author: ST. JOHN, J.,

text:
    Kobsic v. Erie Insurance Co.

      David A. Strassburger and Jennifer L. Grossman, for plaintiffs.

      Peter C. Acker, for defendant.
    March 13, 2009
   ST. JOHN, J.,

Like most married couples, plaintiffs purchased a home and a standard homeowner’s insurance policy protecting them from fire and other common hazards. Both plaintiffs were named as people insured by the policy. Unfortunately, involuntary plaintiff (plaintiff Wife) became insane and intentionally set fire to their house and watched it burn from the driveway. She was not prosecuted for this act.

Plaintiff Husband, as an innocent party, sought to recover damages from the couple’s homeowner insurance policy. Defendant denied his request on the basis of several exclusionary clauses in the policy, including one for intentional acts of any insured. Plaintiff Husband is now suing his insurance company for breach of contract and bad faith denial of coverage. Defendant filed preliminary objections in the nature of a demurrer, seeking dismissal of the complaint based upon the exclusions in the policy. The primary issue is whether the homeowner’s policy expressly excludes coverage to an innocent insured for the apparent intentional acts of a co-insured who was allegedly incapable of forming intent. Defendant’s preliminary objections in the nature of a demurrer will be denied for the reasons set forth below.

On September 3, 2007, plaintiff Wife was home alone. Complaint, 3,12a. She apparently believed that the house was haunted, “full of conflict,” and it was her prison and curse. Id. at 12h, 12f, 12a. It is further alleged that she injected herself with a large quantity of insulin and began consuming large amounts of prescription drugs. Id. at 12c-12d. Afterwards, she set fire to her house and sat in a lawn chair in the driveway to watch it burn. Id. at 12e.

Plaintiff Wife, who has allegedly suffered from severe depression and bipolar disorder for over 20 years, set fire to the house “in the midst of a psychotic episode,” and was insane at the time. Complaint 4,14; 2, 8; 4, 13. After the incident, she was apparently hospitalized in a psychiatric ward for three weeks. Id. at 4, 17. After her release, she was transferred to a “personal care home facility,” where she remains today. Id. at 4, 18.

Plaintiff Husband filed a claim with defendant asserting atotal loss of $402,125. Complaint, 2,10. Defendant conducted an investigation of the incident, and concluded that plaintiff Wife had acted intentionally to bum the home. Id. at 4, 19. Thus, plaintiff was sent a written notice that his claim had been denied, which led plaintiff Husband to file the present suit.

Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). “The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief.” League of Women Voters of Pa. v. Commonwealth, 692 A.2d 263, 267 (Pa. Commw. 1997). “In ruling on preliminary objections, all well-pleaded facts in the petition for review and all inferences reasonably deducible therefrom must be accepted as true.” Id.

Plaintiffs’ homeowner’s policy includes several exclusionary clauses that defendant argues preclude recovery. Notably, the policy contains no specific exclusion for acts of insane insureds. The policy does excludes coverage as follows:

“for loss resulting directly or indirectly from any of the following, even if other events or happenings contributed concurrently, or in sequence, to the loss:
“(8) by neglect of anyone we protect to use all reasonable means to protect covered property at and after the time of loss or when property is threatened by a peril covered under Perils We Insure Against.
“(9) by intentional loss, meaning any loss arising from an act committed by, or at the direction of, anyone we protect with the intent to cause a loss.” Complaint, exhibit 1, Erie insurance policy, 10.

Additionally, later in the policy under the heading “Rights and Duties-Conditions” an increase of hazard clause provides that: “[u]nless we agree beforehand, coverage is suspended if the hazard is substantially increased by any means within the control or knowledge of anyone we protect.” Id. at 14.

The policy defines “anyone we protect,” as “you and the following residents of your household: (1) residents and wards; (2) other persons in the care of anyone we protect.” Complaint exhibit 1, Erie insurance policy, 4. You is defined as “the subscriber and others named on the declarations under named insured.” Id. at 5. Both plaintiff Husband and Plaintiff Wife are identified in the policy as named insureds. Complaint exhibit 1, duplicate declarations.

