author: SYLVESTER, J.,

text:
    Morein v. Drexel University

      Faye R. Cohen, for plaintiff.

      Neil J. Hamburg, for defendants.
    February 1, 2000—
   FINDINGS OF FACT

SYLVESTER, J.,

This matter was tried from April 27,1999 to April 29,1999 on an action filed by the plaintiff, claiming that he was wrongfully discharged from a doctoral program at defendant Drexel University.

Having carefully reviewed the record in this matter as well as the various filings of the parties and the applicable law, the court makes the following findings of fact and conclusions of law:

(1) Plaintiff, Robert Morein, is an adult resident of the Commonwealth of Pennsylvania.

(2) Defendant Drexel University is an academic institution situated at 32nd and Chestnut Streets, Philadelphia, Pennsylvania.

(3) Defendants Constantine Papadakis, Dr. Eli Fromm, Dr. Bruce Eisenstein, Dr. Paul Kalata, and Dr. Moshe Kam all are adult individuals who are employed by defendant Drexel University.

(4) Plaintiff, having received a bachelor of science degree in 1974 from Lehigh University and a master’s degree from Temple University in 1981, applied for and was accepted by defendant Drexel University in 1989 as a doctoral candidate in the field of electrical and computer engineering.

(5) Prior to being accepted into the doctoral program, the plaintiff was required to take several courses in the post-master’s program in which courses he obtained a 3.8 grade point average.

(6) Plaintiff was. also required to take written and oral examinations which he passed prior to his acceptance in the doctoral program.

(7) Upon being admitted into the doctoral program, plaintiff was assigned defendant Dr. Paul Kalata as his thesis supervisor and advisor.

(8) Dr. Kalata had not published any articles in his field for several years and had a poor record as a thesis supervisor.

(9) From the date of his admission in the doctoral program until his dismissal, the plaintiff was not provided with meaningful or constructive guidance with respect to his field of study which concerned noise reduction in certain types of sensors.

(10) While acting as plaintiff’s thesis supervisor, defendant Kalata had a financial relationship with a private corporation, namely K-Tron Corporation.

(11) Defendant Kalata did not immediately disclose this relationship to the plaintiff even though defendant Kalata took plaintiff’s work to the company with which he was financially involved and received favorable reviews of it.

(12) A dispute arose between the plaintiff and defendant Kalata over Dr. Kalata’s bringing of plaintiff’s work to the company with which he was associated and with respect to possible compensation for the plaintiff.

(13) On account of the poor relationship that plaintiff and defendant Kalata had, plaintiff appealed to the chairman of defendant Kalata’s program, namely, defendant Dr. Moshe Kam, for the appointment of another thesis supervisor.

(14) Dr. Kam was Dr. Kalata’s only successful doctoral candidate and had a close relationship with him.

(15) Despite the plaintiff’s request, Dr. Kalata was not relieved as plaintiff’s thesis supervisor.

(16) Rather, a committee composed of four professors, including Drs. Kalata and Kam, was formed to oversee the plaintiff’s work in August of 1991 at the suggestion of Dr. Kalata.

(17) Plaintiff met infrequently with the members of the committee.

(18) The committee did not provide him with guidance or any suggestions as to how he could prepare his thesis.

(19) Approximately every six months after the committee was formed, plaintiff’s work was reviewed. However, the individuals reviewing the work were not capable of understanding plaintiff’s theories which were highly advanced and proposed a novel approach to the problem on which he was working.

(20) From the time of his admission into the doctoral program in 1990 until June of 1994, plaintiff did not receive any guidance as to how he should proceed with respect to the preparation of his doctoral thesis.

(21) Such assistance was first provided in June of 1994 by Professor Tretiak, who was a member of the committee assigned to supervise the plaintiff. '

(22) In January of 1995, plaintiff made a presentation to the committee. It was deemed insufficient.

(23) Plaintiff was thereafter dismissed from the doctoral program by a unanimous vote of the appointed committee because he had not completed the program in five years as required by a Drexel University regulation embodied in the graduate student handbook.

CONCLUSIONS OF LAW

(1) Trial courts are usually reluctant to interfere in disputes between students and post-secondary institutions of learning.

(2) Despite this, a student may bring a cause of action for breach of contract where the defendant college or university has breached written policies, guidelines, or procedures or has acted in an arbitrary or capricious manner.

DISCUSSION OF LAW

This case involves a lawsuit brought by a doctoral candidate against Drexel University and certain professors assigned to counsel and guide him in his endeavor to be granted a doctoral degree. Having carefully reviewed the matter, this court has concluded that plaintiff is entitled to relief insofar as it is clear to this court that the defendants did not fulfill their contractual responsibility to educate the appellant, as the defendants violated certain written provisions of the agreement between themselves and the plaintiff and acted in an arbitrary and capricious manner with respect to the plaintiff.

This court recognizes that, as a general rule, the legal system is reluctant to intervene in disputes between an academic institution and its students. See Regents of University of Michigan v. Ewing, 474 U.S. 214, 1065 S.Ct. 507, 88 L.Ed.2d 523 (1985); Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa. Super. 502, 573 A.2d 575 (1990). In spite of this, the courts of this Commonwealth have established that suits may be brought by students against an academic institution for breach of contract. Cavaliere v. Duff’s Business Institute, 413 Pa. Super. 357, 605 A.2d 397 (1992). In Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999), allocatur denied:

“Based upon the prior statements of our court, as well as the numerous learned decisions of other courts, we now hold that the relationship between a private educational institution and an enrolled student is contractual in nature; therefore, a student can bring a cause of action against said institution for breach of contract where the institution ignores or violates portions of the written contract.” Swartley, 734 A.2d at 919. (citations omitted)

The Swartley court further indicated that “[t]he contract between a private institution and a student is comprised of written guidelines, policies, and procedures as contained in the written material distributed to the student over the course of their enrollment in the institution.” Swartley, 734 A.2d at 919. (citations omitted)

Instantly, a review of the record establishes beyond cavil that not only were there written guidelines, policies and procedures that defined the parties’ relationship, but also that the defendants breached the standards of care and duties prescribed by these documents. For example, an excerpt from defendant Drexel’s Graduate Bulletin 1986-1987 states that, “The graduate school consists of faculty members who teach and direct the scholarly activities of selected post-baccalaureate students who are pursuing advanced study.” In addition, it provides that, “The personal relationship between professor and student, which arises from the dissertation, is recognized as teaching/leaming of the highest order.”

Instantly, the defendants unequivocally failed to meet these standards. Not only did defendant Dr. Kalata fail to provide the plaintiff the promised direction with respect to plaintiff’s field of study, he failed to establish the personal relationship with the plaintiff promised by the Graduate Bulletin. In fact, instead of establishing a personal relationship with the plaintiff, Dr. Kalata, unbeknown to the plaintiff, gave the plaintiff’s academic product to a company with which he had a financial relationship for his own gain. Moreover, despite plaintiff’s myriad pleas for assistance, Dr. Kalata ignored them, and even attempted to undermine the plaintiff’s progress by influencing the members of the committee formed after the plaintiff lodged his complaints against Dr. Kalata.

The fact that in response to the plaintiff’s complaints about Dr. Kalata, a committee was formed (plaintiff’s exhibit 22) rather than the appointment of a new thesis supervisor, also violated the written policies of the defendant Drexel University for nowhere in the previously mentioned bulletin does it permit, allow, or even mention that such a committee might be convened. The reason, the court suggests, that the Graduate Bulletin fails to mention such a committee is that such a committee cannot provide the personal relationship between the faculty advisor and the student promised by the Graduate Bulletin. Tellingly, even if the formation of such a committee was contemplated by the Graduate Bulletin, in this case the committee was not established in good faith, insofar as Dr. Kalata was named to the committee, as was Dr. Kam, who was a close associate of Dr. Kalata and who paid deference to Dr. Kalata’s judgment and decisions.

That Dr. Kalata failed to provide the plaintiff with the promised guidance is evidenced by a memo Dr. Kalata sent to the plaintiff. (Plaintiff’s exhibit 28.) In that memo, Dr. Kalata clearly indicated the degree to which he had abdicated his responsibilities toward the plaintiff. His ambivalence with respect to the plaintiff’s future course of research is manifestly obvious and, quite frankly, distressing to this court. Having dutifully paid his tuition, plaintiff was entitled to expect that the university, through its professors, would make certain that the courses he took and the research he engaged in would bring him nearer to his goal, namely the receipt of a doctoral degree.

Not only did Dr. Kalata fail to provide the plaintiff with the direction and guidance promised him, but so did the committee. Despite plaintiff’s repeated requests for assistance (see plaintiff’s exhibits 48, 49 and 53), none was provided him, leaving him unable to complete the required course work in a timely fashion. The failure to respond to plaintiff’s letters in a meaningful way was violative of the promises expressed in the Graduate Bulletin.

