author: DEMCHICK-ALLOY, J.,

text:
    Supplementmarket.com, Inc. v. Google, Inc.

      C.P. of Montgomery County,
    no. 09-43056.

      Domenic Tricorne, for appellant.

      Amy B. Ginensky, for appellees.
    July 26, 2010
   DEMCHICK-ALLOY, J.,

— Plaintiff appeals from this court’s order filed July 13, 2010, granting defendant’s preliminary objection and dismissing plaintiff’s complaint with prejudice.

FACTS

Plaintiff commenced the instant lawsuit by filing a complaint in which it sought to recover damages from defendant, Google, Inc. (“Google”). Paragraphs eight and eleven, and exhibit “E” attached to plaintiff’s complaint, admit that Google runs a web site and an internet search engine. The complaint alleges that plaintiff incurred damages because Google failed to delete, upon plaintiff’s demand, allegedly libelous statements “on the defendant’s web site.” (See complaint, ¶8.) Exhibits “B” and “E” attached to plaintiff’s complaint show that the statements on Google’s web site were originally posted on the Usenet discussion group “alt.sport.bodybuilding.”

Google filed preliminary objections in the nature of a demurrer and a motion to strike the complaint based on section 509 of the “Communications Decency Act,” which is indexed at 47 U.S.C. § 230. Defendant argued that the act rendered it immune from claims based upon publication of information or refusal to remove information from its web site. This court agreed, sustained the preliminary objections and dismissed the complaint with prejudice. The instant appeal followed.

DISCUSSION

Subsection (c)(1) of the Communications Decency Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Subsection (1)(3) of the act defines “information content provider” as “any person or entity that is responsible...for the creation or development of information provided through the internet....” 47 U.S.C. § 230(1)(3). Because plaintiff’s complaint pleads that the allegedly libelous statements that form the basis of the complaint are “on the defendant’s web site,” the undisputed facts of record support the conclusion that Google is an “information content provider” as that term is defined in the act, and as such, may not be treated as the publisher of information provided by another. Exhibits “B” and “E” attached to plaintiff’s complaint show that the statements of which plaintiff complains were originally posted on the Usenet discussion group “alt.sport.bodybuilding” before being archived on Google’s web site. Therefore, the exhibits attached to plaintiff’s complaint support the conclusion that the statements that form the basis of plaintiff’s complaint are “information provided by another information content provide” under subsection (c)(1) of the act.

Having established that Google’s conduct is protected by the act, one must inquire whether the act preempts plaintiff’s claim insofar as it may be cognizable under Pennsylvania law.

[FJederal law is paramount. More specifically, Article VI, cl. 2, of the United States Constitution, the Supremacy Clause, provides that the laws of the United States “shall be the supreme Law of the Land;... any thing in the constitution or laws of any State to the contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Thus, according to the United States Supreme Court, laws that are in conflict with federal law are “without effect.” Altria Group, Inc. v. Stephanie Good, — U.S. —, 129 S.Ct. 538, 543, 172 L.Ed.2d 398, — (2008) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)).
In determining the breadth of a federal statute’s preemptive effect on state law, we are guided by the tenet that “the purpose of congress is the ultimate touchstone in every pre-emption case.” Wyeth v. Levine, — U.S. —, —, 129 S.Ct. 1187, 1194, 173 L.Ed.2d 51 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). Congress may demonstrate its intention in various ways. It may do so through express language in the statute (express preemption). Yet, even if a federal law contains an express preemption clause, the inquiry continues as to the substance and the scope of congress’ displacement of the state law. Altria Group, Inc., 129 S.Ct. at 543.

Dooner v. DiDonato, 601 Pa. 209, 218-219, 971 A.2d 1187, 1193 (2009).

Subsection (e)(3) of the act states, “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. §230(e)(3). Assuming that the Constitution of the United States gives Congress the power to enact subsection (c)(1) as a regulation of interstate commerce, subsection (e)(3) expressly preempts state law insofar as plaintiff could maintain any cause of action against Google based upon Google’s role as a publisher or speaker of information. Plaintiff’s complaint is based solely upon such a cause of action, hence it fails to state a cognizable claim as a matter of law.

CONCLUSION

Upon consideration of the foregoing discussion, the undersigned respectfully submits that the order filed July 13, 2010 should be affirmed.

COMPLAINT

Supplementmarket.com, Inc., hereinafter referred to as “plaintiff,” for its complaint against the defendant, Google Inc., hereinafter referred to as “defendant,” hereby states the following information and belief:

1. Plaintiff seeks recovery in fraud, negligence, gross negligence, libel and defamation, harassment and negligent infliction of emotional distress.

2. Pursuant to 13 Pa. Cons. Stat. § 2301, plaintiff brings this lawsuit to recover losses, costs, and attorneys’ fees he has incurred and will continue to incur as a result of the defendant’s actions, as set forth herein.

PARTIES

3. Plaintiff is a corporation in Pennsylvania with a corporate address of 649 South Henderson Road, Suite A508B, King of Prussia, Pennsylvania 19406-3568.

4. Defendant is a corporation in California with a business address of 1600 Amphitheatre Parkway, Mountain View, CA 94043-1351.

VENUE

5. Venue is proper in this judicial county because a substantial part of the events or omissions giving rise to the cause of action occurred in Montgomery County, Pennsylvania.

6. Plaintiff’s owner is severely disabled. Defendant’s actions are very negatively impacting.

7. In considering a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the court must generally accept as true the allegations in the complaint, unless contradicted by defendant. Holiday v. Bally’s Park Place, Inc., 2007 U.S. Dist. LEXIS 66554, 2007 WL 2600877, at *1 (E.D. Pa. Sept. 10, 2007). “The court may examine facts outside the complaint to determine proper venue, but must draw all reasonable inferences and resolve all factual conflicts in the plaintiff’s favor.” Fellner v. Philadelphia Toboggan Coasters, Inc., 2005 U.S. Dist. LEXIS 23839,2005 WL 2660351, at *1 (E.D. Pa. Oct. 18, 2005); accord Heft v. AAI Corp., 355 F.Supp.2d 757, 762 (M.D. Pa. 2005) (“whatever the nature of the parties’ submissions, the court is bound to view the facts in the light most favorable to the plaintiff.”). As plaintiff’s owner is essentially homebound due to his disability, all of plaintiff’s owner’s contact and communications with defendants occurred in plaintiff’s owner’s home in Pennsylvania.

FACTS

8. The plaintiff noticed libel of the plaintiff on the defendant’s web site. The plaintiff contacted the defendant by fax to remove the libel. Please see Exhibit B. The plaintiff also called the defendant to remove the libel. Please see Exhibit C. The plaintiff also used the defendant’s web mail to tell the defendant to remove the libel. The defendant did not remove the libel. The plaintiff thought that the defendant had removed it, because the defendant is one of the biggest and most recognizable companies in the world. One would think that they would be responsible and ethical, and do the legally right thing.

The plaintiff feels compelled to give an example of the type of work they do. Exhibit D gives an example. The plaintiff’s owner, Domenic Tricorne, is mentioned.

The famous precedent is Cohen v. Google (the defendant). Once the defendant is notified by the plaintiff, the defendant is required to at least contact the libeler for their side of the story to investigate if the post is libel. After the defendant determines the post is libel, the defendant is required to remove the post, and give the plaintiff the contact information of the libeler.

Please note that situations and events like this one forced the plaintiff’s owner to eventually sell the company at a very low price in July 2008. This situation with the defendant helped cause an incredible amount of pressure on the plaintiff’s staff and owner. Running a business can be hard enough without having to deal with the defendant’s negligence.

9. The plaintiff contacted the defendant again for a last final warning, before filing this lawsuit. Please see Exhibit E.

10. The defendant knows very well given the very public, precedent setting case, Cohen v. Google (2,050,000 hits on the defendant’s web site search), their responsibility in matters of libel. The defendant’s business has been affected by the laws written arguably for and by them concerning the internet. The defendant is by far the biggest company in this industry. They are a phenomenon. They are in the forefront of many things on the internet including litigation that is in the press almost weekly if not daily. The defendant knows exactly what is going on.

The defendant’s behavior is negligent. They must be required to act in a responsible way, and not force victims to sue. Most people can’t afford to sue, and/or do not know how to sue, which includes being scared of the process.

During or after interrogatories, this case may need to be changed to a class action.

11. Exhibit F shows the defendant’s search engine is a monopoly. By many if not all accounts, the defendant’s shareholders and executives have gotten rich on their return of investment of time and/or money. Most everyone uses the defendant’s web site every day, which means that the defendant makes money due to mostly everyone. So, the defendant should be required to have a system for libel. The system should not be that expensive, so there should be no objection to it.

COUNT I - FRAUD

12. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 11 inclusive as though same were more fully set forth herein at length.

13. The defendant uses the Communications Decency Act fraudulently. Please see Exhibit G.

14. Due to the defendant’s fraudulent actions, the plaintiff has suffered money damages.

Wherefore, plaintiff, supplementmarket.com, Inc., respectfully requests that this court enter judgment in its favor and against defendant, Google, Inc., in an amount of Fifty Thousand Dollars ($50,000), derived from count I with court costs, interest and reasonable attorney fees.

COUNT II - NEGLIGENCE

15. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 14 inclusive as though same were more fully set forth herein at length.

16. The defendant knows that it is liable for the investigation of the libel. The defendant negligently refuses to do such.

17. Due to the defendant’s negligence, the plaintiff has suffered money damages.

Wherefore, plaintiff, supplementmarket.com, Inc., respectfully requests that this court enter judgment in its favor and against defendant, Google, Inc., in an amount of Fifty Thousand Dollars ($50,000), derived from count II with court costs, interest and reasonable attorney fees.

COUNT III - GROSS NEGLIGENCE

18. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 17 inclusive as though same were more fully set forth herein at length.

