of $40,000 plus a bonus.

The P.C. terminated the plaintiff’s employment on November 5,2002, approximately eight months prior to the expiration date under the agreement. The plaintiff contends that the termination was without cause, in breach of the agreement, and that it was based on her gender. According to plaintiff, Tozzoli stated to a co-worker that he preferred to work with a male associate and that he regretted having hired a female associate.

The agreement included a provision for alternative dispute resolution in the event of controversies or claims arising out of or relating to the agreement. This provision, in paragraph 17, states the following:

“(17) Except for controversies or claims arising under paragraph 14 [relating to a restrictive covenant], any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration in Allentown, Pennsylvania. Arbitration shall be in accordance with the rules and provisions established by the American Health Lawyers Association and shall be final and binding upon the parties, and a judgment upon the award rendered may be entered in any court having jurisdiction.”

The rules and provisions established by the APILA are annexed as exhibit “A” to the plaintiff’s memorandum in opposition to defendants’ preliminary objections. These rules provide that a $2,475 administration fee is required to file a claim involving three parties. This fee must be included with the request for arbitration. In addition, the arbitrator may require the parties to deposit in advance of any hearings such sums as the arbitrator may deem necessary to cover the expense of the arbitration, including the arbitrator’s fee.

Under the AHLA rules the arbitrator may grant any remedy or relief that he or she deems just and equitable and within the scope of the arbitration agreement; but unless the parties agree otherwise, the arbitrator may not award “consequential, exemplary, incidental, punitive or special damages” unless arising from a tort unrelated to employment or the termination of employment. The arbitrator may also assess “arbitration fees, expenses and compensation in favor of the prevailing party for good cause shown”; otherwise these items and the administration fee are divided equally between the parties.

DISCUSSION

Agreements to arbitrate disputes are valid and enforceable under Pennsylvania law, “save upon such grounds as exist in law or in equity relating to the validity, enforceability or revocation of any contract.” 42 Pa.C.S. §7303. In this case the plaintiff opposes the defendants’ request to arbitrate their dispute in accordance with the AHLA rules pursuant to the employment agreement. The plaintiff contends (1) that the PHRA claims are beyond the scope of the arbitration clause, (2) that the AHLA rules do not authorize the arbitrator to award attorney fees and compensatory damages on the same basis that a court could award these items under the PHRA, and (3) that the AHLA arbitration process is prohibitively expensive, thereby deterring persons in the same position as the plaintiff from vindicating their PHRA claims. These contentions will be considered seriatim.

I. The Scope of the Arbitration Clause

The first count of the complaint, which is directed against the P.C. for breach of the employment agreement, is clearly within the scope of the arbitration clause. The plaintiff alleges, however, that Counts II and III are beyond the scope of this clause because they assert violations of the PHRA. Count II is directed against the P.C. for violation of section 955(a) of the PHRA in terminating her employment by reason of her gender. Count III, also directed against the P.C., alleges a violation of section 955(e) of the PHRA for aiding and abetting the section 955(a) violation.

Whether a particular dispute falls within the scope of a contractual arbitration provision is a matter of law to be decided by the court. Huegel v. Mifflin Construction Co. Inc., 796 A.2d 350, 354 (Pa. Super. 2002). Pennsylvania has a strong public policy favoring the arbitration of disputes. Commonwealth, Office of Administration v. Commonwealth, Pennsylvania Labor Relations Board, 528 Pa. 472, 478, 598 A.2d 1274, 1277-78 (1991); Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 662-63, 331 A.2d 184, 185 (1975). Therefore, when there is doubt as to whether a controversy is within the scope of an arbitration provision, that doubt should generally be resolved in favor of arbitration.

Paragraph 17 of the agreement states that “any controversy or claim arising out of or relating to this agreement, or the breach thereof’ shall be submitted to arbitration under the AHLA rules. This is a very broad arbitration clause. The phrase “relating to” extends beyond disputes “arising under” the agreement. Clearly, the plaintiff’s claim that her employment was terminated in violation of the agreement because of sex discrimination is a claim that is “related to” the agreement. Therefore, we believe the PHRA claims are within the scope of the arbitration clause. See Hearon v. AstraZeneca LP, civil action no. 02-3189 (E.D. Pa. March 24,2003) (holding PHRA sex discrimination claim subject to arbitration).

We note also that the plaintiff’s claim of sex discrimination is inextricably tied to her breach of contract claim because both arise from the allegedly wrongful termination of the plaintiff’s employment. Although the theories of liability and the measure of damages may be different, the evidence on all of the plaintiff’s claims will overlap, and it would make little sense to try the breach of contract claim and the sex discrimination claims before different tribunals.