Finally, Drexel University breached its duty to conduct a full and impartial investigation after the plaintiff lodged his complaints with respect to Dr. Kalata. (See plaintiff’s exhibit 94.) At a minimum, the university was obliged to follow the procedures set forth in the exhibit cited, and its failure to do so amounted to a breach of the contract expressed in the Graduate Bulletin.

Plaintiff is also entitled to relief because the defendants acted in bad faith and exhibited ill will toward the plaintiff when it discharged him. In the Swartley decision, in addition to establishing a cause of action for breach of contract based on a violation of written “guidelines, policies, and procedures,” the court indicated that relief will be forthcoming when an academic decision “was motivated by bad faith or ill will unrelated to academic performance.” Swartley, 734 A.2d at 921, quoting Stoller v. College of Medicine, The Milton S. Hershey Medical Center, 562 F. Supp. 403, 412 (M.D. Pa. 1983).

Instantly, it is this court’s opinion that the defendants were motivated by bad faith and ill will when they expelled the plaintiff. This conclusion is based on the fact that Dr. Kalata and some of the members of the committee formed to replace Dr. Kalata lacked the training necessary to understand the nature of the research plaintiff was pursuing. In addition, Dr. Kam either refused or was unable to provide the plaintiff with the guidance he needed in his research; and, although the plaintiff made several complaints about Drs. Kalata and Kam, the university failed to address those complaints in an adequate fashion. Rather than appoint the plaintiff another thesis supervisor, Dr. Kalata was replaced by a committee that not only included him, but also Dr. Kam, a close associate of Dr. Kalata’s, someone who the record shows acceded to Dr. Kalata’s demands and wishes.

Perhaps the evidence that best shows that Dr. Kalata’s motives were less than pure vis-a-vis the plaintiff is that establishing Dr. Kalata’s financial relationship with K-Tron Corporation. Instead of focusing on the plaintiff and seeing that he make progress toward achieving his doctorate degree, Dr. Kalata appropriated the plaintiff’s work and shared it with K-Tron ostensibly for both his and K-Tron’s financial gain.

On account of his relationship with K-Tron Corp., Dr. Kalata should have refused to serve on the committee once it was decided to form one in response to the plaintiff’s complaints about him. Not only did Dr. Kalata fail to refrain from serving on the committee, he then proceeded to influence the other members of the committee, especially Dr. Kam, a close associate of his, such that the committee was unable to impartially and objectively assess the plaintiff’s work product and provide him with the guidance promised by the Graduate Bulletin. For these reasons, it is clear that the defendants did not perform as required and that the plaintiff is entitled to damages as a consequence of the defendants’ breach of the agreement between them and the plaintiff.

Having found both that the defendants breached the written contract between themselves and the plaintiff, and that the defendants have acted in bad faith and exhibited ill will with respect to the plaintiff, the question of what remedy plaintiff is entitled to must be addressed. Given that this court has found that the defendants are in breach of the contract between themselves and the plaintiff, it is clear that he is entitled to the amounts he paid in tuition while working on his doctorate, as well as counsel fees. In addition, since the court has found that the defendants arbitrarily dismissed the plaintiff from the doctoral program, it is this court’s view that he is entitled to reinstatement, as well as the expungement from his record, the fact of his dismissal, as well as attorney’s fees. Plaintiff, however, is not entitled to both remedies, as it would be unfair to the defendants to require them to reimburse the tuition money plaintiff tendered to Drexel University and require it to reinstate him. Consequently, plaintiff must elect between these two remedies and advise this court and the defendants of his election, so that this court can issue an appropriate order.


source: Caselaw Access Project

author: REHKAMP, J.,

license: Public Domain

text:
    Michaels v. Michaels

      C.P. of Perry County,
    no. 99-135.

      Richard Gaffney, for father.

      Robert B. MacIntyre, for mother.

      Kathy A. Morrow, for child.
    November 12, 1999—
   REHKAMP, J.,

FINAL MEMORANDUM

This is a custody case that was appealed following the entry of a July 16,1999 order, which denied a request by natural mother to order DNA testing to determine whether or not her estranged husband, Ronald Michaels, was the natural father of the subject child. It should be noted that the parties to this appeal have another child to which there is a stipulation of custody entered in this matter.

My July 16,1999 order incorporated a previous order entered on April 30, 1999, copies of which are attached hereto and incorporated herein by reference thereto. Basically, this case involves a dispute over paternity in a custody context of a child bom to the marriage of the parties, with conception occurring while the parties were together and birth occurring after separation of the parties. Mother left putative father a short time after conception and went to live with her boyfriend, whom she claims is the natural father of the subject child. Mother filed for divorce sometime after the birth of the child and continues to reside with her boyfriend. Husband contests the divorce and wants visitation rights with respect to the subject child pending appeal of this action.

This court is satisfied that, according to the two most recent Supreme Court decisions on point, being Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997) and Strauser v. Stahr, 556 Pa. 83, 726 A.2d 1052 (1999), because there is no intact family to preserve in this case, the presumption of paternity does not even apply to the facts of this case. In that event, this court must then consider the estoppel evidence, which “If the trier of fact finds that one or both of the parties are estopped, no blood tests will be ordered.” Brinkley v. King at 250, 701 A.2d at 180. In reviewing the Brinkley v. King case, the definition of estoppel is provided in a reference to another case of Freedman v. McCandless, 539 Pa. 584, 591, 592 n.5, 654 A.2d 529, 532, 533 n.5 (1995), as follows:

“Estoppel in paternity actions is merely the legal determination that because of a person’s conduct, (e.g., holding out the child as his own, or supporting the child), that:
“[U]nder certain circumstances, a person might be es-topped from challenging paternity where that person has, by his or her conduct, accepted a given person as father of the child....”

The doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child . . . only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.

The Supreme Court in Brinkley then goes on to state that the doctrine of estoppel embodies the fiction that the person who has cared for the child is the parent. Under the circumstances of the instant case, Ronald Michaels, as the putative father, has not cared for the child as mother has denied him any visitation rights with respect to the subject child and has lived with her boyfriend, whom she claims is the natural father of the child. The boyfriend apparently has been acting in the role of father and was even placed on the birth certificate by mother as the natural father of the subject child.

Based upon the above analysis, it appears to this court that if this case goes to the Supreme Court of Pennsylvania, then in all likelihood blood testing would be ordered by the court. However, in the meantime this court is faced with the prospect of ordering visitation rights of the putative father and husband, Ronald Michaels, with the subject child over strenuous objection of mother.

If mother had decided to stay with husband rather than live with boyfriend, this court is satisfied that, according to the Supreme Court’s decisions referred to above, that the policy of preservation of the family unit would dictate that no paternity tests would be ordered as the presumption of paternity would not have been rebutted under the facts of this case wherein it is clear that both boyfriend and husband had access to mother at time of conception and there is no question that husband is potent, as they have another child to their marriage. Then the estoppel analysis would be considered and this court would have to consider whether the act of mother placing boyfriend’s name on the birth certificate as the father, plus any other circumstances would have estopped either party from requesting a blood test.

It just seems to the undersigned judge, who was also the presiding judge in the Strauser v. Stahr case referred to above, that the best interests of the child in a custody action wherein the issue of paternity is contested does not seem to be the overriding concern of the appellate courts. In the Strauser v. Stahr case, the natural father was precluded from establishing his paternity and allowing him any visitation whatsoever with the child because of the intact family unit which the court desires to preserve. The best interests of the child in that case would have been promoted by allowing visitation in this court’s opinion. In this case, it seems that the equities favor the husband, Ronald Michaels, but because of the decision of the mother to separate from husband and take up residence with boyfriend, husband will lose any rights he has with respect to the subject child, assuming blood testing determines that he is not the natural father. Parenthetically, it should be noted that mother and boyfriend did have blood testings performed, apparently, on the subject child, the results of which were not admitted by this court.

Husband desires to preserve the marriage and has contested the divorce action by filing a request for counseling and has pursued vigorously this custody action to establish a relationship between himself and the child, who is the subject of this proceeding. It should also be noted that there is another child to the parties, who is only a couple years old and the subject child is less than a year. Morally speaking, it seems to this court that the Supreme Court’s policy on preserving the family unit backfires under the facts of this case. By the mere act of unilaterally separating from her husband, wife can establish a complete defense to a custody case involving her husband and child or children. If wife’s relationship with boyfriend and natural father does not continue and the parties would reunite, then where does the law stand on blood testing at that point in time?

