author: MOTTO, P.J.,

text:
    Commonwealth v. Wallace

      C.P. of Lawrence County,
    nos. 1006, 1053, 1066, 1093, 1095, 1102, 1106, 1107, 1108, 1109, 1110, 1111, 1112 of 2004, 107, 108 and 119 of 2005.

      Kathleen Fee-Baird, assistant district attorney, for Commonwealth.

      Darrell Haeberle, assistant public defender, and Dennis A. Elisco, assistant public defender, for defendant.

      Jeffrey Palladino, for intervenor.
    January 27, 2010
   MOTTO, P.J.,

Before the court for disposition is the defendant’s motion to modify sentence pursuant to 61 P.S. §81 due to defendant’s medical condition, following a rehearing granted thereon upon motion of the intervenor, Pennsylvania Department of Corrections, for reconsideration of this court’s prior order dated April 17, 2009. The prior order had granted the defendant’s motion and directed the defendant’s release to a skilled nursing facility. The dispositive issue is whether the current facility in which defendant is incarcerated lacks the ability or resources to treat him for his diagnosis of probable multiple sclerosis. Because the court finds that, based upon the current state of the record, defendant is receiving appropriate care and treatment for his medical condition, the court is therefore compelled to deny the defendant’s motion.

HISTORY OF THE CASE

These proceedings originated with the defendant’s pro se filing of a modification of sentence nunc pro tunc for medical reasons pursuant to 61 P.S. §81. Upon the filing of such motion, this court appointed the public defender to represent the defendant and scheduled a hearing on the defendant’s application for modification of sentence. At the hearing on March 23, 2009, the Commonwealth appeared through the district attorney; however, the Department was not represented at such hearing. The March 23, 2009 hearing consisted of extensive testimony from the defendant and introduction of medical records. At such hearing, the Commonwealth made no request to present the position of the Department. Based upon the evidence presented at the March 23,2009 hearing, the court found that the defendant was seriously ill and that his current facility lacked the resources to treat him and issued an order pursuant to 61RS. §81 granting the modification of sentence and directing that he be transferred to a skilled nursing facility for treatment of his current medical condition, with the defendant to be returned to the prison upon restoration of his health.

Subsequent to the issuance of the April 17,2009 order granting the defendant’s petition, the Department filed a petition to intervene, a motion for stay of the April 17, 2009 order and a motion for reconsideration of the April 17, 2009 order.

By order dated May 22, 2009, the court granted the intervenor’s motion for stay and scheduled a hearing on the Department’s petition to intervene and for reconsideration on the basis that the Department had a substantial interest in the subject matter of the litigation; granted reconsideration of the April 17, 2009 order, since the position and evidence of the Department had not been considered in the prior proceedings; found that 61 P.S. §81 continued to apply, although it had been repealed, since the original request for modification had been filed while that statute remained in effect; and scheduled a full hearing on the defendant’s motion for modification of sentence nunc pro tunc for medical reasons. At this hearing the Department presented substantial evidence regarding the diagnosis, care and treatment of the defendant’s medical condition.

DISCUSSION

Based upon the evidence provided by the defendant at the initial hearing in which the Department did not participate, the court found that the defendant was seriously ill and that it was necessary that he be removed from SCI Highlands because his medical condition could not be treated in prison. The court found the defendant was partially paralyzed, going blind, could not urinate, lost control of his bowel movements and his conditions continued to deteriorate. The defendant was in need of a neurologist to be involved in the diagnosis and development of a treatment plan for multiple sclerosis. The court further found that a neurologist must be involved in a diagnosis and treatment plan for this kind of disease. Defendant was in need of diagnostic workups including a spinal tap or imaging of the spinal cord and other studies to establish the diagnosis and a treatment plan. The defendant was not provided with an examination by a neurologist nor any development of a treatment plan, while his condition continued to deteriorate. (See opinion dated April 17, 2009 pp. 3, 4, 6 and 7.)

The evidence presented at the subsequent hearing after the intervention of the Department demonstrates that the deficiencies in the treatment which the court previously found to exist have been addressed by the prison. The court now has the benefit of the testimony of the prison medical personnel who are responsible for the proper medical treatment of the defendant as to the care that has been and is now being provided to the defendant. That care has been principally outlined in the testimony of Dr. Jawal Salameh M.D., the medical director for SCI Laurel Highlands.

Defendant was transferred to SCI Laurel Highlands from SCI Frackville in November of2007. At the inception of defendant’s intake, medical personnel at SCI Laurel Highlands were aware of defendant’s diagnosis of multiple sclerosis. His records showed that he began to have problems with his eyes in 2006 and was evaluated at SCI Frackville by an ophthalmologist, Dr. Goldberg, who suspected multiple sclerosis. Dr. Salameh ordered an MRI and referred defendant to Dr. Feinberg, a neurologist, who saw defendant in October of 2006. Dr. Feinberg reviewed an abnormal MRI that showed increased intensity in the white matter, which is nonspecific but consistent with multiple sclerosis. With the MRI finding and noting the presence of optic neuritis, Dr. Feinberg made a finding of probable multiple sclerosis.

Defendant was seen by the neurologist, Dr. Feinberg, in a follow-up in November 2006. Dr. Feinberg prescribed Avonex for defendant, did not order any other testing and directed follow-up as needed.

Based upon Dr. Feinberg’s examinations, Dr. Salameh ordered a continuation of Dr. Feinberg’s recommendation, continuing defendant on Avonex, a standard treatment for multiple sclerosis, and assigned defendant to physical therapy, directed that he see an optometrist and ophthalmologist to follow up on the treatment for optic neuritis, and ordered a wheelchair for defendant for use as needed. Defendant was then stable until he began to complain of difficulties in luly of2008. He began to have a problem with urination, for which he was examined by a urologist and was given medications to help with urination.

In April of2009, defendant had an episode of dizziness and chest pain and was sent to the Sommerset Hospital emergency room for evaluation. Defendant was admitted to the hospital, and although the primary concern was that defendant was suffering from coronary artery disease, the opportunity was taken during that admission to have the defendant evaluated by a neurologist, Dr. Catalano.

Dr. Catalano evaluated the defendant and agreed with the diagnosis of probable multiple sclerosis and directed a series of MRIs be taken. The MRI results showed two lesions in the brain consistent with multiple sclerosis. Dr. Catalano then ordered a spinal tap to confirm the diagnosis. The defendant declined all additional tests ordered by the neurologist, Dr. Catalano, including the spinal tap. However, based upon the MRIs, which included an MRI of the brain, of the cervical spine and an MRA to look at the blood vessels, which disclosed the two lesions, Dr. Salameh concluded that the diagnosis of multiple sclerosis was more than possible or probable multiple sclerosis. Now knowing that the defendant has two lesions together with optic neuritis, and considering the clinical picture and defendant’s neurogenic bladder, the diagnosis became more likely multiple sclerosis. The likelihood of multiple sclerosis was further corroborated by a May 2009 follow-up by the ophthalmologist who found swelling of the optic disk. Dr. Salameh received a report from the neurologist at Sommerset Hospital, Dr. Catalano, dated April 6, 2009. The report recommends the performing of a spinal tap, MRI and evoke potentials, and to stop the steroid. Dr. Salameh followed the recommendations and the MRI was done at Sommerset Hospital. Defendant initially refused the spinal tap and the evoke potential, but these tests were eventually done. Dr. Salameh then scheduled a consultation with Northshore Neuroscientists. The examination with Northshore Neuroscientists occurred on July 10,2009. Dr. Grazioli was the neurologist with Northshore who examined the defendant and reviewed the records. Dr. Grazioli made a diagnosis of provisional history of multiple sclerosis; she requested neurological records, MRI films, and visual evoke potential, MRI of the thoracic spine, spinal tap and a battery of blood tests. Essentially Dr. Grazioli requested almost every possible test that could be done to exclude any connective tissue disease, infection process, cancer or any immune problem. Dr. Salameh followed all of the directives of Dr. Grazioli and all of those tests were ordered and done. The spinal tap was performed August 7, 2009. The evoke potential was done September 9, 2009. The blood tests were all done within a day or two after the consultation. A thoracic spine MRI was done in August 2009. All of these test results were accumulated and sent to Northshore Neuroscientists. A follow-up consultation was done September 10, 2009.

On September 10, 2009, Dr. Grazioli, after again evaluating the defendant and all relevant records and tests, agreed that the diagnosis is probable multiple sclerosis. The doctor found all other testing was negative for any other problem which might account for defendant’s symptomatology. Dr. Grazioli ordered interferon antibody testing to determine whether the Avonex was working. Dr. Grazioli also started dfendant on IV steroid. Dr. Grazioli then scheduled the defendant for another followup in November or December of 2009.

Dr. Grazioli has further advised that if the result of the interferon antibody testing is positive in both parts of the test, then it will show that the defendant is resistant to the Avonex and the doctor would then like to switch the defendant to the next generation medicine which is Copaxone.

The court has previously determined that this case is controlled by 61 P.S. §81, which provided, prior to its amendment that became effective November 25, 2008, as follows:

“Whenever any convict or person is confined in any jail, workhouse, reformatory, or reform or industrial school, penitentiary, prison, house of correction or any other penal institution, under a conviction or a sentence of the court or so confined while awaiting trial or confined for any other reason or purpose and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to modify its sentence, impose a suitable sentence, or modify the order of confinement for trial, as the case may be, and provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered. Upon the recovery of such person, the court shall re-commit him or her to the institution from which he or she was removed.”