II. The Damages Recoverable Under the AHLA Rules

The plaintiff also argues that the arbitration clause is invalid when applied to the PHRA claims because the AHLA rules do not permit the arbitrator to award the full measure of damages recoverable under the PHRA. The damages sought by the plaintiff in her PHRA claims include loss of wages, emotional distress damages, and attorney fees. There is no claim for punitive damages because these are not recoverable under the PHRA. Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745 (1998).

We see nothing in the AHLA rules that precludes the recovery of lost wages or emotional distress damages. Rule 6.06 provides in pertinent part:

“The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the arbitration agreement of the parties.... By submitting a dispute to arbitration under these rules, the parties agree that the arbitrator may not award and there shall be no claim available for consequential, exemplary, incidental, punitive or special damages in an action other than an action arising from a tort unrelated to employment or the termination of employment.”

This provision does not restrict the arbitrator from awarding the wage loss and emotional distress damages that the plaintiff is claiming. These types of damages are direct losses from the tortious conduct alleged. They are not considered “consequential, exemplary, incidental, punitive or special damages,” such as would be precluded by Rule 6.06. The defendants’ counsel agreed at oral argument that the arbitrator would have full authority to award both wage loss and emotional distress damages.

The issue of attorney fees presents a somewhat murkier problem. Under the PHRA, a court has discretion to award attorney fees to the prevailing party. Such an award is not automatic. Specifically, the PHRA provides:

“(c.2) If, after a trial held pursuant to subsection (c), the court of common pleas finds that a defendant engaged in or is engaging in any unlawful discriminatory practice as defined in this act, the court may award attorney fees and costs to the prevailing plaintiff.

“(c.3) If, after a trial held pursuant to subsection (c), the court of common pleas finds that a defendant has not engaged in or is not engaging in any unlawful discriminatory practice as defined in this act, the court may award attorney fees and costs to the prevailing defendant if the defendant proves that the complaint was brought in bad faith.” 43 P.S. §962(c)(4)(c.2) and (c.3). (emphasis added)

It is likely that AHLA Rule 6.06 also allows for attorney fees to be awarded to the prevailing party on the same discretionary basis. As noted above, this section states that “the arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the arbitration agreement of the parties.” Nevertheless, there remains some question as to whether an award of attorney fees would be considered consequential damages, which are barred under AHLA Rule 6.06 except for torts actions unrelated to employment or the termination of employment. Therefore, before we require the plaintiff to pursue her PHRA claims before the AHLA arbitrator, the defendants must file a stipulation with the clerk of courts confirming that the arbitrator may award attorney fees to the prevailing party on the plaintiff’s PHRA claims on the same basis that such fees may be awarded by a court.

We are aware that AHLA Rule 6.06 states:

“The arbitrator may, in the award, assess arbitration fees, expenses, and compensation in favor of the prevailing party for good cause stated in the award....”

We doubt that this sentence was intended to include attorney fees since the very next sentence states, “If not assessed, arbitration fees, expenses, compensation and administration fees shall be divided equally among the parties.” It would be very surprising if unassessed attorney fees were to be “divided equally among the parties.” For this reason we believe the reference to “arbitration fees” in Rule 6.06 was intended to cover the fees of the arbitrator.

The plaintiff suggests that an award of counsel fees to the prevailing party should be mandatory, and refers to the decision of the Third Circuit Court of Appeals in Spinetti v. Service Corp. International, 324 F.3d 212 (3d Cir. 2003), as support for this proposition. Spinetti does state that there is a strong federal policy favoring the award of attorney fees to a prevailing party in antidis-crimination litigation. However, Spinetti was decided under title VII, 42 U.S.C. §2000e-5(k), and the Age Discrimination in Employment Act, 29 U.S.C. §§626(b) and 216(b), both of which are federal statutes. Neither statute is involved in this case. Moreover, even under these federal anti-discrimination statutes an award of attorney fees to the prevailing party is discretionary. What the Third Circuit found objectionable in Spinetti was an arbitration clause that required each party to bear its own costs and attorney fees regardless of the outcome of the proceeding.

In the instant case the relevant statute is the PHRA, which authorizes, but does not require, an award of attorney fees to the prevailing party. We believe that the discretion of the arbitrator on this issue under the AHLA rules is the same as the discretion of a court under the PHRA; but to be sure, we require that the defendants so stipulate as a condition of our order for AHLA arbitration.