Lower courts should be allowed to decide custody cases on what is best for the children involved in the dispute and not upon super technical rules which don’t always promote the concept of preserving the family unit. Blood tests should be allowed by the lower court where it is in the best interests of the child to do so. Rather than applying estoppel concepts, the equities of the case should decide when blood tests are admissible to prove paternity in a custody case.

The admission of blood test results under the facts in this case do not promote a family unit, but in fact, destroy a family unit wherein another child to the parties is affected by the introduction of blood test results.

Times have changed and the legislature has recognized these changes and perhaps promoted same by relaxing restrictions on obtaining divorce by mutual consent and also the ordering of DNA tests to determine paternity and a declaration of legitimacy of children by virtue of said test results to inherit from their parents’ estates. Custody cases should not be decided by archaic rules aimed at preserving the family unit, which units are destroyed by the unilateral acts of one spouse as has occurred in this case by the wife.

ORDER

And now, July 16, 1999, after telephone conference with counsel of record, including counsel for the child, Kathy Morrow, Esquire, and pursuant to the order dated April 30, 1999, which order is incorporated herein by reference thereto, it is hereby ordered and directed that no DNA testing shall be required in this case, as Ronald Michaels is the presumed father of the subject child, who was bom during the marriage, and it is further ordered and directed that a visitation schedule shall commence between Ronald Michaels and the subject child, with the assistance of Kathy Morrow, Esquire, who represents the child in this matter.

ORDER

And now, April 30, 1999, upon review of the briefs submitted by counsel of record, it is hereby ordered and directed that Ronald Michaels is presumed to be the father of the subject child, Cassidy Dugan, who was conceived and born during the marriage of the parties, and defendant has failed to prove non-access or impotency of plaintiff to rebut said presumption of paternity. However, since the marriage of the parties is no longer intact as the parties separated sometime around conception of the subject child and defendant filed for divorce a few days after the birth of said child and is living with Michael Dugan, with whom she had an affair during the relevant time period, this court must either direct DNA testing and reserve its decision to grant visitation and/or custody rights in plaintiff, or deny defendant’s request for DNA testing and grant plaintiff custody and/or visitation rights at this time. Before doing so, this court will appoint counsel for the subject child as this court is inclined to grant the request for DNA testing based upon its understanding of the current case law.

Kathy A. Morrow, Esquire, is hereby appointed as attorney for the subject child to advance argument on behalf of said child as to what is in the child’s best interest under the context of this case. After review of the file, upon request of court-appointed counsel for said child, this court will schedule an argument conference either in person or by phone.


author: WOOD, J.,

text:
    Smith v. Housing Authority of Chester County

      C.P. of Chester County,
    no. 98-06419.

      Elliott M. Casteneda, for petitioner.

      George W. Raleigh, for respondent.
    October 20, 1998—
   WOOD, J.,

I heard this matter de novo sitting without a jury, in the nature of an appeal from a local agency, on October 13, 1998.

The petitioner, Alsenia Smith, had been receiving rental subsidies from the Housing Authority of Chester County pursuant to the so-called “Section 8” program. Qualification for this program depends on a number of things: That the applicant provide accurate information about household members; that the number of household members not be increased without permission from the authority; that the authority be notified if adult members leave the household; and that the tenant comply with her lease with the private landlord. These requirements are all contained in respondent’s exhibit no. 1, which is an extract from the federal regulations regarding the Section 8 program. The housing authority contends that Alsenia Smith has violated these provisions.

The testimony at the hearing supports the following findings of fact: That Alsenia Smith failed to pay her water bill in full under her lease, as she was required to do; that she failed to provide full social security numbers for Ali Akbar Wells and Lewis Smith, her son, at various times; that she didn’t provide a birth certificate for Ah Akbar Wells; that she said at one point that Lewis Smith lived with her, although she denied that he did during the hearing; and that Lewis Smith did not sign a certain consent form.

Reading between the lines of the testimony offered at the hearing, it seemed to me that the most material of the housing authority’s complaints were that Ms. Smith had not provided the housing authority with full and accurate information about the occupants of her household, and that she was sneaking unauthorized persons, particularly Lewis Smith, into her house, without getting permission from the housing authority.

With respect to the lease problems with the landlord, it appears that Ms. Smith worked out a way to reimburse the landlord for the unpaid water bill. With respect to some of the information, it appears that she gave partial information, such as the presence of Ali Akbar Wells in her household without providing his social security number (which she said that she didn’t have). I gather the housing authority knew that he was living there. I am not even at this point clear on whether they think she was deceiving them by saying he wasn’t there, or that she was deceiving him by saying that he was there.

With respect to Lewis Smith, he may very well have been living with her illegally, but the situation regarding him kind of points up the difficulty about this whole case: The difference between what’s true and what’s proven. This is a distinction which I think it is sometimes difficult for non-lawyers and young lawyers to grasp. Lewis may very well have been living with Ms. Smith, but both he and Alsenia Smith have denied it under oath, and the contrary proof is that she said that he was living there during an informal telephone call to the housing authority. I would think that the housing authority should produce some firmer proof that he was in fact there.

Both counsel have agreed that I should use as guidance the opinion of Chief Judge Scholl in Sweeney v. Housing Authority of Chester County, 215 B.R. 97, a case which also involved a challenge to a cancellation of a Section 8 certificate under the program of the Chester County Housing Authority. Basically what Judge Scholl says is that violations of the program requirements should be material before a person’s certificate is cancelled. I agree with that proposition, and I don’t think either attorney would argue with it.

I don’t think that the housing authority has proved a material violation of any of the regulations in this case. Ms. Smith certainly provided incomplete information; she may even have provided inaccurate information. But, as a “for instance,” I find it hard to fault her for not providing the social security number of Ali Akbar Wells. She noted his presence in the household on her personal declarations, and if he was placed with her by CYF, our local child welfare agency, as she claims, it is understandable that she may not have had his social security number. In any event, she did acknowledge that he was there.

With respect to Lewis Smith, I don’t think the housing authority has carried its burden of proving that he was living in Ms. Smith’s premises illegally.

I served as solicitor for the housing authority for a number of years prior to going on the bench, and I am well aware of the difficulties of insuring that people who receive the benefits of subsidized housing comply with all the requirements of the program. On the other hand, as Judge Scholl notes, low income people need housing, and should not be deprived of it unless it is shown that they have materially and culpably violated the rules of the program. I don’t think that that has been adequately shown here.

ORDER

And now, October 20, 1998, the Housing Authority of Chester County is directed to restore Alsenia Smith to the Section 8 program, conditioned upon her ongoing compliance with the rules of that program.


author: SCHMEHL, P.W., J.,

text:
    In re Estate of Missonis

      C.P. of Berks County,
    no. 73813.

      Paul R. Ober, for petitioners Missonis and CoreStates Bank.

      Susan E. B. Frankowski, for respondent Goforth.

      Karen H. Cook, for respondent Paragon Abstract Company.
    November 24, 1998—
   SCHMEHL, P.W., J.,

This matter is before the court on a petition to reform deed or rescind sale of real estate. The petition was filed on behalf of Annemarie Missonis, an incapacitated person, by her guardians, Anne M. Missonis and CoreStates Bank (now First Union). The respondent is Marsha Goforth, the purchaser whose deed is in question. Counsel for Paragon Abstract Company, Ms. Goforth’s title insurer, also entered an appearance.

On March 12, 1997, the co-guardians of the estate of Annemarie G. Missonis received court approval to sell the premises located at 1415 Old Wyomissing Boulevard, Reading, Pennsylvania. This sale was effected on March 21, 1997.

When Ms. Goforth learned that the property was for sale she contacted her realtor to set up an appointment to view the premises. She testified at trial that on her first visit to the premises she primarily viewed the interior of the house, located thereon. She returned to the premises a second time during an open house. The agent on duty at the open house showed Ms. Goforth the approximate boundary by pointing out a birdbath. By his testimony, he also pointed out some bushes and two pins or pipes that served as boundary markers. Ms. Goforth denied receiving any indication of the boundary marker other than the birdbath being the approximate boundary. The agent testified that the birdbath was approximately two feet beyond a concrete pad, while Ms. Goforth testified that the birdbath was an additional five feet beyond that indicated by the agent. In either case, the birdbath was very close to the actual boundary.

The deed that was prepared and executed contained lot dimensions which inadvertently included approximately one-half of the adjoining lot. Both the Old Wyomissing Road property and the adjoining lot were owned by the estate of Annemarie G. Missonis. There was no subdivision plan or subdivision approval which authorized conveyance of 1415 Old Wyomissing Road in the dimensions attempted.

There was testimony by the underwriting attorney for Paragon Abstract Company that had the 1990 subdivision plot plan and tax records been found, the deed to Ms. Goforth would have been changed accordingly before its execution.