As this court has previously stated in its opinion of April 17,2009, the provisions of the foregoing statute is not subject to time constraints or limitations. Commonwealth of Pennsylvania v. Kositi, 880 A.2d 648 (Pa. Super. 2005). In order to be entitled to relief, the defendant must prove that he is seriously ill and that his current facility lacks the resources to treat him. Kositi, supra; Commonwealth v. Dunlavey, 805 A.2d 562, 564 (Pa. Super. 2002), appeal denied, 572 Pa. 698, 813 A.2d 837 (2002). The statute permits a change in the location of confinement but not the length of confinement. Commonwealth v. Reefer, 816 A.2d 1136, 1143 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

The statute requires that a petitioner show by “due proof” that he is “seriously ill” and that “it is necessary that he be removed from such penal institution because the inmate’s disease cannot be treated in prison.” Complaints of inadequate medical care or about the quality of care received in the current facility does not establish a prima facie case relief under the statute. Commonwealth v. Lightcap, 806 A.2d 449 (Pa. Super. 2002); Commonwealth v. Dunlavey, supra; Commonwealth v. Reefer, supra.

The Department initially argued that Act 61 was amended effective November 25, 2008 and no longer provided authority for the court to render the relief granted because the amendment allows for relief only if the defendant is terminally ill. However, this court found and set forth in its order of September 14,2009 that the amendment took effect only after these proceedings were instituted, although before the initial adjudication. In accordance with Gallant v. Department of Environmental Resources, 534 Pa. 17, 626 A.2d 496 (1993), a statute may be applied retroactively during the pendency of litigation if it involves a procedural change as opposed to a substantive change. A statute that effectuates a procedural change applies not only to “[ljitigation commenced after its passage but also to litigation existing at the time of passage. However, legislation which affects rights will not be construed to be retroactive unless it is declared so in the Act.” Gallant, 534 Pa. at 21, 626 A.2d at 497, citing Universal Cyclops Steel Corp. v. Workmen’s Compensation Appeal Board, 9 Pa. Commw. 176, 183, 305 A.2d 757, 761 (1973), quoting Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 166, 110 A.2d 731, 732 (1920). The amendment referred to by the Department is not merely a procedural change but directly affects substantive rights as it changes the right of modification of sentence from a standard or a change in place of confinement may be directed where a prisoner is seriously ill and the current facility lacks the resources to treat him, to a standard whereby the modification may be authorized only where a prisoner is terminally ill.

On the current state of the record, defendant cannot meet his burden to prove that it is necessary that he be removed from the penal institution because he cannot be treated in prison. The present circumstances are that he is regularly seen by a neurologist, who prescribes testing procedures that are reviewed and result in recommendations that are followed by the prison medical personnel. In its opinion and order of April 17, 2009, this court, in granting defendant relief, found that the defendant was in need of a neurologist to be involved in the diagnosis and development of a treatment plan for multiple sclerosis. The court had previously found that the prison had failed to provide a neurologist to be involved in the diagnosis and development of a treatment plan and to direct further diagnostic workups which would include a spinal tap or imaging of the spinal cord and other studies to establish the diagnosis and treatment plan. The court also found that SCI Highlands was not equipped to provide the type of specialized testing and treatment that was necessary to address the defendant’s condition.

The current record establishes a change in the circumstances at SCI Highlands relative to defendant’s medical care. Defendant is now seen on a regular basis by a neurologist, Dr. Grazioli, who regularly directs appropriate testing for the defendant including MRIs, other medical imaging, spinal taps, blood tests, interferon testing and other appropriate procedures and testing that relate to treatment of multiple sclerosis. There is no evidence of any other type of treatment or care that would be appropriate for the defendant’s current medical situation that is not being provided for the defendant at SCI Laurel Highlands. The authorization under Act 61 to transfer the defendant to a facility outside of the prison system exists only where it is determined that the defendant cannot be treated within the prison system. Here, the court finds that defendant is receiving proper treatment within the prison system. Therefore, the court is required to deny defendant’s motion for modification of sentence for medical reasons pursuant to 61 P.S. §81, which the court will do by separate order.

ORDER

And now, January 27, 2010, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s motion for modification of sentence for medical reasons pursuant to 61 P.S. §81 is hereby denied.

The defendant is advised that he has the right of appeal from this order and that such appeal must be filed within 30 days of today’s date or the right to file that appeal will be lost. The defendant is further advised that he has the right to counsel relative to any such appeal and if he cannot afford counsel, counsel will be appointed to represent him at no cost to him.


source: Caselaw Access Project

author: PICCIONE, J.,

license: Public Domain

text:
    Honey Creek Stone Co. v. Telsmith Inc.

      C.P. of Lawrence County,
    no. 11347 of 2003, C.A.

      Richard I Victoria and John J. DeCaro Jr., for plaintiff.

      Kevin L. Colosimo and Andrew G. Jenkins, for defendant Telsmith Inc.

      Stephen L. Grose, for defendant Stewart-Amos Equipment Co.
    December 31, 2009
   PICCIONE, J.,

Before the court for disposition is defendants’ joint praecipe for summary judgment. The current action arose out of a purchase of a stone crasher by Honey Creek Stone Company. In late 2002, Honey Creek contacted Telsmith Inc. for the purpose of purchasing a new stone crashing plant for its Petersberg, Ohio facility. Honey Creek desired to replace its existing plant and crasher in order to increase production. After examining the existing plant and performing an assessment of Honey Creek’s needs, Telsmith referred Honey Creek to Stewart-Amos Equipment Company, a dealer of Telsmith’s machinery in Pennsylvania. During negotiations, Stewart-Amos informed Honey Creek that money could be saved by purchasing a used or refurbished stone crasher as part of the new plant.

On December 11,2002, Honey Creek began purchasing components for its plant. On December 16, 2002, Honey Creek agreed to purchase a secondary crushing and screening plant from Telsmith and Stewart-Amos. According to Honey Creek, the agreement between the parties remained open-ended because no decision was made as to whether a new or used crusher would be purchased. Honey Creek later discovered that Telsmith had a used crasher available in Tennessee. Telsmith inspected the used crusher and reported its findings to Stewart-Amos. On January 16, 2003, Stewart-Amos wrote to Honey Creek, stating that the crusher “seems to be in good shape with roller bearings, bronze sleeves, and head and shaft all O.K.” Plaintiff’s exhibit 16. Shortly thereafter, Honey Creek agreed to purchase the used crusher. Telsmith warranted the crusher for a period of six months and included, in bold and capital letters, a disclaimer of all other warranties in its service and warranty policy manual.

The crusher was delivered to Honey Creek in the spring of 2003 and began malfunctioning soon after it started operating. Despite numerous attempts, Telsmith and Stewart-Amos were unable to satisfactorily repair the crusher and related equipment. Citing its dissatisfaction with the crusher, Honey Creek refused to pay the balance of the purchase price to Stewart-Amos. Honey Creek continued to use the crusher until 2006, when it was discovered that the crusher needed a replacement liner. In April of 2006, Honey Creek met with a representative of Ohio-CAT, a dealer for Telsmith’s machinery in Ohio, who advised Honey Creek that there were problems with the support bowl. “Smithbond” was discovered in areas suggesting that the crusher was not properly refurbished before being delivered. Honey Creek purchased replacement parts, and the crusher continued to operate throughout 2006. During the following years, Honey Creek did not crush stone at is Petersburg, Ohio facility.

The current action commenced when Stewart-Amos filed suit against Honey Creek in September of 2003, seeking payment due on the crusher and related equipment. On December 1, 2003, Honey Creek filed a complaint against Telsmith and Stewart-Amos, asserting claims for breach of warranty, breach of contract and negligence. Defendants filed preliminary objections to the complaint, and the negligence counts were stricken by order of court dated June 23,2004. On June 12,2006, the two cases were consolidated by order of court. Seeking to add a claim of fraudulent inducement, Honey Creek filed a motion to amend its complaint, which was granted on May 20, 2008. Stewart-Amos and Telsmith each filed motions for summary judgment dated March 20, 2009 and March 23,2009, respectively. The parties submitted briefs supporting their positions regarding the motion, and this court conducted a hearing on June 3, 2009.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The rule states that:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2

The rule explains that summary judgment is appropriate only in those instances where “there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery” and the moving party is entitled to judgment as a matter of law. Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857 (2005); see also, Pa.R.C.P. 1035.2. The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650 (Pa. Super. 1999). For the purposes of summary judgment, material facts are those that have a direct effect on the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000).

In determining whether summary judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party.” P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999) (citing Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994)). Atrial court should only grant a motion for summary judgment when the facts of record are so clear that reasonable minds could not disagree on the outcome. Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000) (citing Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 504, 579 A.2d 1358, 1363 (1990).

In Counts I and II of the amended complaint, Honey Creek alleges that both Telsmith and Stewart-Amos breached various express and implied warranties regarding the plant and, specifically, the crusher. Stewart-Amos initially argues that it did not provide any warranty to Honey Creek relative to the crusher or any other equipment used in the plant and that any warranties from the contracts between Stewart-Amos and Honey Creek were from Telsmith.

