author: RAUP, P.J.,

text:
    Commonwealth v. Lot of Land in Gamble Township

      Brett O. Feese, assistant district attorney, for the Commonwealth.

      Peter T. Campana, for defendant.
    November 22, 1989
   RAUP, P.J.,

This case presents the first opportunity for our court to construe and to review the validity of certain aspects of the state’s new Controlled Substances Forfeiture Act. The act enables the Commonwealth to begin civil forfeiture proceedings against a property owner for property which has been used to facilitate a narcotics transaction. 42 Pa.C.S. §6801(a)(6)(i)(C). At issue in this case is the application of the Controlled Substances Forfeiture Act, as well as its constitutionality.

According to the affidavit of the Chief County Detective of Lycoming County, on May 10, 1989, he met with a confidential informant regarding the purchase of marijuana from the owner, Nick W. Kinney. The affiant states that he met with the confidential informant for the purpose of purchasing controlled substances from the owner. The affiant states that he observed the informant enter the Kinney residence and then leave with an assortment of drug paraphernalia. The affiant transported the suspected controlled substances to the state police crime laboratory, where they were found to in fact contain cocaine and marijuana.

Based on these facts, the affiant requested that a seizure warrant/writ of entry be issued by the court. On August 16, 1989, the Honorable Clinton W. Smith entered an order pursuant to section 6801 of the Judicial Code. This order provided for the entry of agents of the Commonwealth onto the premises to conduct “a reasonable and necessary structural inspection” of the property. Furthermore, the order granted the Commonwealth the power to seize the property, and the Commonwealth notified counsel for the owner that it intended to physically seize the property and exclude the occupants thereof.

Consequently, the owner filed a petition for temporary restraining order/permanent injunction to prevent the Commonwealth from taking or attempting to take possession of the property and allowing the owner to maintain possession of the property pending further proceedings. Briefs have been filed by both parties and the issue is now ripe for consideration.

Defendant argues that he is entitled to a stay of the forfeiture proceedings pending the disposition of criminal charges, and that the act itself is unconstitutional for providing a civil penalty so punitive in purpose and effect as to negate the General Assembly’s intention to provide for a civil penalty. The Commonwealth also asks the court to decide whether the act enables the Commonwealth to remove occupants of the seized premises.

The first issue in the case is the owner’s entitlement to a stay of proceedings pending the disposition of criminal charges. The owner argues that he is so entitled. Since the Commonwealth now also agrees that Nick W. Kinney is entitled to a stay of proceedings pending the disposition of criminal charges, there is no longer a controversy on that point.

The owner argues that the act itself is unconstitutional on its face or as applied in this case. The basis for his claim is that the act, although purportedly providing for a civil remedy, is so punitive in purpose and effect as to negate the General Assembly’s intention to provide for a civil penalty.

This argument has been considered before in relation with the federal Comprehensive Drug Abuse Prevention and Control Act, whose provisions are identical to the relevant provisions of the Pennsylvania Act. The court applied the tests set forth in United States v. Ward, 448 U.S. 242 (1980), which is relied on by defendant in the present case, and held that the statute did not violate due process despite the contention that forfeiture was so punitive in nature that it constituted criminal punishment rather than a civil penalty.

In United States v. Premises Known as 2639 Meetinghouse, 633 F.Supp. 979 (E.D. Pa. 1986), the court held that the forfeiture provision of the act was not unconstitutional on the ground that it permits criminal punishment by a civil burden of proof in violation of the Fifth and Sixth Amendments.

The U.S. District Court outlined the Supreme Court’s two-prong determination for distinguishing criminal from civil sanctions; a determination whether Congress indicated either expressly or impliedly a preference for one label or the other, and where Congress has indicated an intention to establish a civil penalty, the inquiry is whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. 2639 Meetinghouse at 993, citing United States v. Ward, 448 U.S. 242 (1980). And in United States v. One Assortment of 89 Firearms, the court ruled that “only the clearest proof” will suffice to establish the unconstitutionality of a statute on that ground. 465 U.S. 354, 362 (1984).

The court in 2639 Meetinghouse ruled that the clearest-proof standard was not met as the legislative history clearly suggested that the act is designed to serve broad, non-punitive purposes, including:

“[Rjemoving the incentive to engage in the drug trade by denying drug dealers the proceeds of ill-gotten gains, stripping the drug trade of its instru-mentalities, including money, and financing government programs designed to eliminate drug trafficking.” 2639 Meetinghouse at 994, citing 95th Cong., 2d Sess., 124 Cong. R. 23055-7; 7 U.S. Code Cong. R. & Ad. News, 9456, 9523 (1978)).

We agree with the U.S. District Court in 2639 Meetinghouse and rule that its rationale is applicable to Pennsylvania’s Controlled Substances Forfeiture Act.

The owner retorts that since his alleged deed was not among the stated actions in which the act was meant to remedy, the Forfeiture Act is unconstitutional for imposing a criminal sanction as opposed to a civil penalty. We disagree.

The stated purpose to the act is to remove the incentive to engage in the drug trade while financing government programs designed to eliminate drug trafficking. In this case the owner has allegedly used the property in question as the site for illegal drug transactions. Therefore the property would be an instrumentality of the owner’s allegedly illegal actions, and specifically subject to the act’s stated purpose. Accordingly, the owner’s challenge to the constitutionality of the Controlled Substances Forfeiture Act fails.

Moreover, based upon the oral argument given before the court at the time of the hearing, the owner’s petition to enjoin the Commonwealth from removing the occupants of the real estate is summarily denied.

ORDER

And now, November 22, 1989, for the reasons set forth in the foregoing discussion, it is hereby ordered and directed that owner’s motion for stay is granted, but otherwise the motion is denied.


source: Caselaw Access Project

author: RANCK, P.J.,

license: Public Domain

text:
    In re Dissolution of the Independent Fire Company No. 4 of Milton

      Christopher J. Foust, for petitioners.

      M. Luther Harter Jr., for respondent.

      Jeffrey L. Mensch, for receiver/master.
    June 13, 1990
   RANCK, P.J.,

The matter before the court is the petition of objectors regarding the dissolution of the Independent Fire Co. no. 4 of Milton, Pennsylvania, a non-profit corporation. The issue is whether petitioners, Blair E. Smith, Leroy Seabold Jr., Robert H. Templin and William E. Templin, are entitled to distribution of any assets pursuant to the dissolution of the fire company after petitioners were terminated as life members. The discharges were based on the premise that three of the petitioners joined other fire companies in violation of Article I, section I of the bylaws of the Independent. U.S. Constitution, Amendment I protects the right to associate with others in pursuit of social ends. Public policy and common sense demand that fire company bylaws, which in effect prevent members from joining “other” fire companies, are pre-empted by the federal constitutional First Amendment right to free association, thus promoting the social good by increasing the supply of firefighters.

On February 9, 1990 this court conducted a hearing and argument. Testimony presented by both petitioners and the Independent provided evidence that was basically non-conflicting.

Petitioners, Blair E. Smith, Leroy Seabold Jr., Robert H. Templin and William E. Templin, provided evidence that they were life members of the Independent in 1978, the year the fire company became inactive. Between 1978 and 1980, except for Leroy Seabold Jr., the petitioners joined other active fire companies within the Milton Fire Department in order to remain active firefighters. The evidence demonstrated that the Milton Fire Department has a bylaw dictating that a life membership in one company is not transferable to another company. Moreover, under the rules of the Milton Fire Department, such a life member in one company will not lose this status if the individual joins a new company within the Milton Fire Department.

Respondents provided evidence that on January 24, 1989 the Independent had a meeting where voting resulted in the decision to dissolve the company, and on June 13, 1989 there was a hearing to decide who the members of the company actually were. Petitioners testified that they were given no notice of either the January 24, 1989 or the June 13, 1989 meeting, and no formal written notes or records of these two meetings exist.

Jeffrey L. Mensch, Esq., receiver, filed a schedule of proposed distribution in October 1989, and petitioners provided evidence of having filed a blanket objection to this schedule in November 1989. This court advised petitioners to seek counsel in December 1989, when petitioners had appeared before the court with inadequate pleadings and overly general objections.

On February 9, 1990 petitioners, having taken the advice of this court, appeared with counsel to present testimony and evidence in support of amended objections to the account of the receiver. At this time petitioners made a successful attempt to demonstrate that, as life members, they are entitled to a share of the assets.

Although our state and federal constitutions provide no explicit right to associate, the United States Supreme Court has identified an implicit right of association or non-association. See Lindenbaum v. City of Philadelphia, 584 F.Supp. 1190, 1193 (1984). The First Amendment protects the right to associate with others in pursuit of social ends. See Murray v. Silberstein, 702 F.Supp. 524 (1988). VanDusen v. Commonwealth, Dept. of Public Welfare, 79 Pa. Commw. 60, 468 A.2d 540 (1983), stands for the principle that when federal law is inconsistent with state or local policies, federal law will pre-empt local or state rules. Moore v. Colautti, 483 F.Supp. 357, 367 (1979), also articulates the rudimentary principle that dictates that an incompatibility between federal and state law must be resolved in favor of the overriding federal interest under the Supremacy Clause.