Anne Missonis testified that there was no intent to convey any portion of the adjoining lot, which lot was also for sale. Ms. Goforth had no interest in, nor any intent to purchase, any portion of the adjoining lot, and apparently there was a separate prospective buyer interested in that lot. At some point in time after Ms. Goforth purchased the 1415 Old Wyomissing property, the prospective buyer for the adjoining lot spoke with her. He indicated that he thought about building a home on the property. Ms. Goforth did not want another house so close to her and therefore discussed with Ms. Missonis the possibility of purchasing the adjoining lot. Ms. Missonis then discussed with her attorney the possibility of reversing the 1990 subdivision. Later, Ms. Goforth received her copy of the recorded deed and discovered that the deed covered a portion of the adjoining lot. She was no longer interested in purchasing the adjoining lot and claimed that portion of it conveyed to her under the deed by which she bought the 1415 Old Wyomissing Road property. Although Ms. Goforth testified that she read the deed before she signed it, it was about this time that she learned of the error in the deed which purported to convey a portion of the adjoining lot.

“When the language of [a] deed is clear and free from ambiguity, the intent of the parties must be determined from the language of the deed.” Wysinski v. Mazzotta, 325 Pa. Super. 128, 132, 472 A.2d 680, 683 (1984). In cases of fraud, accident or mistake, however, the nature and quantity of the real estate interest conveyed may be shown by parol. Id. at 132, 472 A.2d at 682-83. “To permit a variation of a deed description which is complete and unambiguous on its face, there must be evidence of a mutual mistake which is clear, precise and convincing.” Id. at 132, 472 A.2d at 683. A mutual mistake is a “clear impression in the minds of the parties as to the existence of a material fact, sufficient in importance to influence and govern a man of ordinary intelligence, and on which both parties relied and acted, which fact did not exist.” Owens v. Township of Ross, 114 P.L.J. 271 (1966). “[Cjourts of equity have jurisdiction to reform deeds when mutual mistakes appear and the evidence is clear and positive, although the mistake is denied by one of the parties, and also in cases of unilateral mistake when it is made with the knowledge of the other party.” St. Mark’s Evangelical Lutheran Church v. Briarcliff Realty Co., 197 Pa. Super. 118, 121, 177 A.2d 169, 171 (1962), citing Rusciolelli v. Smith, 195 Pa. Super. 562, 171 A.2d 802 (1961). “[Tjhe one seeking reformation on the ground of mutual mistake must establish in the clearest and most satisfactory manner that the alleged intentions to which he desires that the deed be made to conform continued concurrently in the minds of the parties down to the time of the execution of the deed.” Rusciolelli at 566, 171 A.2d at 805. Furthermore, the mistake of a scrivener in preparing a deed may be established by parol evidence and the instrument reformed accordingly. Duncan Trust, 426 Pa. 283, 289, 232 A.2d 717, 720 (1967).

The court finds that there is clear and convincing evidence to support the existence of mistake in the instant real estate transaction; therefore, the real estate interest conveyed may be shown by parol evidence. This is a case of a scrivener’s mistake which resulted in the instrument’s conveying more land than was intended to be sold or bought. Each party was mistaken as to the content of the deed when they executed it. The petitioners intended to convey 1415 Old Wyomissing Road and not a portion of the adjoining lot. Ms. Goforth intended to purchase only 1415 Old Wyomissing Road and, at the time, had no interest in the adjoining lot. Only after receiving a copy of the recorded deed, and learning of the mistake for the first time, did Ms. Goforth claim any portion of that lot.

In preparing the deed, the scrivener mistakenly relied upon the property description in the deed to the property which was executed prior to the 1990 subdivision, which property description was no longer valid. Furthermore, it is clear to the court that the parties’ understanding that only 1415 Old Wyomissing Road was being conveyed, and no portion of the adjoining lot, continued concurrently in both parties’ minds down to the time of execution of the deed. The petitioners mistakenly conveyed and Ms. Goforth mistakenly received more property than either intended. The parties shared the mutual mistake in believing that the deed conveyed only 1415 Old Wyomissing Road and no more. Even if the mistake is deemed to be unilateral, Ms. Goforth had constructive knowledge that more land was being conveyed by the deed than actually existed within the 1415 Old Wyomissing Road property as reflected in the 1990 deed, which deed was recorded. The recorded 1990 deed gave Ms. Goforth “good reason to know” of the mistake such that relief should be granted. See Appel Media Inc. v. Clarion State College, 15 Pa. Commw. 635, 327 A.2d 420 (1974). Furthermore, it would be unreasonable to conclude that the petitioners intended to sell half of the adjoining lot when to do so would ruin the possibility of selling that lot as a whole, particularly when there was an interested buyer, and when it would also make it difficult to sell the remaining half of the lot as an individual parcel.

Ms. Goforth’s reliance on Wysinski (deed not reformed) in arguing that the lot dimensions should not be reformed because the deed is clear and unambiguous on its face is misplaced. Wysinski is quickly and easily distinguished by the fact that in that case the property description in the 1888 deed was derived directly from an 1888 survey and the court specifically found that the deed description was not the result of mistake. Furthermore, in Wysinski, the exact same description appeared in deed after deed in the chain of title whereas in this case the description has changed over the years.

It is also worthy to note that the deed, as written, creates an illegal subdivision in violation of the Municipalities Planning Code. 53 P.S. § 10101 et seq. Subdivision plans must be submitted and approved before a property may be divided. 53 P.S. § 10507; Subdivision and Land Development Ordinance of the City of Reading (Ord. 33-77) § 1387.02(a). No subdivision plans for the lot adjoining 1415 Old Wyomissing Road were, or were intended to be, submitted to the appropriate governmental body. It would be unreasonable to conclude that the petitioners, in conveying the 1415 Old Wyomissing Road property intended to do an illegal subdivision and subject themselves to criminal penalties, only to have the municipality institute an action to have the subdivision rescinded anyway. See 53 P.S. §10617. It would also be unreasonable to conclude that the petitioners intended to reverse the 1990 subdivision in light of the discussion above on the salability of the adjoining lot. In addition,

“The principle of public policy is, that no court will lend its aid to a man who grounds his action upon an immoral or illegal act... [Pjrinciples of public convenience demand that the justice of the case shall yield to higher considerations, the operation of the precedent on public morals and the public interest. It is for these reasons courts of justice will not assist an illegal transaction in any respect.” Contractor Industries v. Zerr, 241 Pa. Super. 92, 97, 359 A.2d 803, 805 (1976), quoting Fowler v. Scully, 72 Pa. 456, 467, 13 A. 699 (1872).

Because it is clear that there was a scrivener error and there was a mutual mistake as to conveying more land than was intended, the deed must be reformed to reflect the correct boundaries for the 1415 Old Wyomissing Road property.

For the foregoing reasons, the court enters the following decree nisi:

DECREE NISI

And now, November 24, 1998, the deed recorded at record book volume 2821, page 244, Berks County Records is reformed to reflect the correct description of the real estate located at 1415 Old Wyomissing Road, Reading, Berks County, Pennsylvania as that property is shown in plan book 173, page 52 in the Berks County Recorder of Deeds Office. The description shall read as follows:

“All that certain tract of ground with improvements in the 18th ward of the City of Reading, being 1415 Old Wyomissing Road, being the ‘Residue Parcel, Schaffer’ of the Schaffer subdivision, by Ludgate Engineering Corporation, recorded in plan book 173 page 52 in the Berks County Recorder of Deeds Office; being further described as follows:
“Beginning at an iron pipe on the north east corner of Old Wyomissing Road and Ivy Lane; thence along the east side of Ivy Lane North 22 degrees 55 minutes 45 seconds east, 100 feet to a point; thence along lot 1 of said subdivision south 67 degrees 4 minutes 15 seconds east, 25 feet to a point; thence further along lot 1, North 82 degrees 20 minutes 25 seconds east, 16 feet to a point; thence further along lot 1, South 67 degrees 20 minutes 15 seconds east, 61.04 feet to a point; thence along lands now or formerly of George J. Rubey and Helen Rubey, his wife, South 22 degrees, 39 minutes 45 seconds west, 107.96 feet to a point; thence along the north side of Old Wyomissing Road North 67 degrees 20 minutes 15 seconds west, 100.32 feet to the point of beginning.
“Containing in area 10,547 square feet by said plan.
“Being a portion of the same tract of land which John B. Levan conveyed by deed dated June 1, 1990 unto Annemarie G. Schaffer, recorded in Berks County deed book 2144 page 486.”

      . This indication was made by markings on exhibit 1A.