Honey Creek provided sufficient evidence to demonstrate that a warranty from Stewart-Amos existed. For example, the dealership agreement between Telsmith and Stewart-Amos stated that “Dealer agrees to extend the same warranty and no other to purchaser of manufacturer’s products.” Plaintiff’s exhibit 10. In letters to Honey Creek dated March 5, 2003, Stewart-Amos enclosed Telsmith’s warranty for equipment related to the stone crushing plant and stated that, as the dealer for the manufacturer, Stewart-Amos extends the same guarantee. Plaintiff’s exhibit 16. The letter also indicated that Stewart-Amos would do everything possible to ensure that Honey Creek is satisfied with the product. Id. Frank Chulick, an employee of Stewart-Amos, testified that Honey Creek was not charged for any work done by Stewart-Amos consistent with the warranty. Plaintiff’s exhibit 4. Finally, the letter to Honey Creek President Carmen Shick, stating that the crusher “seems to be in good shape,” was written by Bill Starr of Stewart-Amos. Plaintiff’s exhibit 16.

Despite minimal direct communication between Honey Creek and Stewart-Amos regarding warranties, evidence presented by Honey Creek suggests that Stewart-Amos was offering the same warranties as Telsmith. Stewart-Amos argues that, in the letter to Carmen Shick, it was merely relaying a message from Telsmith; however, “[i]t is not necessary to the creation of an express warranty that the seller . . . have a specific intention to make a warranty.” 13 Pa.C.S. §2313(b). Therefore, it is irrelevant what Bill Starr’s intention was when he commented on the status of the crusher. Provided Honey Creek can demonstrate that “[m] achine seems to be in good shape” constitutes an express warranty, both defendants are bound by that statement.

The Pennsylvania Commercial Code states that express warranties are created as follows:

“(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

“(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” 13 Pa.C.S. §2313(a)(1) and (2).

“[A]n affirmation merely of the value of the goods or a statement purporting to be merely the opinion of the seller or commendation of the goods does not create a warranty.” 13 Pa.C.S. §2313(b). Whether a statement constitutes an express warranty or an affirmation of the value of the goods depends on whether the statement became part ofthe basis of the bargain. 13 Pa.C.S. §2313, comment 8. Statements of the seller do become part of the basis of the bargain “unless good reason is shown to the contrary.” Id.

Telsmith contends that describing the crusher as “in good shape” does not create an express warranty but instead constitutes puffery. “Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language.” Castrol Inc. v. Pennzoil Company, 987 F.2d 939, 945 (3d Cir. 1993). It is generally understood as an expression of the seller’s opinion to be discounted by the buyer. Id. Such opinion statements do not create express warranties. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 103, 337 A.2d 893, 903 (1975).

The statement that the crusher seemed to be “in good shape” differs from the typical exaggerations that are classified as puffery. In January of 2003, Honey Creek was unsure whether to purchase a new or used crusher. Bill Starr’s letter suggests that the decision had not yet been made at the time that the “in good shape” statement was made. The letter states that “Telsmith will make the following repairs if you decide to go the used route[.]” Plaintiff’s exhibit 16. (emphasis added) One of the factors influencing Honey Creek’s decision was whether a used crusher could fulfill its desire to increase production at its Petersburg facility. Honey Creek most likely took Bill Starr’s statement as a guarantee that the crusher would perform the work Honey Creek had in mind. Suggesting that the crusher was capable of performing the intended work was not an exaggeration of the quality of the machine but rather a material statement that affected Honey Creek’s decision. The “in good shape” statement, therefore, cannot be classified as puffery.

Telsmith further suggests that the statement could not have been part of the basis of the bargain because Bill Starr’s letter was sent to Honey Creek after the contracts with Stewart-Amos were finalized. As indicated above, the letter itself shows that a decision regarding the purchase of a new or used crusher was not made as of January 16, 2003. As a result, the statement could still qualify as an express warranty.

Both defendants argue that the disclaimers in their contracts with Honey Creek satisfied the requirements for valid disclaimers of all warranties, express or implied. “ [Contractual provisions limiting warranties, establishing repair or replacement as the exclusive remedy for breach of warranty and excluding liability for special, indirect and consequential damages in a commercial setting are generally valid and enforceable.” New York State Electric & Gas Corp. v. Westinghouse Electric Corp., 387 Pa. Super. 537, 548, 564 A.2d 919, 924 (1989). “[T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous.” 13 Pa.C.S. §2316(b). “[T]o exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” Id. Section 2316 further provides:

“Words or conduct relevant to the creation of an express warranty and words of conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this division on parol or extrinsic evidence (section 2202) negation or limitation is inoperative to the extent that such construction is unreasonable.” 13 Pa.C.S. §2316(a).

“This section ‘seeks to protect a buyer from unexpected and unbargained language of disclaimer by denying effect to such language when inconsistent with language of express warranty. ’ ” Morningstar v. Hallett, 858 A.2d 125, 131 (Pa. Super. 2004).

The contract between Stewart-Amos and Honey Creek contained a waiver provision excluding all warranties. The warranty provided by Telsmith to Honey Creek limited damages and excluded all warranties except the six-month repair and replacement warranty. Both provisions appeared in capital letters and bold type, in contrast with the language of the rest of the agreement. Both provisions mentioned the implied warranty of merchantability among its exclusions. As a result, both provisions satisfied the requirements of a valid disclaimer of the implied warranties of merchantability and fitness for a particular purpose.

As stated above, a disclaimer is inoperative when it cannot be construed as consistent with the language of an express warranty. Id. Evidence presented by Honey Creek suggests that an express warranty was created when Bill Starr wrote that the used crusher seemed to be “in good shape” and “all O.K.” Obviously, such an express warranty is inconsistent with a disclaimer excluding all express warranties. Defendants, therefore, failed to disclaim this express warranty.

It is undisputed that Telsmith provided a six-month repair and replacement warranty to Honey Creek. As indicated above, Stewart-Amos extended the same warranty to Honey Creek. Evidence was presented that both defendants performed repairs on the used crusher and other equipment. Questions remain as to whether those repairs were satisfactorily performed in accordance with the warranty. Defendants, therefore, failed to carry their burden of demonstrating that no genuine issue of material fact existed with respect to the breach of the six-month warranty and that defendants were entitled to judgment as a matter of law.

For the foregoing reasons, the court concludes that there is a material question of fact as to whether both defendants breached warranties made to Honey Creek and that summary judgment is, therefore, inappropriate with respect to Honey Creek’s breach of warranty claim.

Stewart-Amos argues that, if a breach of warranty occurred, damages recoverable by Honey Creek do not include consequential or incidental damages. Proposals submitted by Stewart-Amos and accepted by Honey Creek contained the following language: “Under no circumstances shall seller be liable for any consequential or incidental damages, expenses, losses or delays howsoever caused . . . .” Stewart-Amos’ exhibits C, D. Stewart-Amos submits that this contractual language signed by Honey Creek effectively excludes recovery of any consequential or incidental damages for breach of warranty.

An agreement may limit the remedies that a party can recover for breach of warranty. 13 Pa.C.S. §2316. “Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.” 13 Pa.C.S. §2719(b). In other words, all remedies under the Pennsylvania Commercial Code, including consequential damages, are available if the exclusive remedy provision fails of its essential purpose. “[Cjourts generally have concluded that so long as the buyer has the use of substantially defect-free goods, the limited remedy should be given effect. But when the seller is either unwilling or unable to conform the goods to the contract, the remedy does not suffice.” Chatlos Sys. Inc. v. Nat'l Cash Register Corp., 635 F.2d 1081, 1085 (3d Cir. 1980). “Whether a limited warranty has failed its essential purpose is a question of fact for the jury.” Woolums v. National RV, 530 F. Supp.2d 691, 701 (M.D. Pa. 2008).

Honey Creek claims that the six-month repair and replacement warranty failed the essential purpose of remedying the alleged defects. Honey Creek presented evidence that Telsmith and Stewart-Amos failed to perform the necessary repairs. Carmen Shick testified that, despite defendants’ repairs, the plant’s production was at a lower level than the plant it replaced. Plaintiff’s exhibit 1. Bill Starr testified that Stewart-Amos experienced “sincere problems” in trying to repair the crusher. Plaintiff’s exhibit 3. Additional testimony was taken from employees of each of the parties describing the repairs that defendants performed. Plaintiff’s exhibits 2, 5,7,9, 41,42, and 43. Honey Creek also presented the December 23, 2008 process plant evaluation of David Lange, which stated that the crusher “cannot be operated at 100 percent efficiency” and “will never have a consistent enough gradation to maintain a full chamber, at all times, in the cone crusher.” Plaintiff’s exhibit A.

Defendants dispute Honey Creek’s claims by offering evidence and testimony of their own. These conflicting accounts present a genuine issue of material fact regarding whether the repair and replacement warranty failed its essential purpose of providing Honey Creek with a properly functioning plant and crusher. Therefore, defendants’ motion for summary judgment must be denied with respect to the question of exclusion of remedies.

In Counts III and IV of the amended complaint, Honey Creek maintains claims for breach of contract against Telsmith and Stewart-Amos. It is undisputed that a contract existed between Honey Creek and Stewart-Amos; however, Telsmith argues that Honey Creek cannot maintain a claim for breach of contract against Tel-smith because no contract existed between them.

