author: HODGSON, P.J.,

text:
    Commonwealth v. Downey

      C.P. of Montgomery County,
    no. 0370-06.

      Jack Larkin, for Commonwealth.

      David S. Nenner, for appellant.
    November 22, 2010
   HODGSON, P.J.,

Appellant, David Downey, appeals nunc pro tunc to the Superior Court from the order of denial of PCRA relief imposed upon him by this court on April 5, 2010.

FACTS AND PROCEDURAL HISTORY

The instant case arises out of events that took place between July 30, 2005 and August 1, 2005. On July 30, 2005 between approximately 9:00 p.m. and 10:00 p.m., Kimberly Victorine and her boyfriend, Derrick Schrandt, were driving around Northeast Philadelphia when they received a phone call from the appellant. During the conversation, the appellant indicated that he needed cocaine and an escort. (N.T., Wednesday, June 7,2006, at p. 232, Thursday, June 8, 2006, at p. 61-64) The cocaine and escort were to be delivered to the appellant’s residence in Limerick, Montgomery County, Pennsylvania. In response to the appellant’s phone call, Victorine and Schrandt placed a phone call to David Tanczak in order to obtain Tanczak’s sister’s phone number so that they could inquire if she was willing to be an escort for the appellant. (N.T., Wednesday, June 7, 2006, at p. 233) She, however, was unavailable. At some point in the evening, Tanczak informed Victorine and Schrandt that Ashley Berg, the victim in the instant action, who was also at Tanczak’s residence, would be willing to be an escort for the appellant. (N.T., Wednesday, June 7, 2006, at p. 233, Thursday, June 8, 2006, atp. 68, Friday, June 9,2006, atp. 92-96) Prior to knowing of Berg’s availability, Victorine attempted to contact other girls, including Christine Shute, who had previously served as escorts to inquire into their availability. (N.T., Wednesday, June 7, 2006, at p. 232)

After securing Berg as an escort, Victorine and Schrandt drove to Victorine’s residence in Northeast Philadelphia in order to pick up the requested cocaine for the appellant. They then proceeded to Tanczak’s residence in the Fishtown section of Philadelphia to pick up Berg. The pair arrived at Tanczak’s residence between 11:00 and 11:30 p.m. on July 30,2005. Once Victorine and Schrandt arrived, Berg entered their vehicle and the three of them proceeded to the appellant’s residence. During the drive to the appellant’s residence, Victorine did not see Berg use cocaine nor did she give Berg cocaine. (N.T., Thursday, June 8,2006, at p. 68-69) Further, Tanczak testified that he did not provide Berg with any cocaine prior to her leaving for the appellant’s residence. (N.T., Friday, June 9, 2006, at p. 96) Nevertheless, Victorine testified that Berg seemed to be “high.” (N.T. Wednesday, June 7, 2006, at p. 237)

While driving to appellant’s residence, Berg was asked if “she had ever done anything like that [escorting] before.” (N.T., Thursday, June 8,2006, at p. 70) According to Schrandt, Berg stated that she had. (N.T., Thursday, June 8, 2006, at p. 70) She was informed by Schrandt that appellant may ask her to do cocaine, but she did not have to do the cocaine if she did not want to. (N.T., Thursday, June 8, 2006, at p. 70)

Shortly before arriving at the appellant’s residence, Schrandt and Victorine called the appellant to inform him that they were close. (N.T., Thursday, June 8, 2006, at p. 71) In the early morning hours of July 31,2005, Victorine, Schrandt, and Berg arrived at the appellant’s residence. (N.T, Wednesday, June 7, 2006, at p. 239) Upon arriving, Schrandt entered the residence; Victorine and Berg remained in the vehicle. Once inside, Schrandt gave the cocaine that he and Victorine had previously picked up from Victorine’s residence to the appellant.' (N.T., Wednesday, June 7, 2006, at p. 239) The appellant then gave Schrandt his credit card so that he could withdraw $600. (N.T., Thursday, June 8, 2006, at p. 74) When Schrandt returned to the vehicle, Berg stepped out of the vehicle and entered the appellant’s residence. (N.T., Wednesday, June 7,2006, at p. 240, Thursday, June 8, 2006, at p. 72) Thereafter, Schrandt and Victorine left the appellant’s residence.

Prior to driving back to Philadelphia, Victorine and Schrandt stopped at a Wawa located near the appellant’s residence in order to use the appellant’s credit card to withdraw the designated money. (N.T, Wednesday, June 7, 2006, at p. 241) While en route back to Philadelphia, Victorine received a phone call from the appellant. During the call, the appellant informed her that Berg was acting “weird” and that “she didn’t want to party.” Later in the conversation, Victorine spoke with Berg who asked her for Tanczak’s phone number. She told Victorine that she needs to speak with Tanczak and that she was “alright.” (N.T., Wednesday, June 7, 2006, at p. 242-43) In the early morning hours of July 31, 2005, Tanczak received a call from Berg. (N.T., Friday, June 9, 2006, at p. 98) In that call, Berg informed him that she was not feeling well, that she had the shakes, and that she was tired. (N.T., Friday, June 9, 2006, atp. 100)

The next morning, at approximately 10:30 a.m. on July 31, 2005, Victorine spoke with the appellant by phone. (N.T., Thursday, June 8, 2006, at p. 74) During this conversation, the appellant asked “can you come get this girl out of my house.” In addition, the appellant asked her to bring him more cocaine. (N.T., Wednesday, June 7, 2006, at p. 244-45) In response to the call, Schrandt and Victorine proceeded back to the appellant’s house with the requested cocaine and arrived at the appellant’s residence around 12:00 p.m. (N.T., Wednesday, June 7, 2006, at p. 246) While Victorine remained in the vehicle, Schrandt entered the residence. Once inside, appellant informed Schrandt that Berg was ready to leave. (N.T., Thursday, June 8, 2006, at p. 76) Immediately thereafter, Schrandt noticed Berg, pale with blue lips, lying on the couch covered in a blanket. (N.T., Thursday, June 8, 2006, at p. 77) He tapped her on the foot and asked her if she was ready to leave. However, he received no reply. (N.T., Thursday, June 8, 2006, at p. 77) Upon noticing this, Schrandt told the appellant to get Berg help. (N.T., Thursday, June 8, 2006, at p. 79-80) The appellant replied that Berg was fine, that she was sleeping, and to leave his residence. (N.T., Thursday, June 8, 2006, at p. 79-80)

Thereafter, Schrandt left the appellant’s residence, returned to the vehicle and informed Victorine that Berg did not look well. (N.T, Wednesday, June 7, 2006, at p. 246, Thursday, June 8, 2006, at p. 80) The pair then proceeded to drive back to Philadelphia and to Tanczak’s residence. Once at the residence, Victorine and Schrandt informed Tanczak and those present of the events that occurred on their immediate trip to the appellant’s residence. (N.T., Wednesday, June 7,2006, at p. 248, N.T., Thursday, June 8, 2006, at p. 81) In addition to Victorine, Schrandt and Tanczak, Tanczak’s sister, DeDe Conn, and Tanczak’s girlfriend were present at Tanczak’s residence. (N.T., Wednesday, June 7, 2006, at p. 248) While at the residence, Schrandt threatened all present with a gun to not call the police. (N.T., Wednesday, June 8, 2006, at p. 84, Thursday, June 8, 2006, at p. 30) Further, the group was continuously calling the appellant in order to ascertain the well being of Berg. (N.T., Wednesday, June 7,2006, at p. 251) During one of these calls, the appellant stated that Berg had ingested some lines of cocaine and then went to lie on the couch. The appellant also stated that Berg was “fine.” (N.T., Thursday, June 8, 2006, at p. 86)

Later, on July 31, 2005, Shute called Victorine to inquire if Victorine had reached the appellant about money that the appellant owed to Shute. (N.T., Wednesday, June 7, 2006, at p. 253) During the conversation, Victorine asked if Shute would come to her residence as she had something important to discuss with her. Sometime in the afternoon on July 31, 2005, Victorine, Schrandt, Tanczak, Shute, and Michael Tees, Shute’s boyfriend, gathered at Victorine’s house in order to discuss Berg’s situation. (N.T., Wednesday, June 7, 2006, at p. 253, N.T., Thursday, June 8, 2006, at p. 253, N.T., Friday, June 9, 2006, at p. 6) At some point during the meeting, the group decided to drive to the appellant’s residence in three separate cars so that they could take Berg for medical treatment. (N.T., Wednesday, June 7, 2006, at p. 253, Thursday, June 8,2006, at p. 255) Prior to arriving at the appellant’s residence, the group stopped at the Wawa near the appellant’s house. (N.T., Wednesday, June 7, 2006, at p. 253) There, it was decided that Shute, Tees, and Schrandt would continue on to the appellant’s residence. (N.T., Wednesday, June 7, 2006, at p. 254., Thursday, June 8, 2006, at p. 88)

Upon arriving at the appellant’s residence, the three individuals rang the doorbell to which no one responded. (N.T., Thursday, June 8, 2006, at p. 89, 257) They then knocked on the back door, but still no one answered. (N.T., Thursday, June 8, 2006, at p. 89, 257) They then walked around to the back of the house and knocked on the glass door. (N.T., Thursday, June 8, 2006, at p. 89, 257) Through this glass door, Schrandt observed Berg lying on the couch in the same position that she had been earlier. (N.T., Thursday, June 8, 2006, at p. 89) During their testimony, Shute and Tees indicated that they were able to view through the glass door a blond haired person lying on the couch. (N.T., Thursday, June 8, 2006, at p. 250, Friday, June 9, 2006, at p. 10) The three individuals then left the appellant’s residence and reconvened with the remainder of the group at Wawa. The group proceeded back to Philadelphia during the evening hours and went their separate ways. (N.T., Wednesday, June 7, 2006, at p. 254, Thursday, June 8, 2006, at p. 91) Later that night, in the early morning hours of August 1, 2005, Victorine and Schrandt went to the bar in which she worked so that she could talk to her boss, an ex-cop, about Berg’s situation. (N.T., Wednesday, June 7, 2006, at p. 258, Thursday, June 8, 2006, at p. 93) Her boss advised her to report the incident to the police. (N.T., Wednesday, June 7, 2006, at p. 258) Shortly thereafter, Victorine made an anonymous tip to the police to report the incident. (N.T., Wednesday, June 7, 2006, at p. 278-79, N.T., Thursday, June 8, 2006, at p. 93)