19. The defendant is grossly negligent by not taking down the posts and giving the plaintiff the contact information of the libelen

20. Due to the defendant’s gross negligence, the plaintiff has suffered money damages.

Wherefore, plaintiff, supplementmarket.com, Inc., respectfully requests that this court enter judgment in its favor and against defendant, Google, Inc., in an amount of Fifty Thousand Dollars ($50,000), derived from count III with court costs, interest and reasonable attorney fees.

COUNT IV - LIBEL AND DEFAMATION

21. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 20 inclusive as though same were more fully set forth herein at length.

22. The defendant’s negligence leads to the libeling and defaming of the plaintiff. The libel has caused financial loss of plaintiff’s business, and has caused damage to the plaintiff’s owner’s personal well being.

23. Due to the defendant’s libel and defamation, the plaintiff has suffered money damages.

24. Wherefore, plaintiff, supplementmarket.com, Inc., respectfully requests that this court enter judgment in its favor and against defendant, Google, Inc., in an amount of Fifty Thousand Dollars ($50,000), derived from count IV with court costs, interest and reasonable attorney fees.

COUNT V - HARASSMENT

25. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 24 inclusive as though same were more fully set forth herein at length.

26. The defendants’ negligence is harassment, and has caused financial loss to the plaintiff, and has caused damage to the plaintiff’s owner’s personal well being.

27. Due to the defendant’s harassment, the plaintiff has suffered money damages.

28. Wherefore, plaintiff, supplementmarket.com, Inc., respectfully requests that this court enter judgment in its favor and against defendant, Google, Inc., in an amount of Fifty Thousand Dollars ($50,000), derived from count V with court costs, interest and reasonable attorney fees.

COUNT VI - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

29. Plaintiff incorporates herein by reference the allegations set forth in paragraphs 1 through 28 inclusive as though same were more fully set forth herein at length.

30. The defendants are negligent by not investigating the libel.

31. The defendants breached said duty not investigating the libel.

32. The defendants actions are the proximate cause of the plaintiff’s owner’s emotional distress.

33. Although not constant, the plaintiff’s owner has suffered severe emotional distress including depression, sleeplessness andparanoiaas direct result of the defendant’s conduct.

Wherefore, plaintiff, supplementmarket.com. Inc., respectfully requests that this court enter judgment in his favor and against defendant, Google, Inc., in an amount of Fifty Thousand Dollars ($50,000), derived from count VI with court costs, interest and reasonable attorney fees.

MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS OF DEFENDANT, GOOGLE INC., TO PLAINTIFF’S COMPLAINT

II. INTRODUCTION

Plaintiff Supplementmarket.com, Inc. seeks to hold Google Inc. liable because Google did not remove third party messages, which plaintiff found objectionable, on a website hosted by Google. Plaintiff does not allege that Google itself, as an entity, uttered any statement regarding plaintiff, libelous or otherwise. As a result, plaintiff’s claims are barred by section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230, which provides that an Internet service provider cannot be subjected to liability for content that others have created simply because such content is accessible through its service. This broad federal immunity requires the dismissal of plaintiff’s complaint with prejudice.

III. STATEMENT OF FACTS

Plaintiff alleges that there is “libel” on a message board archived and hosted by Google, and that Google did not remove this “libel” despite plaintiff’s requests that it do so. The content in question is apparently a message dated May 13, 2007 by a user named “Domineek Treecum” stating “[definitely don’t ever buy from SupplementMarket dot com. Rip off bastards[.]” Plaintiff does not allege that Google itself uttered this statement or any other statement, libelous or otherwise, regarding the plaintiff. Google Exh. A. It does allege that it complained to Google about the postings and in response Google refused to remove them, writing to him the following email:

Thank you for your note. While we’re sympathetic to your request, we’re not able to help in this instance. Google is a provider of information, not a mediator. We make no claims about the content of the many posts in our archive. We suggest addressing your concern directly to the author of the post in question.
We are not equipped to assess the truth or falsity of statements posted to our site by third parties. Instead, such determinations must be made by a court of law or other government entity. Accordingly, it is our policy, consistent with United States federal law (section 230(c) of the Communications Decency Act), not to remove postings that are alleged to be defamatory. If you choose to pursue legal action against this author, we are prepared to abide by any orders involving the postings in question.
In response to your request that we provide contact information of the list owner in relation to your complaint, unfortunately, we are unable to provide any information regarding our users unless we receive a valid third party subpoena or other appropriate legal notice in accordance with U.S. state and federal law.

Compl., Exh. G. Based upon Google’s response and its refusal to remove the postings, plaintiff sued Google.

IV. ARGUMENT

Plaintiff asserts state law tort claims for (1) fraud, (2) negligence, (3) gross negligence, (4) libel and defamation, and (5) harassment. These claims arise out of third party content on an Internet website that plaintiff found objectionable, and for which plaintiff now seeks to hold Google responsible. Since each of these claims attempt to subject Google to liability for the statement of a third party, they are facially barred by the broad federal grant of immunity provided to Internet service providers under the Communications Decency Act. This complaint should therefore be dismissed with prejudice.

A. Congress Has Established A Broad Immunity For Internet Service Providers For Content Created By Third Parties

The United States Congress recognized more than a decade ago that imposing liability on an Internet service provider for publishing third party content would stifle the growth of the Internet. In 1996, congress enacted the CDA largely in response to a decision, Stratton Oakmont v. Prodigy Services, Co., 1995 WL 323710 (N.Y. App. Div. 1995), which found that online service providers could be held liable for the defamatory speech of their users. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009). Section 230(c)(1) of the CDA effectively overruled Stratton Oakmont. Under Section 230(c)(1), “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The statute immunizes Internet websites such as Google “from liability for publishing false or defamatory material so long as the information was provided by another party.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003); see also Barnes, 570 F.3d at 1100-1102; 47 U.S.C. § 230(c)(1). The CDA also provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230 (e)(3).

Section 230(c)(1) reflected Congress’s intent to foster the growth of the Internet and to prevent potential liability from stifling such growth. See 47 U.S.C. § 230(b). Whole categories of websites that we now take for granted and think of as indispensable — search engines such as Google and Yahoo!, discussion boards and chat rooms, comments sections to blogs and articles, and social networking sites such as My Space or Facebook — would have been snuffed out in their infancy if their operators could have been held liable for actionable third party speech appearing on their websites. As the Ninth Circuit has explained:

As a matter of policy, Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others. Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text,...Congress, however, has chosen to treat cyberspace differently.

Batzel v. Smith, 333 F.3d 1018, 1026-1027 (9th Cir. 2003) (internal citation omitted); see also Carafano, 339 F.3d at 1122.

Congress chose to provide Internet websites with broad immunity because of “the volume of materials communicated through such intermediaries, the difficult of separating lawful from unlawful speech, and the relative lack of incentives to protect lawful speech” if normal liability rules applied. Universal Commc’n Sys., Inc. v. Lycos Sys., 478 F.3d 413, 419-420 (1st Cir. 2007). It recognized that, without a grant of broad immunity to Internet websites, the threat of liability would have an “obvious chilling effect” on website operators and would discourage them from permitting third party content. Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997). The sheer volume of third-party content that can appear on a website, coupled with the difficulty (both practical and legal) of distinguishing between tortious and nonactionable speech, plus the lack of economic incentive to protect nonactionable speech, would have led websites to engage in over-censorship if not outright bans on third-party speech in order to avoid liability. Id.

B. Courts Across The Country Have Applied Section 230 To Bar Claims Like The Claims In This Action

Courts have “interpreted section 230 immunity broadly to effectuate Congress’s ‘policy choice...not to deter harmful online speech through the...route of imposing tort liabilities on companies that serve as intermediaries for other parties’ potentially injurious messages.” Universal Commc’n Sys., 478 F.3d at 418 (quoting Zeran, 129 F.3d at 330-331). The broad immunity is interpreted “to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Fair Housing Counsel of San Fernando Valley v. Roomates.com. LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc).

Any claim that seeks to hold Google responsible for content provided by a third party is barred by the CD A. See, e.g., Doe v. Myspace, Inc., 528 F.3d 413, 419 (5th Cir. 2008), cert denied, 129 S. Ct. 600 (2008) (“parties complaining that they were harmed by a Web site’s publication of user-generated content have recourse; they may sue the third-party user who generated the content, but not the interactive computer service that enabled them to publish the content online.”); Green v. Am. Online, 318 F.3d 465, 470-72 (3d Cir. 2003) (affirming dismissal of defamation and tort claims against Internet service provider under § 230 arising out of defamatory statements prepared by third parties); Carafano, 339 F.3d at 470-72 (recognizing that the Ninth Circuit had “joined the consensus developing across other courts of appeals that §23 0(c) provides broad immunity for publishing content provided by third parties.”) (emphasis added); Zeran, 129 F.3d at 330 (“By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third party user of the service.”), (emphasis added)

Furthermore, courts have repeatedly held that, under the CD A, Internet service providers do not owe a duty to police the Internet, remove content, nor otherwise protect users from the speech of third parties. As the court of appeals for the Third Circuit held in Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003), where it unambiguously rejected an attempt to advance such a tort theory against an Internet service provider:

There is no real dispute that Green’s fundamental tort claim is that AOL was negligent in promulgating harmful content and in failing to address certain harmful content on its network. Green thus attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network - actions quintessentially related to a publisher’s role. Section 230 “specifically proscribes liability” in such circumstances.