Although a breach of contract action requires the existence of a contract, “a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties.” J.F. Walker Co. Inc. v. Excalibur Oil Group Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002). Telsmith offered to perform repairs and to refurbish the used crusher in the event that Honey Creek purchased it. Honey Creek accepted Telsmith’s offer by purchasing the used crusher. Telsmith demonstrated that a contractual relationship existed by attempting to repair the crusher. Because the court finds that a contract existed between the parties based on their conduct, summary judgment on the breach of contract claim is inappropriate.

In Count VII of the amended complaint, it is alleged that Stewart-Amos and Telsmith fraudulently induced Honey Creek to purchase the crusher and other equipment. Defendants aver that they are entitled to summary judgment on the fraudulent inducement claim because: (1) the statute of limitations has passed; (2) the discovery rule does not apply; (3) the economic loss doctrine does apply; and (4) there is no credible evidence to support Honey Creek’s claim.

The statute of limitations for a claim of fraud is two years. 42 Pa.C.S. §5524(7). “Generally speaking, the statute of limitations begins to run as soon as the right to institute and maintain suit arises.” Lazarski v. Archdiocese of Philadelphia, 926 A.2d 459, 461 (Pa. Super. 2007). “The law is clear that fraud or deceit tolls the statute of limitations until such time as the fraud has been discovered by the exercise of due diligence.” Rothman v. Fillette, 503 Pa. 259, 266 n.3, 469 A.2d 543, 546 n.3 (1983). “If the plaintiff is successful in invoking the discovery rule, the cause of action accrues when plaintiff is aware or should have been aware of her injury and its cause, but the plaintiff has the burden of showing that she is entitled to the benefit of the rule.” Speicher v. Dalkon Shield Claimants Trust, 943 F. Supp. 554, 557 (E.D. Pa. 1996). “In order to obtain the benefit of the rule, the plaintiff must show that she exercised diligence to ascertain the existence or.cause of her injury but could not discover those facts in spite of her diligence.” Id. “[T]he discovery rule applies to toll the statute of limitations in any case where a party neither knows nor reasonably should have known of his [or her] injury and its cause at the time his [or her] right to institute suit arises.” Fine v. Checcio, 582 Pa. 253, 269, 870 A.2d 850, 859 (2005).

In the present case, the court held an evidentiary hearing on January 31, 2008 and March 28, 2008. A letter dated November 21,2003, was introduced at the hearing as defendant’s exhibit B. The letter is from Rick Patek, the president of Telsmith, to Frank Chulick, the president of Stewart-Amos. In the letter, Mr. Patek offered to replace the crusher’s support bowl if Stewart-Amos would repurchase the cone crusher from Honey Creek and resell it. The cone crusher was delivered to Honey Creek in the spring of2003. This letter was produced to Honey Creek on June 18,2004. The letter did not state that a new support bowl was needed nor that it was needed because it was defective. As stated in this court’s May 20, 2008 opinion, this letter was insufficient notice for Honey Creek to know or have reason to know of the cause of the problems with the cone crusher. See Honey Creek Stone Co. v. Telsmith Inc., no. 11347 of 2003, C.A. (C.P. Lawrence Cty., May 20, 2008).

In April of 2006, Honey Creek contacted Ohio-CAT regarding the problems with the cone crusher. On April 25,2006, Ohio-CAT met with Honey Creek to diagnose the problems with the cone crusher. It is at this point the president of Honey Creek, Carmen Shick, became aware that the cause of the problems with the cone crusher was due to a worn out support bowl. Mr. Shick stated that he understood:

“[T]he problem was that [the support bowl] was worn out and it was assembled at Telsmith in that type of fashion because Smithbond, which is rubberized backing material used in the assembly, was found between the seat of two different machine surfaces, where it could not have been if the surfaces met proper tolerances at the time of assembly.” N.T., 3/28/08, p. 41.

Mr. Shick went on to testify that it was his understanding that Smithbond could not have gotten into the places it did unless the support bowl was in need of repair or replacement when the stone crusher was refurbished. Honey Creek either knew or should reasonably have known of the cause of the problems with the cone crusher on April 25,2006. As such, the statute of limitations began to run on that date. Honey Creek filed the motion for leave to file amended complaint on April 20, 2007, which is well within the two-year statute of limitations.

Defendants aver that the economic loss doctrine applies to bar a claim of fraudulent inducement because it is actually a renewal of the negligence claim that was stricken from Honey Creek’s complaint. A claim of fraudulent inducement differs from a claim of negligence. An action sounding in negligence requires “an existence of a duty owed by one party to another.” Bortz v. Noon, 556 Pa. 489, 501, 729 A.2d 555, 561 (1999). There is no “duty” element in a claim for fraudulent inducement. Honey Creek’s fraudulent inducement claim is a different theory than the negligence actions stricken from Honey Creek’s original complaint. Therefore, the court gives no weight to defendants’ argument regarding the applicability of the economic loss doctrine.

Defendants argue that Honey Creek’s claim for fraudulent inducement should be dismissed because there is no clear and convincing evidence to support its claim. Fraudulent inducement is a representation made with the intent of misleading another into relying on it (i.e., a knowingly false representation with the intent to defraud or mislead). Eigen v. Textron Lycoming Reciprocating Engine Division, 874 A.2d 1179, 1185 (Pa. Super 2005). The elements of fraudulent inducement are: “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) the resulting injury that was proximately caused by the reliance.” Id. To survive a summary judgment motion, a plaintiff must present clear and convincing evidence of a defendant’s fraud. Highmont Music Corp. v. J.M. Hoffman Co., 397 Pa. 345, 350, 155 A.2d 363, 366 (1959); Creswell v. Pennsylvania National Mutual Casualty Insurance Co., 820 A.2d 172, 179 (Pa. Super. 2003).

Stewart-Amos initially points out that fraudulent inducement claims are often barred when the contract at issue is fully integrated. This is because parol evidence may not be admitted based on a claim that there was fraud in the inducement of a fully integrated contract. HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 399, 652 A.2d 1278, 1279 (1995). Stewart-Amos states that a review of Proposals I and II reveals that the contracts with Honey Creek were fully integrated.

“To determine whether or not a writing is the parties’ entire contract, the writing must be looked at and ‘if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties] engagement, it is conclusively presumed that [the writing represents] the whole engagement of the parties . . . .’” Yocca v. Pittsburgh Steelers Sports Inc., 578 Pa. 479, 497-98, 854 A.2d 425, 436 (2004) (citing Gianni v. Russell & Co., 281 Pa. 320, 326, 126 A. 791, 792 (1924)). “Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract.” Yocca, 578 Pa. at 498, 854 A.2d at 436-37 (2004).

The proposals between Stewart-Amos and Honey Creek cannot represent fully integrated contracts. The proposals were signed in December, before Honey Creek’s decision to purchase a used crusher. Further, Proposal II states that the final contract amount would “be finalized after crusher decision.” Stewart-Amos’ exhibit D. Because the proposals reveal uncertainty as to the extent of the parties’ engagement, the parol evidence rule is inapplicable.

In its amended complaint, Honey Creek avers that defendants fraudulently induced Honey Creek to purchase the plant and equipment at issue in this action. According to Honey Creek, defendants knew or reasonably should have known of the defects in the used crusher and the prior use of the equipment. Despite this knowledge, defendants failed to disclose this information to Honey Creek. Instead, defendants intentionally misled Honey Creek into believing that the equipment was in good shape and that it would be properly refurbished. The plant and equipment were purchased based on defendants’ assurances.

As stated above, fraud or intent to defraud is never presumed, but instead must be shown by evidence that is clear, precise, and convincing. Snell v. Commonwealth, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980). Evidence presented by Honey Creek suggests that defendants were aware that the equipment was previously owned by Short Mountain Silica in Tennessee and that Telsmith was aware that the crusher had been used to crush sandstone. Plaintiff’s exhibits 8, 13, 16, 27, 28, 29, 30, 35, 37. Honey Creek also offered evidence that Stewart-Amos expressed concerns about the condition of the support bowl. Plaintiff’s exhibit 3. While Honey Creek’s exhibits and testimony suggest defendants were aware that the equipment had deteriorated to some degree, they do not provide clear and convincing evidence of fraud.

Honey Creek failed to demonstrate that defendants intended to mislead Honey Creek into purchasing the equipment. None of the evidence presented showed that defendants intentionally concealed major defects in the equipment in order to encourage Honey Creek to purchase the used crusher. Instead, Honey Creek merely alleges that defendants acted with intent to mislead. “Unsupported assertions and conclusory accusations cannot create genuine issues of material fact as to the existence of fraud.” Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002). Assuming Honey Creek provided sufficient evidence to establish the remaining elements of a fraudulent inducement claim, Honey Creek failed to produce clear, precise, and convincing evidence of defendants’ intent to defraud. Viewing the record in the light most favorable to the non-moving party, the court finds that defendants are entitled to summary judgment on Honey Creek’s fraudulent inducement claim.

Finally, Telsmith argues it is entitled to summary judgment on its counterclaim. Telsmith alleges that Floney Creek breached its contract with Telsmith by refusing to pay for replacement parts ordered from Telsmith. Honey Creek argues that it is not required to pay Telsmith because Telsmith has failed in its duty to perform warranty repairs on the plant and equipment. Instead, Honey Creek states that, because the limitation of remedy provision failed its essential purpose, Honey Creek is entitled to all remedies under the U.C.C., including the right to off-set.