The next morning, on August 1, 2005, Shute called Victorine for the appellant’s phone number so that she could call him about the money that he owed her. (N.T., Thursday, June 8, 2006, at p. 261) After receiving the appellant’s number, Shute called the appellant to inquire about her money. (N.T., Thursday, June 8,2006, at p. 261) Upon speaking with the appellant, Shute and Tees agreed to remove Berg from his residence. Thereafter, Shute and Tees drove to the appellant’s residence. (N.T., Friday, June 9, 2006, at p. 15) Upon arriving, the appellant told them that he was a navy seal and CIA agent. He further stated that he had a doctor examine Berg and that she died from an aneurism. (N.T., Thursday, June 8, 2006, at p. 265, Friday, June 9, 2006, at p. 20) While in the residence, Shute and Tees observed Berg, dressed in black panties and socks, lying on the couch and noticed blood coming from her nose. (N.T., Thursday, June 8, 2006, at p. 266, Friday, June 9, 2006, at p. 20) The appellant then covered Berg’s face with a towel, gave them a sheet, two pieces of duct tape to cover their license plate, and detailed directions to the nearest hospital. (N.T., Thursday, June 8, 2006, at p. 267-68) In addition, the appellant gave them a bag containing sneakers, a belt, and clothing and a check for $2,000. (N.T., Thursday, June 8, 2006, at p. 267-68) The three individuals then placed Berg in the back of Shute’s and Tees’ vehicle, and Shute and Tees left for the hospital.

However, they were unable to find the hospital so they proceeded back to Northeast Philadelphia. (N.T., Thursday, June 8, 2006, at p. 269, Friday, June 9, 2006, at p. 25) There, they drove down a small road and placed Berg’s body on the side of the road so that a woman walking her dog nearby would be able to find her quickly. (N.T., Thursday, June 8, 2006, at p. 272, Friday, June 9, 2006, at p. 28) Thereafter, they attempted to cash the check given to them by the appellant but found that Shute had insufficient funds in her account to cash the check against her account. (N.T., Thursday June 8, 2006 at p. 274) They attempted to cash the check at a second bank, but the bank determined the check was illegible. (N.T., Thursday, June 8, 2006, at p. 274) Unable to cash the check, Shute and Tees decided to drive back to the appellant’s residence to obtain a new check from the appellant. (N.T., Thursday, June 8, 2006, at p. 275, Friday, June 9, 2006, at p. 30) While at the appellant’s residence, Shute and Tees told the appellant where they had taken Berg. The appellant asked them if anyone else knew about the situation to which Shute and Tees replied no. (N.T., Thursday, June 8, 2006, at p. 276, Friday, June 9,2006, at p. 30) Shortly thereafter, Berg’s body was found by the woman walking her dog on the side of the road where Shute and Tees had placed her body. (N.T., Wednesday, June 7, 2006, at p. 50)

As a result of these events, the appellant was subsequently arrested and charged with drug delivery resulting in death in the death of Ashley Berg, among other crimes. The appellant’s trial was held between Monday, June 5, 2006 and Wednesday, June 14, 2006. The above facts were testified to in abundance at trial. In addition to the above-testified facts, several experts testified. One such expert, William Wingert, Chief Toxicologist with the City of Philadelphia Medical Examiner’s Office, testified that Berg’s blood tested high for a metabolite of cocaine. (N.T., Thursday, June 8, 2006, at p. 191) In addition, Berg’s blood tested at 1.7 milligrams per deciliter of cocaine. (N.T., Thursday, June 8, 2006, at p. 192-93) Further, Katherine Cross, Forensic Biologist for the National Medical Service, testified that blood found on the cushions of the appellant’s couch belonged to Berg. (N.T., Friday, June 9, 2006, at p. 150) Additionally, Gregory McDonald, Medical Examiner for the City of Philadelphia, testified that cocaine poisoning was the cause of Berg’s death and based on rigor and fixed lividity, Berg’s death would have occurred prior to 3:47 a.m. on August 1, 2005. (N.T., Monday, June 12, 2006, at p. 69, 75)

In addition to the above evidence, the Commonwealth introduced testimony of five escorts previously employed by the appellant in order to establish a common plan scheme or design on the part of the appellant. Such evidence was presented to show that the appellant regularly provided the escorts that he employed with cocaine.

The appellant presented a few witnesses on his behalf. Among those witnesses was Dr. Michael Greenberg, aboard certified physician in emergency medicine. This witness was used by the appellant in order to call into question expert testimony regarding the amount of cocaine found in Berg’s blood. (N.T., Monday, June 12, 2006, atp. 156) Further, counsel was able to elicit on cross-examination from DeDe Conn that Berg had previously used cocaine and from Gregory McDonald that Berg was a drug user of at least two different types of drugs, PCP and cocaine. (N.T., Thursday, June 8,2006, at p. 237-40, Monday, June 12, 2006, at p.81-82)

On June 14, 2006, a jury found the appellant guilty of drug delivery resulting in death and other crimes. On September 27, 2006, we sentenced the appellant to 7 1/2 years to 15 years for his conviction of drug delivery resulting in death. Thereafter, on October 4, 2006, the appellant appealed his judgment of sentence. On August 31,2007, the Superior Court affirmed this court’s judgment of sentence.

Subsequently, appellant filed his first amended petition for post-conviction relief in which he raised the claim of ineffectiveness of counsel, Thomas Egan, III, Esquire. On March 30, 2010, an evidentiary hearing was held to assess the merit of appellant’s claim. Upon concluding that appellant failed to prove ineffectiveness pursuant to Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001) and Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009), this court dismissed appellant’s petition on April 5, 2010. On April 13, 2010, appellant filed a motion for reconsideration which was subsequently denied by this court on April 20, 2010. On May 14, 2010, appellant filed a notice of appeal from “the order of denial of request for reconsideration of order denying PCRA.” The Superior Court quashed this appeal as untimely on September 9, 2010.

On October 1, 2010, appellant filed a PCRA petition to reinstate appellate rights nunc pro tunc. Pursuant to an October 13, 2010 order, this court granted appellant’s petition to reinstate appellate rights. On October 19, 2010, appellant filed notice of appeal of the court’s April 5, 2010 dismissal of appellant’s PCRA. In accordance with Section 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed the appellant to file a concise statement of matters complained of on appeal no later than November 11, 2010. The appellant filed such statement on November 9, 2010.

LEGAL DISCUSSION

The appellant raises the following issues on appeal:

1. Whether there was ineffective assistance of both trial counsel and appellate counsel by:
A. failing to request that the trial court instruct the jury on the charge of involuntary manslaughter;
B. failing to consult with appellant prior to trial to prepare his defense to the criminal charges including, but not limited to, presenting evidence to negate the malice requirement to substantiate third degree murder;
C. failing to consult with appellant to discuss the viability of requesting the trial court to instruct the jury on the lesser included offense of involuntary manslaughter; and
D. failing to present evidence and/or arguments during trial to negate the element of malice, the required mens rea for the criminal offense of involuntary manslaughter.

It is well-established that counsel is presumed effective and that the appellant bears the burden of establishing ineffectiveness. Commonwealth v. Cooper, 596 Pa. 119, 133, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, the appellant must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the appellant suffered prejudice as a result of counsel’s deficient performance. Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (Pa. 2009) citing Commonwealth v. Pierce, 567 Pa. 186, 202, 786 A.2d 203, 213 (Pa. 2001). Prejudice in the context of an ineffectiveness claim means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceedings would have been different. Commonwealth v. Fletcher, 604 Pa. 493,986 A.2d 759 (Pa. 2009). A claim of ineffectiveness will be denied if the petitioner’s evidence fails to meet any of these prongs. Pierce, supra at 221-222. Here, the appellant has failed to satisfy this burden.

First, appellant argues that the counsel was ineffective by failing to request that the trial court instruct the jury on the charge of involuntary manslaughter. Generally, an instruction on involuntary manslaughter is not required unless it has been made an issue in the case and the facts would support such a verdict. Fletcher, 986 A.2d at 791, citing Commonwealth v. White, 490 Pa. 179,185,415A.2d 399,402 (Pa. 1980). Here, it is clear from the record that an instruction on involuntary manslaughter was made an issue duringthetrial.Thecourt,atthecloseoftheCommonwealth’s case, suggested to both appellant’s counsel and Commonwealth’s counsel that the evidence presented may also fit an involuntary manslaughter charge. (N.T. March 30, 2010 at 157-58) The court asked whether anyone wanted the court to instruct the jury on involuntary manslaughter to give the jury another option in addition to drug delivery by death. (N.T. March 30, 2010 at 158)

Given these facts, appellant’s claim is of arguable merit as an instruction on involuntary manslaughter would be appropriate once the charge was made an issue by the court. Although a request for an instruction was warranted, counsel for the appellant testified at the PCRA hearing that he did not request instruction because it was in accordance with the appellant’s desires. (N.T. March 30, 2010 at 158) According to appellant’s counsel, he discussed the idea of giving the jury the option of involuntary manslaughter; but the appellant dismissed the idea. (N.T. March 30, 2010 at 157) According to appellant’s counsel, the appellant did not want to get convicted on any homicide charge and was not willing to offer another option to the jury that could result in jail time. Appellant sought an outright acquittal in the outcome of thejury trial. Counsel’s following the directives ofhis client does not present a claim for ineffectiveness of counsel. See Commonwealth v. Rios, 591, Pa. 583, 920 A.2d 790 (Pa. Super. 2007) (holding that client may not allege that counsel was ineffective for following his directives); see also Commonwealth v. Sam, 535 Pa. 350,635 A.2d 603 (Pa. 1993) (held that failure of counsel to present mitigating evidence did not constitute ineffectiveness when the defendant directed counsel not to present such evidence). Thus, counsel had a reasonable basis for failing to request an instruction as he was following the instructions of his client. Accordingly, appellant’s claims fails to meet the second prong of the Pierce test.