III. The Cost of AHLA Arbitration

The plaintiff states that her breach-of-contract claim is limited to the recovery of her wage loss of $23,915, and that her PHRA claim is limited to the same wage loss plus emotional distress damages and attorney fees. Consequently, the plaintiff has agreed through her counsel that the amount in controversy does not exceed $50,000, exclusive of interest and costs. This brings her claims within the limit for compulsory court-attached arbitration in Lehigh County.

The plaintiff prefers court-attached arbitration, rather than AHLA arbitration, because she claims that AHLA arbitration is prohibitively expensive. We believe the plaintiff has a valid point. To submit her claim to the AHLA she must first advance an administration fee of $2,475 ($2,000 plus $475 for each party more than two). This compares with the court filing fee of $115. Then, after the arbitrator is appointed, he or she may require the parties to deposit an additional sum to cover his or her fees and expenses, which may be substantial. By way of comparison, in a court-attached arbitration there is no deposit required; the county pays the arbitrators’ fees; and the arbitrators are not permitted to charge travel expenses. As noted above, at the conclusion of an AHLA arbitration, the arbitrator may assess the arbitration costs in favor of the prevailing party for good cause, but there is no assurance that the arbitrator will do so, in which case these costs are allocated equally among the parties. In addition to the above costs, in both AHLA arbitration and court-attached arbitration each party bears his or her own attorney fees, unless the arbitrator(s) make an award of attorney fees to the prevailing party.

The plaintiff argues that the heavy financial costs of the AHLA arbitration, especially when compared to court-attached arbitration, have a chilling effect on persons seeking to vindicate their rights under the PHRA. Therefore, the plaintiff contends, the agreement for AHLA arbitration, insofar as it applies to sex discrimination claims under the PHRA, is invalid as undermining the strong public policy against sex discrimination expressed in the PHRA.

A similar argument has been advanced in the federal courts where the ability to enforce federal statutory rights has been at issue. The United States Supreme Court addressed such an issue in Green Tree Financial Corp. Alabama v. Randolph, 531 U.S. 79 (2000) (5-4), a case that involved claims by a mobile home purchaser under the Federal Truth-in-Lending Act, 15 U.S.C.A. §1601 et seq. and the Federal Equal Credit Opportunity Act, 15 U.S.C. §1691-1691d. The arbitration agreement in Green Tree did not specify the arbitral forum and was silent on the allocation of costs and fees. The claimant argued that these omissions created a risk that she would have to bear prohibitive costs in order to pursue her statutory rights through arbitration. The court noted that “the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statu-toiy rights in the arbitral forum.” Id. at 90. The court held, however, that “where ... a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Id. at 92. Whether this burden is met must be determined on a case-by-case basis. In Green Tree, a narrow majority of the justices concluded that the claimant had not met this burden, overruling the Eleventh Circuit Court of Appeals on this issue.

Recent circuit court decisions have further developed the applicable standard. In Morrison v. Circuit City Stores Inc., 317 F.3d 646 (6th Cir. 2003), a consolidated appeal, the Sixth Circuit reviewed the arbitration costs in two cases involving federal discrimination claims by individuals against their former employers. Following Green Tree, the court recognized that the potential for large arbitration costs and fees may deter potential litigants from seeking vindication of federal rights in some cases, and that where this is so, the arbitral forum is not an effective or adequate substitute for a judicial forum. The court adopted this test: would the arbitration costs and fees deter a substantial number of similarly situated litigants from pursuing enforcement of their federally protected rights? If so, the arbitration clause is invalid and unenforceable in whole or in part. In both of the cases under review the court held invalid a provision for splitting the arbitration costs between the employer and employee because the expense the employee was exposed to would be a substantial deterrent in pursuing his claims. The court further held that this cost-splitting provision was severable from the remainder of the arbitration agreement, which was valid.

In Spinetti v. Service Corporation International, supra, the Third Circuit Court of Appeals reached a similar conclusion. The arbitration agreement provided that each party was to pay (1) his own costs and attorney fees regardless of the outcome and (2) one-half of the arbitrator’s fee and any other costs of administering the arbitration. The court affirmed the district court’s finding that the claimant had met her burden under Green Tree of showing that the costs and fees of arbitration made that procedure prohibitively expensive. As in Morrison, supra, the court severed the offending parts of the arbitration agreement, leaving the balance of the agreement enforceable. The court ordered the employer to advance all the costs of arbitration, with the final responsibility for attorney fees to be determined in accordance with the appropriate statute.