“The buyer on notifying the seller of his intention to do so may deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due under the same contract.” 13 Pa.C.S. §2717. There is no right of setoff unless the breaches occurred as part of the same contract. Carlisle Corp. v. Uresco Construction Materials, 823 F. Supp. 271, 274 (M.D. Pa. 1993). The question of whether contracts are interrelated or separate is one of law. Hellendall Distributors Inc. v. S.B. Thomas Inc., 559 F. Supp. 573, 574 (E.D. Pa. 1983).

The contract for the replacement parts and the original agreement are clearly interrelated. Both agreements involved the same parties, Telsmith and Honey Creek. Both agreements also concerned the same equipment. The contract for spare parts was only entered into because of the alleged breach of the first agreement and its warranty. Since the two agreements are interrelated, Honey Creek is entitled to deduct damages if the limitation of remedy provision failed its essential purpose. Summary judgment is, therefore, inappropriate with respect to Telsmith’s counterclaim.

For the foregoing reasons, defendants’ motions for summary judgment are granted in part and denied in part.

ORDER

And now, December 31, 2009, this court having held a hearing on June 3, 2009 to hear defendants’ motions for summary judgment with Richard T. Victoria, Esquire, and John J. DeCaro Jr., Esquire, appearing and representing the plaintiff; and Kevin L. Colosimo, Esquire, and Andrew G. Jenkins, Esquire, appearing and representing the defendant Telsmith Inc.; and Stephen L. Grose, Esquire, appearing and representing the defendant Stewart-Amos Equipment Co.; and after a consideration of the arguments presented and submitted by counsel, and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged, and decreed as follows:

(1) The defendants’ motions for summary judgment are granted in part and denied in part as follows:

(a) Summary judgment is granted on plaintiff’s claim for fraudulent inducement.

(b) Summary judgment is granted on plaintiff’s claim for breach of the implied warranties of merchantability and fitness for a particular purpose.

(c) Summary judgment is in all other respects denied.

(2) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record as contained in the court’s file.


text:
    Commonwealth v. Mayberry

      C.P. of Lawrence County,
    no. 1019 of 2004, CR.

      Kathleen Fee-Baird, assistant district attorney, for Commonwealth.

      Stanley T. Booker, for defendant.
    January 11, 2010
   MOTTO, P.J.,

Before the court for disposition is the defendant’s motion for post-conviction collateral relief. Defendant claims that trial counsel was ineffective in failing to adequately cross-examine a prosecution witness, Michael Mayberry, and the victim, Mitzy Mayberry, on prior inconsistent statements. Because this court concludes that the defendant has not met two of the three prongs of the ineffectiveness of counsel standard, defendant’s motion for post-conviction collateral relief will be denied.

Defendant was convicted of rape by forcible compulsion, rape of a person less than 13 years old, statutory sexual assault, aggravated indecent assault, incest, indecent assault and corruption of minors. Defendant was sentenced on the above charges to an aggregate term of imprisonment of not less than eight and one-half years nor more than 17 years imprisonment in a state correctional institution to be followed by five years of state supervised probation.

This case was based upon allegations of sexual molestation by Mayberry’s daughter, who testified that commencing when she was approximately 9 years old, her father began having forced sexual relations with her over a period of approximately four and one-half years, and, in so doing would handcuff the victim to a bed and engage in acts of sexual intercourse and sexual assault upon her. The victim in this case gave her testimony regarding the charges against the defendant, testifying that when she was approximately 9 years of age, defendant would handcuff her to a bed in their home and would proceed to have sexual intercourse with her. The victim testified that the defendant accomplished his acts by the use of force upon her and by the use of physical restraint. Mayberry would also forcibly place his fingers in the vagina of the victim and would otherwise touch the area of her vagina and kiss the breast area of the victim. The victim’s brother, Michael Mayberry, also testified at trial as to having witnessed his father in a compromising position with the victim, which indicated sexual contact. Michael testified that he observed two incidents involving the victim and the defendant. One incident occurred in the bathroom when he observed the defendant with his hands down his sister’s pants. Another occasion was when he had seen through the slats of his sister’s door that defendant was hovering over his sister, that he had his mouth on her chest and that she had her shirt up. On that occasion, Michael knocked on the door to disturb them, and, as the defendant was walking out of the room observed the defendant zip up his pants and pull down the victim’s shirt.

Defendant argues that Michael Mayberry was not sufficiently cross-examined relative to statements he made to the Laurel school counselor on April 30, 1999. The counselor testified at the PCRA hearing that Michael Mayberry told her that he observed two incidents involving the victim and the defendant; that the victim told him that the first place any sexual conduct occurred with the petitioner was in the shower; that Michael Mayberry never told her that he observed anything between the defendant and the victim occurring in the bathroom; that he only observed two incidents that both occurred in his sister’s bedroom where, on the first occasion he saw the defendant zipping up his pants, and the second, where Michael indicated that he saw his father’s head between his sister’s breasts, but never said that the defendant had his mouth on the victim’s breast. Counsel for the defendant introduced into evidence at the PCRA hearing a note partially prepared by the counselor, defendant’s exhibit C, that indicated that the first incident that Michael observed was defendant zipping up his pants in his sister’s bedroom, and the second incident was that he looked through door slats and observed the petitioner leaning over Mitzy, the note also referencing that the defendant was allegedly zipping up his pants.

In order to be eligible for relief, defendant must prove that the conviction resulted from the ineffective assistance of trial counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. §9543(a)(2)(ii). The burden of proof lies with the defendant to establish by a preponderance of the evidence a basis for relief under the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq. Commonwealth v. Rowe, 411 Pa. Super. 363, 601 A.2d 833 (1992). There is a presumption that counsel has acted effectively. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). In order to show ineffective assistance of counsel which has so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place, a post-conviction petition must show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that, but for the errors and omissions of counsel, there is reasonable probability that the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999), rearg. den. Here, the court concludes that counsel cannot meet the second and third prongs relative to the alleged failure to properly cross-examine Michael and Mitzy Mayberry.

Defendant has failed to demonstrate that trial counsel had no reasonable strategic basis for his action or inaction in failing to attempt to impeach Michael based upon his prior statements. In fact, it would have been foolhardy for counsel to do so because it would have corroborated Michael’s trial testimony, particularly since Michael was 20 years old at the time when he provided his trial testimony and the prior statements occurred when Michael was attending Laurel High School in the seventh grade. Any attempt to impeach Michael by the statements he made to the counselor would have done more to corroborate his trial testimony by introducing a prior consistent statement, than to impeach him as to whether he observed a bathroom incident. Further, impeachment is proposed by defendant as to Michael’s trial testimony that his sister, the victim, did not provide details of the sexual activity while Michael’s statement that appears as defendant’s exhibit A provides that the victim told him at times he would “lick her shorts area and private area .. . that she had to do ‘stuff’ to him .. . she had to give him oral sex .. . .” The court does not consider this information so detailed as to constitute a contradiction of his trial testimony, especially where the sexual assault involved activity that occurred over several years and involved sexual intercourse with the victim handcuffed to a bed, and, in any event would have only served to further corroborate the victim’s trial testimony, greatly outweighing any impeachment value.

Defendant cannot show that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceeding would have been different. Stated differently, the defendant cannot show prejudice as the result of defendant’s counsel’s failure to cross-examine Michael on his prior statements. In order to establish prejudice, the defendant must show “counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness.” Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1308 (1994). See also, Commonwealth v. Petras, 368 Pa. Super. 372, 534 A.2d 483 (1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Since Michael’s statements made to the guidance counselor were substantially similar to his trial testimony, defendant is unable to prove that the outcome of trial would have been any different had such cross-examination had taken place. In so concluding, the court has taken into consideration the quantity and quality of the Commonwealth. Evidence against the defendant, and the fact that highlighting prior complaints of sexual abuse made years before trial could only buttress the Commonwealth’s case and serve to negate any argument that the allegations were recently made up, or were made up out of animosity arising because of the separation and divorce of defendant and the mother of Michael and Mitzy.

Similarly, counsel was not ineffective for failing to impeach the victim on her trial testimony that she attended church every Sunday with her mother and brothers, when she told a representative of the district attorney’s office that one incident of abuse occurred on a Sunday while her brother and mother were at church and she had decided to stay home. The fact that she had decided to stay home on one occasion when sexual abuse occurred does not make her testimony that she attended church every Sunday with her mother and brothers inconsistent. In fact, the prior statement confirms her trial testimony as it indicates that the Sunday abuse occurred on a day when she had decided not to attend church with her mother and brothers, as she ordinarily would have.

Defendant also claims a discrepancy in the victim’s testimony was not explored on cross-examination when the victim testified at trial that the first incident of sexual abuse occurred in her father’s room when she was handcuffed to a bed; whereas, Michael Mayberry told the counselor that Mitzy told him that the first incident of sexual abuse occurred in the shower. However, since there is no development of the specifics of what Mitzy was referring to as the first incident of sexual abuse, such statement is not necessarily inconsistent with her detailed testimony regarding the sexual intercourse that the defendant would have with her utilizing handcuffs. Thus, defendant cannot necessarily show an inconsistency and to the extent that such prior statement referred to by Michael may be considered an inconsistency, a reference to it would only corroborate that years before the trial, Mitzy had reported sexual abuse to the brother, thus making prior references to reported abuse inconsistent with defendant’s interest at trial. Finally, the defendant was not prejudiced, as the introduction of such statements could not have affected the outcome of the case given the quantity and quality of direct evidence from Mitzy and Michael, the extent to which both Mitzy and Michael were cross-examined by trial counsel, and the corroborative effect of such prior statements that would have greatly outweighed any arguable inconsistency.