However, even if an abandoned claim is of arguable merit, an appellant is not entitled to automatic relief. Instead, a finding of ineffectiveness can never be made unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the tactics actually utilized. See Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178, 1186 (Pa. 1996). Such was not the case in this matter. The instruction of involuntary manslaughter would not have resulted in the dismissal of the drug delivery resulting in death charge. Had counsel for the appellant requested a jury instruction on involuntary manslaughter, the potential for success would not have been substantially greater as there was sufficient evidence of guilt for the charge of drug delivery resulting in death.

In order to be convicted of drug delivery resulting in death, the commonwealth must prove beyond a reasonable doubt that (1) a defendant administered, dispensed, delivered, gave, prescribed, sold, or distributed a controlled substance or counterfeit controlled substance to a person; (2) that the administration, dispense, delivery, prescription, sale, or distribution was in violation of the Controlled Substance, Drug, Device, and Cosmetic Act; (3) that the person has died as a result of using the substance; and (4) that a defendant acted with malice. 18 Pa.C.S.A. § 2506.

Addressing each of the elements, the Commonwealth first established beyond a reasonable doubt that the appellant was in possession of cocaine and distributed it to Berg while she was at appellant’s residence. This conclusion is supported by the testimony of Schrandt and Victorine. Both Schrandt and Victorine testified to delivering to the appellant cocaine along with Berg on the night of the incident. (N.T. June 7, 2006 at 232; N.T. June 8, 2006 at 72) Thus, there was cocaine at appellant’s residence during Berg’s stay there. In addition, the prior bad acts evidence presented at trial established beyond a reasonable doubt that defendant provided cocaine to Berg. During trial, the Commonwealth introduced testimony of five escorts previously employed by the appellant to establish a common plan, scheme or design on the part of the appellant. This testimony demonstrated that the appellant regularly provided cocaine to the escorts while at his residence. Therefore, the Commonwealth satisfied the first two elements of Section 2506. See Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313, 316 (Pa. 1992) (elements of a crime may be established by circumstantial evidence as long as the combination of evidence links the accused to the crime beyond a reasonable doubt). Turning attention to the third element of Section 2506, the testimony of Commonwealth expert witness Dr. Gregory McDonald of the Philadelphia Medical Examiner’s Office satisfied the third element. Dr. McDonald, having conducted the autopsy of Burg, testified that Berg died from cocaine poisoning. (N.T. June 12, 2006 at p. 69)

Finally, the Commonwealth provided sufficient evidence to prove the appellant acted with malice. It is well-settled that malice has been defined as a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Commonwealth v. Lee, 626 A.2d 1238 (Pa. Super. 1993). Additionally, malice may be found where the defendant consciously disregarded an unjustified and extremely high risk that his actions might result in serious bodily injury. Lee, 626 A.2d at 1241 citing Commonwealth v. Wanamaker, 444 A.2d 1176 (Pa. Super. 1982). Malice may be inferred from the attending circumstances of the act resulting in death. Lee, 626 A.2d at 1241 citing Commonwealth v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007, 1008 (Pa. 1980).

The Pennsylvania Superior Court made such an inference of malice and found the defendant guilt of drug delivery resulting in death in the matter of Commonwealth v. Costa, 861 A.2d358 (Pa. S up er. 2004). In Costa, the defendant engaged in a sex-for-drugs dealt that ultimately resulted in the death of a sixteen-year old girl. 861 A.2d at 360. Shortly after the defendant provided the sixteen-year old victim with ten bags of heroin, the victim became unresponsive. Id. After attempts to revive the victim failed, the defendant enlisted the help of a third party to dispose of the victim’s body. Id. The defendant placed heroin on the nose of the victim, placed the victim in the backseat of a car, and dropped the victim off near her home. Id. The defendant abandoned both the vehicle and the victim. Id. Based on the facts presented, the court in Costa determined that the defendant’s actions constituted malice.

Here, the appellant’s actions also established malice. Like the defendant’s delivery of an illegal substance to an underage victim in Costa, the appellant in the instant action distributed cocaine to a seventeen-year old female. Also, similar to the defendant’s failure to seek medical assistance for the victim in Costa, the appellant here refused to provide medical care for Berg and did nothing to help her. Instead, the appellant allowed the victim to lie in the same position on the same couch for over a twenty-four period. In addition, Shute and Tees testified that they were paid by the appellant to remove Berg from his home. Based on the totality of the circumstances, like the defendant in Costa, the appellant acted with malice. Thus, the Commonwealth proved all three requirements of Section 2506 beyond a reasonable doubt; therefore, there was sufficient evidence of guilt for the drug delivery resulting in death conviction.

Given the sufficient evidence of guilt for the charge of drug delivery resulting in death, it is evident that the outcome of the proceedings would not have been different had a jury instruction for involuntary manslaughter been requested. Thus, the appellant fails to meet the third prong of the Pierce test as the appellant has not suffered prejudice as a result of the counsel’s performance. See Commonwealth v. Derk, 913 A.2d 875, 881 (Pa. Super. 2006) (relief is warranted only where trial counsel’s error or omission has so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place). Accordingly, the appellant has failed to meet the last two prongs of the Pierce test. Appellant’s first claim of ineffectiveness of counsel fails.

Next, the appellant argues that counsel was ineffective by failing to consult with appellant prior to trial to prepare his defense to the criminal charges including, but not limited to, presenting evidence to negate the malice requirement. This claim is completely devoid of any merit. The record from appellant’s PCRA hearing provides substantial proof that appellant’s counsel repeatedly met with appellant prior to trial. The jury trial in the instant matter commenced June 5, 2006. Both appellant and appellant’s counsel testified that counsel met with appellant at appellant’s home on August 5, 2005, which occurred just days after the accident and prior to any charges being filed. (N.T. March 30, 2010 atp. 37, 136-37)

In addition, appellant admitted during his testimony that counsel spoke with appellant on various occasions between August 10, 2005 and November of 2005. (N.T. March 30, 2010 at p. 38) Appellant was not indicted on charges until December of 2005. Appellant further confirmed during testimony that counsel met with appellant five times prior to trial while the appellant was confined to the Montgomery County Prison. (N.T. March 30, 2006 at p. 40) Appellant contends that the meetings were very brief and did not afford enough time to go over any information pertaining to trial. However, appellant’s five-page letter to counsel on April 2, 2006 belies this assertion. In a letter dated April 2, 2006, appellant stated, “given considerable thought to the discovery we reviewed Friday afternoon. In no particular order...” and proceeded to make a list that spanned five pages. (N.T. March 30, 2010, Commonwealth’s Exhibit C-10). Counsel testified that the April 2, 2006 letter addressed in five pages a number of issues in regard to the witness statements that counsel went over with appellant. (N.T. March 30, 2010 at 144) At the end of the letter, appellant wrote, “I value your guidance and friendship.” (N.T. March 30, 2010, Commonwealth’s Exhibit C-10) Further, in a letter dated March 12, 2006, appellant stated, “Tom, just a short note to thank you for meeting with Mark Quigley and Peter Mooney over dinner. It is good to know that I have three friends, the likes of you fine gentlemen. Warmly, Dave.” (N.T. March 30, 2010, Commonwealth’s Exhibit C-9)

These handwritten letters provide no indication that appellant was dissatisfied with counsel’s representation nor do they indicate counsel failed to consult with appellant prior to trial regarding his defense. Also, appellant’s testimony demonstrates that counsel met with appellant multiple times in the months prior to trial. As such, appellant’s second claim of ineffectiveness of counsel fails as it is without merit and fails to meet the first prong of the Pierce test.

In appellant’s third issue, appellant argues counsel was ineffective by failing to consult with appellant to discuss the viability of requesting the trial court to instruct the jury on the lesser included offense of involuntary manslaughter. We find this claim fails to meet all three prongs of the Pierce test. First, counsel’s testimony at the PCRA hearing directly contradicts the appellant’s assertions. According to counsel, he discussed the issue of the involuntary manslaughter charge; however, appellant dismissed the idea very rapidly. (N.T. March 30, 2010 at p. 157) During the course of trial, the court addressed the viability of an involuntary manslaughter charge. Having discussed the issue with counsel for both sides, the court stated, “It’s my understanding that neither the Commonwealth nor the defense is requesting one, is that correct?” (N.T. March 30, 2010 at p. 48) In response, counsel for appellant said, “Yes, Your Honor.” (N.T. March 30, 2010 at p. 48) When asked by the court if the decision was made after consulting with counsel’s client, counsel responded, “Yes, Your Honor.” (N.T. March 30,2010 at p. 48) The record from trial is devoid of any objection by the appellant to the statements made by appellant’s counsel. Thus, both the record and the testimony of counsel demonstrate the claim lacks merit.

Assuming arguendo the claim has merit, appellant’s counsel had a reasonable basis not to consult with appellant to discuss the viability of an involuntary manslaughter charge as the appellant was interested in an outright acquittal. Counsel testified that he was not authorized to offer the jury the option of another charge as the appellant did not want to get convicted of any homicide charge. (N.T. March 30,2010 at p. 156) Appellant’s desire for an outright acquittal is evidenced by appellant’s letter to counsel following the conclusion of the jury trial. (N.T. March 30, 2010, Commonwealth Exhibit C-ll) In appellant’s letter dated August 12, 2006, appellant states, “As I said, I am not guilty and am convinced you share that belief 100 percent.” (N.T. March 30, 2010, Commonwealth Exhibit C-ll) Given the appellant’s position, counsel reasonably chose not to request a jury instruction on involuntary manslaughter and followed the directives of his client.

Furthermore, appellant suffered no prejudice as a result of counsel’s actions as the outcome of the proceedings would not have changed regardless of whether counsel consulted with appellant regarding the involuntary manslaughter charge. For the reasons previously mentioned in the court’s discussion of the first issue, there was sufficient evidence of guilt for drug delivery resulting in death. Consequently, the appellant does not pass the third prong of the Pierce test. Appellant’s third claim of ineffectiveness of counsel fails.