      . In or around 1990 a portion of the 1415 Old Wyomissing Road property and a portion of an adjacent property were combined to create a lot between the two properties. The property description contained in the deed given to Ms. Goforth was the description of the 1415 Old Wyomissing Road property before this subdivision was created. The subdivision plot plan was recorded and the tax maps indicated that the newly created parcel and the down-sized 1415 Old Wyomissing Road property were separate lots and each had its own tax ID number.

      . She later testified that she did not have time to read the deed.

      . In fact, the intent to convey 1415 Old Wyomissing Road, as described in the 1990 deed, continued concurrently in the minds of the parties beyond the time of execution of the deed until Ms. Goforth received her copy of the recorded deed some weeks later.


text:
    Commonwealth ex rel. Wheatfield Township v. Browder

      C.P. of Perry County,
    no. 94 of 1998.

      Dennis Boyle, for Commonwealth.

      Luann Browder, pro se.

      Harry Browder, pro se.
    September 28, 1998—
   REHKAMP, J.,

There are two things in life that are for certain, death and taxes. These immortal words of Ben Franklin ring as true today as they did when they were first uttered back in the late 1700s. This case involves a couple trying to get around one of the two inevitabilities of life. Apparently, they did not file a local income tax return in Wheatfield Township. A complaint was filed against them and they were both found guilty by the district justice. They appealed de novo to this court and likewise were found guilty. The Browders raised four issues: first, that they were not required to pay the earned income tax; second, that they have a right to trial by jury; third, that the institution of the charges was wrong in that the case should have been a civil proceeding brought by the township rather than a criminal action brought by the Commonwealth; and fourth, that the Browders’ constitutional rights were violated. Each issue will be addressed in turn.

First, the Browders argue that they were not required to file an earned income return and therefore are not guilty of failing to file an earned income tax return. According to the Local Enabling Act, 53 P.S. §6901 et seq., a taxpayer is defined as follows: A person, whether an individual, partnership, association or other entity, required hereunder to file a return of earnings or net profits, or to pay tax thereon. Earnings are defined as salaries, wages, commissions, bonuses, incentive payments, fees, tips that may accrue or be received by an individual for services rendered, whether directly or through an agent, and whether in cash or property. 53 P.S. §6913(i). In our case, the defendants lived in the taxing district and made money. They then decided not to file a tax return. This is in violation of the law. As such, we found them guilty of this offense.

The Browders next argue that they have a right to a trial by jury in this case. While it is true that the Constitution of the United States and the Pennsylvania Constitution provide for jury trials, they do not provide for jury trials in summary offenses. If this were the case, the courts would be swamped with a myriad of jury trials for people simply getting $7 parking tickets. If an individual is allowed a right to a trial by jury for a summary case, the state would have to hire hundreds of more judges and more law clerks. Consequently, defendants’ argument is frivolous and is dismissed.

Third, the defendants argue that the institution of charges was improper. The defendants believe that the township should have brought a civil action instead of a criminal action against them. However, this is not the case. The township may very well bring a criminal action for willful failure to file a tax return such as the case here. The defendants state that a criminal complaint filed by a private citizen was not filed with the proper issuing authority. Proper issuing authority means district justice. See Pa.R.Crim.P. 3. The complaint was filed with the district justice and the defendants were found guilty at the district justice proceeding and then appealed to the court of common pleas. Defendants also allege that the court of common pleas doesn’t have jurisdiction because Ms. Miller’s private complaint was not approved according to Pa.R.Crim.P. 106. Said rule does not apply to this case, as this is a prosecution under 53 P.S. §6913, which authorizes the complainant to file a criminal complaint against the defendants for failure to file an earned income tax return for Wheatfield Township without obtaining any permission from the district attorney just as a police officer can file a summary offense against an individual for a traffic violation. In this case, Luanne Miller is an employee of the agency authorized by the township to collect taxes. This court adopts the reasoning set forth in the trial memorandum filed by counsel for Capital Area Tax Collection Bureau in support of this argument.

Finally, defendants argue that their right to self-incrimination was violated under the Fifth Amendment and that permits them not to file an earned income tax return. It is well settled in the law that you cannot use self-incrimination as a defense for failing to file an informational tax return. See U.S. v. Shineck, 445 F. Supp. 884 (M.D. Pa. 1978). This court likewise finds that the defendants’ other constitutional arguments against self-incrimination are equally unfounded and without merit.

The trial memorandum submitted by counsel for Capital Area Tax Collection Bureau, the agent employed by Wheatfield Township to collect tax, is hereby fully incorporated herein by reference thereto and a copy is submitted with this final memorandum as support for this court’s decision in this case.

TRIAL MEMORANDUM

I. Facts and History of the Case

On or about November 4,1997, a complaint was filed against the defendant pursuant to 53 P.S. §6913 and the Wheatfield Township Earned Income Tax Resolution of Wheatfield Township, for failure, neglect or refusal to file earned income tax returns. The complaint alleged that the defendant failed to file a return for the tax year 1995 by April 15, 1996, as required by section 4(A) of the E.I.T. Resolution of Wheatfield Township, enacted pursuant to the authority granted to the district by the Commonwealth in the Local Tax Enabling Act, 53 RS. §6901 et seq. At a hearing held on March 4, 1998, the defendant was found guilty of the sole charge of the complaint, and ordered to pay fines and costs in the amount of $100.

A timely appeal followed.

II. Legal Issues

This trial memorandum is being presented to the court to assist it in deciding the legal obligations which give rise to a duty to file an income tax return and to address the substantive legal issues raised by the defendant in her voluminous pretrial filings.

A. Duty To File

Since January 1,1966, Wheatfield Township has levied taxes at a rate of 1 percent on earned income and net profits received by its residents. The resolution which contained the relevant provisions regarding the earned income tax, the E.I.T. Resolution, substantially follows the provisions of the Local Tax Enabling Act, 53 P.S. §6901 et seq. The resolution defines a taxpayer as follows:

“A person, whether an individual, partnership, association or any other entity, required hereunder to file a return of earnings or net profits, or to pay tax thereon.” E.I.T. Resolution §1; 53 P.S. §6913(i).

Earnings are defined as:

“Salaries, wages, commissions, bonuses, incentive payments, fees, tips that may accrue or be received by an individual for services rendered, whether directly or through an agent, and whether in cash or in property; not including, . . . any wages or compensation paid by the United States to any person for active service in the Army, Navy, or Air Force ...Id.

Furthermore, the resolution requires the filing of annual returns on or before April 15 of the year following the taxable year.

Finally, the ordinance provides that:

“Any person who fails, neglects, or refuses to make any declaration or return required by this ordinance,... shall upon conviction thereof... be sentenced to pay a fine of not more than $300 for each offense and costs, and in default of payment of said fine and costs, to be imprisoned for a period not exceeding 90 days.” E.I.T. Resolution §10; 53 P.S. §6913(IX)(A).

The defendant apparently does not contest the fact that she resides in the taxing district. Also, in documents filed with this court, she admits that she has not filed returns. In order to be convicted, the Commonwealth need only prove that the defendant was a resident of the taxing district, and that she failed to file a return. E.I.T. Resolution §10; 53 P.S. §6913(IX); Boyer v. Commonwealth, 58 Pa. Commw. 34, 426 A.2d 1302 (1981). The Commonwealth need not prove that the defendant actually had income. Commonwealth v. Case, 8 D.&C.3d 611 (1978).

B. The Right to Trial by Jury

In documents filed with this court, the defendant apparently objects to the summary trial in this case before a judge alone, and requests a trial by jury. Neither the Rules of Criminal Procedure, the United State Constitution nor the Pennsylvania Constitution grant the defendant a right to trial by jury. See Pa.R.Crim.P. 83 and 86; Codispoti v. Pennsylvania, 418 U.S. 506 (1974) (interpreting the U.S. Constitution); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974) (interpreting the Pennsylvania and U.S. constitutions). In fact, the very argument made by this defendant to a charge brought under the instant statute, has already been made to and rejected by the Commonwealth Court. Peeples v. Commonwealth, 101 Pa. Commw. 23, 515 A.2d 625 (1986). As the Commonwealth Court noted in Peeples, the defendant’s argument is completely frivolous. Id. at 31-32, 515 A.2d at 628-29.

C. Institution of Charges

The defendant also maintains that the current proceeding before this court should have been a civil action brought by the township, rather than a criminal action wherein Luann Miller served the affiant. In making these assertions, the defendant apparently misunderstands the nature of this action and the clear meaning of 53 P.S. §6913. Both the E.I.T. Resolution and 53 P.S. §6913 authorize the summary prosecution of individuals who do not file income tax returns. The plain reading of the statute indicates that a criminal complaint alleging a summary violation of the resolution may be undertaken by the Commonwealth. Id.; see also, Boyer v. Commonwealth, 58 Pa. Commw. 34, 426 A.2d 1302; Peeples v. Commonwealth, 101 Pa. Commw. 23, 515 A.2d 625; Commonwealth v. Case, 8 D.&C.3d 611. In this particular case, the taxing district has elected to avail itself of the summary procedures authorized by the statute and the resolution. Of course, the E.I.T. Resolution also authorizes civil suits for collection of taxes, and the taxing district is not waiving its right to pursue civil remedies as well. A summary proceeding, however, was instituted and is the current action before this court.