These federal decisions are not binding on this court. However, they are from highly regarded tribunals, and we find their approach persuasive. Applying the Morrison test here, we find that the costs and fees associated with an arbitration under AHL A rules would deter a substantial number of similarly situated employees or former employees from seeking to enforce their rights under the PHRA. The requirement of an initial administration fee of $2,475, plus a potentially large deposit for the arbitrator’s fees and expenses, with no assurance that any of these funds would be returned, is a substantial deterrent to arbitration. It is likely to have a chilling effect on any individual recently fired from a $40,000-a-year job, especially where the amount in controversy is a wage loss of $23,915 and emotional distress damages. Therefore, we hold that the arbitration clause in the agreement is invalid and unenforceable to the extent that it requires the plaintiff to pay fees and costs in excess of those that would be payable in court-attached arbitration.

We do not base our decision on a finding that the agreement is a contract of adhesion; it is not. We find persuasive, however, the fact that the PHRA reflects a very important public policy in Pennsylvania. A contract provision that impedes a party’s ability to seek redress for violations of this important remedial statute is contrary to public policy and is therefore null and void.

Private arbitration at its best is a cost-effective method of resolving disputes. However, where the applicable arbitration rules create a financial burden far in excess of the cost of a judicial forum, thereby deterring individuals from enforcing their statutory rights, arbitration fails in one of its important purposes. In such a circumstance either the arbitration rules must be changed or the agreement for arbitration will be null and void in its entirety.

In this case, the agreement contains a severability clause in paragraph 22. Under this paragraph, if any provision in the agreement is held to be unenforceable, the other provisions of the agreement are not to be affected. The agreement is to be construed as if it had never contained the unenforceable provision. This is consistent with the general principle of Pennsylvania law that if less than an entire agreement is invalid, and the invalid provision is not an essential part or the primary purpose of the agreement, then the remaining portions of the agreement are enforceable. Huber v. Huber, 323 Pa. Super. 530, 470 A.2d 1385 (1984); Forbes v. Forbes, 159 Pa. Super. 243, 248-49, 48 A.2d 153, 156 (1946); Restatement (Second) of Contracts §184(1) (1981). To borrow Judge Aldisert’s analogy in Spinetti, we should not “throw the baby out with the bath water.” Spinetti, supra at 223. This is especially true where the “baby” is an arbitration clause, a favored method of dispute resolution.

The allocation of arbitration fees and costs is not an essential part or the primary purpose of the parties’ agreement to resolve their disputes by arbitration. Therefore, we do not find it necessaiy to nullify the entire arbitration clause in paragraph 17. Nevertheless, we cannot simply rewrite the arbitration clause to impose all fees and costs on the P.C. The P.C. is not a large multinational corporation with unlimited resources. It may be that the P.C. will also find the AHLA arbitration costs unduly burdensome in relation to the amount in controversy.

The root of the problem is the unusually high administration fee and costs under the AHLA rules, when court-attached arbitration is available for a nominal charge. Somebody has to pay these fees and costs if the AHLA arbitration is to proceed. We have ruled that these fees and costs, to the extent they exceed the fees and costs for court-attached arbitration, may not be imposed on the plaintiff. For similar reasons, we believe we should not impose these fees and costs on the P.C. Our solution is to give the P.C. the option of (a) proceeding with court-attached arbitration on all claims, or (b) having the case arbitrated under the AHLA rules with the P.C. being responsible for the administration fees in excess of the $ 115 filing fee for a court action and for all fees and expenses of the arbitrator. We have fashioned our order accordingly.

CONCLUSION

For the reasons stated, the defendants’ preliminary objections are sustained and the complaint dismissed, provided that the defendants file a timely stipulation with the clerk of courts agreeing that (a) the arbitrator is authorized to award attorney fees to the prevailing party on the PHRA claims on the same basis that such fees may be awarded in a judicial forum, and (b) the P.C. will pay the AHLA administration fee to the extent it exceeds the $115 filing fee for a court action as well as the fees and expenses of the AHLA arbitrator. If the defendants do not timely file such a stipulation, then the preliminary objections are overruled and the parties shall proceed with court-attached arbitration.

ORDER

Now, January 21,2005, upon consideration of the defendants’ preliminary objections to the second amended complaint and plaintiff’s response thereto, after review of the parties’ briefs and oral argument and for the reasons set forth in the accompanying opinion, it is ordered as follows:

(1) The preliminary objections are sustained, and the second amended complaint is dismissed without prejudice to the parties’ right to proceed with arbitration of their dispute under the arbitration rules of the American Health Lawyers Association; provided that the defendants file with the clerk of court, within 15 days from the date of this order, a written stipulation agreeing (a) that under the American Health Lawyer Association arbitration rules the arbitrator is authorized to award attorney fees to the prevailing party on the same basis that such fees may be awarded in a court action under the Pennsylvania Human Relations Act, 43 Pa.C.S. §951 et seq., and (b) that the defendants will be responsible for payment of all administration fees in excess of the $115 filing fee for a court action and for all fees and expenses of the arbitrator.