Lastly, the appellant argues in his fourth issue that counsel was ineffective by failing to present evidence and/or arguments during trial to negate the element of malice. We find this claim unpersuasive. Appellant directly contradicts this assertion in his testimony during the PCRA hearing. During testimony, appellant admitted that counsel presented the expert testimony of Dr. Greenberg to defeat the malice prong of the drug delivery resulting in death charge. (N.T. March 30, 2010 at p. 45) Dr. Michael Greenberg of Drexel University College of Medicine testified that Berg died almost instantaneously after she took the drugs. (N.T. March 30, 2010 at p. 45) Appellant’s counsel further testified that the appellant’s strategy was to establish that Berg came to the residence under the influence of drugs and that appellant did not provide anything to Berg that would have killed her. (N.T. March 30, 2010 at p. 154) Dr. Greenberg’s testimony was presented to execute this strategy by testifying that there was nothing that appellant could have done based on the allegations in the record that would have killed Berg given what was found in Berg’s system at her time of death. (N.T. March 30, 2010 at 154-55)

Given the admissions made by the appellant as well as the testimony provided by both counsel and Dr. Greenberg, it is clear that appellant’s counsel presented both evidence as well as arguments to negate the element of malice, the required mens rea for drug delivery resulting in death. The testimony aimed to establish another potential cause for Berg’s death as well as establish that there was nothing the appellant could have done to assist Berg as she died instantly. As such, appellant’s fourth claim of ineffectiveness of counsel is without merit and fails to meet the first prong of the Pierce test.

CONCLUSION

Based on the foregoing, the undersigned respectfully requests that the appellant’s judgment of sentence be affirmed.

      . The appellant had contacted Victorine for escorts and Schrandt for cocaine on prior occasions.

      . Despite this testimony, Shute testified that Victorine never called her about being an escort. (N.T., Thursday, June 8, 2006, at p. 286)

      . Schrandt testified, however, that no gun was present. (N.T., Thursday, June 8,2006, at p. 84)

      . In addition, the court also sentenced the appellant to a consecutive one to two year sentence for possession with intent to deliver and various other concurrent sentences for other convictions.


source: Caselaw Access Project

author: AMMERMAN, P.J.,

license: Public Domain

text:
    Stimpson v. Myers
    C.P. of Clearfield County,
    no. 2010-916-CD.

      Todd Berkey and Erin K. Rudert, for plaintiff.

      James DeCinti and John T Pion, for defendants.
    September 9, 2010
   AMMERMAN, P.J.,

This action arises out of a motor vehicle accident, which occurred at the intersection of Bigler Road and U.S. Route 322 in Bradford Township, Clearfield County, Pennsylvania, on March 29, 2010. Plaintiff Jamie Stimpson (hereinafter “plaintiff’) alleges she suffered injuries when her vehicle was struck by a vehicle operated by defendant Jason L. Myers and owned by defendant R.W. Frazee, LLC.

On May 24, 2010, plaintiff filed a complaint in civil actionagainstboth defendants. On June 21,2010, defendants filed preliminary objections to plaintiff’s complaint. On August 31, 2010, counsel for all parties appeared before this court for arguments on said preliminary objections. Counsel previously submitted briefs to the court in support of or in opposition to defendants’ preliminary objections.

Defendants raise numerous preliminary objections to plaintiff’s complaint. First, it alleges that punitive damages were improperly pleaded as a separate count. Second, defendants seek all references to “recklessness,” “wantonness,” or “willful, wanton and reckless actions” be struck from the complaint because it does not support a claim for punitive damages. Next, defendants allege insufficient specificity in violation of Rule 1028(3) of the Pennsylvania Rules of Civil Procedure. Lastly, defendants request the court strike reference to the West Virginia Commercial Driver’s Manual. The court considers each of these issues in turn.

I. Punitive damages as a separate count

Count III of plaintiff’s complaint improperly claimed punitive damages as a separate and distinct count. Punitive damages, however, are not a separate cause of action. Nix v. Temple Univ., 596 A.2d 1132, 1138 (Pa. Super. 1991). Plaintiff acknowledged in its brief that punitive damages were not a separate cause of action and offered to amend its complaint to comply with the rules. Because the court has the discretion to grant leave to amend pleadings and because the amendment does not add a new cause of action, the court grants plaintiff leave to file an amended complaint.

II. References to “willful,” “wanton” or “reckless” conduct

Defendants also ask the court to strike any and all reference to willful, wanton, or reckless conduct in the remaining counts. The court, however, is satisfied that plaintiff has averred sufficient material facts to support a claim for punitive damages and thus refuses to strike such language.

Pennsylvania is a fact pleading state. Pa. R.C.P. 1019(a). Not only should a complaint give the defendant notice of what the plaintiff’s claims are, it should also summarize the facts essential to that claim. Smith v. Brown, 423 A.2d 743,745 (Pa. Super. 1980). To support a claim for punitive damages, the essential fact is the outrageousness of the defendant’s conduct. Id.

Pennsylvania law looks to the restatement of torts for guidance: outrageous conduct is an “act done with a bad motive or with a reckless indifference to the interests of others. Focht v. Rabada, 268 A.2d 157, 159 (Pa. Super. 1970) (citing Restatement of Torts § 908 Comment (b) The court in Focht went on to define “reckless indifference,” or wanton misconduct, as it is commonly referred, as:

The actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. Id. (quoting Evans v. Phila. Trans. Co., 418 Pa. 567, 212 A.2d 440 (1965).

To support a claim for punitive damages, a plaintiff must aver facts in the complaint sufficient to put the defendant on notice of what outrageous conduct was alleged. Facts, not conclusions, must be pleaded. Smith, supra, at 121. See also Brownawell v. Bryan, 40 Pa. D. & C. 3d 604 (Ct. C.P. 1985) (“The mere pleading of outrageous conduct” does not satisfy the standard.). The court is required to accept as true all well pleaded material facts, as well as inferences reasonably deduced from them. Webb Manuf. Co. v. Sinoff, 674 A.2d 723 (Pa. Super. 1996). Because the finder of fact is responsible for determining whether the defendant acted in an outrageous manner, “the court should decide the viability of a punitive damages claim ‘only when no reasonable inference from the facts alleged support a punitive award.’” Rivero v. Timblin, 2010 WL 2914400 (Ct. C.P. 2010) (quoting F. Supp. 200 (E.D. Pa. 1995).

Here, the court is satisfied that the plaintiff averred sufficient material facts in her complaint. As to count I, the plaintiff avers that defendant Myers was speeding, traveling too fast for conditions, disobeyed traffic signals, failed to drive in an attentive manner, violated numerous laws, and knew or should have known that his vehicle was unsafe or improperly maintained. Complaint ¶ 26. Although the court is not convinced that allegations of speeding, disobeying traffic signals, and inattentive driving alone would bring this case outside the realm of ordinary negligence into the world of outrageous conduct and punitive damages, it is conceivable that a trier of fact would find driving a vehicle with actual or constructive knowledge of defects is outrageous and warrants punitive damages.

Similarly, in count II, the plaintiff alleges defendant Frazee failed to properly train its employees, including Mr. Myers; knew or should have known about Myers’s unsafe driving record; failed to properly maintain and inspect vehicles; and developed routes and deadlines that encouraged unsafe driving. Complaint ¶29. Again, if taken as true, as is required, this court finds that such conduct may support a claim for punitive damages. See George v. Caravan Express, Inc., 9 Pa. D. & C. 4th 593, 594 (Pa. C.P. 1990) (finding allegation of inadequate training by defendant trucking company is sufficient for punitive damages); Zaborowski v. Hospitality Care Ctr. of Hermitage, Inc., 2002 WL 32129508 (Pa. Ct. C.P. 2002) (finding allegation that health care provider failed to properly train and supervise employees is sufficient for punitive damages).

Because the court finds there is a reasonable inference from which a fact finder could conclude a punitive damage award is supported, the court declines to strike language such as “willful,” “wanton,” or “reckless” from plaintiff’s complaint.

III. Insufficient specificity regarding statutes/ regulations

Next, defendants argue that certain paragraphs — specifically, paragraphs 26(bb)-(dd); 29(b), (x), (y); 32(e); and 34(f) — should be stricken because they lack specificity. As stated above, Pennsylvania is a fact pleading state, and sufficient facts must be pleaded to put the defendant on notice of what claims plaintiff assert. Pa. R.C.P. 1019(a). The court recognizes, however, that “[djrawing a line between pleading facts and evidence is difficult, but such lines must be drawn.” Brueckner v. Stewart, 82 Pa. D. & C. 4th 454 (Pa. Ct. C.P. 2006).

Here, plaintiff avers defendants violated provisions of the Pennsylvania Motor Vehicle Code and Federal Motor Carrier Safety Regulations. Complaint, ¶¶[26(bb)-(cc), 29(b), (x), (y). Defendants object on the grounds that plaintiff names the statute or regulations, and in some situations even specific provisions therein, but then couches such averments in terms of “including but not limited to” or “any and all applicable” sections. Defendants claim this makes it impossible for them to prepare a defense because they are being forced to defend against unnamed provisions.

The court is not convinced this is the case. Plaintiff has pointed to which laws or regulations it alleges were violated by name. There is no requirement that plaintiff allege violation of any statute, let alone a specific provision of one. In Goldberg v. Friedrich, the Pennsylvania Supreme Court wrote:

It may also be stated, however, as a rule universally recognized, that courts will take judicial notice of its public statutes. Such laws need not be pleaded or proved; it is not necessary to allege a violation of the statute, but of course, the statement must set forth sufficient facts to bring the case within the statute. 279 Pa. 572, 574(1924).

See also Dept, of Transp. V. Pa. Turnpike Comm ’n, 370 A.2d 438, 440 (Pa. Commw. 1977) (citing Goldberg); 4 Standard Pa. Practice 2d § 21:62(2010).

The court is also satisfied that plaintiff set forth sufficient facts to bring the case within either the state’s Motor Vehicle Code or the Federal Motor Carrier Safety Regulations. When determining whether a complaint is specific enough to put the defendant on notice, a court must consider the context of the entire complaint.

Yacoub v. Lehigh Valley Med. Assoc., 805 A.2d 579, 589 (Pa. Super. 2002). In the case sub judice, plaintiff other averments concerning speeding, failing to stop at a traffic signal, driving inattentively, etc., clearly put the defendants on notice as to what claims they must defend against. The court determines plaintiff’s averments are not vague and overrules defendants’ preliminary objections.