The defendant also challenges the right of Luann Miller to serve as an affiant on the criminal complaint filed. Pa.R.Crim.P. 65, however, indicates that a summary case may be initiated by complaint “[w]hen the affiant is not a law enforcement officer.” Id. Ms. Miller is not a law enforcement officer and, therefore, properly instituted this action by complaint. Further, when a summary charge alleges a violation of a local ordinance as in this case, an attorney representing the municipality, with the consent of the Commonwealth, may appear and assume charge of the prosecution. Pa.R.Crim.P. 83(C). That is precisely what has happened in this case. Again, the defendant’s argument is completely without merit.

The defendant also apparently challenges the sufficiency of the allegations contained in the complaint, and suggests that the complaint does not sufficiently identify the law which was violated. Such an argument is completely specious. The complaint, in fact, references both the local resolution, the Wheatfield Township Earned Income Tax Resolution, which was violated, and the state enabling legislation which authorizes enactment of the resolution. In addition, in various documents the defendant has filed with this court, she evidences a complete understanding of the resolution that was violated. Further, the language in the complaint clearly gives the defendant notice of the specific conduct which violated the statute.

D. Duty To File a Tax Return; Constitutional Protection

Finally, the defendant appears to suggest that her rights under the federal and Pennsylvania constitutions, specifically the right against self-incrimination, permit her to not file an earned income tax return. The state and federal courts which had addressed this issue have uniformly held that a defendant may not employ constitutional privileges against self-incrimination as a defense in a proceeding for failure to file an informational tax return. United States v. Sullivan, 294 U.S. 259 (1927); United States v. Edelson, 604 F.2d 232 (3d Cir. 1979); United States v. Shineck, 445 F. Supp. 884 (M.D. Pa. 1978); Philadelphia v. Cline, 158 Pa. Super. 179, 44 A.2d 610 (1945). This allegation of error, like the others raised by the defendant, is completely without merit.

Wherefore, the Commonwealth respectfully requests this honorable court return a verdict of guilty after hearing the evidence presented in this case.

Dennis E. Boyle, Esquire

Nauman, Smith, Shissler & Hall

Counsel for: Capital Area Tax Collection Bureau

May 27, 1998

CERTIFICATE OF SERVICE

I hereby certify that on the date written below, a true and correct copy of the foregoing trial memorandum was served by United States first-class mail, postage pre-paid, upon those person(s) listed below:

Luann Browder

RO. Box 87

New Buffalo, PA 17069

Dennis E. Boyle, Esquire

Nauman, Smith, Shissler & Hall

May 27, 1998

      . The defendant has raised a myriad of other issues which do not merit discussion. Among others, she objects to a trial de novo and to the jurisdiction of this court. Since such assertions fail to raise intelligible issues of law or fact, it is not possible to reasonably respond to them. Appeals from summary convictions before district justices clearly have to be brought in the court of common pleas. See Pa.R.Crim.P. 86(f). It would seem, however, that the appellant’s position is that she is not bound by the same laws which the rest of us must follow in order to be part of a civilized society and therefore is not bound by court decisions.


text:
    Commonwealth v. Ridgeway

      C.P. of Chester County,
    no. 3463-98.

      Daria T. LaTorre, for Commonwealth.

      S. Lee Ruslander, for defendant.
    February 3, 1999—
   WOOD, J.,

This fascinating case raises issues of constitutional import. Although the analysis is complicated, and the result not altogether satisfying logically, I conclude that I must rule against the defendant, and will not suppress the evidence.

On July 19, 1998, defendant William Ridgeway and Elizabeth Declet were living together in an apartment at 663 East Union Street, West Chester, Chester County, Pennsylvania. Elizabeth Declet was also the mother of three children, all girls, ages 9, 10, and 11, who lived at the same apartment. Ms. Declet paid the rent on the premises, and the lease was in her name. She and defendant shared a bedroom, and each had his or her own dresser in that bedroom.

On the date in question, Ms. Declet was putting some laundry away in one of the defendant’s dresser drawers, and a videotape “fell out” in some fashion. The videotape appeared to be one of a set of eight that defendant and Ms. Declet had purchased, and Ms. Declet was aware prior to the discovery of this tape that one of the set was missing. She recognized the videotape that she found as one of the missing set because it was not like the normal VCR tapes in appearance.

She put the videotape in some sort of recorder in order to view it, out of curiosity, as she said. She watched the entire tape. She reports that it had two main sections to it, and that in each section, various of her girls were shown in stages of undress, down to complete nudity.

Ms. Declet was, quite understandably, terribly upset, and she set out to find the defendant. When she couldn’t find him, she returned to her home and called the police. An Officer McIntyre arrived and found her in a state bordering on hysteria. She calmed down long enough to tell Officer McIntyre that she had the tape, and she put it on the VCR for viewing. Officer McIntyre looked at about 30 seconds of it, and then instructed Ms. Declet to turn it off. He took the tape into custody, and later that evening passed it along to Detective Tom Yamall of the West Chester Police Department. Detective Yarnall viewed the tape in its entirety, and determined that defendant should be arrested on charges of possession of child pornography, filming sexual acts, and illegally intercepting communications.

Defendant moves to suppress the tape, based on the following line of argument (as best I understand it): Defendant acknowledges that nothing constitutionally improper occurred when Ms. Declet took physical custody of the tape, and even when she watched it through to the end. Defendant also acknowledges that the police were entitled to take physical custody of the tape. However, he contends that the police viewing of the tape amounts to a search, and that since it was a search, and was done without the authority of a search warrant, further use of the tape must be suppressed.

The defendant refers me to Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). In Walter, some pornographic material was sent through the mail and got misdirected. The pornographic material consisted of videotapes, and the unintended recipients realized right away from looking at the package that it contained homoerotic material. They called in the FBI, who picked up the packages, opened them, and viewed the material. Following that, they made their arrests.

The United States Supreme Court decided that while the FBI agents legitimately took possession of the tapes, they should have obtained a search warrant before viewing them.

Both parties have referred me to Commonwealth v. Kean, 382 Pa. Super. 587, 556 A.2d 374 (1989). Kean was a case where a couple in their 60s had illicit sexual relations with young boys in their teens. Those acts took place in the older couple’s bedroom. The boys managed to tape the sexual acts surreptitiously. As will happen with kids, the word got around that the boys had these tapes, and eventually the mother of one of them got her hands on them, and turned them over to the police.

The interesting thing about Kean is that Judge Beck, for the Superior Court, analyzes the situation in terms of whether the defendants’ privacy had been invaded by having private acts which they committed in their bedroom bandied about and viewed by the police. In other words, she recognized that defendants had no right of privacy in the tapes, nor any standing to object to their viewing, except insofar as the subject of the tapes was acts done in the privacy of their bedroom. The case is difficult to follow, but as I read it, she decided that despite the unconstitutional intrusion, the tapes would not be suppressed because the lawful possessor of the tapes had consented to their being viewed.

Analytically, I view the situation in Kean differently than the situation in Walter. In Kean, the question was whether a couple had a privacy interest in not being photographed doing illegal sex acts in their own bedroom. In Walter, the question was whether somebody who made tapes of sex acts for its shipment in the mails nonetheless retained a privacy interest in not having those tapes viewed by unintended recipients. In other words, in Kean, the question was whether to suppress the tapes because the defendants themselves were portrayed doing illegal acts in a private place. In Walter, the question was whether privacy attached to objects placed in the mails which portrayed others doing illegal acts.

If these were the only two cases that were applicable, I think I would be inclined to side with the defendant and say that the viewing by the police was improper, based on the United States Supreme Court decision in Walter. However, a few years after Walter was decided, the Supreme Court was confronted with United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Jacobsen, the employees of a private freight carrier observed a white powdery substance in the innermost of a series of four plastic bags that had been concealed inside a damaged cardboard box which the carrier was transporting. The carrier notified the appropriate drug enforcement personnel, who came and gathered up the box with the bags and powder inside. They removed the trace of the powder and subjected it to a chemical test, and determined that it was cocaine. They then obtained search warrants and went out and made arrests. The court decided that the warrantless test of the white powder did not require that the evidence be suppressed. Since the private carrier employee had already seen the powder, defendant no longer had a protectable expectation of privacy, and the subsequent seizure and viewing by the DEA was permissible.