In the instant case, petitioners have an implicit First Amendment right to associate with “other” active fire companies, even if they are life members of the inactive Independent. Petitioners presented evidence that active firefighting requires associating with “others” to pursue the social end of promoting the public good: putting out fires. The charter of the Independent states that the purpose of the Independent is to save property from destruction by fire and. maintain suitable fire apparatus.

The purpose of the Independent, to promote the public good, was defeated when the company became inactive. Since the petitioners’ constitutional right to associate with other companies and pursue the social end of promoting the public good preempts the bylaws of the Independent, which forbid joining of other companies, the public good must be promoted by pre-empting the bylaws by permitting members of the inactive Independent to associate freely with other active companies.

Bylaws of the Independent that are inconsistent with the United States Constitution are equivalent to state and local policies which are inconsistent with and pre-empted by federal law. The Supremacy Clause of the United States Constitution demands that incompatibility between federal and state law must be resolved in favor of the overriding federal interest; thus, it follows that bylaws are pre-empted by the federal Constitution.

Case law defines what constitutes a right of association or non-association. This right is not limited to the right of speech, press, worship, assembly and/or petition. A decision of whether or not to join a union that resulted in a city’s denial of certain benefits to employees did place a burden on the employees/plaintiff’s First Amendment interests in Lindenbaum, supra at 1194-6. The decision of whether or not to join another fire company resulted in the Independent Fire Company denying benefits to its life members.

Bylaws of a fire company, which constitute a private contract between petitioners and the Independent, must be rendered invalid because they opposed public policy even if the bylaws constitute a contract that is valid on its face. The bylaws are illegal based on the facts presented at the February hearing. When the principles of sound public policy, providing a supply of firefighters, are breached via the bylaws of an association, we must condemn the bylaws to uphold the law. Constructors’ Assn. of Western Pennsylvania v. Furman, 165 Pa. Super. 248, 67 A.2d 590 (1949).

In addition to the right to associate with other companies, petitioners have a property right to the assets of the Independent. This right exists because it was never lost when petitioners joined other companies. Moreover, petitioner Seabold never did join another company. Petitioners were denied due-process rights when the company was dissolved and membership accounted for during the January 24, 1989 and June 13, 1989 meetings. Petitioners had no notice of these meetings and no opportunity to be heard. Property rights cannot be denied without notice or a hearing. See Bishop v. Wood, 426 U.S. 341 (1976).

For all of the foregoing reasons, we enter the following

ORDER

And now, June 13, 1990, it is ordered and directed petitioners shall share in and receive their due portion as life members of the assets of the Independent Fire Company no. 4 of Milton, Pa.


author: TERPUTAC, J.,

text:
    D’Amico v. VFW Post 191 Volunteer Ambulance Association

      Frank G. Magone, for plaintiff.

      Timothy Burdette, for defendant.
    August 23, 1990
   TERPUTAC, J.,

In her motion in limine, plaintiff, Betty D’Amico, administratrix of the estate of Carmine D’Amico, deceased, asks the court to render a pretrial ruling that the standard of care owed by defendant, VFW Post 191 Volunteer Ambulance Association, is one of ordinary negligence.

This case arises out of the death of the decedent, Carmine D’Amico, when the VFW Post 191 Volunteer Ambulance Association responded to a call for emergency service at the D’Amico household. Defendant contends that under the Emergency Medical Services Act, the Act of July 3, 1985, P.L. 164, 35 P.S. §6921 et seq., not only are the technicians and paramedics immune from civil liability for ordinary negligence but also the entity or organization providing ambulance service is similarly protected.

Claiming that the act contains no limitation of liability in favor of an ambulance service, plaintiff has argued that the ambulance service should be held to the standard of care of ordinary negligence.

At the time the call was received, the ambulance crew of the service consisted of a paramedic and a technician. Although the EMSA provides immunity from civil damages except for gross or willful negligence, the exculpatory section, 35 P.S. §6931(j), seems to address emergency medical technicians, EMT paramedics, and other health-care professionals, but it does not mention the ambulance service for whom the technicians and paramedics may work. Without delving into the peculiar phrase “willful negligence,” which seems to be an oxymoron, we hold that the intent of EMSA is to cover the ambulance service and insulate it from liability except for gross or willful misconduct.

Counsel have pointed to no cases on point in Pennsylvania and our research has found none. We agree with defendant, however, that the reasoning under Farago v. Sacred Heart General Hospital 365 Pa. Super. 1, 528 A.2d 986 (1987), and Werner v. Department of Public Welfare, 109 Pa. Commw. 314, 530 A.2d 1004 (1987), is persuasive. In Werner, the court rejected the plaintiff’s contention that the immunity extended only to the individuals actually named in the immunity section of the Mental Health Procedures Act. And in Farago, the Superior Court concluded that hospitals are entitled to immunity, even though hospitals are not specifically named in the section. The court said:

“As pointed out by the trial court, the Mental Health Procedures Act includes all treatment, full or part time, in a ‘facility,’ which means ‘any mental health establishment, hospital, clinic, institution. . .’ 50 P.S. §7103. That treatment must be administered by individuals who are granted the immunity mentioned in -50 P.S. §7114. It would be inconsistent, and indeed self-defeating, for the statute to allow immunity on the one hand, but to deny it on the other. The hospital does not act independently of its employees, and therefore, should not be subjected to a different standard of care and liability than those employees.” 365 Pa. Super, at 5, 528 A. 2d at 988.

Under the Statutory Construction Act, 1 Pa.C.S. § 1928(c), the statute in question must be liberally construed to effect its objects and to promote justice. The only reasonable construction is that the EMSA has set up an emergency medical services system for statewide purposes. 35 P.S. §6922(B)(1). This legislative purpose is advanced by providing for immunity from civil liability for paramedics and technicians unless gross or willful misconduct is proved. Since ambulance services like hospitals do not act independently but only through their employees, the limitations on civil liability must properly apply to the ambulance service as well.

ORDER

And now, August 23, 1990, the motion in limine of the plaintiff, Betty D’Amico, administratrix of the estate of Carmine D’Amico, deceased, is denied. It is further ordered, adjudged, and decreed that the standard of liability under the Emergency Medical Services Act for the defendant, VFW Post 191 Volunteer Ambulance Association, is gross or willful negligence.


author: O’MALLEY, J.,

text:
    City of Scranton v. Krispy Kreme Donuts

      Paul A. Kelly Jr., for plaintiffs.

      Paul D. Horger, for defendants.
    September 25, 1990
   O’MALLEY, J.,

This case is a matter of taxation, or, as it is sometimes referred to by those who would oppose it, forced contribution. Houck v. Little River Drainage Dist., 239 U.S. 254 (1915). Among its endeavors, Krispy Kreme Doughnut Corporation franchises local operations. The one in Scranton is called Early Morning Donuts Inc. Plaintiffs, City of Scranton and School District of Scranton, have attempted to impose a business privilege and mercantile tax on Early Morning. The latter has resisted on the basis that it is a manufacturing concern and therefore exempt from a mercantile or business-privilege tax under 72 Pa.C.S. §4750.532 of the Local Tax Reform Act.

Is what Early Morning doing on its local premises the manufacture of doughnuts? Plaintiffs claim that because Krispy Kreme supplies Early Morning with a premixed blend which constitutes a part of the finished product, it is not. It is plaintiffs’ position that this dry powder is, in actuality, that myriad panoply of deep fried, confected shapes, types, tastes, colors, sizes and forms — that destroyer of firm resolves — the doughnut. Since we cannot legally, or in good taste, agree with plaintiffs’ argument, we find that Early Morning is entitled to an exemption.

“But what is manufacturing? It is making. To make in the mechanical sense does not signify to create out of nothing; for that surpasses all human power. It does not often mean the production of a new article out of materials entirely raw. It generally consists in giving new shapes, new qualities, or new combinations to matter which has already gone through some other artificial process.” Norris Brothers v. Commonwealth, 27 Pa. 494, 496 (1856).

“Or, in other words, the process of manufacture brings about the production of some new article by the application of skill and labor to the original substance or material out of which such new product emerges. If however there is merely a superficial change in the original materials or substances and no substantial and well-signalized transformations in form, qualities and adaptability in use, quite different from the originals, it cannot properly and with reason be held that a new article or object has emerged — a new production been created.” Commonwealth v. Weiland Packing Co., 292 Pa. 447, 450-1 (1928). .

The process used by Early Morning in making up dough from the dry mix, making the yeast brew, combining the brew with a dough, and cutting, forming, proofing and frying the combined mixture constitutes the manufacture of a final product which is substantially different from the mix, and so, meets the test of manufacturing as defined by the Pennsylvania Supreme Court.

Plaintiffs’ argue that Early Morning merely “cooks” the powder to produce the finished product and, thereby, they equate the creation of the noble doughnut with the boiling of a squash or the stewing of a swede. The process Early Morning employs is far more analogous to the manufacture of pizza, Fleet Pizza Inc. v. Commonwealth, 119 Pa. Commw. 463, 547 A.2d 523 (1988); potato chips, Commonwealth v. Snyder’s Bakery, 348 Pa. 308, 35 A.2d 260 (1944); or the products of a modern bakery, Gysegem v. School District of Carroll Twp., 40 Washington Rep. 109 (1960).