Id. at 471 (quoting Zeran, 129 F.3d at 332-33). See also Parker v. Google, 242 Fed, Appx. 833, 838 (3d Cir. 2007) (agreeing with District Court that Section 230 bars negligence-type claims against Google for decisions related to policing its network); Ezra, Weinstein, & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000) (affirming dismissal of tort claims and holding that “Congress clearly enacted § 230 to forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.”); Langdon v. Google, 474 F. Supp. 2d 622, 630-31 (D. Del. 2007) (dismissing claims “grounded upon the exercise of editorial discretion over internet content and editorial decisions” and holding that “section 230 provides Google, Yahoo!, and Microsoft immunity for their editorial decisions regarding screening and deletion from their network.”).

C. Section 230(c)(1) Of The CDA Immunizes Google From Plaintiff’s Claims, So This Complaint Should Be Dismissed With Prejudice

Flere, there is no dispute that Google is, as courts around the country have unanimously agreed, a “provider” of an “interactive computer service.” See, e.g., Langdon, 474 F. Supp. 2d at 630 (“Google is considered an “interactive computer service’ as contemplated by § 230.”); Novak v. Overture Servs., 309 F. Supp. 2d 446, 452 (E.D.N.Y. 2004) (Google is a “provider or user of an interactive computer service” and subject to Section 230 immunity based on the face of the complaint). In addition, the complaint does not allege that Google has itself, as an entity, uttered a single objectionable statement regarding plaintiff. So the allegedly harmful content in question originated not from Google but from a third party or “another information content provider”. 47 U.S.C. § 230 (c)(1); Google Exh. A; Compl. Exh. B (showing web addresses for “libelous remarks” by third parties).

Because plaintiff’s claims arise from the posting of content by “another information content provider” and not by Google, they fall squarely within the broad immunity afforded “providers] ” of “interactive computer service[s]” by Section 230(c)(1) of the CDA. Thus, pursuant to the CDA, Google respectfully requests that this complaint be dismissed with prejudice.

V. CONCLUSION

For the foregoing reasons, Google requests that the court sustain its preliminary objections to the complaint and dismiss this action with prejudice.

      . The Usenet is a decentralized computer network communications by which persons exchange messages on various topics. See generally Genan Zilkha, “The RIAA’s Troubling Solution to File Sharing,” 20 Fordham Intellectual Property, Media and Entertainment Law Journal 667, 670 (2010); Lauren Gelman, “Privacy, Free Speech and “Blurry Edged’ Social Networks;” 50 Boston College Law Review 1315, 1320-22(2009).

      . Google maintains computer “archives” of the messages posted on the Usenet. See generally Peter B. Maggs, “Free Legal Advice on the Internet,” 34 International Journal of Legal Information 483, 485 (2006).

      . This court did not address, sua sponte, the problem that plaintiff, a business corporation, was not represented by a lawyer.

      . The statute appears to have used the term “provider” in subsection (c)(1) so that its protection would apply to information content providers as well as “access software providers,” a term that is defined in subsection (f)(4), but which is relevant here only insofar as to clarify the ambiguity created by the failure of subsection (c)(1) to use the term “information content provider.”

      . As this court is well aware, when deciding motions to dismiss for improper venue pursuant to Fed. R. Civ. P. 12(b)(3), courts consider the factual allegations in the light most favorable to the non-moving party and thus, must accept as true the allegations in plaintiff’s complaint, see Leone v. Cataldo, 574 F.Supp.2d 471, 483 (E.D.Pa. 2008).

      . Plaintiff’s owner suffers from severe Chronic Fatigue and Immune Dysfunction Syndrome, a recognized disability by the United States Social Security Administration. See www.ssa.gov/disability/ professioals/cfspub063.htm. Indeed, plaintiff’s owner, who is only forty-nine (49) years of age, is so debilitated that he qualifies and receives Social Security disability benefits due to his illness. Please see Exhibit “A” attached hereto, plaintiff’s Notice of Award from the Social Security Administration.

      . The plaintiff is required to enter an amount with this complaint. The amount is at best a guess, and will be decided with a hearing or by the jury. The situation is a little complicated to begin with. The situation gets more complicated and worse with the passage of time. And, there is a large cost for a forensic expert, which makes sense for all parties to avoid.

      . The message in question was accessed through the free Google Groups service. This service archives the Usenet, a global system of online bulletin boards that contain over 845 million messages. Using Google Groups, users have the ability to access, search and post messages to the Usenet archive. See, e.g., Parker v. Google, 242 Fed.Appx. 833, 834 (3d Cir. 2007).

      . The complaint does not attach a copy of this allegedly objectionable content, so a copy is attached hereto as Exhibit A (hereinafter “Google Exh. A”).

      . In fact, the complaint states that Google is required to give plaintiff the “contact information for the libeler”, thereby conceding that the content was created by a third party. Compl. ¶¶8 & 19.

      . Plaintiff fails to adequately plead the elements of these claims. However, because the claims are facially barred by the CDA, Google does not specifically address each of these claims in this brief.

      . In the complaint, plaintiff references Cohen v. Google, No. 100012/09 (N.Y. App. Div. 2009). Compl. ¶¶8,10. A copy of the Cohen court’s order is attached hereto as Exhibit B. Cohen does not support any of plaintiff’s claims. In order to bring an unrelated action against an anonymous blogger, the plaintiff in Cohen sought an order against a third party (Google) to obtain the name of the blogger who had allegedly defamed her on a website, Id. at 1. Cohen did not involve a claim against Google for monetary damages, nor does it stand for the proposition that Google is liable for postings created by a third party.

      . See footnote 3, supra.


source: Caselaw Access Project

author: LASH, A,

license: Public Domain

text:
    Seeton v. Adams

      C.P. of Berks County,
    no. 10-12649.

      Andrea M. Pace and Lisa M. White, for plaintiff.

      Matthew J. Connell, for defendant.
    October 29, 2010
   LASH, A,

The matters before this court are the preliminary objections of defendant, John T. Adams, the district attorney of Berks County (hereinafter “district attorney”), seeking dismissal of the complaint in Mandamus filed by the plaintiff, Johnna Seeton (hereinafter “Seeton”), a duly appointed Humane Society Police Officer for the Pennsylvania Legislative Animal Network. In her complaint, Seeton alleges that she, in accordance with 18Pa.C.S. § 5511 (hereinafter “the Animal Cruelty Law”), filed two (2) citations in magisterial district court, charging the Pike Township Sportsmen’s Association (hereinafter “PTSA”) with violations of section (c) of the Animal Cruelty Law. Seeton further alleges that the district attorney withdrew the citations over Seeton’s objection, ending the prosecutions. Seeton claims that the district attorney’s actions were improper and requests that this court, through the authority of mandamus, direct the district attorney to enforce the Animal Cruelty Law and reinstate and prosecute the citations. The district attorney filed the within preliminary objections, contending that Seeton has no right to relief in mandamus, asking that this court dismiss the complaint with prejudice. Argument was held on October 12,2010.

Seeton is a Humane Society Police Officer, as that term is defined by § 2 of the Humane Society Police Officer Enforcement Act, as follows: “Any person who holds a current appointment under the chapter to act as a humane society police officer for a society or association for the prevention of cruelty to animals. The term shall include any person who is an agent of a society or association for the prevention of cruelty to animals as ‘agent’ is used in 18 Pa.C.S. § 5511 (relating to cruelty to animals), provided that individual holds a current appointment under this chapter.”

18 Pa.C.S.A. § 5511 (i) provides the Humane Society Police Officer with authority to initiate criminal proceedings, stating: “An agent of any society or association for the prevention of cruelty to animals, incorporated under the laws of the commonwealth, shall have the same powers to initiate criminal proceedings provided for police officers by the Pennsylvania rules of criminal procedure.”

In accordance with her authority, on December 10, 2009, Seeton filed two (2) citations with Berks County Magisterial District Judge Victor M. Frederick, IV, alleging that PTSA committed animal cruelty, thereby violating § c) of the animal cruelty law. Specifically, Seeton alleged that the PTSA, during a live pigeon, shoot it conducted on October 18, 2009, improperly handled and treated wounded and injured birds. Seeton charged that the PTSA “wantonly or cruelly neglected pigeons to which it has a duty of care, and deprived veterinarian care to pigeons, injured but not killed during and after the course of a live pigeon shoot held on its property” and “wantonly or cruelly subjected pigeons to which it has a duty of care, to abuse during the course of a live pigeon shoot on its property.”

According to Seeton’s complaint, the district attorney contacted Seeton on December 14,2009 by telephone and “demanded that she withdraw the citations and instructed her not to file any future citations against the PTSA in connection with its live pigeon shoots.” After Seeton refused to withdraw the citations, the district attorney contacted Judge Frederick directly on December 28, 2009 by correspondence, notifying him that the citations “are to be withdrawn.” Accordingly, Judge Frederick withdrew the citations on January 13, 2010.

On July 7, 2010, Seeton filed the within complaint in Mandamus asserting, among other things, that the district attorney has a “mandatory duty to enforce Pennsylvania’s criminal laws, including the Animal Cruelty Law and to prosecute violations thereunder, and that the district attorney violated this duty by withdrawing the citations.” She argues that the district attorney’s withdrawal of the citations and corresponding failure to enforce the Animal Cruelty Law is a mistake of law, one which can be reviewed by the court in mandamus. The district attorney’s preliminary objections followed.

As stated by the Pennsylvania commonwealth court in Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992), cited by Seeton, when ruling on preliminary objections, a court:

...shall sustain such objections and dismiss the complaint, only in cases that are clear and free from doubt that the law will not permit recovery. Capital City Lodge No. 12, Fraternal Order of Police v. City of Harrisburg, 138 Pa.Commonwealth Ct. 475, 588 A.2d 584, appeal denied 528 Pa. 614, 596 A.2d 159 (1991). In ruling on a preliminary objection in the nature of a demurrer, this court must accept as true all well-pleaded allegations in the complaint and all inferences reasonably deduced therefrom. Pennsylvania Chiropractic Federation v. Foster, 136 Pa.Commonwealth Ct. 465, 583 A.2d 844 (1990). The court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Commonwealth, Department of Public Welfare v. Portnoy, 129 Pa.Commonwealth Ct. 469, 566 A.2d 336, appeal granted, 525 Pa. 648, 581 A.2d 574 (1990). A demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. Gaster v. Township of Nether Providence, 124 Pa. Commonwealth Ct. 595, 556 A.2d 947 (1989).