During the course of that decision, Justice Stevens had occasion to consider the Walter case. He decided that the Walter evidence had to be suppressed because there had been no private viewing of the tapes before the FBI viewed them. In other words, if there had been a private viewing of the tapes, then at that point the defendant’s expectation of privacy would have been extinguished, and the FBI would have been free to examine the tapes themselves. The analysis of Walter and the holding in Jacobsen indicated that once a private person violates another’s right of privacy, the government may do the same thing, as long as it does not exceed the bounds of the original private search.

That appears to be what happened here. Ms. Declet had viewed the entire tape, so, consistent with Jacobsen, it was legitimate for the police to view the entire tape as well.

In Kean, Judge Beck suggested that the Pennsylvania Supreme Court in Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979) took a more limited view of government authority to search than the U.S. Supreme Court later did in Jacobsen. DeJohn was a case involving bank records, and I don’t read it as affecting the viewing of videotapes involved here. Indeed, insofar as Kean allows a third party to consent to the viewing of a private tape, it supports my conclusion.

ORDER

And now, February 3, 1999, based on the foregoing reasoning, the defendant’s motion to suppress is denied.


author: BLACK, J.,

text:
    Barley v. Hary’s Restaurant/Lounge
    C.P. of Lehigh County,
    no. 98-C-0503.

      Jerry R. Knafo, for plaintiff.

      Michael F. DeMarco, for defendants.
    April 13, 1999—
   BLACK, J.,

Plaintiff seeks to recover damages for personal injuries allegedly sustained when she slipped and fell while descending a flight of stairs at Hary’s Restaurant and Cocktail Lounge. Before the court is defendants’ motion for summary judgment on the ground that plaintiff has failed to produce sufficient evidence that they were negligent.

A party may move for summary judgment as a matter of law: “if, after completion of discovery relevant to the motion,... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2).

In the instant case, plaintiff has not produced any evidence that defendants had notice, either actual or constructive, of a defective or dangerous condition existing on the subject premises. Without such evidence plaintiff cannot make out a case of negligence against defendants. It is clear to this court after review of the pleadings and depositions on file that there is no triable issue regarding defendants’ alleged negligence. Therefore, defendants are entitled to summary judgment as a matter of law.

FACTS

For the purposes of this motion, the relevant facts are as follows: On March 1, 1998, at approximately 1:45 a.m., plaintiff entered Hary’s Restaurant and Cocktail Lounge located at 1444 Hamilton Street, Allentown, Pennsylvania. Upon her arrival, she went directly to the ladies’ restroom, which was located on the second floor at the top of a flight of 10 stairs. The stairs were carpeted, as was the area at the top of the stairs. Three steps from the top was a landing that was also carpeted. Upon leaving the restroom, plaintiff walked across the carpeted area at the top of the stairs toward the stairway to return to the first floor. As she began her descent, she felt her left foot slip on something at the top of the stairs. She lost her balance and fell down three steps until coming to rest on the carpeted landing area.

As a result of her fall, plaintiff suffered significant injuries, including a fracture of her left proximal tibia and fibula. She was subsequently transported by ambulance to Lehigh Valley Hospital where the emergency room attendants pointed out to her that the pants she had been wearing were soaked with beer. The beer must have come from the carpet on the landing where plaintiff ended up after her fall. An acquaintance of plaintiff, Andres Carrillo, the only witness to her fall, noticed that his pants knee was also wet from kneeling on this same landing area when he came over to assist afterwards.

On previous occasions, plaintiff had observed patrons sitting on the edge of the steps holding drinks, and sometimes these drinks may have spilled onto the stairway carpeting. On this particular occasion, no patrons were sitting on the steps, and plaintiff did not observe any wetness or any other unusual condition on the steps, on the landing or in the area at the top of the steps. She is not sure what caused her to slip.

DISCUSSION

This is a classic “slip and fall” case. Plaintiff was a business invitee on the premises. Therefore, the duty owed to her by defendants is described in the Restatement (Second) of Torts §343 (1965), which provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
“(a) knows or by the existence of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.”

This section of the Restatement has been adopted by the Pennsylvania Supreme Court in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).

It is a well-settled principle of law that a possessor of land is not an insurer of the safety of those who enter onto the premises. See Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 529-30, 422 A.2d 593, 595 (1980). “[T]he mere happening of an accident or an injury does not establish negligence nor raise an inference or presumption of negligence nor make out a prima facie case of negligence.” Amon v. Shemaka, 419 Pa. 314, 317, 214 A.2d 238, 239 (1965). Therefore, in order to impose the liability on a possessor of land, an invitee must present evidence tending to prove that the possessor deviated from his duty of care, as set forth in section 343 of the Restatement above. Such evidence must include evidence that the possessor knew, or in the exercise of reasonable care should have known, of the existence of the harm-causing condition. See Moultrey, 281 Pa. Super. at 530, 422 A.2d at 596. However, if the harm-causing condition is traceable to an act of the possessor or his agent, then the invitee does not have to meet the notice requirement of section 343. Id.

The fatal weakness in plaintiff’s case is that she has produced no evidence that any of the defendants knew or had reason to know of a dangerous condition that caused her to fall. Nor has she produced evidence that any of the defendants or an agent of a defendant created a dangerous condition in the premises.

Plaintiff claims to have stepped on something slippery at the top of the stairway, but admits that she did not see what it was. No witness saw anything slippery or otherwise dangerous in this area. Nor did plaintiff see anything unusual on the stairway or in this area a few minutes earlier when she climbed the stairs on her way to the restroom. Although the evidence indicates that the carpeted landing where plaintiff came to rest was wet from beer, this landing was not the area where her foot slipped. There is no proof that this same wet condition existed on the top of the stairway, where her fall began.

Furthermore, even if one assumes arguendo that the carpet at the top of the steps was slippery from spilled beer, there is no evidence that defendants had actual or constructive notice of any such condition. The evidence does not provide any indication of how long the area was wet, if indeed it was wet at all. Plaintiff has suggested that beer may have been spilled much earlier in the evening during a bar fight, but the fight occurred in a different part of the premises. The record is completely devoid of any evidence that defendants knew of a dangerous condition in the area where plaintiff lost her footing or that such a condition existed for a sufficient period of time to establish constructive notice.

For the foregoing reasons, plaintiff has failed to make out a prima facie case of negligence against defendants. Accordingly, defendants’ motion for summary judgment must be granted.

ORDER

Now, April 13, 1999, upon consideration of defendants’ motion for summary judgment and plaintiff’s response thereto, after oral argument and for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is granted, and judgment shall be entered in favor of defendants against plaintiff.

      . We have examined the record in the light most favorable to plaintiff and have given her the benefit of all reasonable inferences. See Electronic Laboratory Supply v. Cullen, 712 A.2d 304, 307 (Pa. Super. 1998).


author: GRIMES, P.J.,

text:
    Commonwealth v. Allen

      C.P. of Greene County,
    no. 223 Criminal 1997.

      David F Pollock, for Commonwealth.

      David DeFazio, for defendant.
    October 13, 1998—
   GRIMES, P.J.,

The defendant, Michael Joseph Allen, was charged with one count of aggravated indecent assault and one count of indecent assault in connection with an incident alleged to have occurred on August 5, 1996 in Franklin Township, Greene County, Pennsylvania. He is alleged to have had indecent contact with his 3-year-old daughter, Melissa Sue Allen. These accusations were made as a result of the victim’s alleged statements to her mother, Barbara Grimm, and later, to caseworker Margaret Zipf-McCracken of Greene County Children and Youth Services, court-appointed psychologist Dr. Susan Nathan Ph.D., and Mary Ann Eitner, Greene County victim-witness coordinator.

The Commonwealth filed a motion to admit the victim’s statements at trial under the exception to the hearsay rule which governs the admissibility of statements describing abuse made by children age 12 or younger. 42 Pa.C.S. §5985.1. After a hearing and the testimony of the appointed psychologist, the court denied the Commonwealth’s motion by order dated September 24, 1997, and the Commonwealth appealed to the Superior Court, certifying in its notice of appeal that the order would terminate or substantially handicap the prosecution of the case under Pa.R.A.P. 311(d). The Superior Court held that the trial court abused its discretion by ruling without considering the Commonwealth’s DNA evidence, and vacated the trial court’s order and remanded for the court to hear the Commonwealth’s DNA evidence and then reconsider its decision under the statute. It is important to note that the Commonwealth did not offer its DNA evidence at the hearing before the trial court.