Although counsel for the taxing agencies (plaintiffs) makes a strong argument, and has submitted an exhaustive and comprehensive brief in support of his client’s position, the court is not convinced.

An order will be entered sustaining the appeal.

ORDER

Now, September 25, 1990, for the reasons contained in the accompanying opinion, it is hereby ordered that the appeal of defendants is sustained; defendants are exempt from the imposition of the business-privilege and mercantile taxes of plaintiffs.


author: BROMINSKI, J.,

text:
    Rex v. Buck Township Supervisors

      George L. Fenner Jr., Charles B. Zwally and Michael D. Reed, for plaintiffs.

      Michael R. Kostelansky, for defendant.
    October 2, 1990
   BROMINSKI, J.,

This matter is before the court upon preliminary objections of defendant, Buck Township Board of Supervisors, to the complaint in mandamus filed by plaintiffs, Kenneth and Christine Rex and Louis F. Larsen, to the above-captioned term and number.

Defendant’s objections are in the form of a petition raising a question of jurisdiction, and read, in pertinent part, as follows:

“(4) Plaintiffs above-captioned submitted a sketch plan for a minor subdivision on or about August 16, 1989, for approval.

“(5) Said request for subdivision was denied on October 20, 1989, by the defendant.

“(6) Plaintiffs, on November 17, 1989, filed a notice of appeal in the Prothonotary’s Office of Luzerne County indexed to number 6175-C of 1989, a copy of which is attached hereto as Exhibit ‘A’ and incorporated herein by reference thereto. Said appeal deals with the same request and denial for subdivision which is subject to the above-captioned proceeding.

“(7) The court lacks jurisdiction over the subject matter in this mandamus action due to the fact that plaintiffs have another adequate remedy at law, mainly, to wit, the appeal filed with the Court of Common Pleas of Luzerne County to no. 6175-C of 1989.”

The sole question before us is whether plaintiffs are precluded from bringing an action in mandamus since previously they filed an appeal, to another term and number, from the decision of defendant denying plaintiffs’ request for approval of a minor subdivision. We have carefully reviewed the record in conjunction with the appurtenant law and conclude that defendant’s objection is without merit.

The Pennsylvania Municipalities Planning Code requires that the decision of the governing body relative to an application for approval of a subdivision plan be in writing, and where the application is not approved in terms as filed, the decision shall specify the defects found in the application and describe the requirements which have not been met, citing the provisions of the statute or ordinance relied upon. The governing body’s failure to so act shall be deemed an approval of the application in terms as presented. 53 P.S. §10508(1), (2) and (3).

In the matter before us, the content of defendant governing body’s decision is as follows:

“This is to inform you that at the regular meeting of the Board of Supervisors held on October 20, 1989, the supervisors voted against approval of your minor subdivision plan referred to by you as ‘The Buck Township — Indian Lake — Larsen/Rex Minor Subdivision — Sketch Plan’ which was filed by you on August 16, 1989.”

The fact that a written decision has been issued does not render a statutory appeal an adequate remedy, where such decision allegedly is subject to the “deemed approval” sanctions of the code. Croft v. Board of Supervisors of Middletown Township, 76 Pa. Commw. 488, 464 A.2d 625 (1983). See also, Foltz Jr. v. Monroeville et al. and Borden et al., 5 Pa. Commw. 304, 290 A.2d 269 (1972). Mandamus is an appropriate remedy which is available to plaintiffs, since they are seeking a determination that defendant has failed to comply with section 10508 of the code. Here, plaintiffs are not seeking a review of the substance of the decision, as is the case in the appeal filed in this court to no. 6175-C of 1989. Consequently, this court has jurisdiction to entertain plaintiffs’ mandamus action.

Accordingly, we enter the following

ORDER

It is hereby, ordered, adjudged and decreed that defendant’s preliminary objection in the nature of a petition raising a question of jurisdiction is overruled, denied and dismissed.


text:
    Spotts v. Polastre

      Jack C. Younkin, for plaintiff.

      Frank J. Konopka, for defendants.

      James A. Zurick, for additional defendants.
    May 17, 1990
   RANCK, P.J.,

This opinion addresses the procedural issue of whether preliminary objections to an amended complaint that raise the defense of pendency of a prior action can be sustained. Pa.R.C.P. 1028 requires that all preliminary objections must be raised in a single pleading. Pa.R.C.P. 1017 categorizes “the pendency of a prior action” as a proper preliminary objection, and it must be raised in response to the original complaint.

The following is a sketch of the procedural history in this contract dispute. In the first action, no. CV-89-598, plaintiff, Richard E. Spotts, t/a R&J Laminates, cabinet supplier, filed a complaint against original defendants, Ronald Polastre and Ruth Polastre, homeowners, on May 2, 1989. The Polastres answered plaintiff’s complaint and added additional defendants, R. Craig Rhoades and Richard B. Rhoades, t/d/b/a R.C. Rhoades Contractor, general contractor. Rhoades filed an answer, new matter and counterclaim to Polastres’ complaint, to which the Polastres responded with preliminary objections.

After a hearing, this court denied preliminary objections in the nature of a motion to strike and sustained Polastres’ preliminary objections in the nature of a motion for more specific pleading, ordering Rhoades to amend the new matter and counterclaim. Rhoades filed an amended new matter and counterclaim (filed to no. CV-89-598), and the Pola-stres responded with the second set of preliminary objections claiming the pendency of a prior action, which is filed to no. CV-898-712. In the “prior action,” no. CV-89-712, the Polastres are plaintiffs and the Rhoadeses are the original and only defendants.

In response to the Polastres’ second set of preliminary objections in no. CV-89-598, Rhoades filed preliminary objections arguing that the Polastres are barred from raising a second set of preliminary objections by Pa.R.C.P. 1028(b). The general rule regarding preliminary objections is Pa.R.C.P. 1028(b), that states, “All preliminary objections shall be raised at one time.” Failure to raise all preliminary objections to a complaint in a single pleading results in a waiver of the objection although the issue may be raised again at the proper time. Derr v. Spotts, 54 Northumb. Leg. J. 120 (1982) (Ranck, J.).

The general principle that a complaint cannot be attacked in small bites by an adversary is set out in 2 Goodrich-Amram 2d 1017(b):4. The main purpose of the dilatory stage in civil proceedings is to permit an opponent to attack a pleading via preliminary objections, but after the court has ruled on the initial objections, the adversary may not take a second bite out of the complaint by filing new and different objections. The case of Martin v. Gerner, 332 Pa. Super. 507, 481 A.2d 903 (1984), is an exception to the general rule requiring that all preliminary objections must be raised at one time; additional objections that could have been filed in response to the original complaint were permitted. A careful reading of Gerner reveals that this procedural anomaly emerged in case law interpreting 1028(b) only because the court had not yet ruled on the original objections. Gerner can be differentiated from the present case because this court did rule on the original preliminary objections; the motion to strike was denied and the motion for a more specific pleading was sustained. In the present case, the general rule 1028(b) applies, and the second set of preliminary objections constitutes a second bite at the new matter and counterclaim and are improper.

Defendant Polastre argues that additional defendants Rhoadeses filed the identical new matter and counterclaim in no. CV-89-598 and in no. CV-89-712, and that no. CV-89-712 is a prior pending action that bars the raising of the same new matter and counterclaim in no. CV-89-598. In actuality, no. CV-89-598, which was filed on May 2, 1989, was filed prior to no. CV-89-712. In no. CV-89-598, Polastres filed an action against the Rhoadeses as additional defendants, on May 16, 1989, and Pola-stres filed an action against Rhoadeses to no. CV-89-712 in their own right, on May 9, 1989. Only after the complaint was filed and the additional defendant added, in no. CV-89-598, the prior action, did Pola-stres file a complaint in no. CV-89-712, the second action.

In the alternative, viewing the amended new matter and counterclaim of no. CV-89-712 as the “pending prior action” relative to the amended new matter and counterclaim of no. CV-89-598, the test that must be met to plead the defense of a “pending prior action” is not satisfied. The requirements are that the prior case is the same, the parties are the same, and the relief requested is the same. See Penox Technologies Inc. v. Foster Medical Corp., 376 Pa. Super. 450, 546 A.2d 114 (1988). The present case, no. CV-89-598, differs from the “prior case,” no. CV-89-712, in that plaintiffs are the Spottses, original defendants are the Polastres, and the Pola-stres added additional defendants, the Rhoadeses. In contrast, in no. CV-89-712, the Polastres are the only plaintiffs and are suing a single defendant, Rhoades. The distinguishing feature of no. CV-89-598 is that third-party practice is involved which places the parties in different positions relative to each other as compared to those occupied in no. CV-89-712, hence the cases and relief requested differ.

In Sherry & O’Leary Inc. v. Fidelity & Casualty Co. of New York, 42 D.&C. 2d 707, 711 (1967), another contract dispute, two cases were distinguished as being based on different causes of action where parties changed positions relative to each other in each case, and the defense of a pending prior action was raised. In one suit, plaintiff subcontractor was suing defendant contractor, who in turn added the property owner as an additional defendant. In the sister case the defendant contractor became the plaintiff and sued “to recover on its own cause of action against owner.” In the present case, Polastres, defendants in no. CV-89-598, added Rhoades alleging that if defendants Polastres are liable to plaintiff Spotts, then Rhoades is liable over to Polastres. In no. CV-89-712, Polastres, as plaintiffs, are suing to recover in their (Polastres’) “own cause of action” against Rhoades. Hence, Polastres’ preliminary objections raising the defense of a pending prior action are improper.