IV. References to West Virginia Commercial Drivers ’ Manual

Lastly, defendants request all references to the West Virginia Commercial Drivers’ Manual be stricken. Because this accident occurred in Clearfield County, Pennsylvania, the laws and rules of this Commonwealth and any applicable federal standards govern. Whether defendant Myers did or did not comply with what West Virginia required of him is irrelevant to this negligence action in Pennsylvania. The court therefore sustains defendants’ preliminary objection to strike any and all references to the manual. Because the court is ordering all references to the manual struck, the defendants’ preliminary objection as to vagueness surrounding what provisions of said manual were violated is moot.

ORDER

Now, September 9, 2010, it is the order of this court as follows:

1. The court grants plaintiff leave of court to file an amended complaint to cure the improperly pleaded count III concerning punitive damages. Plaintiff shall file an amended complaint within no more than twenty (20) days from this date.

2. The court dismisses defendants’ preliminary objection to strike references to “willful,” “wanton” or “reckless” conduct from plaintiff’s complaint.

3. The court dismisses defendants’ preliminary objection to paragraphs 26(bb)-(cc) and 29(b), (x), (y).

4. The court grants defendants’ preliminary objection to all references of West Virginia’s Commercial Drivers’ Manual. Said references are hereby stricken.

5. In light of the court’s opinion and order, defendants’ preliminary objections to count III and paragraphs 26(d), 32(e), and 34(f) are moot.

      . Because the court found that plaintiff may amend its complaint to eliminate count III, which includes paragraphs 32(e) and 34(f), the court will not address the preliminary objection in regards to those two paragraphs, as the issue is now moot. The court also reserves judgment concerning paragraphs 26(dd) and 29(b), referencing West Virginia’s Commercial Drivers’ Manual. Because there is also a preliminary objection as to whether any references to that manual should be stricken as irrelevant, this court will address it in its entirety in Part IV of its opinion.


author: SIBUM, J,

text:
    Aurora Loan Services LLC v. Molina
    C.P. of Monroe County,
    no. 11758 Civil 2008.

      Chrisovalante P. Fliakos, for plaintiff.

      Donald M. Leeth, for defendants.
    October 8, 2010
   SIBUM, J,

Plaintiff, Aurora Loan Services, filed a complaint in mortgage foreclosure on December 4, 2008 seeking to foreclose upon property owned by the defendants. The property is located in East Stroudsburg, Pennsylvania. Defendants filed an answer with new matter on February 2,2009 arguing that plaintiff unilaterally raised the monthly mortgage payments more than 50% after the mortgage was assigned to them. Plaintiff filed a reply to defendants’ new matter on February 25, 2009. On August 4, 2010, plaintiff then filed a motion for summary judgment and supporting brief. Defendants did not file a response to plaintiff’s motion but did file a brief on September 3, 2010. The parties waived oral argument and submitted the matter on briefs. We are now prepared to decide this matter.

DISCUSSION

Pennsylvania Rule of Civil Procedure §1035.2 permits the trial court to dismiss an action after the close of pleadings where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 483 Pa. 198, 204, 412 A.2d 466,468-69 (Pa. 1979). Summary judgment may only be entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists. Pa.R.C.P. 1035(b); Brecker v. Cutler, 578 A.2d 481 (Pa. Super. 1990).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 369, 562 A.2d 279, 280 (Pa. 1989). The trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982). The moving party bears the burden of proving that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Failure to allege such specific facts will result in summary judgment, if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Overly v. Kass, 554 A.2d 970 (Pa. Super. 1989).

In the case now before the court, plaintiff contends that defendants have effectively admitted all of the allegations of the complaint in their answer by failing to sustain their burden of presenting facts which contradict the elements of plaintiff’s claim. As such, plaintiff asserts that there are no triable issues of fact in dispute and demands an in rem judgment against the defendants for the foreclosure of the mortgaged premises in the amount of $671,414.57, plus legal interest and costs.

Defendants argue that plaintiff has raised factual issues regarding plaintiff’s servicing of the mortgage by failing to follow the regulations and guidelines within the Real Estate Settlement Procedures Act (RESPA) and the guidelines issued by the Department of Housing and Urban Development (HUD). Specifically, defendants argue that plaintiff unilaterally increased the mortgage payments by more than 50% due to an error on plaintiff’s part. As such, defendants believe plaintiff has acted with unclean hands and that an issue of material fact remains as to whether defendants are in default of the mortgage based on plaintiff’s failure to properly service the mortgage.

Reviewing the facts in the light most favorable to the non-moving party, the record reveals the following. On April 13, 2007, defendants executed and delivered a promissory note and mortgage to Mortgage Electronic Systems, Inc. as nominee for Lehman Brothers Bank, FSB. [complaint, ¶3; answer, ¶3.] The mortgage was recorded in the Office of the Recorder of Monroe County, Record Book No. 2309, Page 6632 [Id.] The mortgage was later assigned to plaintiff documented by an Assignment of Mortgage which was recorded in Assignment of Mortgage BookNo. 2350, Page 981. [Plaintiff’s motion for summary judgment, ¶7, Exhibit A2.]

The mortgage secured repayment of the loan evidenced by the note, plus all other fees and charges due under the note. [MSJ, Exhibit A.] The mortgage also required defendants to pay the lender a sum to provide for payment of escrow items such as amounts due for “taxes and assessments and other items which can attain priority over this security instrument as a lien or encumbrance on the property.” [Id.] Under the note, defendants were to pay monthly principal and interest payments of $3,836.47 at an interest rate of 6.875% beginning June, 2007. [MSJ, Exhibit Al.] The note also contained a provision that if the borrower failed to pay the full amount of each monthly payment on the date it was due, the borrower would be in default. [Id.]

After the mortgage was assigned to plaintiff, plaintiff raised the monthly escrow payment due from defendants. In a letter dated April 20, 2009 to defendants’ attorney, counsel for the lender explained that the monthly escrow payments were being increased, not the principal and interest payments, nor the interest rate. The letter stated:

Pursuant to your request for documentation regarding the above captioned escrow account please be advised that when the loan originated, the HUD-1 did not account for the taxes of $12,000.00. When the actual taxes were paid, there was not enough in the escrow account to pay the first tax disbursement of $ 13,086.13. The escrow payment that was being collected monthly was $460.15 for taxes and insurance, which clearly was not sufficient. Therefore, five months into Ms. Molina’s loan there was an escrow deficiency of $8,515.49. They continued to collect $460.15 for the escrow payment until the payment chance [sic] effective with the December, 2007. [Answer, ¶12; MSJ, Exhibit L.]

The defendants made payments through a repayment plan, advancing the due date of their payments, but ultimately failed to adhere to the scheduled payment plan or bring the loan current. [Id.] As such, the mortgage is now due for the October 1,2008 payment, [MSJ, Exhibits B, K.]

Plaintiff and defendants later entered into a Home Affordable Modification Trial Period Plan on October 29, 2009. [MSJ, ¶ 9, Exhibit G.] The repayment plan was ultimately canceled by plaintiff as a result of the defendants’ failure to make the first payment pursuant to the terms of the plan. [MSJ, ¶10, Exhibit H.] The parties then entered into a Special Forbearance Agreement on January 27, 2010. [MSJ, ¶11, Exhibit I.] However, the forbearance agreement was also terminated by the plaintiff as defendants ’ failed to make the promised payments under the proposed plan. [MSJ, ¶12, Exhibit J.]

The last payment applied to defendants’ mortgage was on or around March 8,2010. Plaintiff applied this payment to defendants’ account for the delinquent September 1, 2008 payment. Defendants did tender a payment on April 19, 2010, which plaintiff has placed in suspense. Plaintiff then filed this action in mortgage foreclosure seeking an in rem judgment and also served defendants an Act 91 notice as required by law. [Complaint, ¶8, 9; Answer, ¶8, 9.]

Pursuant to Pennsylvania Rule of Civil Procedure 1029(b), “the averments of the pleading to which a response is required are deemed admitted when not denied specifically.” Pa. R.C.P. 1029(b). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (Pa. 1951). Although no fixed rule can be stated for determining whether a denial is specific, generally, for a denial to be specific, it must deny what is averred and then must affirmatively aver what did occur in place of the facts that are denied. See In re Estate of Roart, 568 A.2d 182, 186 (Pa. Super. (1989); Jones v. Dubuque Fire & Marines Ins. Co., 317 Pa. 144, 176 A. 208, 209(1934).

In mortgage foreclosure cases, the entry of summary judgment is proper where it is admitted that the mortgage is in default, the mortgagors have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount, even though the defendant never admits the amount of the indebtedness in their pleadings. Landau v. Western Pennsylvania National Bank, 445, Pa. 217,225, 282 A.2d 335, 340 (Pa. 1971).

As stated above, rule 1029(b) requires a specific, factual response to a pleading. Furthermore, rule 1035.3 provides that “the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion [for summary judgment].” Pa.R.C.P. §1035.3(a). Flere, defendants have effectively admitted every allegation of the complaint by either expressly admitting plaintiff’s allegations or by failing to articulate specific reasons as to why the allegations are not true. By failing to counter the averments outlined in the complaint and supported by the documentation attached to plaintiff’s motion for summary judgment, defendants have merely rested upon the pleadings.

As to the issue of default, the terms of the note provide that if the full amount of each monthly payment is not made on the date it is due, the borrower is in default. [MSJ, ¶6, Exhibit Al.] Although defendants attempt to refute plaintiff’s allegations of default by arguing unclean hands and fraud by increasing the monthly payments by more than 50%, we find that defendants have failed to specifically deny the averments of default in their answer. Defendants’ responses to plaintiff’s averments are either conclusions of law or lack specificity as general denials. Although defendants make conclusive statements that plaintiff violated the guidelines of RESPA and FEUD, they do not indicate how they are not in default.

Furthermore, the supporting documentation attached to the motion for summary judgment shows that defendants have not paid the mortgage in at least twenty-three months. Defendants made no effort to counter these affidavits or documents and do not provide any specificity as to what payments they did or did not make. Defendants admitted to making the higher payments until August 2008 yet they failed to provide whether they made any payments after such date.