Mandamus relief is explained by the Commonwealth Court of Pennsylvania in Banfield v. Cortes, 922 A.2d 36, 42 (Pa. Cmwlth. 2007), where the court states:

Mandamus is an extraordinary remedy designed to compel official performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff and a corresponding duty in the defendant and where there is no other adequate remedy at law. County of Allegheny v. Commonwealth, 518 Pa. 556, 544 A.2d 1305 (1988). Mandamus will not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based upon a mistaken view of the law. Camiel v. Thornburgh, 507 Pa. 337, 489 A.2d 1360 (1985). “If [an official) abuses his [or her] discretion or acts under a mistaken view of the law, mandamus will lie to compel proper action.” Duncan Meter Corporation v. Gritsavage, 361 Pa. 607, 610, 65 A.2d 402, 403 (1949). (emphasis in original)

In essence, Seeton’s argument is that the district attorney committed a mistake in law in determining that any actions performed during live pigeon shoots do not violate the Animal Cruelty Law as a matter of law. Seeton argues that the district attorney’s analysis failed to consider that the law does permit prosecutions when pigeons wounded during the course of the pigeon shoot are thereafter mistreated.

We hold that Seeton, in her capacity as a police officer, is without authority to challenge discretionary acts of the district attorney. As she is not a proper party with a clear right to relief as required to sustain a mandamus action, she, therefore, is without standing to bring this action.

Our determination stems from the role and functions of the office of district attorney. As stated by the Pennsylvania Supreme Court in Commonwealth v. Stipetich, 539 Pa. 428, 430, 652 A.2d 1294, 1295:

It is well established that district attorneys, in their investigative and prosecutorial roles, have broad discretion over whether charges should be brought in any given case. “A district attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.” Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246, A.2d 430, 432 (1968) (emphasis omitted). Accord Commonwealth v. Whitaker, 467 Pa. 436, 443, 359 A.2d 174, 177 (1976); Commonwealth v. Eisemann, 276 Pa. Super. 543, 545-46, 419 A.2d 591, 592 (1980) (broad discretionary power to determine whether prosecutions shall be commenced or maintained); 42 Pa.C.S. § 5947(b) (discretion to request immunity for witnesses); Pa.R.Crim.P. 101A (power to require that criminal complaints issued by police officers be approved by district attorney prior to filing); Pa.R.Crim.P. 133 (power to approve or disapprove private criminal complaints); Pa.R.Crim.P. 313 (power to move for nolle prosequi). See also ABA, standards for criminal justice 3-1.1, commentary (2d ed. 1980) (“The prosecutor...has responsibility for deciding whether to bring charges and, if so, what charges to bring against the accused....”).

We note that the Commonwealth of Pennsylvania, represented by the district attorney, is the party plaintiff in a criminal prosecution. Commonwealth v. Malloy, 450 A.2d 689, 693, 304 Pa.Super. 297, 306 (1982). The district attorney is responsible for signing all bills of indictment and conducting in court all criminal and other prosecutions in the name of the commonwealth or when the commonwealth is a party, which arise in the county for which he is elected.

The processing of a summary offense is considered a prosecution, for the commission of a summary offense is a crime under the Crimes Code. Commonwealth v. Matty, 619 A.2d 1383, 1386, 422 Pa.Super, 595, 600-601 (1993). Further, under Pa.R.Crim.P. 454(C), the district attorney is permitted to appear and assume charge of the prosecution of a summary offense.

In this case, Seeton, like the district attorney, is acting on behalf of the commonwealth, but in her capacity as a police officer. In this capacity, she is granted the authority to conduct investigations, issue citations and make arrests, but the extent of her prosecutorial abilities is limited, being subject to the authority of the district attorney. The district attorney is by our constitution and by statute, the chief law enforcement official of the county in which he sits. There is no support in the law permitting a subordinate law enforcement official to challenge the district attorney’s decision on matters which lie within his discretion. To permit such a challenge would allow police to bypass or ignore a decision of the district attorney in any case where they believed that he committed a mistake of law, thereby undermining his status and compromising his ability to oversee law enforcement in his county.

We note the case' of Commonwealth v. Stipetich, supra, a case where police entered into a non-prosecution agreement with a criminal defendant in exchange for information which would aid other prosecutions. The non-prosecution agreement was entered without the consent of the Allegheny County District Attorney. In reversing the Superior Court, who had affirmed the trial court honoring the non-prosecution agreement, the Supreme Court found that the police did not have authority to bind the district attorney’s office on whether charges would be filed. The court stated, in pertinent part:

...While the police exercise, as a practical matter, a certain discretion in deciding whether to make an arrest, issue a citation, or seek a warrant, the ultimate discretion to file criminal charges lies in the district attorney....
The elected office of district attorney was created by our constitution, Pa. Const, art. IX, § 4, and its responsibilities are provided by statute. See 16 Pa.C.S. § 4402(a) (district attorney’s duty to sign all bills of indictment and conduct in court all criminal prosecutions). The legislature could not have intended that duties of the district attorney would be stripped away by actions of any of the thousands of municipal police officers in the commonwealth. Affording police officers authority... that prevent the district attorney from carrying out his duties would present a clear infringement of powers which the constitution and the legislature, as well as our case law, have reposed in the district attorney. Not only would it shift power from an elected and publicly accountable official to appointed public servants, but it would create havoc in the administration of justice by creating unbridled and decentralized decisions about which cases will be prosecuted.... 652 A.2d at 1295.

Seeton’s status in seeking relief from common pleas can also be distinguished from that a victim/complaint. A victim/complainant is not considered a party to a proceeding, functioning in prosecutions solely as a witness. Malloy, supra, 450 A.2d at 693. However, under the Pennsylvania Rules of Criminal Procedure, a victim/ complainant is permitted, as a private citizen, to file a private criminal complaint, subject to review by the district attorney. Under certain circumstances, a district attorney’s declination to process the complaint can be reviewed by common pleas court. In contrast, Seeton’s ability to initiate a compliant is not a private right established by rule or statute, but as stated is a public action by a law enforcement official, subordinate to the chief law enforcement official, the district attorney. Therefore, unlike a victim/complainant, Seeton is without legal basis to challenge a district attorney’s declination to prosecute or to gain access to common pleas court.

We enter the following order:

ORDER

And now, October 29, 2010, upon consideration of the preliminary objections of John T. Adams, district attorney of Berks County, response thereto, briefs filed by the parties and after argument held, the preliminary objections are sustained. The complaint in Mandamus filed by plaintiff, Johnna Seeton, is dismissed, with prejudice.

       Act 205-04, November 30 P.L. 1603, 22 Pa.C.S.A. §3701, et seq.

      . Section (c), 18 Pa.C.S.A. §5511(c) provides:
      (c) Cruelty to animals. - -
      (1) A person commits an offense if he wantonly or cruelly illtreats, overloads, beats, otherwise abuses any animal, or neglects any animal as to which he has a duty of care, whether belonging to himself or otherwise, or abandons any animal, or deprives any animal of necessary sustenance, drink, shelter or veterinary care, or access to clean and sanitary shelter which will protect the animal against inclement weather and preserve the animal’s body heat and keep it dry.
      (2) (i) Except as provided in subparagraph (ii), a person convicted of violating paragraph (1) commits a summary offense.
      (ii) A person convicted for a second or subsequent time of violating paragraph (1) commits a misdemeanor of the third degree if all of the following occurred:
      (A) The action or omission for which the person was convicted for a subsequent time was performed on a dog or cat.
      (B) The dog or cat was seriously injured, suffered servere physical distress or was placed at imminent risk of serious physical harm as the result of the person’s action or omission.
      (3) This subsection shall not apply to activity undertaken in normal agricultural operation.

      . Paragraph 16 of Seeton’s complaint.

      . Paragraph 17 of Seeton’s complaint.

      . Paragraph 19 of Seeton’s complaint.

      . 1955, August 9, P.L. 323 §1402. Amended 1957, July 5, P.L. 484, §1, immediately effective. Effective 1978, April 28, P.L. 202, No. 53, §2(a)[1310], effective June 27,1978, 16 P.S. §1402(a).

      . 1 Pa.Const. Art. 9, §4; 16 P.S. 1402(a).

      . Pa.R.Crim.P. 506 permits a person not a law enforcement officer to prepare a complaint and submit it to the district attorney, who then either approves or disapproves the complaint. If he approves the complaint, the matter shall be processed. If he disapproves the complaint, the victim/ complainant may petition the Court of Common Pleas for review of the district attorney’s decision. The standard of review depends upon whether the district attorney disapproved the private complaint based solely on legal conclusions, in which case, the trial court will review to determine whether an error of law has been committed. On the other hand, when the district attorney disapproves the private complaint for policy considerations or a hybrid of legal and policy considerations, the court’s standard of review is abuse of discretion. In re Private Criminal Complaint of Wilson, 879 A.2d 199, 214-15 (Pa.Super. 2005).


author: PARISI, J,

text:
    Commonwealth v. Kreider

      C.P. of Berks County,
    no. CP-06-CR-1260-2010.

      Adrian S. Shchuka, for Commonwealth.