Lastly, preliminary objections to an amended complaint are only proper if the amended complaint raises new issues. Wudkwych v. Borough of Canonsburg, 111 Pa. Commw. 322, 533 A.2d 1104 (1987). In the present case, the amended new matter and counterclaim raised no new issues. The amended pleadings broke down general costs into more specific detailed costs, which were responsive to this court’s order to file a more specific pleading.

We find that defendant’s preliminary objections to the amended complaint that raised the defense of pendency of a prior action are denied.

For all of the foregoing reasons, we enter the following

ORDER

And now, May 17, 1990, after argument, it is ordered and directed that original defendant’s preliminary objections are denied, and additional defendant’s preliminary objections to original defendant’s preliminary objections are sustained.


author: ERB, J.,

text:
    Mowery v. Township of Warrington

      Edward W Harker, for plaintiffs.

      Victor A. Neubaum, for defendant.
    October 19, 1990
   ERB, J.,

This matter is before the court on a motion for summary judgment and preliminaiy objections from two related proceedings. The first matter involves defendant Warrington Township’s motion for summary judgment.

The relevant pleaded facts are as follows. Plaintiffs, Catherine A. Mowery, formerly Catherine A. Siemers, and F. Joseph Siemers, filed an action in trespass docketed to no. 88-SU-1848-01 for the damage caused to plaintiffs’ land when defendant commenced road work proximate to plaintiffs’ property in February 1988. As a result of defendant’s use of explosives and heavy machinery on plaintiffs’ land without their consent, plaintiffs contend that there was physical damage to the property, including the destruction of trees and shrubbery. Defendant township had no ordinance, resolution, plan or survey prior to initiating work on Conley Road. Moreover, defendant had neither commenced nor announced its intention to file condemnation proceedings. In his deposition, James Wueschinski, Road Master of Warrington Township, stated that the work was performed to change the course of the road and that he was unaware that said work was performed on plaintiffs’ property. After plaintiffs complained to the township, further damage ceased; however, defendant neither restored nor repaired the property. Plaintiffs initiated this action on May 4, 1988. Defendant subsequently filed a declaration of taking on July 11, 1989.

Defendant has filed a motion for summary judgment, arguing that plaintiffs’ solé remedy is dictated by the Act of June 22, 1964, Sp.Sess., P.L. 84, Art. 1, §101, the Eminent Domain Code, 26 P.S. §1-101 et seq. Defendant further avers that the complaint fails to state a sufficient cause of action in negligence to sustain the trespass action.

For the reasons set forth in this opinion, we will deny defendant’s motion for summary judgment. Summary judgment is only granted upon a showing that there is no genuine issue of material fact. Pa.R.C.P. 1035(b). The court will view the evidence in the light most favorable to the non-moving party. Johnson v. Baker, 346 Pa. Super. 183, 499 A.2d 372 (1985). The foremost contention of defendant is that this action is most properly brought pursuant to the Eminent Domain Code. We disagree.

Prior to defendant’s entry onto plaintiffs’ land, there was no declaration of taking filed. However, the court is aware that 26 P.S. §l-502(e) permits the condemnee to file a petition for appointment of viewers for the assessment of compensable injury to the property. In the instant case, the Road Master mistakenly believed he wás not on plaintiffs’ property. He believed that he had approval to work on the property from persons he believed owned it. He neither checked with plaintiffs, made a survey nor verified his information. A property owner may bring a trespass action for damages to their property which occurred before filing condemnation proceedings. 23 Standard Pennsylvania Practice 2d §124.99; Patterson v. Municipal Authority of Westmoreland County, 65 D.&C. 2d 784 (1974).

We also find Enon Valley Telephone Co. v. Market et ux., 90 Pa. Commw. 53, 493 A.2d 800 (1985), persuasive. There, the landowners alleged that Enon Valley Telephone Company went on the Markets’ property to install telephone cable, abandoned this and later installed a telephone line and poles on their land. The Markets filed a petition for an appointment of a board of viewers to assess damages. The trial court granted the petition and the board awarded damages. The trial court also concluded at a hearing that Enon had committed a de facto taking of the property. The Commonwealth Court, on appeal, considered whether there had in fact been a de facto taking. The court stated that a de facto taking results when an entity having the power of eminent domain substantially deprives the landowner of that property’s use and enjoyment. Id. at 56, 493 A.2d at 802. The landowner must show that such deprivation was the direct and necessary consequence of the entity’s action. Id. The court analyzed the record and determined that the field engineer received a right-of-way to install the equipment from persons he mistakenly believed owned the property. When Enon realized that these persons did not own the property, it abandoned the underground cable. The court found that such action by Enon was not a necessary and unavoidable result of the power of eminent domain but was the result of Enon’s negligence. The court determined that when the “landowner has suffered specific damages to his or her property as a consequence of the alleged negligent actions of the condemning body, the proper action lies in trespass.” Enon, 90 Pa. Commw. at 57, 493 A.2d at 802.

The court in the Enon case further elaborated that “ 'No recovery may be obtained through eminent domain proceedings where the injuries resulted from a trespass and no de facto taking may result from negligent acts committed by the agents of the condemning body.’ ” Enon, 90 Pa. Commw. at 57, 493 A.2d at 802, quoting Lutzko v. Mikris Inc., 48 Pa. Commw. 75, 79, 410 A.2d 370, 372 (1979).

This court has carefully read the briefs submitted by counsel and reviewed the case law. We believe that the Enon case is most persuasive. In the instant case, defendant was negligent since its agents mistakenly believed that they were not on plaintiffs’ land. Furthermore, the road work has been abandoned, presumably until the court resolves defendant’s declaration of taking. There is no indication that the township’s acts were the immediate, necessary or unavoidable consequence of its eminent domain rights. Under these circumstances, we conclude that the plaintiffs’ action lies in trespass since defendant’s negligence could not result in a de facto taking. We further conclude that plaintiffs’ allegations support the trespass action for damages prior to the taking by condemnation. Thus, summary judgment would not be appropriate.

The other matter before this court is the preliminary objections of the condemnees, Catherine A. Moweiy and F. Joseph Siemers, to the condem-nor’s, Warrington Township, declaration of taking, docketed to no. 89-SU-3136-05. The township filed this action to acquire condemnees’ land to improve Conley Road. Condemnees argue several points. Condemnees first contend that the township did not have the authority to take their property without a finding that Conley Road is dangerous. Condemnees further argue that the township has not established the legal right-of-way of Conley Road and the precise boundaries of the land taken. Condemnees assert that the survey, attached to the declaration of land, does not encompass the entire amount of land previously trespassed on by the township. Finally, the condemnees contend that the township failed to comply with statutory requirements for notice and hearing prior to filing the declaration of taking and failed to enact an ordinance pursuant to the Second Class Township Code, sections 66101 and 66102. In their brief, condemnees, for the first time, raise the issue of bad faith on the part of condemnors.

The exclusive remedy for challenging a declaration of taking is preliminary objections pursuant to 26 P.S. §1-406. Preliminary objections must specifically state the grounds relied on and are limited to challenging the following:

“(1) The power or right of the condemnor to appropriate the condemned property unless the same has been previously adjudicated:
“(2) The sufficiency of the security;
“(3) Any other procedure followed by the con-demnor; or
“(4) The declaration of taking.”

For the reasons stated below, we will dismiss condemnees’ preliminary objections.

The first issue is whether the township had to make a finding that Conley Road is dangerous. We think not. Section l-402(b) lists those matters to be contained in the declaration of taking. Condemnors need only briefly describe the purpose of the condemnation. Swartz v. Pittsburgh Public Parking Auth., 63 Pa. Commw. 434, 439 A.2d 1254 (1981); Condemnation of Route 93, 45 D.&C. 3d 523 (1986). Condemnee’s second argument concerns the township’s failure to establish the legal right-of-way. We agree with condemnor that it need only describe the property in the declaration of taking for purposes of identification. Condemnor has done so. In addition, we conclude that condemnor’s exhibits A and B sufficiently show the precise boundaries of the land being condemned and condemnees’ objection is, therefore, without merit.

Condemnees contend that the amount of property trespassed upon is greater than that described in the survey. We believe that this matter will be addressed by appropriate damages in the trespass action.

Condemnees contention that the township failed to comply with notice and hearing requirements prior to the declaration of taking is without merit. We can find no requirement in the Eminent Domain Code mandating such notice and hearing requirements prior to filing the condemnation action. Vecchione v. Twp. of Cheltenham, 13 Pa. Commw. 260, 320 A.2d 853 (1974).