As to the issue of whether the recorded mortgage is in the specified amount, defendants also make general denials about the amount they believe to be due. Defendants only state that from February 2008 until August 2008 they were required to pay an amount in excess of the mortgage which was not accurately reflected in the amounts due on the mortgage. However, they do not provide what they believe the correct amount to be. A response that “strict proof is demanded” is not enough to overcome a general denial. As such, the record reflects that defendants have admitted that the balance due and owing as averred in plaintiff’s complaint is correct.

With respect to defendants’ assertion that plaintiff is not entitled to summary judgment because plaintiff unilaterally, and with unclean hands, raised the monthly mortgage payment, the assertion lacks merit and is belied by the record. The defendants’ mortgage provided for the payments of Escrow Items, which included taxes and assessments. Plaintiff notified defendants in a letter dated April 20,2009, that defendant’s monthly escrow payments were being raised to pay for real estate taxes not accounted for in the HUD-1. Plaintiff had the right to increase the escrow payments under the terms of the mortgage.

Ultimately, defendants have effectively admitted that the mortgage is in default, that they have not made each and every monthly payment when due, and that the mortgage is in the specified amount. Because no genuine issue of material fact exists, this matter is ripe for disposition by way of summary judgment.

Accordingly, we enter the following order.

ORDER

And now, October 8, 2010, plaintiff’s motion for summary judgment is granted. Judgment in mortgage foreclosure of the property known as 23 Rising Meadow Way, East Stroudsburg, Pennsylvania, is entered in favor of plaintiff and against defendants in the amount of $671,414.57, together with interest and costs.

      . Reference to plaintiff’s motion for summary judgment filed on August 4, 2010 will be cited as [MSJ, ¶_.]

      . The last payment applied to defendants’ mortgage was on March 8, 2010. Plaintiff applied this payment to defendants’ account for the delinquent September 1, 2008 payment. [MSJ, Exhibit K.]


text:
    Pleasant Valley Sch. Dist. v. Schaeffer

      C.P. of Monroe County,
    no. 5550 CV 2010.

      Gerald J. Geiger, for petitioner.

      Jeffrey Husisian, for respondent.
    September 30, 2010
   ZULICK,J.,

This matter is before the court on the petition of Pleasant Valley School District (PVSD) to review an arbitrator’s award pursuant to the grievance procedure contained in a collective bargaining agreement (CBA) between the school and the Pleasant Valley Education Association (P VEA). Respondent Robert Schaeffer (Schaeffer) filed a timely answer to PVSD’s petition. Briefs have been filed and argument was held on September 7, 2010.

The jurisdiction of the court to hear this matter is based upon the provisions of Title 42 Pennsylvania Statutes § 933(b), which provides as follows:

Except as otherwise prescribed by any general rule adopted pursuant to section 503, each court of common pleas shall have jurisdiction of petitions for review of an award of arbitrators appointed in conformity with statute to arbitrate a dispute between a government agency, except a Commonwealth agency, and an employee of such agency. The application shall be deemed an appeal from a government agency for the purposes of section 762(4) (relating to appeals from courts of common pleas) and Chapter 55 (relating to limitation of time.) 42 Pa.C.S.A. § 933(b).

PVSD is a “government agency” within the definition of the judicial code and not a “Commonwealth agency” so as to be excluded from the provisions of §93 3(b).

BACKGROUND

The following facts were established at arbitration. Robert Schaeffer was employed by Pleasant Valley School District as a special education teacher. In November 2005, PVSD administration became aware of criminal misconduct alleged to have been committed by Mr. Schaeffer while working as a teacher in Carbon County, Pennsylvania. The allegations were published in a local newspaper and were said to have occurred while Schaeffer was an employee of Lehighton Area School District (LASD) before his position with PVSD. As a result of the allegations, PVSD suspended Schaeffer on November 18, 2005. Award, page 3.

In December of 2005, criminal charges were filed against Schaeffer in Carbon County. PVSD sent Schaeffer a letter dated December 22,2005, informing him that it was suspending his employment indefinitely until he provided PVSD with written documentation of the exoneration of his charges. At the preliminary hearing, the charges were bound over for trial. Award, page 3.

The Carbon County District Attorney’s office allowed Schaeffer to enter the Accelerated Rehabilitative Disposition (ARD) program on May 4, 2006. Award, page 3. He completed ARD on June 7, 2007, at which time all charges against him were dismissed. On June 22, 2007, Schaeffer wrote a letter to Dr. Pullo, then PVSD Superintendent, requesting immediate reinstatement. Dr. Arnold, who replaced Pullo as Superintendent after Pullo retired, replied by letter, dated July 3,2007, indicating that PVSD would not allow Schaeffer to return to his job until a separate investigation was conducted by the Pennsylvania Department of Education (PDE). Award, page 4.

Schaeffer signed a settlement agreement with PDE in which his Pennsylvania teaching certification was retroactively suspended from November 21,2005 through June 30, 2008. The agreement was subject to approval by PDE’s Professional Standards and Practices Commission, and became effective on July 31, 2008. Award, page 5.

Between the time of PDE’s acceptance of the settlement on July 31, 2008, and November 23, 2008, Schaeffer did not request reinstatement with PVSD. He claimed he did not do so because he felt that he needed documentation that his record was clear. He was concerned that the PDE website, which publicizes the status of teaching licenses of individuals holding licenses under the department, showed that he was still suspended. The website indicated as late as October 2008 that Schaeffer’s license was still suspended and that he was subject to “allegations of inappropriate behavior with students.” The website also inaccurately stated that Schaeffer’s last employment was with LASD and not PVSD. References to Schaeffer’s suspension were taken off the website in December of 2008. Award, page 5.

In aN o vember24,2008, letter S chaeffer informed P V SD of the resolution of the criminal charges and reinstatement of his license. He also requested his job back. PVSD notes, however, that Schaeffer never responded to Dr. Arnold’s July 3, 2007 letter. PVSD also received at least two reference checks on Schaeffer from other employers. As a result, PVSD concluded Schaeffer had abandoned the position and refused to accommodate his request for reinstatement. Opinion and award, page 5.

The arbitrator sustained Schaeffer’s grievance in an opinion dated May 13, 2010. He held that Schaeffer could not have abandoned his employment since he was previously suspended and there was no evidence that the suspension had been lifted. The arbitrator ordered that Schaeffer be reinstated to his position and that he receive back pay and benefit credit dating from the date of his request for reinstatement, November 24, 2008, less any earnings he received from other employment after that date. Award, page 12-13.

DISCUSSION

(1) Timeliness of Appeal

As a threshold matter, we address the timeliness of PVSD’s appeal, an affirmative defense raised by Schaeffer in his answer. Answer, page 17. PVSD filed this proceeding under Pennsylvania’s Uniform Arbitration Act. See Pa.C.S.A. § 7301. Section 7314(b) of the Act provides: “An application under this section shall be made within 30 days after delivery of a copy of the award to the applicant....”

PVSD filed its petition on June 17, 2010. Schaeffer claims PVSD’s appeal was taken 31 days after delivery of the award, whichhe argues occurredMay 17,2010, and that the court must therefore dismiss the petition. In support, Schaeffer’s counsel has submitted an affidavit which states that counsel’s secretary e-mailed a copy of the opinion and award to PVSD’s counsel at approximately 3:30 p.m. on May 17, 2010. Husisian affidavit, ¶7. Schaeffer’s counsel also concedes, however, that he was the only attorney that received the opinion and award from American Arbitration Association (AAA) Case Manager Richard V. Biggs as of May 13, 2010. Counsel for PVSD, Gerald Geiger, filed an affidavit in which he stated that as of August 25, 2010, he had not received a copy of the arbitrator’s opinion and award from AAA. Geiger affidavit, ¶10. He also filed an e-mail letter originally sent to AAA dated May 19,2010, in which he informed it that he had not been provided a copy of the opinion and award and noted that he only learned of the award after it was provided to his office by Schaeffer’s attorney. See PVSD’s brief, exhibit “AS Co-counsel for PVSD, Daniel Corveleyn, likewise submitted an affidavit dated September 1,2010, in which he stated that as of that date he had not received a copy of the opinion and award from the AAA. Corveleyn affidavit, ¶7.

Schaeffer’s counsel’s secretary e-mailed a copy of the opinion and award to PVSD’s counsel on May 17, 2010. PVSD filed its petition on June 17, 2010, 31 days after “receiving” the copy of the opinion and award. PVSD’s compliance with the filing rule set out in our Uniform Arbitration Act, therefore, turns on whether the e-mail sent to PVSD’s counsel by the secretary constitutes “delivery” under the statute. Schaeffer cites two cases which, respectively, require PVSD to have “received” or been given “notice” of the award. See Caron v. Reliance Ins. Co., 703 A.2d 63, 65 (Pa. Super. 1998) (stating that a party has thirty days from “receipt” of the award); Kimmins v. School Dist. of Philadelphia, 1994 WL 1251141, 27 Phila. Co.Rptr. 502, 506 (Philadelphia C.P.1994), (measuring thirty days from date the party receives “notice” of the award).

Whether “delivery,” “receipt,” or “notice” is required, no appellate authority has been cited to allow for any of these methods to be accomplished by a party instead of by the arbitrating body or court system. The better interpretation of the term “delivery” in the phrase “after delivery of a copy of the award to the applicant” found in the statute is delivery by the arbitrator. To allow the parties to take over administration of the dispute resolution process would create uncertainty if not prejudice and gamesmanship. For these reasons, we conclude that PVSD’s appeal was timely filed.

(2) The Essence Test

An arbitrator’s award under the Public Employee Relations Act (PERA) is entitled to review under the essence test. See Westmoreland Intermediate Unit # 7 v. Westmoreland Unit # 7 Classroom Assistants Educ. Support Pers. Ass ’n, PSEA/NEA, 595 Pa. 648, 939 A.2d 855 (Pa. 2007). Under this highly deferential standard, the reviewing court must perform two steps of analysis in deciding whether an arbitrator’s award draws its “essence” from the CBA. Id. at 862. First, it must decide whether the disputed issue is properly defined within the terms of the CBA. Id. at 863. For this purpose, the School Code is incorporated into the CBA by operation of law. See Mifflinburg Educ. Assoc. v. Mifflinburg Area Sch. Dist., 555 Pa. 326, 334, 724 A.2d 339, 343-44 n.5 (Pa. 1999). Second, the court must determine if “the [arbitrator’s] interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention....’” Westmoreland, 939 A.2d at 862 (quoting Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d. Cir. 1969)). In performing this review, the court may not make its own factual findings, evaluate the merits, or assess the reasonableness of an award. Westmoreland, 939 A.2d at 863. The court may not inquire even as to whether an award is manifestly unreasonable. Id. at 863 (citing Pennsylvania Game Commission v. Civil Service Commission (Toth), 1A1 A.2d 887 (Pa. Supreme Ct. 2000)). If an award satisfies both steps of analysis under the essence test, it may not be disturbed unless upholding the award would violate public policy. Westmoreland, 939 A.2d at 863-64.