      Eric Taylor, for defendant.
    October 29, 2010
   PARISI, J,

— The defendant appeals his conviction for one count of escape following a jury trial on July 28,2010. On August 12, 2010, the defendant received a mitigated range sentence of 9 to 36 months of incarceration. On September 10,2010, the defendant filed a notice of appeal. The defendant raises the following claims on appeal:

1. The evidence was insufficient to establish [the defendant] was guilty of escape under 18 Pa. C.S.A. § 5121, where there was insufficient evidence that [the defendant] was in official detention as defined 18 Pa. C.S.A. § 5121(e) when [the defendant] was living in his own apartment and subject to reporting conditions.
2. The evidence was insufficient to establish that [the defendant] was guilty of escape under 18 Pa. C.S.A. § 5121, where assuming that [the defendant] was in official detention, there was insufficient evidence that [the defendant] removed himself from official detention or failed to return to official detention when [the defendant] merely failed to comply with the reporting conditions of his supervised release.
3. The trial court erred in denying [the defendant’s] motion in limine to exclude referring to [the defendant] as a pre-releasee since this reference was a conclusion and should have been left for a jury to determine.

Defendant’s concise statement of matters complained of on appeal, 9/22/10.

FACTUAL BACKGROUND

In early February of 2010, the defendant was serving a flat 24 month sentence at Wernersville Community Corrections Facility (Wernersville), a facility that contracts with the Department of Corrections (DOC) and is staffed by state employees, pursuant to his acceptance into the State Intermediate Punishment Program (SIP) following a theft conviction. At this time he was residing at Wemersville on stage 3 of SIR On February 16, 2010, the defendant was promoted to stage 4 of SIP. The defendant had six months of his 24-month SIP sentence remaining when he was promoted to stage 4 as a nonresident inmate. SIP is a sentencing alternative that was passed by the Legislature and is implemented by the DOC. Participation in SIP is available for individuals convicted of drug and alcohol related offenses.

Under SIP, the defendant was supervised by DOC counselor Charles Knepp. SIP offers different levels of punishment with varying degrees of conditions and restrictions. After the defendant entered stage 3 of SIP he was labeled “pre-release” status because he was transferred from a state correctional institute to Wemersville, a community correction center, prior to the expiration of his maximum sentence date. Inmates on stage 4 SIP either live at a community corrections center, such as Wemersville or a private transitional residence. SIP participants are included in the total number of offenders over which the DOC maintains control. Offenders participating in SIP are not eligible for parole on the SIP charges.

When the defendant entered stage 4 of SIP he was considered a non-resident inmate, as he was no longer living in a community corrections center, but resided at a DOC-approved transitional residence. Although the defendant was permitted to live in a private transitional residence during stage 4, as a pre-release non-resident inmate he remained subject to the supervision of the DOC and was required to comply with numerous conditions. Prior to moving into his approved transitional residence, the defendant signed a Community Reorientation Plan (CRP) indicating Counselor Knepp had explained the conditions of stage 4 SIP to him and that he understood the conditions. The conditions the defendant was required to meet included: submitting to urinalysis and breathalyzer tests when ordered, attending one AA or NA meeting per week, continuing to take classes at Reading Area Community College and maintaining employment at the Caron Foundation, as well as producing documentation to substantiate his compliance and to report any changes. The defendant was also required to meet with Counselor Knepp at Wemersville every Tuesday and Friday during the first month of his stage 4 supervision and at least once per week after that time.

Pursuant to SIP guidelines, the defendant also signed a Transitional Residence Agreement (TRA) which listed his approved residence, an apartment at 124 South 4th Street in the City of Reading, and his employer, the Caron Foundation. The defendant further agreed to accept telephone calls from the Wemersville staff to verify his presence at the approved residence and his continued employment. Under this agreement the defendant was also placed on a daily curfew of 9:00 p.m. per SIP conditions. He was prohibited from possessing any drugs or deadly weapons and from entering any bars or liquor stores. The defendant agreed to accept home visits from Wemersville staff and to return to Wemersville at least twice per week for progress review. Although the defendant could travel away from his approved residence, he had to remain in eastern Pennsylvania under SIP’s conditions. Prior to the defendant signing the CRP and the TRA, Counselor Knepp explained to the defendant that he would be charged with escape if he violated his reporting requirements. Under SIP, the defendant was not eligible for parole during stage 4 of SIP. Stage 4 SIP offenders who violate conditions of SIP can be stepped-back to an earlier stage in the program or face expulsion from SIP and be resentenced on their underlying offenses.

After the defendant moved into his approved residence on February 16, 2010, his first required check-in with Counselor Knepp was at 10:00 a.m. on Friday, February 19, 2010. The defendant missed this check-in. Counselor Knepp called his residence and did not get a response. When Counselor Knepp arrived at work the following Monday, he did not have any phone messages from the defendant. Counselor Knepp did have a message from the defendant’s employer indicating the defendant had missed work on that Saturday and Sunday without calling off. Counselor Knepp tried to reach the defendant by calling members of his family and his landlord. On February 23, 2010, after several days had passed without hearing from the defendant, Counselor Knepp informed his supervisor, Scott Pasquale, that the defendant failed to report. The DOC lodged a detainer against him. On February 24th, Counselor Knepp emailed the defendant and told the defendant to call him. The defendant responded via email and said he would report to Wernersville on February 25th at 10:00 a.m. The defendant failed to report again. On the evening of February 26, 2010, the defendant turned himself in at Reading City Hall where he was handcuffed and taken into custody.

DISCUSSION

The defendant’s first and second claims on appeal relate to the sufficiency of the evidence with regard to his conviction for escape and will be considered together. The first issue raised by the defendant is that there was insufficient evidence that the defendant was in official detention for purposes of 18 Pa. C.S.A. § 5121(e) in order to sustain a conviction for escape.

The standard of review of a sufficiency of the evidence challenge is as follows:

In reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Jones, 636 A.2d 1184, 1189 (Pa. Super. 1994).

The reviewing court must determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Davidson, 860 A.2d 575, 580 (Pa. Super. 2004). The facts established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence so long as the evidence against the defendant is not “so weak and inconclusive that as a matter of law no probability of fact can be drawn from the circumstances.” Id.

A person is guilty of escape if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific or limited purpose. 18 Pa. C.S.A. § 5121(a). For purposes of the offense of escape, official detention means “arrest, detention in any facility for custody of person under any charge or conviction of crime or alleged or found to be delinquent...or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.” Id. at § 5121(e).

It is not necessary that an individual flee from the confines of a traditional prison’s walls to unlawfully remove themselves from or fail to return to official detention for purposes of escape. Commonwealth v. Scott, 967 A.2d 995 (Pa. Super. 2009) (finding defendant was in official detention to support conviction for escape when he left community correction center on approved work pass and failed to return).

In Commonwealth v. Wegley, 51A Pa. 190, 196-200, 829 A.2d 1148, 1152-1154 (Pa. 2003), our Supreme Court ruled that an individual serving a sentence of electronic monitoring home confinement pursuant to a sentence of county intermediate punishment is under official detention for purposes of escape. The court reasoned that the defendant in Wegley was “restrained from coming and going as he pleases [and] remained] within the state’s legal custody and under its control, regardless of his physical presence at his home.” Id. at 197, 829 A.2d at 1152.

The court further determined that the enumerated exceptions in section 5121(e) for supervision of probation and parole did not apply. Id. at 200, 829 A.2d at 1154. In reaching this conclusion, the court recognized that the Legislature’s intent in adopting intermediate punishment was “not to establish another form of probation parallel to the one that already existed,” but to provide judges with a “sentencing option between probation and incarceration with respect to sentence severity...” Id. at 199, 829 A.2d at 1153. Since offenders are not eligible for intermediate punishment unless the sentencing court first determines probation would be inappropriate, the Wegley court found the Legislature intended intermediate punishment to be a separate and distinct sanction from traditional probation. Id.

While the court’s holding in Wegley was limited to whether a specific form of intermediate punishment, i.e., electronic monitoring home confinement, constitutes official detention for purposes of the escape statute, its reasoning is nevertheless instructive to the issues in the present case. The evidence establishes that the defendant remained within the state’s custody and control. The defendant’s transitional residence needed the approval of the DOC. Although the defendant could come and go from his residence during the daytime, he was required to be in the residence by 9:00 p.m. each night. He was not permitted to travel outside of the eastern Pennsylvania region. In addition, the defendant was required to report to Wemersville twice a week to meet with Counselor Knepp and review his progress. Other restrictions on the defendant’s liberty included requirements to continue his courses at RACC and his employment at the Caron Foundation, as well as submitting to random drug and alcohol testing. Additionally, the DOC included the defendant in the total count of offenders undertheir control. Furthermore, the defendant could be expelled from the program and resentenced on the underlying conviction if he failed to comply. Given all of these circumstances, the defendant remained in official detention for purposes of escape when he was promoted to stage 4 of SIP and moved into a DOC approved transitional residence.

This court also finds the enumerated exceptions in section 5121 (e) for supervision under probation and parole do not apply to stage 4 of the defendant’s SIP sentence. As our Supreme Court’s reasoning in Wegley illustrates, the Legislature intended the intermediate punishment programs to be separate programs from probation and parole. Here, the record reveals that the defendant was not eligible for parole during stage 4 of SIP. Thus, the defendant was not actually serving a sentence of probation or parole when he was promoted to stage 4 and failed to comply with the SIP conditions, including the reporting conditions. During stage 4 of SIP, the defendant remained supervised by the DOC, and not the board. As a result, the defendant’s supervision under stage 4 of SIP was not the equivalent of probation or parole for purposes of official detention.

Had the Legislature intended all supervision under SIP to be exempt from the definition of official detention, it could have carved out such an exception in the statute as it did for probation and parole. However, it chose not to do so. Because the conditions the defendant faced during stage 4 of SIP were sufficiently restrictive and the statutory exceptions do not apply, the jury did not err in finding the defendant was subject to official detention under section 5121(e).