Last, condemnees argue that the township should have enacted an ordinance to condemn the property pursuant to 53 P.S. §66101 of the Second Class Township Code. We disagree. Neither the Eminent Domain Code nor the Second Class Township Code requires an ordinance be passed to authorize a declaration of taking. In re Condemnation by Springettsbury Twp., 50 D.&C. 3d 557 (1988). The township’s adoption of a resolution may properly authorize the declaration of taking. Id. The resolution put forth by condemnor was sufficient despite condemnees’ arguments to the contrary. A resolution is defined by Black’s Law Dictionary, 5th edition, as “a formal expression of the opinion or will of an official body or a public assembly, adopted by vote . . . This term is usually employed to denote the adoption of a motion, the subject-matter of which would not properly constitute a statute, such as a mere expression of opinion. . .” We find that the township’s adoption of the motion authorizing the solicitor to file the declaration of taking is a resolution and was sufficient to authorize this condemnation action. In re Condemnation by Springettsbury Twp., supra; Jordan Appeal, 73 Pa. Commw. 572, 459 A.2d 435 (1983).

Condemnees last assert in their brief that the condemnation was in bad faith. Condemnees, however, did not assert this in their preliminary objections and it is therefore waived. Section l-406(b) and (c) provide that the condemnees must specifically state the grounds relied on in their preliminary objections and such preliminary objections shall be raised at one time and in one pleading. Even should such preliminary objections be valid, we would be unable to find evidence of condemnor’s bad faith. Accordingly we will dismiss condemnees’ preliminary objections.

Accordingly, we enter the following

ORDER

And now, October 19, 1990, the motion for summary judgment of defendant Warrington Township in Civil Action, Docket no. 88-SU-1848-01, is hereby refused and denied. Condemnees’, Catherine A. Mowery and F. Joseph Siemers, preliminary objections to the declaration of taking in Civil Action, Docket no. 89-SU-03136-05, are hereby dismissed.

       “§1-402. Condemnation; passage of title; declaration of taking

        “(b) The declaration of taking shall be in writing and executed by the condemnor, shall be captioned as a proceeding in rem, and shall contain the following:
      “(1) The name and address of the condemnor.
      “(2) A specific reference to the statute, article and section thereof under which the condemnation is authorized.
      “(3) A specific reference to the action, whether by ordinance, resolution or otherwise, by which the declaration of taking was authorized, including the date when such action was taken, and the place where the record thereof may be examined.
      “(4) A brief description of the purpose of the condemnation.
      “(5) A description of the property condemned sufficient for the identification thereof, specifying the city, borough, township or town and the county or counties wherein the property taken is located, a reference to the place of recording in the office of the recorder of deeds of plans showing the property condemned or a statement that plans showing the property condemned are on the same day being lodged for record or filed in the office of the recorder of deeds in such county in accordance with section 404 of this act.
      “(6) A statement of the nature of the title acquired, if any.
      “(7) A statement specifying where a plan showing the condemned property may be inspected in the county in which the property taken is located.
      “(8) A statement of how just compensation has been made or secured.”


text:
    Grencavage v. West Side Skate Club Inc.

      George A. Spohrer, and Joseph J. Terrana, for plaintiff.

      Lawrence A. J. Spegar, for defendant.
    September 6, 1990
   BROMINSKI, J.,

This matter comes before the court upon motion for summary judgment of defendant, West Side Skate Club Inc. For the reasons stated herein, defendant’s motion is denied.

The present action was initiated on October 7, 1988, when plaintiff filed a complaint against defendant alleging that on February 1, 1987, while plaintiff and her son were roller-skating at the premises owned by defendant, plaintiff suffered a fall resulting in personal injuries, which injuries were caused by the carelessness, recklessness and negligence of defendant. As a result of the injuries allegedly sustained, plaintiff is seeking monetary relief from defendant.

Selected facts in this case appear not to be in dispute. During the evening of February 1, 1987, plaintiff was a business visitor at defendant’s skating rink and was further engaged in skating around defendant’s rink. At one point in the course of this same evening, plaintiff was skating with her young son during a “couples only” event, when plaintiff suffered a fall and was resultantly injured. It is at this juncture in the presentment of the facts surrounding the events which occurred on the evening of February 1, 1987, that the respective parties in this matter cannot seem to agree. On the one hand, plaintiff asserts that during the “couples only” event in which she was skating with her young son, she was physically attacked from behind by two rowdy male skaters, the attack causing her to fall and suffer injuries to her person. On the other hand, defendant denies plaintiff’s claims and contends that plaintiff’s fall and subsequent injuries came not as a result of being attacked, but rather from the general or typical risks commonly associated with skating — bumping and jostling.

After the pleadings were closed, defendant filed a motion for summary judgment on January 17, 1990. In support of its motion, defendant stated that plaintiff had failed to demonstrate any issue as to any material fact which would evidence liability on the part of defendant, and further, that defendant had no duty to protect plaintiff from the typical or general risks associated with skating, including falling down on one’s own, or being bumped by other skaters.

The court notes that a motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Washington Federal Savings & Loan v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986).

A summary judgment may be entered only in cases where it is apparent that the right is free and clear of doubt. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). In-granting a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party and resolve all doubt against the moving party. Mariscotti v. Tinari, 335 Pa. Super. 599, 485 A.2d 56 (1984). The court further notes that, depending upon the fact situations as presented by the parties in the present matter, each party in the case now pending is apparently able to support its respective contentions with witness documentation, affidavits and proposed legal theory with related case law.

Plaintiff has related to us that the two male skaters who struck her from behind evidenced earlier rowdy and rough conduct in the skating area, and that such earlier rowdy and rough conduct should have alerted defendant, its agents, servants and/or employees to the fact that injury to other skaters was likely. Plaintiff would further opine that defendant had a duty to take proper and adequate precautions for the safety and security of plaintiff, who was a business visitor, against the conduct of third parties whose actions plaintiff contends should have been foreseen by defendant’s employees. Plaintiff has also attempted to convince us that it is arguable whether or not such an injury as sustained by plaintiff in the manner claimed by plaintiff could be considered a normal incidence of skating.

On the other hand, defendant argues that the manner of injury as it occurred to plaintiff (either tripping over her son who was skating at the time, or being bumped by other skaters in the area) should be considered a normal incident of roller-skating. Defendant relies upon Berman v. Radnor Rolls Inc., 374 Pa. Super. 118, 542 A.2d 525 (1988). In support of its position that the owner of a roller-skating rink has no duty to protect roller skaters against the general and typical risks associated with rollerskating, including falling down on one’s own or being bumped by other skaters. In defendant’s brief in support of the motion for summary judgment, defendant points out that in Berman, supra, the court affirmatively stated that the initial loss of balance on the part of an injured skater, upon being bumped or jostled by another skater, was “a common enough occurrence on the skating rink, and is a risk any skater may be said to be aware of when taking the floor.” Id. at 141, 542 A.2d at 536.

Guided by the previously cited principles regarding the propriety of granting a motion for summary judgment, and having considered the contradictory averments and inferences submitted by the plaintiff and defendant in their respective pleadings, documents and affidavits, we must conclude that there are general issues of material fact existing between the parties.

Accordingly, we enter the following

ORDER

It is hereby ordered, adjudged and decreed that the motion for summary judgment of defendant, West Side Skate Club Inc., is denied.

      . Although Berman, supra, is a personal injury case involving a roller-skating accident, it presents a factual scenario markedly different from the matter sub judice. Moreover, our review of Berman leads us to conclude that summary judgment is inappropriate.

      . Defendant has alerted the court to footnote 2 at page 139, 542 A.2d at 535 of Berman, supra, which states in part:
      “Whether there is sufficient evidence to enable a jury reasonably to conclude that the risk that produced the injury was a normal incident of skating ... is a question of law . . . [for the court].” (Words in brackets added by defendant.)
      In oral argument plaintiff made reference to this same footnote in Berman, supra, but placed emphasis on the inference appearing two paragraphs later. The court continued by noting:
      “But it is equally likely that there would be a case where the evidence was such that a jury could equally reasonably conclude that the risk that produced the injury either was a normal incident or was not. In such a case, where the facts are not similar enough to those present in any decided case so as to make the resolution clear as a matter of law, the issue is for the jury pursuant to an adequate charge on the legal standard that will guide its decision.”
      It is certainly arguable whether or not the present case falls within the former or latter standard.


author: LUDGATE, J.,

text:
    Commonwealth v. Prep

      Jeanne R. Boyer, assistant district attorney, for the Commonwealth.

      Michael F. Flannery, for defendant.
    October 25, 1990
   LUDGATE, J.,

This matter is now before the court on defendant’s motion for dismissal of charges on double jeopardy grounds. Counsel has stipulated that the court render its decision based on stipulated facts in addition to the testimony offered by Officer Steven M. Chieffo.

FINDINGS OF FACT

(1) Victor M. Prep is an adult individual charged with driving under the influence of alcohol, 75 Pa.C.S. §3731(a)(l) and (a)(4).

(2) On March 17, 1990, Victor M. Prep was stopped by Patrolman Steven Chieffo of the Oley Township Police Department, after the patrolman observed defendant driving in an erratic manner and crossing over the center line.

(3) After submitting to various tests, defendant was released from custody on March 17, 1990.

(4) On March 19, 1990, Patrolman Chieffo issued the following citations to defendant: citation no. A268685, driving on roadways laned for traffic, 75 Pa.C.S. §3309; and citation no. A268686, reckless driving, 75 Pa.C.S. §3714.