(2) If a stipulation as aforesaid is not timely filed, the preliminary objections are overruled and the defendants are directed to file an answer to the second amended complaint within 20 days from the date of this order. In addition, since the amount in controversy does not exceed $50,000, exclusive of interest and costs, the case shall then be submitted to compulsory arbitration under Leh.R.C.P. 1301 et seq., to be scheduled by the Civil Operations Office on the next available arbitration list after August 1, 2005.

      . All references to the “complaint” are to the second amended complaint filed by the plaintiff on October 26, 2004.

      . Complaint, exhibit “A.”

      . Alternative Dispute Resolution Service Rules of Procedure for Arbitration (AHLA rules), Appendix I at A-21, exhibit A to the plaintiff’s memorandum in opposition to defendants’ preliminary objections.

      . Id., Rule 2.02(e) at A-9.

      . Id., Rule 7.03 at A-20.

      . Id., Rule 6.06 at A-18.

      . Id.

      . We suspect that the plaintiff inended Count III to be directed against the individual defendant, Tozzoli. However, the only defendant named in this count, as in the other two counts, is the P.C. The complaint does not set forth any cause of action against Tozzoli. We note that claims against Tozzoli personally may not be subject to arbitration under the agreement because he was not a party to the agreement. But cf. Smay v. E.R. Stuebner Inc., 864 A.2d 1266 (Pa. Super. 2004).

      . AHLA rules, Rule 6.06 at A-18.

      . Consequential damages are defined in Black’s Law Dictionary, 54 (7th ed. 1999) as “[l]osses that do not flow directly and immediately from an injurious act, but that result indirectly from the act.”

      . AHLA rules, Rule 6.06 at A-18.

      . Id.

      . If a party desires to appeal from the arbitrators’ award, he or she must pay an appeal fee of $600 to defray the cost of the arbitrators.

      . Complaint, exhibit “A” at 11.

      . As a practical matter the PHRA and breach-of-contract claims must be tried together since they arise from a common set of facts.


author: NANOVIC, P.J,

text:
    Commonwealth v. Kane

      C.P. of Carbon County,
    no. 313 CR 04.

      William E. McDonald, assistant district attorney, for the Commonwealth.

      Brian J. Collins, for defendant.
    March 17, 2005
   NANOVIC, P.J,

James Kane (defendant) has filed a motion to suppress evidence and, in conjunction therewith, a petition for a writ of habeas corpus and a motion to quash the charges filed against him relative to a traffic stop which occurred during the early morning hours of February 22, 2004. In consequence of this stop, defendant has been charged with violating five provisions of the Pennsylvania Motor Vehicle Code:

Count 1: Driving under the influence of alcohol;

Count 2: Driving on roadways laned for traffic;

Count 3: Driving on right side of roadway;

Count 4: Careless driving; and

Count 5: Registration and certificate of title required.

Defendant argues that the stop was illegal, that all evidence obtained therefrom must be suppressed, and that, absent this evidence, there is insufficient evidence to sustain the charges filed.

FACTUAL BACKGROUND

On Sunday, February 22,2004, at approximately 2:50 a.m., Officer Craig Strohl of the Nesquehoning Borough Police Department was on routine patrol within the borough. At this time, in the vicinity of the intersection of State Routes 93 and 209, Officer Strohl observed a vehicle being driven by the defendant swerve and cross the double yellow line. Defendant was driving northbound on Route 209 headed in the direction of the Borough of Jim Thorpe. State Route 209 is a two-lane highway, which connects the boroughs of Nesquehoning and Jim Thorpe.

From this first observation, Officer Strohl began following defendant’s vehicle. During a distance of approximately two miles, Officer Strohl observed defendant’s vehicle cross the double yellow line three times and the white fog line twice.

Officer Strohl initially observed defendant’s vehicle cross the center double yellow line by one-fourth of the car’s width for about three seconds. Approximately 20 seconds later, the Officer saw the car cross the yellow line, for a second time, by one-half of the car’s width for three seconds. Ten seconds later, defendant’s vehicle crossed the double yellow line, a third time, by one-fourth of the car’s width for three seconds. After another 10 seconds, Officer Strohl observed the car cross the white fog line, by one-fourth of the car’s width for two seconds. Immediately afterwards, the Officer once again saw defendant’s vehicle cross the fog line, for a second time, by one-fourth of the car’s width for five seconds. Believing the driver might be impaired, it was at this point that Officer Strohl activated his overhead lights and siren and stopped defendant’s vehicle. Officer Strohl stated that the time intervals between the line crossings were his approximations.