Furthermore, a review of the record reveals there was sufficient evidence to support the defendant’s conviction for escape. Here, the defendant began living at his approved residence on February 16,2010. He was required to report to Wernersville at 10:00 a.m. on Friday, February 19, 2010. The defendant failed to report as required and also missed his scheduled work assignments over that weekend. Despite efforts to contact the defendant, Counselor Knepp did not hear from him until he received an email on February 24th which indicated the defendant was going to report to Wernersville the following day at 10:00 a.m. The defendant failed to report again. He did not surrender to law enforcement authorities until the evening of February 26th — seven days after his initial report date. Based on these facts, the evidence was sufficient to support the jury’s finding that the defendant unlawfully removed himself from or failed to return to official detention in order to support his conviction for escape.

The defendant’s final argument on appeal is that this court erred in denying his motion in limine to prohibit the Commonwealth’s witnesses from referring to him as a “pre-releasee,” as he argues this reference was a conclusion and should have been left for the jury to determine.

When reviewing a denial of a defendant’s motion in limine, our appellate courts apply an abuse of discretion standard. Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000). Appellate courts will not disturb a trial court’s ruling with regard to the admissibility of evidence unless the ruling “reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.” Commonwealth v. Owens, 929 A.2d 1187, 1190 (Pa. Super. 2007).

There was no abuse of discretion in denying the defendant’s motion in limine. Commonwealth witness, Tracey Smith, Chief of Treatment Programs for the DOC, testified that “pre-release” status is a term used by the DOC to refer to offenders who have been placed into the community-based phases of SIP prior to their maximum sentence date. She stated that SIP offenders labeled “pre-release” remain under the jurisdiction of the DOC. Ms. Smith also testified that the defendant was labeled “pre-release” because he had been placed into the community-based phases of SIP during stages 3 and 4 of the program.

Ms. Smith’s testimony established that the term “pre-release” was a term used by DOC officials to classify offenders in a particular stage of a sentencing program which the DOC administers. The defendant in this case was labeled a “pre-release” offender in accordance with the DOC’s policy, as he had been placed into the community-based phases of SIP prior to his maximum sentence date. As Ms. Smith’s testimony indicates, the fact that he was a non-resident during stage 4 of SIP did not change his “pre-release” status given the manner in which the DOC uses this term. Accordingly, this reference was not a conclusion that Ms. Smith drew from facts that were in dispute. The primary issue for the jury to decide in this case was not whether the defendant was a “pre-release” offender, rather it was whether the defendant’s supervision under stage 4 of SIP constituted official detention. The commonwealth’s reference to the defendant’s “pre-release” status did not strip the jury of its fact-finding role in making this determination. Commonwealth v. Persichini, 558 Pa. 449, 454, 737 A.2d 1208, 1211 (Pa. 1999) (stating procedures at trial must be free of undue interference with the jury’s role as the finder of fact).

Moreover, during the charge, this court instructed the jury that it is solely their job to determine the true facts concerning the escape charge against the defendant, and that it should not accept as true any evidence which it finds incredible, even if it is uncontradicted. Given these instructions, any potential for prejudice was eliminated. Therefore, this court did not abuse its discretion in denying the defendant’s motion.

For the foregoing reasons, this court respectfully requests that the defendant’s appeal be denied.

      . 18 Pa.C.S.A. §5121.

      . See 61 Pa. C.S.A. §4101 et seq. All inmates admitted to SIP serve a flat 24 month sentence. The defendant’s maximum date was June 26, 2010 (the same as his minimum date given the SIP’s flat sentence structure).

      . The goal of transitional residence is to reintegrate offenders into the community. In stage 4, all treatment requirements have been satisfied, but DOC continues to supervise the inmates during their reintegration into the community.

      . However, parolees who are supervised by the Pennsylvania Board of Probation and Parole (the board) are also housed pursuant to separate programs, on the grounds of the Wemersville State Hospital.

      . While the Wegley case specifically discusses intermediate punishment v. probation, the reasoning can logically be extended to include parole.


author: FORD, J.,

text:
    Muffley v. Muffley

      C.P. of Lehigh County,
    no. 2008-FC-0713.

      Richard J. Shirojf, for plaintiff.

      Mark B. Stanziola, for defendant.
    November 5, 2010
   FORD, J.,

— This is a custody case about 10-year-old Sarah Ann Muffley. With a significant exception, many good things are happening in Sarah’s life. Sadly, through a prolonged course of conscious conduct by Sarah’s father, he has attempted and largely achieved minimizing the role of Sarah’s mother in her life. To restore mother’s necessary place in Sarah’s development and for Sarah’s overall best interests, an order was filed yesterday, November 4, 2010, making mother the primary physical custodian of Sarah and granting father meaningful partial physical custody. For the present, the parties will share legal custody. Time will determine if that will work.

Atrial was conducted on October 19 and October 20, 2010, on mother’s petition for contempt which was filed on May 11, 2010, and on mother’s petition for modification filed on September 15, 2010. In yesterday’s order, the court granted both petitions. The reasons for the entry of the order are explained in this opinion.

Findings of Fact

1. Plaintiff, Dorothy Dieterly (mother), and defendant, Steven Muffley (father), were married on June 20, 1997. Sarah Ann Muffley was born to that marriage on October 22, 2000. The parties separated in October of 2007. They subsequently divorced. In June, 2010, mother married Arthur Dieterly. Father remains unmarried.

2. Mother resides at 1954 Leightsville Road, Hellertown, Northampton County, Pennsylvania 18055. She resides in that home with her husband, Arthur Dieterly, her father, and Sarah when Sarah spends overnights with mother. The home is adequate for Sarah to live there.

3. Father resides at 895-A Oplinger Road, Wescos-ville, Lehigh County, Pennsylvania 18106. He lives there with his mother, Ruth Ann Muffley (grandmother), and Sarah. Since the birth of Sarah, the parties and Sarah resided in the same household with grandmother. Since separation, Sarah has primarily resided with father. Grandmother continues to live in the same household with father and Sarah. This home is adequate for Sarah to live there.

4. Mother is employed for 25 hours per week, day shift, as a housekeeper at a hotel.

5. Father is the dairy manager at Weis Market on Emaus Avenue in Allentown. He works day shifts with an early start. The time for the end of the workday varies with a typical end at 3:00 p.m. He works on Saturdays and it is not unusual that he works Sunday hours.

6. Father loves Sarah. In many respects, he has provided appropriate care for her. She has a very good school attendance record. She is doing well in school. She had a reading issue but that has been addressed by father and grandmother. Mother was not consulted by father about this issue. Sarah has many friends. Father provides Sarah with religious education. He has properly attended to Sarah’s physical needs. He spends time with her and engages in worthwhile activities. Through father’s vigilance and guidance, Sarah is developing in many important ways. Grandmother has assisted father in these positive aspects of the upbringing of Sarah.

7. Since the parties ’ separation, father has been Sarah’s primary physical custodian. With prior orders, the court has granted mother partial physical custody. The parties were also made joint legal custodians by court order.

8. Father has actively excluded mother from meaningful involvement in the raising of Sarah. At times, grandmother has assisted father in doing this. Mother has consistently yearned to be actively involved in Sarah’s life. Father does not discuss Sarah’s education, medical care and other legal custody matters with mother. He does not cooperate with her in any respect. Mother longs to be involved in making decisions on these issues. She is capable of jointly deciding these issues. Sarah is suffering emotionally from mother’s limited role in her life.

9. On many occasions, mother insisted on father’s honoring her custody rights in conversations with father. She regularly inquired of father about Sarah’s health, school, and other topics that should be discussed by joint legal custodians. Father gave responses to mother such as: “none of your business.” “I’m primary custodian.” “I set my own rules.” “I don’t care about the order.” “I’m not going to follow what’s in the order.”

10. On multiple occasions between April and July, 2010, father has denied or effectively denied mother custody time granted to her under court orders. This included denial of custody time to mother over Easter and on Mother’s Day. On some of these days, there was an outright refusal by father to provide Sarah to mother. (One occasion for refusing custody to mother was a bingo party with grandmother.) On the remaining days, father “set up” mother whereby mother declined her own custody time so she would not be placed in a poor light in Sarah’s eyes. In these latter instances, father discussed with Sarah invitations that Sarah received for parties and other events to take place in his geographical area during mother’s custody time as set by the court. This built Sarah’s expectations that she would attend. After these discussions with Sarah, father confronted mother with the events. These were not requests to mother to give up custody time. Rather, father insisted and mother gave in. Father has not voluntarily given mother any make-up time.

11. Some other reasons for refusal of custody time to mother by father or grandmother (grandmother usually did the custody exchanges for father) when mother arrived to pick up Sarah were no car seat in mother’s car, too many people in the car, and mother’s husband would be present if Sarah were permitted to go. There were times when mother arrived for pick up but no one appeared.

12. The custody order of January 29, 2009, provides mother the right for regular phone contact with Sarah when Sarah is in father’s custody. In large part, mother has not had meaningful communications with Sarah by phone. Father has hurried conversations by statements to Sarah while she was attempting to talk by phone to mother. He has had Sarah call mother after Sarah’s usual bedtime and then hurried the conversations along because it was getting late. Father has called mother “idiot,” “asshole,” and other foul names over the phone while Sarah was listening and also in person in Sarah’s presence. Many of mother’s calls to Sarah have been unanswered and have not been returned despite the leaving of messages. At times when mother has telephoned father’s residence, he or grandmother has hung up the phone on mother.

13. Father insisted that Sarah spend time during Easter 2010 and in the summer with Sarah’s paternal aunt in preference to mother’s custody time.

14. There were times when Sarah stayed overnight at places other than father’s home. He gave no notice or location information about this to mother even on mother’s request.