The court concludes that to the extent that the existence of inconsistencies could have been inferred or argued, attempted impeachment by defense counsel to prior statements made by Michael and Mitzy would have only buttressed the Commonwealth’s case and would have done nothing to change the outcome of the trial, requiring the conclusion that trial counsel had a strategic basis not to cross-examine relative to such prior statements, and that the defendant was not prejudiced by trial counsel’s failure to cross-examine in the manner herein argued for by defendant. Therefore, the court will by separate order dismiss defendant’s motion for post-conviction collateral relief.

ORDER

And now, January 11, 2010, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged, and decreed that the defendant’s motion for post-conviction collateral relief is denied.

The defendant is advised that he has the right of appeal from this decision and that such appeal must be filed within 30 days of this date or the right to file will be lost. The defendant is further advised that he has the right to counsel in filing such appeal and if he is financially unable to employ counsel, counsel will be appointed to represent the defendant at no cost to him.


author: PICCIONE, J,

text:
    Pratt v. Quality Aggregates Inc.

      C.P. of Lawrence County,
    no. 70151 of 2008.

      Ronald W. Coyer, for plaintiff.

      Gabriel P. Cilli, for defendants.
    December 31, 2009
   PICCIONE, J,

Before this court for disposition are preliminary objections filed on behalf of defendants Quality Aggregates Inc. and Northern Allegheny Stone Inc. Defendants assert that plaintiff’s amended complaint failed to allege that plaintiff provided defendants with notice and 60 days to cure any breach of the option and agreement of lease, rendering plaintiff’s amended complaint legally insufficient and insufficiently specific.

Plaintiff Ronald Pratt owns 40.5 acres of real estate in Slippery Rock Township, Lawrence County, Pennsylvania. On February 15, 1990, plaintiff and plaintiff’s late father entered into an option and agreement of lease with Allegheny Stone. Plaintiff’s amended complaint avers that Quality Aggregates is believed to be successor-in-interest to Allegheny Stone. Plaintiff and his father received $30,000 in advanced royalty payments from defendants on July 4,1990. The lease requires that it “shall remain and continue in full force and effect for a period of 10 years hereafter or so long thereafter as limestone production hereunder is continued from the premises or on any property shown within the confines of the ‘Princeton’ operation.” Plaintiff alleges that the 10-year period has elapsed and defendants have failed to mine any limestone from plaintiff’s property.

Subpart E, paragraph 10 of the lease states:

“The lessee agrees that in case of any breach of any of the covenants in this lease contained, and proper notice having first been given thereof in writing by the lessors to the lessee, and the same having not been corrected or remedied within 60 days from the date of service of the said written notice or reasonable efforts made by lessee to cure such breach, it shall be lawful for the lessors, at their option, to enter in and upon the premises for condition broken and to repossess themselves of their former estate. The lessee further agrees that all the landlord and tenant laws relating to the collection of rents shall apply to the collection of royalty under this lease.”

In the amended complaint, plaintiff avers that defendants were notified in writing by certified mail, signed for on June 6,2008, that defendants were in default and that plaintiff considered the lease expired due to defendants’ failure to mine and remit royalties as a breach of the agreement. The letter did not specifically state that there was a 60-day period to cure. Plaintiff further alleges that defendants failed to respond to the notice of default and failed to cure within 60 days, as provided for in the lease.

On November 5, 2008, plaintiff filed the original complaint — action to quiet title, and defendants subsequently filed preliminary objections, arguing that the complaint was legally insufficient and insufficiently specific. In an order and opinion dated April 17, 2009, the court determined that it was premature to assert a legal insufficiency preliminary objection; however, the court found that plaintiff’s complaint lacked specificity in regards to providing notice and an opportunity to cure to defendants. Defendants’ preliminary objections regarding the complaint’s lack of specificity were granted, and plaintiff was ordered to file an amended complaint.

On May 8,2009, plaintiff filed an amended complaint. Defendants then filed preliminary objections to the amended complaint, stating that plaintiff again failed to plead that proper notice with a 60-day time period to cure was given prior to terminating the lease. On June 12, 2009, plaintiff’s counsel sent defendants’ counsel a letter notifying defendants that they were in material breach of their lease. The letter included a demand that defendants cure the breach within 60 days of service of the letter. Oral argument on defendants’ preliminary objections was held on September 28, 2009.

Rule 1028(a)(3) of the Pennsylvania Rules of Civil Procedure provides that a party may file a preliminary objection based upon “insufficient specificity in a pleading.” Pa.R.C.P. 1028(a)(3).

“The pertinent question under Rule 1028(a)(3) is whether the complaint is sufficiently clear to enable the defendant to prepare his defense, or whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rombo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). (internal citations and quotation marks omitted)

Clearly, a complaint must provide the defendant with notice of what the plaintiff’s claims are, the grounds upon which they rest and formulate the issues by summarizing the material facts to support the claims. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, (PGC), 950 A.2d 1120, 1134 (Pa. Commw. 2008).

In the case sub judice, plaintiff amended the original complaint, in part, by averring that defendants did not respond to the notice within 60 days; however, plaintiff’s amended complaint did not contain any averment indicating that the notice provided for a 60-day time period to cure. Instead, the notice to defendants stated that plaintiff considered the lease expired. Because the amended complaint contains no allegation that proper notice with a 60-day period to cure was provided to defendants, plaintiff’s amended complaint lacks specificity.

Plaintiff argues that the June 12,2009 letter provided the necessary notice of defendants’ breach of the lease. Plaintiff admits that the letter was not sent until after the amended complaint was filed. Thus, the amended complaint makes no mention of the June 12, 2009 letter. As stated above, a complaint must disclose the material facts to enable an adverse party to prepare a defense. Defendants did not have an opportunity to respond to any allegations regarding the second letter. Therefore, plaintiff should not be allowed to rely on the second letter without making further amendments to the amended complaint.

As stated in the court’s April 17,2009 opinion, plaintiff’s amended complaint is insufficiently specific as it fails to adequately apprise defendants as to the averments regarding the failure to provide notice and an opportunity to cure. Although defendants framed these claims in terms of legal insufficiency, it is more appropriate to address them in terms of a lack of specificity preliminary objection. Therefore, the court denies the legal insufficiency preliminary objections, but grants defendants’ preliminary objections regarding the amended complaint’s lack of specificity and plaintiff is permitted to amend the complaint to remedy the aforementioned infirmities.

ORDER

And now, December 31, 2009, the court having held a hearing on September 28, 2009 regarding defendants’ preliminary objections to amended complaint, with Ronald W. Coyer, Esquire, appearing and representing the plaintiff, and Gabriel P. Cilli, Esquire, appearing and representing the defendants, the court finds and it is hereby ordered and decreed as follows:

(1) Defendants’ preliminary objection alleging legal insufficiency of plaintiff’s amended complaint is hereby overruled pursuant to the attached opinion.

(2)Defendants’ preliminary objection alleging lack of specificity is hereby sustained pursuant to the attached opinion.

(3) Plaintiff is granted a period of 20 days from the date of this order to file an amended complaint.

(4) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: RUEST, J,

text:
    Commonwealth v. Heichel

      C.P. of Centre County,
    no. CP-14-CR-1690-2009.

      Stacy Parks Miller, for Commonwealth.

      Casey M. McClain, for defendant.
    January 28, 2010
   RUEST, J,

Presently before the court is Ronald L. Heichel’s petition for writ of habeas corpus filed on October 9, 2009. A hearing was held on November 13,2009. Both parties submitted briefs. After consideration of the arguments at the hearing and after review of the briefs of the parties, the court denies defendant’s petition for writ of habeas corpus.

BACKGROUND

On August 28, 2009, Ronald L. Heichel was arrested by Trooper Leigh Barrows of the Pennsylvania State Police — Rockview Barracks and charged with criminal homicide, 18 Pa.C.S. §2501(a); criminal conspiracy (criminal homicide), 18 Pa.C.S. §903(a)(l)/18 Pa.C.S. §2501(a); aggravated assault, 18 Pa.C.S. §2702(a)(l); and theft by unlawful taking or disposition, 18 Pa.C.S. §3921(a); all as the result of an incident alleged to have occurred on August 23, 2009, at 383 Tusseyville Road, Potter Township, Centre County, Pennsylvania. Defendant was arraigned before Judge Bradley P. Lunsford on August 28,2009, who denied defendant the right to post bail. Defendant, along with codefendant Mirinda Boob, appeared for a preliminary hearing in Centre County Central Court on September 16, 2009, before Magisterial District Judge Carmine W. Prestia. Prior to the preliminary hearing, the Commonwealth withdrew the charge of theft by unlawful taking or disposition. At the conclusion of the preliminary hearing, defendant was bound over to the court of common pleas on the remaining charges contained in Centre County information no. CP-14-CR-1690-2009.

Defendant filed the present petition and the court held a hearing on November 13, 2009. The court ordered briefs on two issues: First, whether a defendant has the right to call witnesses and present evidence negating the Commonwealth’s evidence at the preliminary hearing/ habeas corpus hearing; and second, what statements are to be considered exceptions to hearsay and be proffered as evidence against defendant to show prima facie conspiracy to commit criminal homicide and what statements would violate the hearsay rule and the Confrontation Clause of the United States Constitution, Amendment VI and the Pennsylvania Constitution, Article 1, Section 9.