(5) On March 27, 1990, defendant pled guilty to both of the aforementioned citations and paid the prescribed statutory fines and costs connected therewith.

(6) On March 20, 1990, Officer Chieffo filed a complaint before District Justice Wagonseller, charging defendant with driving under the influence of alcohol, 75 Pa.C.S. §3731(a)(l) and (a)(4).

CONCLUSION OF LAW

The prosecution of defendant for driving under the influence of alcohol is barred by the double jeopardy clause.

DISCUSSION

Defendant argues that after having pled guilty to the summary offenses of driving on roadways laned for traffic, 75 Pa.C.S. §3309; and reckless driving, 75 Pa.C.S. §3714, the present prosecution under the driving under the influence statute, 75 Pa.C.S. §3731(a)(l) and (a)(4), is barred by the double jeopardy clause and by the principles set forth by the United States Supreme Court in Grady v. Corbin, 495 U.S_, 109 L.Ed. 2d 548 (1990). We agree.

The U.S. Supreme Court, in Grady v. Corbin, held that “the double jeopardy clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 109 L.Ed. 2d at 557. In the instant case, defendant pled guilty on March 27, 1990, to reckless driving and to driving on roadways laned for traffic. He has, therefore, been prosecuted on these charges.

In a driving under the influence of alcohol prosecution, the essential elements which the Commonwealth must prove are that the defendant did drive or operate his motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving, in violation of section 3731(a)(1) of the Vehicle Code, or that the defendant did drive or operate his motor vehicle while the amount of alcohol by weight in his blood was 0.10 percent or greater, in violation of section 3731(a)(4). Therefore, the Commonwealth must prove that defendant drove his motor vehicle while under the influence of alcohol to a degree which would render him incapable of safe driving, or while the amount of alcohol in his blood was greater than 0.10 percent.

In Grady, the Supreme Court relied upon a fact that the prosecutor had filed a bill of particulars which stated that it would prove the entirety of the conduct for which Corbin was convicted, that is, driving while intoxicated and failing to keep right of the median, to establish the essential elements of the homicide and assault charges, which were involved in that case. In the instant case, the probable cause which was issued states that the officer observed defendant’s vehicle “being driven in an erratic manner, not being able to stay within his lane of travel and crossing over the center yellow line.” The conduct which the Commonwealth will use to prove defendant’s inability to operate his motor vehicle safely, is the conduct that he was driving his motor vehicle in a reckless manner and failed to stay in his lane. That fact that no bill of particulars was filed in the instant case does not effect the application of the test adopted in Grady v. Corbin, as the Supreme Court stated in a footnote “[application of the test we adopt today, will not depend as Justice Scalia’s dissent argues, on whether the indictment ‘happens to show that the same evidence is at issue’ or whether the jurisdiction ‘happen[s] to require the prosecution to submit a bill of particulars that cannot be exceeded.’ ” Grady, supra, 109 L.Ed. 2d at 265, n.14.

The double jeopardy clause of the declaration of rights of the Pennsylvania Constitution states that “no person shall for the same offense, be twice put in jeopardy of life and limb. . .” Pa. Constitution, Art. I, section 10. The double jeopardy clause of the Fifth Amendment of the United States Constitution states that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Constitution, Amendment V. The double jeopardy clause of the Fifth Amendment of the United States Constitution is enforceable against the states through the 14th Amendment. Benton v. Maryland, 396 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed. 2d 707 (1969). The Superior Court held in Commonwealth v. Simons, 342 Pa. Super. 281, 492 A.2d 1119 (1985), that “the double jeopardy protections afforded by the federal and state constitutions generally are said to be coextensive . . . and our state court adopts the approach of the United States Supreme Court in double jeopardy cases.” Simons, supra, citing Commonwealth v. Beaver, 317 Pa. 88, 463 A.2d 1097 (1983). (other citations omitted)

To prove either the section 3731(a)(1) or the section 3731(a)(4) count, the Commonwealth in its prosecution will prove conduct for which the defendant has been previously prosecuted and therefore, place defendant again in jeopardy for conduct for which has already been prosecuted.

For the above-mentioned reasons, we will grant defendant’s motion to dismiss on double jeopardy grounds.

ORDER

And now, October 25, 1990, upon consideration of the testimony, record and memoranda and argument of counsel, this court orders and decrees that defendant’s motion to dismiss the complaint on double jeopardy grounds is hereby granted.


text:
    Commonwealth v. Butt

      Jeanne R. Boyer, assistant district attorney, for the Commonwealth.

      Lawrence H. Hracho, for defendant.
    October 25, 1990
   LUDGATE, J.,

This matter is before the court on defendant’s omnibus pretrial motion. A preliminary hearing was held before District Justice Wallace W. Wagonseller on May 21, 1990. At that time defendant was bound over for court on the charge of driving under the influence of alcohol, in violation of 75 Pa.C.S. 3731(a)(1) and (a)(4), and the summary speeding offense was dismissed after hearing held.

This matter is before the court on defendant’s omnibus pretrial motion where defendant seeks suppression of evidence, a writ of habeas corpus and the dismissal of charges on double jeopardy grounds.

FINDINGS OF FACT

(1) On April 3, 1990, at 5:43 p.m., Officer Roger Hines of the Topton-Maxatawny-Lyons Police Department was on duty in the Borough of Topton, Berks County, Pennsylvania.

(2) The officer clocked defendant, Timothy Dwayne Butt, at a speed exceeding the posted speed limit.

(3) The officer pursued the vehicle until the vehicle stopped.

(4) The officer asked defendant to perform field sobriety tests, which tests defendant failed. Defendant was taken to Lehigh Valley Hospital Center where he submitted to a blood alcohol content test.

(5) The officer issued defendant citation no. PI 1746, charging defendant with the violation of maximum speed limits under section 3362(a)(1) of the Vehicle Code.

(6) District Justice Wallace W. Wagonseller dismissed the charge after testimony taken and hearing held. (N.T. 30.)

CONCLUSION OF LAW

The prosecution of defendant for driving under the influence is barred by the double jeopardy clause.

DISCUSSION

Defendant argues that after being charged and having a summary trial on the summary offense of exceeding the speed limit, section 3362(a)(1) of the Vehicle Code, the present prosecution under 75 Pa.C.S. §3731(a)(l) and (a)(4) for driving under the influence of alcohol is barred by the double jeopardy clause and by the principles set forth by the United States Supreme Court in Grady v. Corbin, 495 U.S. _, 109 L.Ed.2d 548 (1990). We agree.

The U.S. Supreme Court, in Grady v. Corbin, held that “the double jeopardy clause bars a subsequent prosecution if, to establish an element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 109 L.Ed.2d at 557. In the instant case, the charge of speeding was dismissed by the district justice at the preliminary hearing, which was held on May 21, 1990. The Pennsylvania Superior Court has held that after testimony is taken at a summary trial, the defendant has been placed in jeopardy. “Having once been placed on trial in a court having jurisdiction to determine guilt or innocence and the charge having been dismissed, appellant could not thereafter be again placed on trial for the same offense.” Commonwealth v. Lyons, 395 Pa. Super. 184, 576 A.2d 1105 (1990). Defendant, therefore, had been placed in jeopardy at a summary trial before a court having jurisdiction to dispose of the summary offense and thus jeopardy had attached.

In a driving under the influence of alcohol prosecution, the essential elements that the Commonwealth must prove are that the defendant did drive or operate his motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving, in violation of 75 Pa.C.S. §3731(a)(l); or that the defendant did drive or operate his motor vehicle while the amount of alcohol by weight in his blood was 0.10 percent or greater, in violation of section 75 Pa.C.S. §3731(a)(4). Therefore, the Commonwealth must prove that defendant drove his motor vehicle under the influence of alcohol to a degree which would render him incapable of safe driving or while the amount of alcohol in his blood was 0.10 percent or greater.

In Grady, the Supreme Court relied on the fact that the prosecutor had filed a bill of particulars which stated that it would prove the entirety of the conduct for which Corbin was prosecuted, that being driving under the influence of alcohol and failing to keep right of the median, to establish the essential elements of the homicide and assault charges which were involved in that case. In the instant case defendant was stopped for speeding after being clocked by the Vascar unit; the probable cause affidavit states that “affiant did clock á tan Chevrolet at 54.3 mph in a 35-mph zone.” The conduct which the Commonwealth will use to prove defendant’s inability to operate his motor vehicle safely and to justify the request for the blood alcohol content test, is that defendant drove his motor vehicle in excess of the posted speed limit, conduct for which defendant has been previously prosecuted, as District Justice Wagonseller dismissed the charge after a hearing was held.

To prove either a section 3731(a)(1) or a section 3731(a)(4) charge, the Commonwealth, in its prosecution, will prove conduct for which defendant has been previously prosecuted and place defendant twice in jeopardy for the same conduct.

For the above-mentioned reasons, we will grant defendant’s motion to dismiss on the basis of double jeopardy and the remainder of defendant’s omnibus pretrial motion becomes moot.