15. Father is dictatorial, rude, and demeaning to mother.

16. Arthur Dieterly assaulted mother earlier this year before they married. Mother and Mr. Dieterly engaged in counseling to address this incident of violence and issues between the two of them. Mr. Dieterly has two adult children. He has a good relationship with Sarah. There is a great deal of animosity between Mr. Dieterly and father. Both Mr. Dieterly and father are guilty, to varying degrees, of stoking the fires of animosity between them. There have been proceedings before a magistrate district judge on several occasions and police have been called relating to problems between Mr. Dieterly and father.

17. Mother loves Sarah. Mother’s inability to be actively involved in the raising of Sarah through father’s tactics is emotionally painful for mother.

18. In the limited time which father has permitted mother to have with Sarah, mother has spent her time with Sarah including enjoyable activities with her. She has attempted to be involved in Sarah’s school. She has assisted Sarah with her school work. When mother attempted to be involved in a medical appointment at the office of Sarah’s allergist on October 11,2010, father created a scene there. Mother is willing and capable of working with Sarah and continuing the progress that Sarah has made in many aspects of her life.

19. Mother has abided by the court orders. Despite her frustration with obstacles created by father, she did not employ self-help. She only sought change through the court. Despite her part-time income, she has paid support for Sarah in compliance with amounts ordered in the support case. Mother has attempted to cooperate with father in the upbringing of Sarah. She made a believable commitment to involve father in Sarah’s life in the future as required by court order.

20. Father is unapologetic about his treatment of mother and his interference with her attempts to be a good parent. He sees nothing wrong with the way he treats mother and excludes her from Sarah’s life. Without this most recent order, father will not meaningfully involve mother in Sarah’s life.

Discussion and Conclusions of Law

As the court and counsel recognize, the paramount consideration in a custody case is the best interests of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). In attempt to determine Sarah’s best interests, the court considered “all factors which legitimately impact upon the child’s physical, intellectual, moral and spiritual well-being.” Zummo v. Zummo, 394 Pa.Super. 30, 45, 574 A.2d 1130, 1137 (1990).

For months, father has gotten his way, court orders notwithstanding. He has successfully cut off mother from the rich mother-child relationship that could have been and should have been developing for years. This is devastating to mother. More importantly, it is harmful and hurtful to Sarah.

In father’s response to and description of some of the incidents that were brought to the attention of the court by mother, he offers excuses and rationalizations. Many of these were not credible. All of them are rejected by the court. Father has defiantly disobeyed and disregarded the court orders. If father remains as the primary custodian, the prospects for Sarah’s having even a minimally meaningful relationship with her mother are bleak. Father gave no hint that he will change his ways.

In contrast, mother, who has been harmed by father, has not taken matters into her own hands. She has abided by the court orders. She has patiently waited her turn to have her grievances redressed. She has tried to cooperate with father, but he has rejected all of her attempts. Despite what has been done to her, she offers to cooperate with father in the future. With mother as primary physical custodian, the bond between mother and her child can develop in the way that it was meant to develop based upon what mother and Sarah feel for each other. Because of mother’s demonstrated cooperation, father can have an excellent relationship with his daughter if he does what is expected of him.

The court is providing father the opportunity to begin a new phase of cooperation with mother. For the present, the parents are made joint legal custodians. Together, they must decide significant decisions in Sarah’s life. However, a word of caution is appropriate here. If father continues to obstruct mother’s relationship with Sarah or to demean mother in Sarah’s eyes, mother will have to be the sole legal custodian so that decisions can be made, in the proper way, for Sarah’s welfare.

It is rare that the court makes a comment about enforcement of a custody order just being entered. This is one of those rare occasions. Father has disregarded orders. He has expressed his contempt for them. If a party violates the November 4 order, the court stands ready to use the considerable array of sanctions available to it to bring that party into compliance.

Sarah’s best interests clearly require that mother immediately be made primary physical custodian of Sarah and that father be granted partial custody rights.


author: ALBRIGHT, J.,

text:
    Higgins v. Township of Lower Merion

      C.P. of Montgomery County,
    no. 09-20314.

      David J. Farrell, for appellant.

      John McLaughlin and Thomas D. Rethag Jr., for appellees.
    November 3, 2010
   ALBRIGHT, J.,

— The petitioners, Frank Higgins, David Snyder andLowerMerionFraternal Order of Police, Lodge #28, appeal from this court’s order, dated March 30, 2010, denying their petition for review of the Lower Merion Township Board of commissioner’s promotions on June 3, 2009. For the reasons that follow, the undersigned believes that the order should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008 and 2009, Frank Higgins and David Snyder were employed as police officers by Lower Merion Township (the “township”). The township is a municipal corporation organized as a township of the first class pursuant to theFirst Class Township Code. 53 P.S. § 55101, et seq. During this time, the township identified the need to fill vacancies in the municipality’s police department for the positions of captain, lieutenant and sergeant. Once the decision had been made to proceed, the township, adhering to the rather detailed procedures governing the selection process as set forth in the First Class Township Code, submitted a written request to the Township’s Civil Service Commission (the “commission”) for a “list of certified eligible candidates.”

Thereafter, following the required notice provided to all of the township’s police officers soliciting the application of those interested in filling the vacancies advertised, the commission calculated the written and oral examination results of those individuals seeking promotion to the lieutenant position, as well as the assessment examination outcomes of those eligible for promotion to captain. After the examinations of the candidates were completed and their scores calculated and posted in the township building, the commission certified to the township the candidates for each of the three vacant positions who had received the highest scores. In fact, the commission determined that Frank Higgins had scored the highest for the captain’s position while Mr. Snyder had received the best score of those eligible for the lieutenant’s vacancy.

Pursuant to the township’s civil service regulations, the municipality’s superintendent of police and township manager also provided the township with promotion recommendations from among the top three scoring candidates for each position. Finally, on June 3, 2009, the township commissioners made know their choice of the individuals who were approved for promotion to the ranks of captain and lieutenant. The selections made were, in fact, consistent with the recommendations made by the township’s police superintendent and manager and did not include either Mr. Higgins or Mr. Snyder. Rather, the candidates who secured the promotions to captain and lieutenant had received the second and third highest scores, respectively, of who had been certified as eligible to fill those positions. Shortly thereafter, the successful candidates reportedly assumed ' their newly acquired responsibilities and duties attendant to the jobs for which they were employed.

Disappointed that they had not been promoted, despite having secured the highest examination and assessment scores of the candidates determined to be eligible for promotion, Messrs. Higgins and Snyder, on July 1, 2009, filed with the trial court their petition for review and reversal of the Township’s decisions promoting someone other than themselves to the once vacant positions of Captain and Lieutenant.

Following a hearing and final arguments, the undersigned, after a thorough review of the record and the memoranda of law submitted by the parties, denied the petition. The petitioners then filed a timely notice of appeal, perfected on or about May 6, 2010, after which they submitted their concise statement of matters complained of on appeal [Pa. R.A.P. “1925(b) statement”], consisting of the following:

1. The learned trial court committed reversible legal error when it ruled that Lower Merion Township could promote its choice of the top three highest scorers on the competitive examination for captain and lieutenant in the township police department rather than the highest scoring candidates in each of the competitive examinations, as required by 53 P.S. §55642.
2. The learned trial court committed reversible legal error when it held that 53 P.S. §55642 did not require a township of the first class to promote the candidate with the highest examination score and instead relied upon the general appointment statute in the First Class Township Code, 53 P.S. §55638, to permit the township to use the “rule of three” and choose among the three highest scoring candidates on the competitive examination; thereby rendering the promotion statute, 53 P.S. §55642, meaningless surplusage, thereby violating the mandate of 1 Pa. C.S. § 1921(a)(relating to legislative intent controls) and also 1 Pa. C.S. § 1933 (relating to particular controls general).
3. The learned trial court’s construction of 53 P.S. §55638 and 55642 conflicts with the construction given similar provisions of the borough code and the Second Class County Code adopted by the Supreme Court of Pennsylvania and the Commonwealth Court of Pennsylvania in Borough of Wilkinsburg v. Collella, 961 A.2d 265 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 703, 973 A.2d 1007 (2009) (Borough Code), and McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (1968) (Second Class County Code).

DISCUSSION

Pursuant to 2 Pa. C.S. § 702, “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals...” 2 Pa. C.S. § 702. Where the trial court does not take evidence, the commonwealth court’s scope of review of a local agency decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether the necessary findings are supported by substantial evidence, and whether the procedures of the local agency were contrary to statute. Carabello v. Bd. of Pensions and Retirement, 893 A.2d 211, 213 (Pa. Commw. Ct. 2006); Willv. City of Erie, 763 A.2d 566, 567 (Pa. Commw. Ct. 2000); see 2 Pa. C.S. § 754(b).

A. The First Class Township Code Permits The Application Of The Choice of Three Rule To The Filling Of ‘Original ’ Vacancies By Appointment And Promotion.

The petitioners’ contention that the trial court erred when it affirmed the township’s promotional decisions, which were based upon the townships’ adherence to the “choice of three” rule, is meritless. In contrast to the governing statutory framework, the petitioners assert, incorrectly, that the language of 53 P.S. § 55642, which states that promotions “shall be based on merits to be ascertained by examinations,” precludes the application of the ‘choice of three’ rule and mandates that the highest scoring candidates be promoted. However, the First Class Township Code (the “Code”) section which governs the manner of filling appointments states, in relevant part, without specific reference to either “promotions” or “original” hires, the following:

Every position or employment in the police force... shall be filled only in the following manner: the township commissioners shall notify the commission of any vacancy which is to be filled and shall request the certification of a list of eligibles. The commission shall certify for each existing vacancy from the eligible list the names of three persons thereon who have received the highest average. The township commissioners shall, thereupon, with sole reference to the merits and fitness of the candidates, make an appointmentfrom the three names certified unless they make objections to the commission as to one or more of the persons so certified for any of the reasons stated in section 637 of this subdivision....” 53 P.S. § 55638. (emphasis added)

The “choice of three” rule, which is derived from this framework, is one of discretion which in this case permits the township commissioners to fill any opening on its police force, regardless of how it is created, by selecting and appointing any one of three candidates certified to them for each position without limiting their choice to the candidate receiving the highest test score. See 53 P.S. § 55638 (“The township commissioners shall, thereupon, with sole reference to the merits and fitness of the candidates, make an appointment from the three names certified...”). Unlike the applicable corresponding appointment and promotional selection provisions of the Second Class County and Borough Codes, there is no distinction to be made in the First Class Township Code between the manner in which “original” appointments or hires are filled and the filling of vacancies by promotion; nor has there appeared any Pennsylvania appellate decision which has determined the “choice of three” rule to be inapplicable to the selection of police officers for either “original” hires or promotion in first class townships.