DISCUSSION

The Commonwealth has the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. McBride, 528 Pa. 153, 157-58, 595 A.2d 589, 591 (1991). To meet its burden, “the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.” Id. at 158, 595 A.2d at 591. “Evidentiary inferences... are constitutionally infirm unless the inferred fact is ‘more likely than not to flow from the proved fact on which it depends.’” Id. at 159, 595 A.2d at 591. (citation omitted) The “more-likely-than-not” test [is a] minimum standard in assessing the reasonableness of inferences relied upon to establish a prima facie case. Commonwealth v. Wojdak, 502 Pa. 359, 369, 466 A.2d 991, 996 (1983).

The Commonwealth maintains a defendant cannot present evidence at a habeas corpus hearing that contradicts that presented by the Commonwealth at a preliminary hearing, arguing that considering such evidence would put the court in the position of improperly making credibility determinations in a habeas corpus proceeding. See Commonwealth v. Williams, 911 A.2d 548 (Pa. Super. 2006).

Our Rules of Criminal Procedure are quite clear on this issue relative to a preliminary hearing: “the defendant shall be present at any preliminary hearing and may:... (3) call witnesses on the defendant’s behalf, other than witnesses to the defendant’s good reputation only; (4) offer evidence on the defendant’s own behalf, and testify;” Pa. R.Crim.P. 542(C)(3) and (4). The Pennsylvania Supreme Court further illuminates this issue, again relative to a preliminary hearing, noting that “ [t]he hearing’s principal function is to protect an individual’s right against unlawful detention____In seeking this protection, the defendant has the right to contest the existence of a prima facie case and may not be denied the opportunity of presenting evidence which, in his view, negates its existence.” Commonwealth v. Mullen, 460 Pa. 336, 341-42, 333 A.2d 755, 757 (1975). (citation omitted) The parties were unable to locate a single case addressing whether a defendant may call witnesses at a habeas corpus proceeding when the Commonwealth offers no additional evidence. The court has determined that the habeas corpus hearing testimony of Trooper David Aiello is not necessary for its decision in this matter. The issue as to presenting evidence at habeas hearings is therefore moot.

Defendant maintains the Commonwealth has failed to establish aprima facie case as to the offenses of criminal homicide, criminal conspiracy (criminal homicide), and aggravated assault. Defendant argues the Commonwealth failed to establish prima facie that defendant pulled the trigger on Samuel Boob’s gun, killing the decedent. Defendant further argues that it is far more likely that Ms. Boob committed the homicide herself.

The Commonwealth maintains the text messages place defendant at the scene of the homicide and detail how and when defendant and Ms. Boob intended to kill Samuel Boob. These text messages begin the morning of August 23, 2009, with defendant inquiring of Ms. Boob whether she saw him outside when she went outside herself. Defendant and Ms. Boob also allegedly discuss killing Samuel Boob during their text exchanges. First, defendant refers to Ms. Boob’s appearance, revealing that he can see Ms. Boob and is therefore nearby. Ms. Boob acknowledges this text. Defendant asks if Samuel will be going to church with Ms. Boob, and then asks “Are you sure you want the pond done?” The Commonwealth argues this is code for your husband murdered.” In later texts, defendant and Ms. Boob discuss her going to church so that she has an alibi for when the pond is done. Defendant then asks about the whereabouts of Samuel Boob, and indicates that defendant has concealed himself in the garage.

The Commonwealth argues it defies reason to think Ms. Boob would need an alibi for the installation of a pond and that the only reason someone would need an alibi is if something bad is going to happen and the person the bad thing happens to is no longer around to say who did the bad thing to him or her. The Commonwealth further argues this reasoning makes it unlikely that defendant was merely there to “rough up” or “confront” Samuel Boob over his alleged abuse of his wife, Ms. Boob, as he would still be around to identify who roughed him up.

Defendant later placed himself in the area of the homicide when he texted his mother asking “Can you take me to Bellefonte? I’m on 192,” presumably referring to State Route 192, a road in the vicinity of the Boob residence. Defendant then texted his mother two more times, indicating he was walking along Route 192.

The court determines the Commonwealth has established to a prima facie level a case against defendant for criminal homicide.

On a charge of conspiracy, there will rarely be an overt statement from one of the conspirators to the other agreeing to commit a crime. Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super. 2001). Instead, the trier of fact must infer from the totality of the circumstances and from circumstantial evidence whether a conspiracy existed. Id. The court must therefore determine whether the Commonwealth has met its burden of presenting a prima facie case for conspiracy to commit criminal homicide.

“[T]he mere happening of a crime in which several people participate does not of itself establish a conspiracy among those people.” Commonwealth v. Holman, 237 Pa. Super. 291, 296, 352 A.2d 159, 161 (1975). “[T]he evidence must show more than mere association to establish a conspiracy.” Commonwealth v. Murray, 246 Pa. Super. 422, 429, 371 A.2d 910, 913 (1977). However, “the conduct of the parties under the particular circumstances of the case is sufficient proof to establish that a corrupt confederation existed.” Id. “A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged coconspirators are competent as proof that a criminal confederation has in fact been formed.” Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 930 (1982). (citation omitted)

The statement of a coconspirator is admissible under Pa.R.E. 803(25)(E), provided that the Commonwealth “prove the existence of a conspiracy between the declarant and the defendant against whom the evidence is being offered. Once this requirement is satisfied the Commonwealth must show that the statements were made during the course of the conspiracy, and finally that the statements were made in furtherance of the common design.” Commonwealth v. Mayhue, 536 Pa. 271, 292, 639 A.2d 421, 431 (1994), citing Commonwealth v. Zdrale, 530 Pa. 313, 317, 608 A.2d 1037, 1039 (1992).

The Commonwealth has charged defendant with conspiracy. An arrest of one or both alleged conspirators generally terminates the conspiracy. Commonwealth v. Seilhamer, 862 A.2d 1263, 1271 (Pa. Super. 2004); Commonwealth v. Ransom, 446 Pa. 457, 462, 288 A.2d 762, 765 (1972). To be a statement in furtherance of conspiracy, a statement must be made with “intent to promote the conspiratorial objective.” Commonwealth v. Johnson, 576 Pa. 23, 44, 838 A.2d 663, 675 (2003). “Inculpatory statements” that “are narrative declarations of past activity made to a non-participant in the asserted conspiracy” are not made in furtherance of conspiracy. Id.

The Commonwealth has presented extensive records of text messages exchanged between defendant and Mirinda Boob on the morning of the alleged incident. At the hearing and in its brief, the Commonwealth did not point to any additional statements that it believes should be admissible as coconspirator statements. “The existence of a conspiracy between the declarant and the defendant must be demonstrated by a preponderance of the evidence; the statements must be shown to have been made during the course of the conspiracy; and they must have been made in furtherance of the common design.” Commonwealth v. Johnson, 576 Pa. 23, 42, 838 A.2d 663, 674 (2003).

The court determines that any statements made by Mirinda Boob to any party after defendant’s arrest are inadmissible against defendant to show the prima facie existence of a conspiracy. The text messages exchanged between defendant and Mirinda Boob, however, are admissible against defendant to show the prima facie existence of a conspiracy. Accordingly, the court has disregarded any statements made by Mirinda Boob to any party after defendant’s arrest in making its determinations on defendant’s habeas petition.

The court determines the Commonwealth has established to a prima facie level a case against defendant for conspiracy to commit criminal homicide.

To establish a prima facie case for aggravated assault, the Commonwealth must show that the victim suffered serious bodily injury and that the injury was inflicted intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, or that the defendant intended to cause serious bodily injury to another. 18 Pa.C.S. §2702. Where a defendant actually causes the death of another, aggravated assault is considered a lesser included offense of homicide. Commonwealth v. Anderson, 416 Pa. Super. 203, 222, 610 A.2d 1042, 1051 (1992). The court has determined that the Commonwealth has established a prima facie case for criminal homicide. Therefore, the Commonwealth has also established a prima facie case for the lesser included offense of aggravated assault.

Accordingly, the following is entered:

ORDER

And now, January 28, 2010, defendant’s petition for writ of habeas corpus is denied.


text:
    Commonwealth v. Bacon

      C.P. of Lawrence County,
    no. 187 of 2009, C.R.

      William J. Flannery, assistant district attorney, for Commonwealth.

      Phillip Berezniak, for defendant.
    January 14, 2010
   PICCIONE, J,

Before the court for disposition is defendant’s omnibus pretrial motion. Mark Robert Bacon (defendant) is charged with one count of possession of a controlled substance with intent to manufacture or deliver under 35 P.S. §780-113(a)(30), one count of possession of a controlled substance under 35 P.S. §780-113(a)(16), and one count of possession of drug paraphernalia under 35 P.S. §780-113(a)(32).

The charges in this case arise from an incident occurring in the early morning hours of February 15, 2009. Officer Michael McBride of the Ellwood City Borough Police Department was patrolling the Fountain Avenue area of Ellwood City, an area with a high level of drug-related criminal activity, when he saw the defendant sitting in front of the Shelby Bar at the intersection of First Street and Fountain Avenue. Officer McBride drove next to and briefly spoke to the defendant, who said he was waiting for a ride. Shortly after resuming his patrol, Officer McBride noticed a white Dodge minivan with only one head light traveling west on Fountain Avenue at approximately 2 a.m. As Officer McBride turned his patrol car around to conduct a traffic stop, the minivan pulled into a parking lot in front of the Shelby Bar. The defendant then walked over to the minivan as Officer McBride pulled in behind it and initiated his overhead lights.