ORDER

And now, October 25, 1990, upon consideration of the record, hearing held, memoranda and argument of counsel, this court orders and decrees that defendant’s motion to dismiss the complaint on double jeopardy grounds is hereby granted.


text:
    Commonwealth v. Eddinger

      Jeanne R. Boyer, assistant district attorney, for the Commonwealth.

      H. Charles Markofski, for defendant.
    October 24, 1990
   LUDGATE, J.,

This matter is now before the court on defendant’s motion to dismiss. Counsel has stipulated that the court render its decision based upon the preliminary hearing transcript and arguments made on September 7, 1990. By the same stipulation, no testimony was taken.

FINDINGS OF FACT

(1) On or about January 20, 1990, Officer Michael Hanson, of the Amity Township Police Department, was on duty on Route 662 in Amity Township, Berks County, Pennsylvania, when he stopped defendant’s motor vehicle, suspecting that he was driving under the influence of alcohol in violation of sections 3731(a)(1) and 3731(a)(4) of the Motor Vehicle Code.

(2) On January 23, 1990, Officer Hanson requested that a summons be issued for the defendant’s arrest for driving under the influence of alcohol under sections 3731(a)(1) and 3731(a)(4) of the Motor Vehicle Code, before District Justice Susanne R. Walley.

(3) On January 22, 1990, Officer Hanson filed citation no. P245777, charging defendant with reckless driving in connection with the incident which occurred on January 20, 1990. Defendant pled guilty to the charge of reckless driving and was sentenced on February 2, 1990, by District Justice Susanne R. Walley and paid a fine in the amount of $65.

(4) Defendant appealed the conviction and was convicted in absentia by the Honorable Thomas J. Eshelman and the sentence upheld.

CONCLUSION OF LAW

The prosecution of defendant for driving under the influence of alcohol is barred by the double jeopardy clause.

DISCUSSION

Defendant argues that after having pled guilty to the summary offense of reckless driving, in violation of 75 Pa.C.S. §3714, the present prosecution under the driving under the influence of alcohol statute, 75 Pa.C.S. §3731(a)(l) and (a)(4), is barred by the double jeopardy clause and by the principles set forth by the United States Supreme Court in Grady v. Corbin, 495 U.S. _, 109 L.Ed.2d 558 (1990). We agree.

The U.S. Supreme Court, in Grady v. Corbin, held that “the double jeopardy clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 109 L.Ed.2d at 557. In the instant case, defendant pled guilty to a summary offense of reckless driving and later appealed his guilty plea and was again convicted on May 18, 1990 by the Honorable Thomas J. Eshelman.

The threshold question is whether jeopardy had attached at the preliminary hearing. The Pennsylvania Superior Court in Commonwealth v. Lyons, 395 Pa. Super. 184, 576 A.2d 1105 (1990), held that in considering a summary offense having “once been placed on trial in a court having jurisdiction to determine guilt or innocence and the charge having been dismissed, appellant could not thereafter be again placed on trial for the same offense.” In Lyons, the court based its decision upon the fact that the. charges were dismissed by the district justice after testimony had been presented, thereafter the defendant was charged with the same offense. In the instant case, testimony has been presented on the reckless driving charge at the preliminary hearing held on March 13, 1990. Defendant has therefore been prosecuted on these charges, as jeopardy attaches after testimony has been taken before a court with jurisdiction to determine guilt or innocence.

In a driving under the influence prosecution, the essential elements which the Commonwealth must prove are that the defendant did drive or operate his motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving, in violation of section 3731(a)(1) of the Vehicle Code, or that the defendant did drive or operate his motor vehicle while the amount of alcohol by weight in his blood was 0.10 percent or greater, in violation of section 3731(a)(4) of the Vehicle Code. Therefore, the Commonwealth must prove that defendant drove his motor vehicle while under the influence of alcohol to a degree which would render him incapable of safe driving, or while the amount of alcohol in his blood was greater than 0.10 percent.

In Grady, the Supreme Court relied upon the fact that the prosecutor had filed a bill of particulars which stated that it would prove the entirety of the conduct for which Corbin was convicted, that is, driving while intoxicated and failing to keep right of the median, to establish the essential elements of the homicide and assault charges which were involved in that case. In the instant case, the probable cause which was issued states that “the officer saw the defendant’s vehicle fishtailing on Route 622 at the entrance to Redner’s. . . . Defendant was transported to St. Joseph’s Hospital for a legal blood alcohol test. Test results were 0.189 percent.” The conduct which the Commonwealth will use to prove the defendant’s inability to operate his motor vehicle safely, therefore, is the conduct that the officer observed the defendant’s vehicle fishtailing, which resulted in his summary conviction for reckless driving. For either the section 3731(a)(1) or 3731(a)(4) count, the Commonwealth in this prosecution will prove conduct for which defendant has been previously prosecuted and therefore, place defendant again in jeopardy for conduct which has already been prosecuted.

The Commonwealth relies upon the recent Pennsylvania Superior Court opinion in Commonwealth v. Labelle, 397 Pa. Super. 179, 579 A.2d 1315 (1990). In Labelle, the Superior Court vacated and remanded a trial court’s order quashing, on double jeopardy grounds, an information charging defendant with driving under the influence. Defendant pled guilty to the summary offenses of driving vehicle at unsafe speed and reckless driving, and on May 11, 1987, defendant moved to dismiss the driving under the influence complaint on double jeopardy grounds, which motion was granted.

The Superior Court held that “the double jeopardy clause may bar prosecution of the driving under the influence charge, depending upon what conduct, on the part of the appellee, formed the basis of his summary convictions.” Labette, supra.

However, the Superior Court chose to vacate the order dismissing the complaint and to remand the case back to the trial court. In doing so, the Superior Court raised more questions than answers. The court stated that “because appellee entered pleas of guilty to the summary offenses, the record does not disclose the nature of the conduct upon which the Commonwealth would have relied to prove the charges against appellee. Unlike . . . Grady ... in which the actions upon which the state intended to base the subsequent prosecution were revealed in terms specific enough to enable the court to determine that respondent had already been prosecuted for the same conduct.” Labette, supra.

Thjs was the court’s holding, despite similarity between the two cases. Both cases involved tragic accidents and charges which were complicated by the disposition citations which were issued. In both cases, the defendant pled guilty to the summary offenses. In Grady, the prosecutor filed a bill of particulars which indicated that the conduct the state would rely to convict the defendant of homicide by vehicle was the failure to drive to the right of the median and driving under the influence. The United States Supreme Court stated in a footnote that “[application of the test we adopt today will not depend, as Justice Scalia’s dissent argues, on whether the indictment ‘happens to show that the same evidence is at issue’ or whether the jurisdiction ‘happen[s] to require the prosecution to submit a bill of particulars that cannot be exceeded.’ ” Grady, supra, 109 L.Ed.2d at 565, n.14.

The Commonwealth’s reliance on the Labelle case is misplaced, as Grady was not briefed for the Labelle court’s consideration, and the Superior Court remanded the case back to the trial court for further proceedings, with no decision made resolving the double jeopardy issue.

For the above-mentioned reasons we will grant defendant’s motion to dismiss on double jeopardy grounds.

ORDER

And now, October 24, 1990, upon consideration of the record, memoranda and argument of counsel, this court orders and decrees that defendant’s motion to dismiss the complaint is hereby granted.


author: SOKOLOVE, J.,

text:
    In re Cooper Interments

      John T. Kehner, for petitioner.

      Frank B. Tracey, for Cooper family.

      Sheldon N. Sandler, for Scheinfield-Schmuckler family.
    October 31, 1990
   SOKOLOVE, J.,

Classical Optical Laboratories Inc., an Ohio corporation which owns, maintains and operates Roosevelt Memorial Park Cemetery, filed exceptions to our adjudication of October 25, 1988. In that adjudication, we entered a decree nisi which denied the petition of the exceptant to disinter the cremated remains of two individuals, which mistakenly had been buried in the wrong lots in the cemetery, and to reinter the remains in the correct lots. Instead, we decreed that the remains were to be left in place and that two unused burial sites owned by the decedents’ family, the Cooper family, were to be transferred to the owners of the incorrectly occupied sites, the Scheinfield-Schmuckler family.

We based our decision upon the scant Pennsylvania law in this area and our sincere endeavor to achieve a fair and equitable solution. We concluded that the law, which was somewhat dated and not precisely on point, required a showing of reasonable cause for reinterment to overcome the general presumption against removal of a previously buried body. See Pettigrew v, Pettigrew, 207 Pa. 313, 56 Atl. 878 (1907); Novelli v. Carroll, 278 Pa. Super. 141, 420 A.2d 469 (1980). The case had been presented to us on brief, stipulated facts, which we found were not sufficient to prove reasonable cause for the disturbance of the remains. In particular, we were struck by the lack of any reason by the cemetery or the Scheinfield-Schmuckler family as to why alternative solutions proposed by the Cooper family, including the transfer of plots we ultimately ordered, were unacceptable to them. We also refused to apply the provisions of the Cemetery Companies-Errors in Burials Act, 9 Pa.C.S. §54, imposing a duty upon cemetery companies to disinter and reinter bodies they discover to be buried in the wrong lots, to this case. The act was not effective until September 11, 1987, some two years after the error in this matter was discovered and several months after the filing of the petition here. We found that the act could not be applied retroactively in this instance.