No evidence was presented that defendant exceeded the 45 mile per hour speed limit while being followed by Officer Strohl. The officer further testified that there were no other vehicles on the road while he followed the defendant but that he was concerned that there would be an accident. All of Officer Strohl’s observations which prompted his decision to stop defendant’s vehicle, as well as the initiation of the stop — the activation of Officer Strohl’s overhead lights and siren — occurred within the Borough of Nesquehoning. The actual location at which defendant’s vehicle stopped, however, was within the borough limits for Jim Thorpe.

DISCUSSION

Defendant argues that the police did not have reason to suspect a violation of the Vehicle Code at the time defendant’s vehicle was stopped and, therefore, any evidence obtained as a result of the stop must be suppressed. 75 Pa.C.S. §6308(b). Defendant relies principally on Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001), and its underlying premise that erratic driving is not a per se violation of the Vehicle Code. See Common wealth v. Battaglia, 802 A.2d 652, 657 (Pa. Super. 2002), appeal denied, 576 Pa. 718, 841 A.2d 528 (2003).

In Gleason, the defendant, while driving on a four-lane divided highway over a distance of approximately one quarter mile during the early morning hours, crossed the fog line twice, each time by six to eight inches for a period of one to two seconds. In the context of an alleged violation of section 3309(1) of the Vehicle Code (driving within single lane), where no other vehicles were on the road and absent any evidence that defendant’s driving created a safety hazard, the Supreme Court held that the stop was not supported by probable cause to believe a violation of the Vehicle Code had occurred, or was occurring.

Since Gleason, the Superior Court has openly acknowledged its struggle to apply the Gleason holding to the myriad fact patterns before it. Commonwealth v. Garcia, 859 A.2d 820, 822 (Pa. Super. 2004). This point was illustrated graphically in Garcia by the court’s recitation of the facts in Commonwealth v. Lindblom, 854 A.2d 604 (Pa. Super. 2004), appeal denied, 868 A.2d 1198 (Pa. 2005), and those in Commonwealth v. Chernosky, 2004 Pa. Super 272 (reargument en banc granted September 21,2004), in which the court arguably reached inconsistent and contradictory conclusions. Id. at 822-23. While recognizing the differing results reported by the Superior Court, we believe the facts of this case are sufficiently distinguishable from Gleason to justify a different result.

As already stated, the defendant in this case was driving on a two-lane highway — one lane for each direction of travel — as opposed to a four-lane divided highway. And while defendant, like Gleason, was followed over a distance of approximately one-quarter mile during the early morning hours, unlike Gleason, the defendant here crossed the fog line twice, not by several inches, but by several feet. Of even greater significance, whereas in Gleason the defendant crossed only the fog line, the outermost portion of his lane furthest from oncoming traffic, here the defendant crossed the double yellow line three times, each time entering the opposing lane of traffic by one-fourth to one-half of his car’s width.

The facts of this case, we believe, are more analogous to those of Lindblom, 854 A.2d 604. There, a citizen witness saw defendant’s vehicle weave back and forth between the center yellow and outer white lines, cross the double yellow line four to five times by one and a half feet, at times straddling the double yellow line, and also cross the fog line four to five times. Id. at 606. In reversing the trial court’s granting of defendant’s suppression motion, these facts were expressly found sufficient to establish probable cause for a traffic stop. As to the need for evidence that defendant’s driving actually endangered public safety, the court stated: “[WJhile opposing traffic may not have been present during the entire time [the witness] observed [defendant] driving, we note that a motorist may be stopped for reckless driving even if the only concern is for the motorist’s own safely.” Id. at 608 (citing Commonwealth v. Masters, 737 A.2d 1229, 1232 (Pa. Super. 1999), appeal denied, 562 Pa. 667, 753 A.2d 816 (2000)); see also, Commonwealth v. Cook, 865 A.2d 869 (Pa. Super. 2004) (finding that a report of erratic driving followed by a trooper’s independent observations of the defendant’s vehicle crossing the right white fog line three times, to the extent of half the vehicle width, over a distance of one mile, each time rapidly jerking the vehicle back into its lane of traffic, justified the traffic stop); Commonwealth v. Klopp, 863 A.2d 1211 (Pa. Super. 2004) (holding officer’s observations of a vehicle crossing the center double yellow line of a two-lane highway four times by less than one half of her car — once causing a vehicle in the oncoming lane of traffic to shift right within his lane, but without the need for drastic evasive action — and crossing the fog line four times over a distance of at least 1.6 miles, established probable cause for a traffic stop).