There is a dispute as to whether the defendant ever entered the minivan. Officer McBride maintains that the defendant entered the van while the defendant argues that he remained outside of it. According to Officer McBride, the defendant then exited the minivan while Officer McBride was reporting the license plate number and description of the vehicle. There is also a dispute as to what happened as Officer McBride exited his patrol car and approached the minivan and the defendant. Officer McBride states that the defendant shouted obscenities and accused the officer of harassing him. Officer McBride then ordered the defendant to get back into the minivan. The defendant continued to argue, causing Officer McBride to attempt to pat him down. As soon as Officer McBride touched him, the defendant began throwing his arms in the air and fighting with the officer. Officer McBride then subdued the defendant with an arm bar and put him over the police cruiser. The defendant maintains that he attempted to walk away from the minivan as soon as the overhead lights of the patrol car were activated. Officer McBride then ordered the defendant to come back so he could be patted down. The defendant refused, and the officer grabbed him and slammed him onto the police cruiser.

The defendant and Officer McBride both agree that the officer then called for backup and attempted to put handcuffs on the defendant. A frisk was conducted, and a plastic bottle containing five baggies of cocaine was found in the defendant’s front pocket. The defendant was taken to the police station where he was searched before being placed in his cell. The search revealed that the defendant was carrying 4.5 Xanax, 1 Suboxone, 2 broken Suboxone, and 30 milligrams of Roxicodone.

On May 7, 2009, the defendant filed an omnibus pretrial motion, arguing that Officer McBride lacked the reasonable suspicion necessary to justify a search of the defendant because he did not possess articulable and reasonable grounds to suspect the defendant of criminal activity. According to the defendant, all evidence obtained as a result of the search must be suppressed. A hearing on the defendant’s motion was held on October 9, 2009. The parties presented conflicting testimony regarding the circumstances that caused Officer McBride to stop and search the defendant.

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004). At the conclusion of the hearing, the suppression court judge shall enter findings of fact and conclusions of law as to whether the evidence was lawfully obtained. Pennsylvania Rules of Criminal Procedure Rule 581(1). “It is within the suppression court’s sole province as fact-finder to pass on the credibility of witnesses and the weight to be given their testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003). The suppression court judge is entitled to believe all, part or none of the evidence presented. Commonwealth v. Snell, 811 A.2d 581, 584 (Pa. Super. 2002). “When faced with conflicting testimony, a suppression court, as fact-finder, may pass upon credibility, and these findings will not be disturbed when supported by the record.” Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 696 (1986).

Defense counsel offered the testimony of Natasha Rodgers and the defendant. Ms. Rodgers, a friend of the defendant’s, testified that the defendant never got in the minivan. She admitted, however, that she never actually saw from her front seat position whether the defendant entered the van through the back seat door. She also was unable to remember anything about the interaction between the defendant and Officer McBride. Due to her vague recollection of the events of that night and her inability to observe whether the defendant entered the van, the court concludes that Ms. Rodgers is not a credible witness.

The defendant testified that he was waiting for a ride and that Anthony Houk, the driver of the minivan and a friend of the defendant’s, was offering him one. The defendant stated, however, that the only reason he spoke to Mr. Houk was to tell him that he was missing a headlight. The defendant could have said this to Mr. Houk at his or Ms. Rodgers’ window but instead chose to walk around to the back seat passenger’s door, open it, and warn him about Officer McBride from there. Because the defendant needed a ride, Mr. Houk was offering one, and the defendant opened the backseat passenger’s door, it is unlikely that the defendant was only warning Mr. Houk about the minivan’s missing headlight.

Officer McBride and the defendant presented conflicting accounts about their exchange. Defense counsel presented little or no evidence to cast doubt on the credibility of Officer McBride, a full-time police officer with over nine years of experience. The Commonwealth, however, has presented sufficient testimony to cast doubt on the credibility of the defense witnesses. Viewing Officer McBride as the more credible witness, this court finds that the defendant entered the van, exited it as the officer approached, and belligerently confronted the officer. A pat-down of the defendant followed by a search at the police station revealed the evidence which the defendant now seeks to suppress.

All Pennsylvania citizens are afforded an expectation of privacy of their persons from unreasonable searches and seizures without the required probable cause under both Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. “In Terry v. Ohio, [392 U.S. 1, (1968)] . . . the United States Supreme Court created an exception to the Fourth Amendment requirement that police have probable cause before conducting a search of a citizen.” Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa. Super. 2006). The exception permits a police officer to stop and frisk a citizen if the officer has “reasonable articulable suspicion” that criminal activity is afoot and that the suspect may be armed and dangerous. Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. Super. 1997). The officer may briefly detain a citizen for investigatory purposes if the officer “observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.” Commonwealth v. Fitzpatrick, 446 Pa. Super. 87, 91, 666 A.2d 323, 325 (1995). (citation omitted)

In deciding whether reasonable suspicion is present, courts must consider the totality of the circumstances viewed through the eyes of a trained officer. Jackson, 907 A.2d at 543. The officer’s reasonable suspicion must be based on specific and articulable facts, including observations of suspicious or irregular behavior on the part of the particular defendant. Commonwealth v. Ayala, 791 A.2d 1202, 1208-1209 (Pa. Super. 2002). “The fundamental inquiry is an objective one, namely, whether ‘the facts available to the officer at the moment of the intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate.’” Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156 (2000) (citing Terry, 392 U.S. at 21-22). The focus of the law of search and seizure is on “the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime.” Commonwealth v. Blair, 860 A.2d 567, 571 (Pa. Super. 2004).

In the case sub judice, the defendant was detained and ultimately frisked by Officer McBride. The question is whether there was reasonable suspicion to justify Officer McBride taking such action. Although the traffic stop originally had nothing to do with the defendant, Officer McBride ordered the defendant to get back into the minivan. Officer McBride testified that he did this because he was concerned for his own safety and the safety of everyone at the scene. Allowing police officers to control all movement in a traffic encounter is a reasonable and justifiable step towards protecting their safety. Commonwealth v. Mack, 953 A.2d 587, 590 (Pa. Super. 2008). The Superior Court has held that “a police officer may lawfully order a passenger who has exited and/or attempted to walk away from a lawfully stopped vehicle to re-enter and remain in the vehicle until the traffic stop is completed, without offending the passenger’s rights under the Fourth Amendment.” Commonwealth v. Pratt, 930 A.2d 561, 567 (Pa. Super. 2007). Thus, Officer McBride possessed the authority to order the defendant back into the minivan, provided it was necessary to ensure his safety and the safety of others.

Several factors have been found to support a police officer’s reasonable suspicion that he or others may be in danger. Courts have found cause for reasonable suspicion when the incident occurred after midnight and in a high drug traffic area. In the Interest of S.J., 551 Pa. 637, 642, 713 A.2d 45, 47 (1998). Mere presence in a high crime area does not justify a stop; however, it does contribute to reasonable suspicion justifying a search. Commonwealth v. Powell, 934 A.2d 721, 722 (Pa. Super. 2007). “The fact that an officer may be outnumbered is certainly a factor to be considered when determining whether an officer’s safety is at risk.” Mack, 953 A.2d at 591. Courts have also found cause for reasonable suspicion if the officer believed the defendant was agitated. Id.; Commonwealth v. Albarran, 6 D.&C.5th 287 (2008).

The factors cited above are applicable to this case. The traffic stop occurred at approximately 2 a.m. The area in which the stop occurred was known as a place with a high degree of drug and criminal activity. Officer McBride was not accompanied by any other police officers; however, he knew he was outnumbered because he could see into the van with the help of his overhead lights. Considering these facts, Officer McBride was justified in stopping the defendant and ordering him back into the van.

Officer McBride was also entitled to search the defendant. To justify a frisk, an officer need not be absolutely certain that the individual is armed; the issue is whether “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Commonwealth v. Kondash, 808 A.2d 943, 948 (Pa. Super. 2002). It was reasonable for Officer McBride to be concerned about the safety of those at the scene. Late at night in a high crime area, the defendant entered the mini-van and quickly exited shortly after Officer McBride arrived. When the officer ordered the defendant back into the van, the defendant refused and became agitated. Despite Officer McBride’s attempts to calm him, the defendant became more confrontational and ultimately attempted to fight off the officer. These circumstances gave rise to a reasonable, articulable suspicion that criminal activity was afoot and that the safety of everyone involved was threatened. As such, Officer McBride was justified in his actions, and the defendant is not entitled to suppression of the evidence against him.

Based on the foregoing, the defendant’s omnibus pretrial motion is hereby denied.

ORDER

And now, January 14, 2010, this court having held a hearing on October 9, 2009 to hear defendant Mark Robert Bacon’s omnibus pretrial motion, with Assistant District Attorney William J. Flannery, Esquire, appearing and representing the Commonwealth, and Phillip Berezniak, Esquire, appearing and representing the defendant, and upon a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) The defendant’s omnibus pretrial motion is denied pursuant to the attached opinion.

(2) The clerk of courts shall properly serve notice of this order and opinion upon counsel of record; and if a party has no counsel, then upon said party at his last known address as contained in the court’s file.