After our receipt of memoranda of law, the presentation of oral argument and our review and reanalysis of our adjudication, we have reconsidered our position. We will enter a final decree granting the petition for reinterment.

Exceptant improperly attempted to supplement the evidentiary record before us by attaching an affidavit of a member of the Scheinfield-Schmuckler family, Susan Scheinfield Sandler, to its brief in support of its exceptions. This action was totally inappropriate, and we wish to emphasize that we have disregarded this new “evidence,” and it and the arguments relying upon it have had no impact upon the modification of our decision. If exceptant, upon realizing that the stipulated record was incomplete, wished to introduce further evidence, it should have filed a petition for rehearing. Even apart from the procedural impropriety, an affidavit is not admissible evidence. The witness whose affidavit was offered was not available for cross-examination. Worse yet, the affidavit presented contains blanket expressions of opinion and of others’ intentions, all without foundation, as well as irrelevant assertions of the effect of this litigation and our adjudication upon the Scheinfield-Schmuckler family. This type of material is unquestionably inadmissible even if proffered in conformity with our rules of procedure and evidence. We do not appreciate such an unauthorized tactic and are not persuaded by it. We also note that exceptant cannot successfully dispute, by way of exceptions to our adjudication, facts to which it clearly stipulated in the record.

In determining the exceptions, we have, however, taken into account a plot plan of the disputed burial sites, which all parties agree was inadvertently omitted from the record and was intended to be an exhibit to the stipulation of the facts. The plot plan indicates that the exchange of lots we directed in the decree nisi would physically separate the lots owned by the Scheinfield-Schmuckler family from each other. This inference is not dispositive by any means, but it does vary our opinion of the equities in this matter and supports our final conclusion. Without the plot plan, we thought that the boundary lines of the lots could be redrawn, as in Tracz v. Blasic, 39 D.&C. 2d 573 (1963), without necessarily creating non-contiguous lots in single ownership.

Our definitive resolution stems from reflection on the Cemetery Companies-Errors in Burials Act, 9 Pa.C.S. §53 et seq., and its impact upon this case. The pertinent section of the act states as follows:

“§54. Duty to disinter and reinter

“In any instance in which a cemetery company is informed or becomes aware that the cemetery company has buried or permitted the burial of a body in the wrong lot, it shall be the duty of the cemetery company to disinter the casket wrongfully buried, identify the casket and reinter it in the proper lot. The cemetery company shall give adequate advance notice of the time or times of the disinterment and reinter it in the proper lot. The cemetery company shall give adequate advance notice of the time or times of the disinterment and reinterment to the nearest known next of kin of the deceased person and the owner or owners of the lot involved if such owner or owners have so requested.” 9 Pa.C.S. §54.

We believe we ruled correctly in not imposing the requirements of the act upon this case retroactively. We also believe that our analysis of the traditional principles of equity in this case, with the exception of the missing plot plan, was correct. Yet, upon reconsideration, we conclude that the Cemetery Companies-Errors in Burials Act is an enunciation of public policy by the legislature, which in the particular circumstances of this case overrides the longstanding equitable and judicial prescripts upon which we relied. We render our final decree in recognition of this policy and in deference to the authority of the legislature to promulgate it.

FINAL DECREE

And now, October 31, 1990, upon consideration of the petition of Classical Optical Laboratories, it is hereby ordered and decreed that the petitioner is authorized, at its own expense, to remove the cremated remains of Nathaniel Cooper and Roslyn Cooper from Lot 9, Section H of the Roosevelt Memorial Park, which is owned by the Scheinfield-Schmuckler family, and to reinter the remains in burial sites owned by the Cooper family in Lot 8, Section H of Roosevelt Memorial Park. All interested parties shall be notified of the time or times of disinterment and reinterment.


author: GOODHEART, J.,

text:
    Blair v. Travelers Insurance Co.

      Patricia Hoben, for plaintiff.

      Thomas Kelly, for defendant.
    October 3, 1990
   GOODHEART, J.,

This matter has been submitted to this court to be decided on briefs alone, certain facts having been stipulated by the parties. The sole question to be answered is whether plaintiff, Robert Blair Jr., is entitled to uninsured motorist benefits through the Pennsylvania Financial Responsibility Assigned Claims Plan under the Motor Vehicle Financial Responsibility Law for injuries sustained in an accident which occurred on November 22, 1986. For the reasons stated below, we find that he does not qualify under the act.

Factual Background

The facts as stipulated are as follows. On November 20, 1986, at approximately 7 p.m., plaintiff was injured in a motor vehicle accident on the Schuylkill Expressway in Philadelphia, Pennsylvania. According to his deposition testimony, plaintiff was standing in front of the car in which he had been a passenger, and was looking at the engine in an effort 'to determine the cause of the car trouble he and the driver of the car had been experiencing. Although the details of the accident are not clear, it is agreed that a second unidentified car hit plaintiff and/or the car by which he was standing thereby causing plaintiff serious injuries from which he has not yet fully recovered.

The hit-and-run driver was never identified. The car in which plaintiff had been a passenger was a 1983 Chevrolet Camaro registered to Ajadre Williams and/or Ronnie Williams in either South Carolina or Georgia; it was not registered in Pennsylvania. After reasonable investigation by all parties, no insurance coverage for the Camaro was discovered. The parties have stipulated that the vehicle was uninsured.

On the date of the accident plaintiff was the owner of an unregistered and uninsured 1978 Plymouth Sapporo which had been titled in Pennsylvania. Plaintiff alleges that the motor vehicle was inoperable and that is why he let the registration lapse on July 31, 1986. Plaintiff was, at all times relevant hereto, a resident of Pennsylvania.

On February 6, 1987, plaintiff applied for benefits from the plan. The plan assigned plaintiff’s application for benefits to Travelers Insurance Company for the purpose of investigating and evaluating plaintiff’s claims. By letter dated April 22, 1987, Travelers denied plaintiff’s application for benefits on the ground that he owned a motor vehicle at the time of the accident. Travelers offered to reopen the file if plaintiff could establish, either through a junk title or a bill of sale, that he had disposed of the car prior to the accident.

The Assigned Claims Plan

The Pennsylvania Financial Responsibility Assigned Claims Plan is an insurers’ organization which administers limited statutory benefits to certain eligible claimants pursuant to Subchapter E of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1751 et seq. The purpose of the plan was to provide some limited insurance coverage for those victims of motor vehicle accidents who would otherwise have no coverage at all, such as pedestrians hit by a car or passengers in uninsured vehicles who are persons not required to have their own insurance, such as those who do not have cars.

The requirements for eligibility under this sub-chapter are enumerated in 75 Pa.C.S. §1752. Failure to meet any one requirement renders a claimant ineligible for benefits under the plan. Section 1752(a)(3) states, in part:

“§1752. Eligible Claimants

“(a) General rule — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:

“(3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).”

This requirement parallels the eligibility requirements for first-party benefits under subchapter A of the act. Specifically, section 1714 excludes an owner of a currently registered vehicle who does not have his own insurance from collecting benefits. This exclusion is “designed to reduce the number of uninsured motorists consuming the benefits of liability insurance without contributing toward their expense,” and is “premised on a belief that the expense of automobile liability insurance to the premium paying public would be reduced and be more fairly distributed.” Kresge v. Keystone Insurance Company, 389 Pa. Super. 548, 567 A.2d 739 (1989).

Cases decided under section 1714 have repeatedly held that whether a car is “operable” or “inoperable” is irrelevant. The statute is unambiguous. To allow for an “inoperability” exception would be to create grounds for litigation on that issue alone in every case as well as to provide a limitless opportunity for fraud. See Kresge, supra, cf. Allen v. Erie Insurance Co., 369 Pa. Super. 6, 534 A.2d 839 (1987). The exclusion of section 1752 is even broader than that of section 1714. Whereas section 1714 excludes owners of currently registered vehicles, section 1752 excludes owners of vehicles which are required to be registered. Hence one cannot become eligible for benefits under the plan merely by allowing one’s automobile registrations to lapse. For the reasons discussed with regard to section 1714, we find no basis for creating an “inoperability” exception in contradiction of the clear language of the statute.

Discussion

Plaintiff has stipulated that he owned a motor vehicle on the date of the accident at issue here. We find that his vehicle was of the type required to be registered under Chapter 13, relating to the registration of vehicles. We decline to hold an evidentiary hearing on whether his vehicle was operable or not as such a determination is irrelevant under the act. We also find that Travelers acted responsibly in giving plaintiff time in which he could establish that his car had been either transferred or junked. In light of the clear language of the statute we hold that plaintiff is ineligible for benefits under the plan.

Although other issues have been raised by the parties, such as whether plaintiff was a “passenger” at the time of the accident because he was outside of the car, and what the impact of the out-of-state registration of the Camaro has on eligibility under the act, these need not be reached. All the requirements of section 1752 must be met in order to create eligibility under the plan. Since plaintiff clearly does not meet the requirement set forth in section 1752(a)(3), he cannot qualify for any benefits under the plan.

CONCLUSION

For the reasons stated above, we find that plaintiff, Robert Blair Jr., does not qualify for any benefits under the Assigned Claims Plan of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1751 et seq.