(A) The Dispute is Defined Within the Terms of the CBA

In accordance with the essence test, we must first verify that the dispute is defined within the terms of the CBA. This point is not in contention. See PVSD’s brief, page 6 (“In the instant matter, the District concedes the first prong of the essence test was satisfied”). At arbitration, the parties stipulated to the following statement of the issues:

Did the Pleasant Valley School District reach [sic] the collective bargaining agreement and/or the Pennsylvania School Code by refusing to allow the grievant, Robert Schaeffer, to return to work on November 24, 2008? If so, what shall the remedy be? Alternatively, did Robert Schaeffer “abandon” his employment as that term is defined under the law? If not, what shall the remedy be? Award, page 6.

As stated in the stipulated issues, the crux of the parties’ dispute is whether PVSD’s refusal to reinstate Schaeffer without a due process hearing was in compliance with the CBA. It follows that determining compliance with the CBA is necessarily defined within the terms of the CBA itself.

The CBA provides a due process hearing to tenured and non-tenured employees alike. See, e.g, Answer, Exhibit B, Appendix B, page 19 (termination procedure of CBA). Additionally, through the incorporated School Code, the CBA requires notice and a public hearing before a tenured employee may be terminated. 24 P.S. §§ 11-1126, 1127. Because a termination hearing is provided for by the CBA and School Code and is expressly required for an act of termination by PVSD, we conclude that this issue (the denial of a hearing) is within the terms of the CBA.

The issue of “abandonment” is also impliedly within the terms of the CBA. Our case law has established that when a teacher has abandoned his position he waives his rights under the School Code. See West Shore Sch. Dist. v. Bowman, 409 A.2d 474,480 (Pa. Comm. 1979); Jacobs v. School District of Wilkes-Barre, 50 A.2d 354, 356 (Pa. Super. 1947). The effect of these decisions is to add an implied exception to the CBA: in order to terminate Schaeffer, PVSD must have provided a due process hearing unless the arbitrator finds he abandoned his employment. Since PVSD did not provide Schaeffer with a due process hearing, the only way PVSD can be found not to have violated the CBA is if Schaeffer is determined to have abandoned his employment. Resolution of whether Schaeffer abandoned his post, therefore, is an issue within the terms of the document.

(B) The Arbitrator’s Interpretation Can be Rationally Derived from the CBA

Under the second step of the essence test, we must determine whether the arbitrator’s interpretation can be rationally derived from the CBA. Westmoreland, 939 A.2d at 862. In finding for Schaeffer, the arbitrator’s interpretation of the CBA can be traced to his framing of its termination provision:

The grievant as a tenured teacher may be severed from a position by one of two methods. The District may remove him from his position in which case, the grievant would be entitled to the due process procedures as set forth in the School Code. The grievant could also abandon his position by in essence affirmatively indicating that he was no longer interested in a position that was otherwise open for him. Award, page 10.

According to the arbitrator, the only two ways Schaeffer’s employment could have ended were: 1) he was terminated by PVSD without a hearing in violation of the CBA; or 2) he was terminated by PVSD without a hearing because he abandoned his position not in violation of the CBA. Award, page 10.

(a) Direct Breach

In his analysis, the arbitrator did not discuss the direct breach of the CBA beyond noting that removal by PVSD would require the due process procedures provided in the school code. Award, page 10. The parties acknowledged that PVSD had not provided a due process hearing to Schaeffer. The plain language of the CBA requires that “Discharged tenured employees will be afforded all rights and privileges of the School Code.” Answer, Exhibit B, Appendix B, paragraph 17, page 19. The School Code, in turn, requires that before a tenured professional employee is dismissed, he is entitled to notice of the charges against him and a public hearing before the board of school directors. 24 P.S. §§ 11-1126, 1127. The School Code is incorporated into the CBA by operation of law. See Mifflinburg Educ. Assoc, v. Mifflinburg Area Sch. Dist., 724 A.2d 339, 343-344 n.5 (1999). Schaeffer, as a tenured teacher, was entitled to the hearing allowed him by the School Code as incorporated by the CBA but was not given one. Unless Schaeffer abandoned his position, therefore, he was denied his rights in violation of the CBA.

PVSD contends that the arbitrator’s failure to discuss this provision of the CBA is fatal to the award, arguing that the arbitrator could not have rationally derived his interpretation from the essence of the CBA where he neglected to expressly mention the CBA in his analysis. PVSD’s brief, page 7.1 disagree. Given that the CBA required a hearing, that PVSD did not provide one, and that PVSD was in breach of the CBA unless Schaeffer had abandoned his position, it was eminently rational of the arbitrator to briefly discuss the lack of the due process hearing required by the CBA and turn to the issue of abandonment for resolution of the case. The arbitrator’s analysis was streamlined, but his decision to omit discussion of direct breach and address only the issue of abandonment was not “indisputably and genuinely...without foundation in, or fails to logically flow from, the collective bargaining agreement.” Westmoreland, 939 A.2d at 863. Indeed, we can deduce this because the arbitrator’s conclusion flows logically from his interpretation.

(b) Abandonment

The arbitrator’s analysis of the abandonment issue itself is sound. Much of the confusion related to the issue of abandonment appears to stem from the fact that abandonment is not expressly considered within the terms of the CBA. See Answer, Exhibit B, Appendix B, page 19. Nor is it incorporated as a basis for termination through the School Code. See 24 P.S. § 11-1121 (providing for termination by employee resignation or school board action in compliance with due process); West Shore School District, 409 A.2d at 478. Instead, our Supreme Court has grafted abandonment on to the two statutory bases as a third method of termination. The practical effect of this additional common law basis is that an arbitrator would be unable to look to the CBA or School Code for direct guidance or support.

PVSD indicates this possibility in its brief. PVSD’s brief, page 7. It argues that at such an impasse the arbitrator must look to the context of the relevant provision of the CBA and determine the parties ’ intent. PVSD notes that the arbitrator did not make this effort. Its proposed solution, however, appears no more helpful in this case than the text of the CBA itself. Implied in our Supreme Court’s instruction to view the CBA “in light of its language, its context, and any other indicia of the parties’ intention” is that some or all of these criteria may not be available or even helpful to analysis. Such is the case here. The context and placement of Appendix B, Paragraph 17, Page 19 of the CBA offers no indication of the parties’ intent. Notably, PVSD does not suggest how the arbitrator might have performed a successful analysis of context and intent. Instead, the possibility of abandonment appears never to have been contemplated by the parties, either in text or context.

In Jacobs v. Wilkes-Barre Township School District, 355 Pa. 449, 50 A.2d 354 (1997), our Supreme Court grouped abandonment with modification and substitution in characterizing all of these actions as “alterations” of contract. Abandonment, like these other events, occurs after contract formation. It may not always be contemplated at the time of contracting and consequently:

It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted. And this may be shown by...by showing either an express agreement or actions necessarily involving the alterations .Id. (quoting Achenbach v. Stoddard, 98 A. 604, 605 (1916); Mazer v. Kann, 22 A.2d 707, 708 (1941)) (emphasis added).

In finding facts related to “actions necessarily involving the alterations,” the arbitrator was acting as our Supreme Court has advised him in assessing abandonment. The arbitrator found that Dr. Arnold’s July 3, 2007 letter extended the suspension imposed by Dr. Pullo in 2005. The arbitrator reasoned that because Mr. Schaeffer was still suspended from his employment with PVSD, which was awaiting the results of the PDE investigation before making a final determination, “(a)s far as the grievant was concerned he did not have a job that he could abandon” in July, 2007. Award, page 11. These factual findings are the basis of the award, are allowed by Jacobs and are thoroughly supported by the record.

Finally, with regard to both stipulated issues, PVSD contends that the arbitrator “failed to cite to the language of the CBA between the parties. Therefore, the opinion and award cannot be considered to have rationally derived from the CBA.” PVSD’s brief, page 5. It is apparent that the arbitrator did not cite to the CBA in his opinion. The essence test, however, requires the court to look to whether the arbitrator’s interpretation takes its spirit — its essence — from the CBA. PVSD directs us to no proposition of law that the essence test also requires an arbitrator to affirmatively cite to the CBA in crafting his opinion. PVSD has thus failed to meet its burden. Accordingly, we hold that the arbitrator’s interpretation can be rationally derived from the CBA.

(3) Public Policy Exception

PVSD next argues that the court should refuse to reinstate Schaeffer based on the public policy exception to the essence test. In Westmoreland, supra, our Supreme Court affirmed the use of the essence test and determined that it must be subject to a narrow exception for violations of the public policy of the Commonwealth. 939 A.2d at 866. The public policy, however, “must be well-defined, dominant, and ascertained by reference to the laws and legal proceedings and not from general considerations of supposed public interests.” Westmoreland, Id. The violation of such a policy must be clearly shown in order to refuse enforcing an award. Id. at 864 (quoting United Paperworkers Int’l Union v. Misko,484 U.S. 29,43 (1987). The burden to establish a record indicates that criminal charges were filed against Schaeffer for inappropriate behavior with a student, and these charges were bound over after a preliminary heaing. He accepted anARD as a means of resolving the criminal case. The penalties Schaeffer accepted in the ARD and the suspension were significant. However, the record is silent as to what he allegedly did to or with the student. Did he use excessive discipline? Did he sexually harass the student? Did he engage in other criminal conduct against the student? These questions were not addressed in the arbitration, and the court, students and students’ parents are left wondering what this conduct actually was. This leaves, “an elephant in the room” in this case; what was the basis for Schaeffer’s suspension and if it was criminal in nature, why is he returning to teach and supervise special needs students?