In summarizing whether a police officer has the authority to stop a motor vehicle suspected of being driven or being in violation of the Vehicle Code, the Lindblom court stated:

“In order for a traffic stop to be justified, a police officer must have probable cause to believe that a violation of the Vehicle Code or regulations has taken place. Commonwealth v. Battaglia, 802 A.2d 652, 656 (Pa. Super. 2002). The officer must be able to articulate specific facts possessed by him at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in some violation of some provision of the Vehicle Code. Id. Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference. Commonwealth v. Stroud, 699 A.2d 1305, 1308 (Pa. Super. 1997). In considering when a traffic stop is justified, the Pennsylvania Supreme Court has stated that:

“The Commonwealth has an interest in enacting and enforcing rules and regulations for the safety of those who travel its highways and roads. The police should thus be permitted a sufficient degree of latitude to stop automobiles in order to meet this objective. On the other side, the privacy interest of the individual has been cogently articulated by the United States Supreme Court:

“An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use is subject to government regulation. Automobile travel is a basic pervasive, and often necessary mode of transportation to and from one’s home, workplace and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Delaware v. Prouse, [440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660] (1979). (footnote omitted)

“When previously faced with these two competing interests, we held ‘that a stop of a single vehicle is unreasonable where there is no outward sign the vehicle or the operator are in violation of the Vehicle Code[.] [B]efore the government may single out one automobile to stop, there must be specific facts justifying this intrusion.’ Commonwealth v. Whitmyer, 542 Pa. 545, 551-52, 668 A.2d 1113, 1116-17 (1995). (some citations omitted)” Lindblom, 854 A.2d at 607-608 (quoting Commonwealth v. Mickley, 846 A.2d 686, 689-90 (Pa. Super. 2004), appeal denied, 860 A.2d 489 (Pa. 2004)).

In Garcia, the court derived from the Gleason decision what it identified as the “momentary and minor standard” for determining when erratic driving will justify a traffic stop: “[W]here a vehicle is driven outside the lane of traffic for just a momentary period of time and in a minor manner, a traffic stop is unwarranted.” 859 A.2d at 823. This description, while undoubtedly correct, is incomplete and fails to account fully for the context of the suspected infraction. In Gleason, crossing the fog line by several inches on a four-lane divided highway posed no danger and can easily be explained as being part of normal driving. In contrast, when a chance encounter places police behind an unknown driver on a two-lane rural highway during the early morning hours— at a time when little, if any, other traffic can be expected to be present — and the police observe the driver cross both the center line and the fog line not once or twice but multiple times, without a reasonable neutral explanation — e.g., a narrow road, a sequence of sharp curves, being blinded by the lights of oncoming traffic, or avoiding puddles, potholes or some other obstacle on the road — the officer reasonably, objectively and in good faith has a legitimate basis — one reaching the level of probable cause — to believe a violation of the Vehicle Code is occurring or has occurred. Such is the case here.

Given the tragic and often fatal consequences that might at any time otherwise result, to say that a police officer confronted with these circumstances must wait and continue to observe is not the answer and, we believe, is not the law expressed in Gleason. Gleason requires only that at the time of the stop probable cause exists to believe that the driver or his vehicle is in violation of some provision of the Vehicle Code; Gleason does not require that the evidence, at the time of the stop, will lead to a conviction.

In the present case, in addition to being charged with driving under the influence, defendant has been charged not only with failing to drive within his lane of traffic and with failing to drive on the right half of the roadway, but also with careless driving. At a minimum, with respect to this latter offense, the degree of erratic driving observed by Officer Strohl reasonably raised an inference that this provision of the Vehicle Code was being violated, sufficient to justify a stop and an investigation by the officer to determine the cause of the erratic driving. Commonwealth v. Barkley, 234 Pa. Super. 503, 341 A.2d 192 (1975) (finding that officer’s observations of defendant weaving four or five times over approximately two miles provided officer with probable cause to believe the driver was in violation of this section of the Vehicle Code); cf. Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995) (finding with respect to some offenses, section 3361 of the Vehicle Code (driving at an unsafe speed) being one, that because further investigation following a stop could not lead to the discovery of further evidence in support of this violation, the evidence preceding the stop must be sufficient, in and of itself, to support the violation).