Nevertheless, the petitioners insist on discounting the “choice of three” rule’s application entirely by attempting to analogize their situation to similar circumstances which had arisen in two particular cases involving the appellate courts’ interpretation of the codes applicable to boroughs and counties of the second class in Pennsylvania. These cases, notably McGrath v. Staisey, 433 Pa. 8, 249 A.2d 280 (Pa. 1969), and Borough of Wilkinsburg v. Colella, 961 A.2d 265 (Pa. Commw. Ct. 2008), involved separate analyses of the distinguishing factors present in the code provisions pertinent to the manner in which promotions and original “hires” are to be handled in second class counties and boroughs. However, this case, as previously noted, involves neither a borough nor a second class county, each of which is bound by code provisions whose language regarding the appointment of police officers has been interpreted by the Supreme and Commonwealth Courts to essentially eliminate the “choice of three” rule’s application to situations involving the “promotion” of policemen in boroughs and second class counties, where the only criteria to be considered for advancement are the merit-based results of standardized tests administered to all eligible candidates.

B. The Second Class County Code And Borough Code Each Provide That Promotions Shall Be Based On Merit Rather Than The ‘Choice of Three’ Rule.

In 1969, the Pennsylvania Supreme Court (Roberts, J.) decided McGrath v. Staisey, which dealt with Mr. McGrath’s mandamus action seeking the trial court’s assistance in securing his promotion to the rank of sergeant. That promotion had previously been denied him by the commissioners of Allegheny County in favor of those who had scored lower than Mr. McGrath on a competitive civil service examination administered for the position. The commissioners’ ruling was initially upheld by the trial court whose order was subsequently vacated and the case remanded by the Pennsylvania Supreme Court.

In its interpretation of the Pennsylvania Code Provisions regulating the manner in which appointments are to be made in counties of the second class, the court held that Mr. McGrath, who had scored the third highest grade on his examination, was entitled to promotion over those candidates who had scored lower than he. McGrath, 433 Pa. 8, 249 A.2d 280. Relying upon the plain language of the Second Class County Code that “[promotions shall be based on merit, to be ascertained by written examinations....’’The Pennsylvania Supreme Court opined that “the only way to ascertain merit is by a written test. And since the act states that merit is to be the sole criterion for promotion, there is no reasonable manner in which the statute can be read to authorize the use of the criteria other than those in the test.” McGrath at 11, 259 A.2d at 281 (referencing 16 P.S. §§ 4516, 4512). Since merit was to be determined solely by examination, the high court agreed with the appellant McGrath that it would necessarily follow “that the patrolman with the highest grade on the examination should be promoted first.” Id. Without a direct citation reference to the Second Class County Code, the court contrasted the original appointment provisions found at Section 4512 with Section 4516, and drew an important distinction between the two in finding that the language of Section 4512 clearly indicated “a degree of discretion granted by the legislature to the county commissioners in making original appointments; such a degree of discretion is not present in the promotion section of the act.” McGrath at 12, 249 A.2d at 281. By contrasting the Second Class County Code sections governing promotions to those which control the appointment of original hires, the court made clear that the "choice of three" rule had no application to Mr. McGrath’s promotion. Given the significant differences between the language of the Second Class County Code and the First Class Township Code, particularly where the latter does not distinguish between any of the appointments, albeit promotions or original “hires,” the Lower Merion Township commissioners acted appropriately, as it was within their discretion to rely upon and apply the “choice of three” rule in promoting from among the list of eligible candidates someone other than the highest test score recipients to the ranks of Captain and Lieutenant of Police.

The petitioners’ reliance on the Pennsylvania Commonwealth Court’s 2008 decision in Borough of Wilkinsburg v. Colella, 961 A.2d 265 (Pa. Commn. Ct. 2008), is similarly misplaced since the municipality in that case was governed by the Pennsylvania Borough Code, which, as in like matters involving second class counties, distinguishes between the procedures to be utilized when making promotions, as opposed to "original" appointments. In Borough of Wilkinsburg, the court held that the Borough of Wilkinsburg was obligated to select the top-scoring eligible candidate for promotion to rank of captain and was not free to exercise its discretion by opting to choose someone else from a list of the three highest scorers, as might otherwise be the case were the “choice of three” rule to apply. Consistent with the Supreme Court’s earlier ruling in McGrath, the Commonwealth Court found the “choice of three” rule to apply only where the vacancy to be resolved involved “[e]very original position or employment in the police force...”, which was to be filled in the manner provided by Section 46184(a) of Pennsylvania’s Borough Code. Borough of Wilkinsburg, 961 A.2d at 268-69 (quoting 53 P.S. § 46184) (emphasis in original). With its continued reliance upon McGrath, the Borough of Wilkinsburg court noted the “nearly identical” promotion provisions which were the subject of scrutiny in both cases and where in the case of the borough code provided that “[promotions shall be based on merit to be ascertained by examinations to be prescribed by the commission. All questions relative to promotions shall be practical in character and such as will fairly test the merit and fitness of persons seeking promotion.” M at268 (quoting53P.S. § 46188). Applying the rules of statutory construction to the definitions and usage of the words “promotion” and “appointment,” the court found that neither term was synonymous with the other, nor could they properly be used interchangeably. Id. at 269. Accordingly, the court concluded that, absent some evidence of legislative intent permitting the exercise of discretion in the promotion of police officers, the borough code’s statement that merit alone “is to be the sole criterion for promotion, there is no reasonable manner in which the statute can be read to authorize the use of criteria other than those in the test.” Id. at 268.

Thus, in keeping with the decisions in McGrath and Borough of Wilkinsburg, it may be fairly resolved that where, as in the First Class Township Code, there is no distinction to be drawn regarding the manner provided for the filling of vacancies by either promotion or original appointments, the “choice of three” rule may apply since the selection process to be employed pertains to “[e]very position or employment in the police force...,” without reservation. 53 P.S. § 55638 (emphasis added).

While there does not appear to be any reported Pennsylvania case dealing with the application of the “choice of three” rule in the promotion of police officers in a first class township, the Commonwealth Court in Coles v. Judd, 298 A.2d 687 (Pa. Commw. Ct. 1973), analyzed the then extant language of the borough code which mirrored precisely that which is presently contained in Section 55638 pertaining to the manner of filling appointments for “every position or employment in the police force....” Since the 1973 version of the borough code (i.e., section 1184, which was subsequently amended) failed to qualify or differentiate between the positions to be filled, whether they be by original appointment or by promotion, the adjective “every” was determined to be “descriptive” of any opening which the borough council might choose to fill by utilizing the “choice of three” rule.

Though not precedential or representative of any controlling authority in this matter, the decision of the United States District Court for the Eastern District of Pennsylvania in the case of Fraternal Order of Police, Lower Merion Police, Lodge 28. v. Twp. of Lower Merion, 416 F. Supp. 65, (E.D. Pa. 1976), is, nevertheless, instructive. In that case, the petitioner police officers claimed that they were denied equal protection of the law and their rights were violated when Lower Merion Township, a first class township, promoted persons who had received lower test scores than the complainants. In discounting the officers’ reliance upon McGrath v. Staisey, the district court, in a memorandum opinion authored by Judge Van Artsdalen referencing the same language of the First Class Township Code which is applicable to the case at bar, stated that “[i]n accordance with Judd, the relevant provision of the First Class County Code, 53 P.S. § 55642 must be read to allow the Civil Service Commissioners to fill each promotion from the three higher scorers eligible as outlined in 53 P.S. § 55638.” Id. at 67. Clearly, as the court opined, “Judd...indicates that promotion is discretionary among those eligible.” Id.

The fact of the matter remains that Judd still controls and is to be relied upon in this case as determinative of its outcome. Contrary to the petitioners’ assertions, the trial court’s decision is neither in conflict with the rationale of McGrath and Borough of Wilkinsburg, nor does it render Section 55642 (i.e., the “promotion” statute) of the First Class Township Code “meaningless surplusage.” Indeed, upon close examination, both the McGrath and Borough of Wilkinsburg decisions, when analyzed in the context of Judd, appear to command the result in this case. However, Section 55642 of the First Class Township Code, unlike its companion sections found in the Borough and Second Class County Codes and discussed in McGrath and Borough of Wilkinsburg, has simply no application or part to play in the decision-making process employed in the matter at hand.

CONCLUSION

For all of the aforementioned reasons, the trial court believes that the order, dated March 30,2010, denying the petitioners’ petition for review, should be affirmed.

      . Frank Higgins is employed by the Township of Lower Merion as a Lieutenant in the Township’s police department.

      . David Snyder is employed by the Township of Lower Merion as a Sergeant in the township’s police department. The parties agree that the promotion to the Sergeant position is not an issue and therefore, will not be discussed.

      . “Petitioners Higgins and Snyder were not the highest scoring candidates on the relevant certified eligibility lists when they were promoted to their current position of Lieutenant and Sergeant, respectively.” J. Stip. of Facts, ¶32.