A hearing on remand was held on August 20, 1998, and the Commonwealth presented the testimony of Michael Kurtz of the Pennsylvania State Police laboratory in Greensburg, who was recognized by the court as an expert in DNA interpolation. Mr. Kurtz tested three DNA samples, those being dried blood samples from both the child and the suspect and a seminal stain from the child’s underwear. (See Commonwealth exhibit 2.) Based upon those tests, Mr. Kurtz testified that the defendant was a possible producer of the stain on the child’s underwear and that the defendant cannot be excluded as a provider of the DNA sample. Mr. Kurtz also testified that it was possible that the defendant was not the producer of the stain, and did not render an opinion as to the percentage or ratio of the probability of inclusion or exclusion of the defendant as the producer of the stain. For reasons discussed hereafter, it is significant that the stain was only on the underwear and not on or about the child, although she was immediately taken to the local hospital for an examination where a “rape kit” was prepared and given to the police for laboratory analysis.

The hearsay statements sought to be admitted by the Commonwealth must be analyzed under the factors enumerated in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), as adopted by the Pennsylvania Superior Court in Commonwealth v. Hanawalt, 419 Pa. Super. 411, 422, 615 A.2d 432, 438 (1992). These factors include “(1) the spontaneity and consistent repetition of the statement(s); (2) the mental state of the declarant; (3) the use of terminology unexpected of a child of similar age; and (4) the lack of motive to fabricate.” Hanawalt, 419 Pa. Super. at 422, 615 A.2d at 438. The Hanawalt court opined that under an Idaho analysis, the most important factor in determining whether to admit a statement is “whether the child declarant was particularly likely to be telling the truth when the statement was made.” Id. The circumstances of the present case indicate otherwise. At the outset of this case, the court ordered that no one speak with the alleged victim concerning these allegations and that she be evaluated by an independent party to test the reliability of her statements concerning the allegations of abuse. The alleged victim was evaluated by Dr. Susan Nathan Ph.D. of the Children’s Hospital of Pittsburgh, Family Intervention Center, who testified at the initial hearing on the matter. Her independent evaluation of the child revealed that the child was unable to differentiate between real and unreal events. She tested the child’s ability to distinguish between that which was real and unreal by presenting the child with a series of examples such as “you and mommy came here today in a car” and the child had to state whether that really happened or not. (Hearing transcript, 20.) Dr. Nathan gave an example to Melissa that when she was playing in the playroom, “a clown came in and blew up a balloon and gave it to you.” (H.T., 20.) This event did not in fact happen but the alleged victim was unable to differentiate between whether this really happened or not. The professional opinion of the independent psychologist was that it was “not possible to determine whether Melissa has been sexually abused by her father.” (Commonwealth exhibit 2, pp. 4-5.) Dr. Nathan opined that the allegations were not “sufficiently consistent, clear and detailed to render her disclosure credible at the present time.” (Commonwealth exhibit 2, p. 5.) In fact, the child was unable to demonstrate to Dr. Nathan with the use of anatomically correct dolls the acts she alleged occurred.

The statements of the child are further called into question by the motive to fabricate which exists since the mother and the defendant were involved in a custody dispute at the time these allegations were made. Further, the mother, when contacted by Trooper James A. McElhaney, P.S.P., on September 26, 1996, stated that she did not wish to continue with the investigation since she and the defendant had reached a custody agreement, and the continuation of the investigation would not be in the best interest of the child. (Report of Tpr. James A. McElhaney, P.S.P., October 21, 1996.) The mother signed a written statement witnessed by Trooper McElhaney requesting the Pennsylvania State Police to “stop any further investigation” of the alleged incident and stating that “my child does not intend to testify in any court of law as to the facts of the case nor make any identification of anyone accused or charged.” (See statement of Barbara Grimm, September 26, 1996, attached to report of Tpr. James A. McElhaney, P.S.P., October 21, 1996.)

Barbara Grimm, the mother, not only had a motive to fabricate these allegations but she also had an opportunity to fabricate the physical evidence. She stated to Trooper McElhaney during an interview on November 22,1996 that she and Melissa had stayed with the defendant at his residence in Ohio for approximately six days prior to the alleged incident and that during this stay, she and the defendant engaged in one episode of oral sex. (See report of Tpr. James A. McElhaney, P.S.P., November 25, 1996.) This sexual act provided the mother with the means to collect physical evidence to support false allegations to aid her in the custody dispute with her husband. Further, the mother informed Tpr. Brian Shuba, P.S.P., on August 12, 1996 that she had made reports of similar incidents involving her daughter and the defendant to the Delaware County Police in Columbus, Ohio; however, no corroborating evidence of these reports has been presented. (See report of Tpr. Brian Shuba, P.S.P., August 12, 1996.) Yet, despite the past allegations, the mother requested the state police to terminate the investigation when she and the defendant reached a custody agreement.

The foregoing factors cloak the alleged victim’s statements with a shroud of unreliability and, when combined with the findings of the independent psychologist concerning her inability to distinguish real and unreal events, create an indicia of unreliability which makes the child’s hearsay statements completely unreliable.

The Commonwealth argues that whether the allegations of abuse were fabricated and the physical evidence planted are questions for the trier of fact. However, the trier of fact may only base its decision upon evidence that is reliable, and the purpose of excluding hearsay is to prevent unreliable and untrustworthy testimony from coming before the jury. See Commonwealth v. Bean, 450 Pa. Super. 574, 677 A.2d 842 (1996), citing Commonwealth v. Haber, 351 Pa. Super. 79, 505 A.2d 273 (1986). The statements at issue in the present case are hearsay and they may be excepted from the exclusion of hearsay pursuant to statute only when “the time, content and circumstances of the statement provide sufficient indicia of reliability.” 42 Pa.C.S. §5985.1(a)(1). The circumstances of the statements at issue in this case not only cause the statements to lack reliability but, in fact, tend to prove the statements are unreliable. The Commonwealth’s argument that the DNA evidence indicates the defendant cannot be excluded as a source of the seminal stain makes the statements more reliable and trustworthy is an exercise in bootstrapping. The only evidence that the seminal stain containing the defendant’s DNA was placed on the child’s underwear, and not on her person, as a result of sexual contact between the defendant and the alleged victim is contained in the hearsay statements of the alleged victim. The hearsay statements of a child who cannot distinguish between real and unreal events and who is at the center of a custody battle are the only evidence as to how the DNA came to be in the place it was found. Thus, we are presented with a troublesome situation in which the hearsay statements themselves are being used to establish the source of the DNA which is being offered to bolster the trustworthiness of the hearsay statements. This type of circuitous reasoning is unacceptable in law. The DNA evidence that the defendant cannot be excluded as the producer of the seminal stain on the alleged victim’s underwear has no value unless the alleged victim’s hearsay statements concerning how the stain was deposited are trustworthy. Thus, the DNA itself does not lend trustworthiness to the statements and, given the strong motive to fabricate which is present in this case along with the mental state of the child at the time she made the statements (her inability to distinguish between fact and fiction), the statements lack the indicia of reliability required by the statute and therefore are inadmissible. As stated above, it is noteworthy that the DNA evidence does not give a percentage probability of the defendant being the source of the seminal fluid but rather is interpolated in terms of not being able to exclude the defendant as a source. Thus, the Commonwealth is asking the court to admit the hearsay statements of a young child who is unable to tell the difference between events that really happened and those that did not based upon scientific evidence that cannot be quantified as to a percentage or ratio. The circumstances of the present case are not those which the legislature contemplated when creating this exception to the hearsay rule. Rather, the circumstances of this case are a textbook example of the kinds of unreliable statements the hearsay rule was designed to exclude. The Pennsylvania Superior Court in Commonwealth v. Bean, 450 Pa. Super. 574, 579, 677 A.2d 842, 844 (1996), reversed the admission by a trial court of statements under 42 Pa.C.S. §5985.1, opining that the “statute contemplates the inherent untrustworthiness of hearsay evidence and requires a firm foundation for any hearsay admitted under its terms.” Such a firm foundation is lacking in the present case. Therefore, based upon the foregoing, the statements sought to be admitted by the Commonwealth are inadmissible under 42 Pa.C.S. §5985.1.

ORDER

And now, October 13, 1998, upon consideration of the evidence presented at the hearing on remand and 42 Pa.C.S. §5985.1, it is ordered that the Commonwealth’s motion for admission of certain hearsay statements pursuant to 42 Pa.C.S. §5985.1 is denied and the Commonwealth is prohibited from introducing the statements Melissa Sue Allen made to Barbara Grimm, her mother; Margaret Zipf-McCracken, caseworker for Greene County Children and Youth Services; Mary Ann Eitner, victim-witness coordinator; and Dr. Susan Nathan Ph.D., providing, however, that the testimony of Dr. Nathan may be introduced following an offer of proof for other matters.