Here, prior to Officer Strohl’s stop of defendant’s motor vehicle, the officer’s observations of defendant’s driving described a degree of erratic driving, without any corresponding benign explanation, far exceeding that described in Gleason. The extent to which defendant’s vehicle crossed over both the center and fog lines, and the duration and number of these crossings, exceed the “momentary and minor standard” of probable cause described in Garcia. Officer Strohl’s observations support, even though they do not require, a reasonable inference that the Vehicle Code was being violated and that defendant’s continued operation of his vehicle posed a danger to himself, as well as to others.

CONCLUSION

In accordance with the foregoing, we conclude that Officer Strohl has credibly and reasonably articulated sufficient grounds to suspect a violation of the Vehicle Code prior to his stop of defendant’s vehicle and that Officer Strohl’s actions were proper. Indeed, had Officer Strohl not stopped defendant’s vehicle, and had an accident occurred, Officer Strohl’s failure to stop defendant’s vehicle might reasonably be questioned. Accordingly, defendant’s motion to suppress will be denied.

      . 75 Pa.C.8. §3802(a)(1).

      . 75 Pa.C.S. §3309(1).

      . 75 Pa.C.S. §3301(a).

      . 75 Pa.C.S. §3714.

      . 75 Pa.C.S. §1301(a).

      . In his motion to suppress, defendant originally challenged the stop as being beyond the officer’s primary jurisdiction and therefore invalid. This position was not pursued at the time of the suppression hearing and was clearly without merit. 42 Pa.C.S. §8953(a)(2); see also, Kruth v. PennDOT, 856 A.2d 901, 906-907 (Pa. Commw. 2004) (officer’s fresh pursuit and extraterritorial DUI arrest were proper where officer’s observations of erratic driving occurred within officer’s primary j urisdiction).

      . Notwithstanding this belief, given the difficulty in reconciling the Superior Court’s various applications of the Gleason holding, and being cognizant of the need to properly balance the competing interests of government in enacting and enforcing rules and regulations for the safety of those who travel its highways and roads against the privacy interests of those traveling on such highways and roads to be free from unfounded and arbitrary governmental intrusions, the need for either our Supreme Court to clarify the principles enunciated in Gleason or our legislature to re-examine the provisions of the Motor Vehicle Code, particularly sections 3301(a), 3309(1) and 3714, is apparent.

      . The offense of careless driving has two elements: “an actus reus— driving a vehicle; and a mens rea — careless disregard. There is no causation or particular result required by the statute.” Commonwealth v. Wood, 327 Pa. Super. 351, 355, 475 A.2d 834, 836 (1984). (emphasis in original) As the Superior Court has explained:
      “The only proof necessary to establish reckless driving is that the [driver] drove a vehicle in careless disregard for the safety and property of others. . . . The mens rea of reckless driving, ‘careless disregard,’ implies ‘less than willful or wanton conduct... [but]... more than ordinary negligence or the mere absence of care under the circumstances ....’” Matter of Huff, 399 Pa. Super. 574, 582, 582 A.2d 1093, 1097 (1990), aff’d, 529 Pa. 442, 604 A.2d 1026 (1992). Reckless driving, as discussed in Huff, was essentially the same offense as careless driving under the current section 3714 of the Vehicle Code.

      . The basis of defendant’s petition for a writ of habeas corpus and motion to quash the information is his belief that because his stop was illegal, all observations made by the police thereafter and all information or other evidence acquired from the stop must be suppressed, thereby depriving the Commonwealth of sufficient evidence to sustain its charges. Although we have already determined defendant’s underlying premise to be in error, even if we had found otherwise, “the remedy for illegally obtained evidence is suppression of the evidence and its exclusion at trial, not dismissal of the case.” Commonwealth v. Keller, 823 A.2d 1004, 1011-12 (Pa. Super. 2003), appeal denied, 574 Pa. 764, 832 A.2d 435 (2003). As a matter of technical accuracy, we further note, that while “a petition for writ of habeas corpus is the proper means for testing a pretrial finding that the Commonwealth has sufficient evidence to establish a prima facie case,” a motion to quash “is neither a guilt determining procedure nor a pretrial means for determining the sufficiency of the Commonwealth’s evidence.” Commonwealth v. Keller, 823 A.2d at 1010 (as to the first quotation) (emphasis in original); Commonwealth v. Finley, 860 A.2d 132, 135 (Pa. Super. 2004) (as to the second quotation). While “[n]either the adequacy nor competency of the Commonwealth’s evidence can be tested by a motion to quash the information,” a motion to quash is “an appropriate means for raising defects apparent on the face of the information or other defects which would prevent prosecution.” Commonwealth v. Finley, 860 A.2d at 135. Accordingly, both defendant’s petition for a writ of habeas corpus and motion to quash the information will likewise be denied.