This case has some similarities to the facts addressed by the Third Circuit in Stroehmann Bakeries, Inc. v. Local 776, Intern. Broth, of Teamsters, 969 F.2d 1436, (C.A.3 (Pa.), 1992). There an arbitrator’s decision returned an employee charged with sexual harassment to the workplace without a determination on the merits as to whether he actually committed sexual harassment:

Under the circumstances present here, an award which fully reinstates an employee accused of sexual harassment without a determination that the harassment did not occur violates public policy. Therefore, Arbitrator Sands construed the Agreement between the parties in a manner that conflicts with the well-defined and dominant public policy concerning sexual harassment in the workplace and its prevention. His award would allow a person who may have committed sexual harassment to continue in the workplace without a determination of whether sexual harassment occurred. Certainly, it does not discourage sexual harassment. Instead, it undermines the employer’s ability to fulfill its obligation to prevent and sanction sexual harassment in the workplace. For these reasons, we conclude that reinstatement of this employee without a determination of the merits of the allegation violates public policy. Stroehmann Bakeries, Inc. v. Local 776, Intern. Broth, of Teamsters, 969 F.2d 1436, 1442(C.A.3(Pa.), 1992).

Like the situation in Stroehmann Bakeries, allowing a teacher who was charged with misconduct with a student to return to the classroom without a determination of what actually occurred would not discourage such misconduct and would undermine the ability of the school to provide a safe place for special needs students to attend school. No parent of a special needs child would be satisfied with the return of a person who has been suspended for 31 months by the Department of Education to teach their child without knowing what his infraction was, especially when it had to do with “misconduct with a student.”

This case will be remanded to the arbitrator for an additional hearing. PVSD is directed to present evidence of the basis for Schaeffer’s suspension by the Department of Education, which shall be reviewed by the arbitrator with the public policy issues discussed above in mind.

ORDER

And now, September 30,2010, following consideration of the parties’ briefs and arguments, it is ordered as follows:

1. The appeal of Pleasant Valley School District is sustained and the decision of the arbitrator is reversed in part.

2. This matter is remanded to the arbitrator for an additional hearing on the reasons why Robert D. Schaeffer was suspended from teaching, and whether his reinstatement would violate public policy as discussed in Westmoreland Intermediate Unit # 7 v. Westmoreland Unit # 7 Classroom Assistants Educ. Support Pers. Ass ’n, PSEA/NEA, 595 Pa. 648, 667, 939 A.2d 855, 856 (Pa. 2007) and Stroehmann Bakeries, Inc. v. Local 776, Intern. Broth, of Teamsters, 969 F.2d 1436, (C.A.3 Pa.), 1992).


author: PANEPINTO, J.,

text:
    Parsons v. Philadelphia Parking Authority

      Blondell parsons, Pro Se.

      Brian Shewlitt, for defendant.
    November 12, 2010
   OPINION

PANEPINTO, J.,

Appellant, Blondell Parsons (hereinafter referred to as appellant), acting pro se, appeals this court’s order entered August 11, 2010 and docketed August 11, 2010, which denied appellant’s emergency motion to stay auto sale.

PROCEDURAL AND FACTUAL BACKGROUND

This matter stems from the filing of a petition to recover auto on March 26, 2010 by the appellant. The appellant had her vehicle (1994 Mitsubishi Galant, VIN 4A3AJ56G3RE089322) impounded by the Philadelphia Parking Authority (“PPA”) on January 12, 2010, at the direction of the Philadelphia Police Department, after it was determined the vehicle was operated by an unlicensed driver. The appellant was informed that she was in violation of the Traffic Code, as well as outstanding parking violations that remained unpaid.

Prior to this filing, the appellant had a hearing before the BAA to contest the currently outstanding parking violations from July 2008 and the impoundment of her vehicle at that time. After the hearing in 2008, the appellant had her vehicle released and penalties reduced/eliminated on the condition that she pay the balance within a specific period of time. No payments were ever made after the hearing that occurred in 2008.

At the time the appellant’s vehicle was impounded a second time on January 12, 2010, all the outstanding payments were added to the amount due for the current violation in order for appellant’s vehicle to be released. On February 3, 2010, an order by the Honorable Pamela Pryor Dembe was entered authorizing PPA to sell at public auction appellant’s vehicle on April 1, 2010. By letter on April 5,2010, PPA informed appellant of her vehicle status, including their intention to list the vehicle for public auction after April 30, 2010 and that “storage fees referenced in the Notice of Impoundment will continue to accrue.” The letter also suggested that appellant immediately schedule a hearing before the BAA to review her outstanding violations. The record does not reflect a hearing occurred at that time. On April 15,2010, appellant received a notice of immobilization and impoundment of vehicle subject to sale. The notice informed appellant she may recover the vehicle as provided by 75 Pa. C.S. § 6309.2.

On May 5, 2010, the appellant filed a motion to stay proceedings. By order dated and docketed May 5, 2010, the motion to stay auto sale was “temporarily granted for petitioner to go to the Bureau of Administrator adjudication in person and bureau to provide her with balance due on tickets/money owed by her.” The May 5, 2010 order listed a hearing date in this matter for May 19, 2010. This court entered an order dated May 25, 2010 and docketed May 26, 2010, remanding the case to the BAA for a full hearing on the outstanding violations. In this order, the sale of appellant’s vehicle remained stayed and allowed the matter to be relisted for a hearing on July 21, 2010 if not settled before the BAA. The July 21,2010 hearing was reschedule by the court to August 11, 2010.

A full hearing was held on August 11, 2010, with appearances by the appellant and a representative of the PPA. After the hearing, this court denied the emergency motion to stay auto sale and lifted the stay on selling the vehicle by order dated and docketed August 11, 2010. On September 8, 2010, appellant filed this appeal to the Commonwealth Court of the order denying the emergency motion to stay auto sale.

ALLEGATIONS OF ERROR

On September 9, 2010, docketed September 13, 2010, this court entered an order directing appellant to file a Rule 1925(b) statement no later than 21 days after the entry of the order. The docket indicates that notice under rule 236 was given on September 13, 2010. Appellant listed her concise statement of errors complained of on appeal as follows:

The court abused its discretion and committed an error of law by lifting the temporary stay and allowing appellant’ property to be sold by the government without due process of law, under the Pennsylvania and U.S. Constitutions, despite significant evidence being offered by appellant that the same car was released by the parking authority after admitting that the tickets charged were not owed by appellant.

ANALYSIS

Appellant’s emergency motion to stay auto sale was not a statutory appeal from the BAA, nor was any direct appeal from the BAA ever filed by the appellant. Appellant failed to offer proof of payment of the fines at any hearing, which resulted in her vehicle being impounded and ultimately allowed to be sold at public auction.

Without a proper record from the BAA regarding the hearings held in this matter, this court must look at the information provided to the appellant as to the procedure for recovering her impounded vehicle. Appellant was sent a letter/notice regarding her vehicle on April 15, 2010, which outlined how she should recover her vehicle. The letter instructed appellant to appear in Philadelphia Traffic Court and follow the procedure for recovering a vehicle as provided by 75 Pa.C.S. §6309.2.

75 Pa.C.S. §6309.2 (2010) provides, in pertinent part:

(d) RECOVERY OF TOWED AND STORED VEHICLE -
(1) The owner or lienholder of any vehicle or combination which has been towed and stored under this section may obtain possession of the vehicle or combination by:
(i) furnishing proof of valid registration and financial responsibility; and...
(ii) (B) if the towing and storage resulted from the operation of the vehicle or combination by a party other than the owner, paying all costs associated with the towing and storage of the vehicle or combination and fines associated with citations issued by the law enforcement officer related to the towing and storage and any other outstanding fines and costs of the owner or making arrangements with the appropriate judicial authority to make payments of all such fines and costs or, in the discretion of the appropriate judicial authority, by installments as provided by the Pennsylvania Rules of Criminal Procedure.
(1.1) In cities of the first class, the appropriate judicial authority shall not issue an order for the release of any vehicle towed and stored pursuant to this section until provisions are made for payment of all fines and penalties associated with violations of any local parking regulation or ordinance or applicable section of this chapter or Chapter 61 (relating to powers of department and local authorities).
(2) Any vehicle not recovered under this subsection may be sold as an unclaimed vehicle, combination or load under section 6310 (relating to disposition of impounded vehicles, combinations and loads). The proceeds of the sale shall be applied to the payment of the fines and costs associated with the towing and storage of the vehicle.

In the present case, appellant failed to file a direct appeal of the rulings before the BAA. At the hearing before the BAA ordered by the court, appellant stated on the record that she would not pay the amount due to have her vehicle released. The appellant has repeatedly said that the amounts due are incorrect and that she has previously paid the outstanding ticket which are still due on her account with PPA. At no point has the appellant shown this court any receipts of payment or any other documentation that would prove she paid these previous violations. At the August 11, 2010 hearing before this court, the appellant again stated on the record that she was not willing to pay the assessment fees.

In looking at the facts of the case, appellant merely argues that she is being unfairly treated due to not having proper notice of fees and charges against her for violations concerning her vehicle and that she did not receive a fair hearing before the BAA. The court ordered appellant to go back to the BAA in order to get a fair hearing and figure out what she owes. The appellant had the ability to appeal the decision of the BAA and dispute the amount they claim she owes, but appellant choose not to do so. The issue before this court was whether the sale of her auto should be stayed and appellant provided no evidence or testimony for this court to find that the sale should be stayed after the PPA changed the date of the public auction three times already in this case. Under 75 Pa.C.S. §6309.2, the appellant is required to furnish proof that she had paid the outstanding fines and costs, but instead she admitted they were still outstanding. Given these facts, this court properly denied the emergency motion to stay auto sale in favor of the PPA allowing for appellant’s vehicle to be sold at public auction to satisfy her fines and costs.

CONCLUSION

Overall, the record shows that appellant did not provide proof that her outstanding fines and costs were paid. This court found that no constitutional rights of the appellant were violated, due to appellant having multiple opportunities to go before PPA, BAA and this court to resolve this matter.

Accordingly, for the reasons stated above, this appeal should be denied.