Since both plaintiff Husband and plaintiff Wife are named insureds, the exclusionary clauses in their insurance policy would operate to exclude coverage if either one of them violated one or more of the exclusionary clauses. The mere fact that plaintiff Husband is innocent of any wrongdoing is irrelevant to the consideration of whether he may recover. Rather, this court must honor the language of the policy. Under McAllister v. Millville Mutual Insurance Company, 433 Pa. Super. 330, 342, 640 A.2d 1283, 1289 (1994), use of the terms “an” or “any” insured is a clear indication that co-insured obligations are joint and wrongful action by one, prohibits recovery by the other. The present policy uses the term “anyone we protect,” which is a similarly clear indication that an innocent co-insured may not recover after the wrongful actions of the other.

Thus, this court accepts defendant’s proposition that the exclusionary clauses in the policy can prohibit an innocent co-insured from the recovery for the wrongful acts of another insured. The question then becomes whether a clearly written exclusion prohibits recovery here at the preliminary objection stage.

Defendant argues that under one or more of the policy exclusions, plaintiff Husband may not recover, since plaintiff Wife acted wrongfully in setting fire to their home, and then doing nothing to prevent the fire from spreading. However, this court must accept the well-pled facts from plaintiffs’ complaint as true. Consequently, this court must accept as true that plaintiff Wife was insane at the time she set fire to the home and was therefore not capable of forming intent under the general purview of the law.

The Superior Court held in Donegal Mutual Insurance Co. v. Baumhammers that when interpreting the language of an insurance policy: “our goal is to ascertain the intent of the parties as manifested by the language of the written instrument. Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 735 A.2d 100 (1999). If the language is not clear, it is construed in favor of the insured, but where the language of the contract is clear and unambiguous, a court is required to give effect to that language. Id.; Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Contractual terms ‘are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.’ Madison Construction Co., 557 Pa. at 606, 735 A.2d at 106.” 893 A.2d 797, 806 (Pa. Super. 2006).

I. INTENTIONAL ACT EXCLUSION

There are many Pennsylvania cases dealing with insurance coverage under intentional act exclusions for the acts of allegedly insane individuals, but few deal with the issue of a fire set by an insane co-insured. Plaintiff relies upon the old full panel opinion from the Superior Court in Showalter v. The Mutual Fire Insurance Company of Chester County, 3 Pa. Super. 448 (1897), which still appears to contain the most in-depth discussion of this issue. Showalter involved an insane insured who burned down a barn. The individual’s estate and the innocent co-insured sought to recover under their fire insurance policy. The court held that the policy did not contain exclusionary language that prevented recovery by the co-insureds.

The Showalter court began its analysis with the general proposition that “[w]hen an insane individual burns his own building, what legal wrong does he commit? Certainly none for which he is punishable criminally, and none for which he is responsible civilly unless it be a breach of duty arising out of contract.” Id. at 450. An insurance policy “covers all risks of loss or damage ... save only such as are excepted by the terms of the policy and such as are caused by the voluntary act, assent, procurement or design of the assured himself.” Id. at 451. The court held that “loss by fire occasioned by the negligent or insane act of the insured is one of the risks assumed, unless expressly excepted.” Id.

As a matter of public policy, it would have been perfectly acceptable for the insurer to include a clause to exclude coverage for acts performed by one of the insureds, while insane. Id. at 450. However, the insurer failed to include such a clause in Showalter, and the court concluded that this failure meant the risks of such acts had been assumed by the insurer. Id. The court relied upon similar cases from Wisconsin and New York, in concluding that since insurance policies without specific exclusions do not exclude coverage for negligent acts of an insured, a fortiori, they should not exclude coverage for an insane insured “incapable of care.” Id. at 452, quoting Karow v. Continental Life Insurance Co., 57 Wis. 56 (1883). Finally, the Showalter court concluded that:

“Such policy covers all risks of loss from fire not excepted therefrom, nor effected by the intent, design or procurement of the assured. Such being the risk which the defendant here by its contract expressly assumed, it cannot be relieved therefrom merely because the assured burned the property, if it is made to appear that at the time of such burning the assured was incapable of forming a design or intention to injure.” Id. (emphasis added)

Therefore, Showalter reinforced the legal principle that an insurer assumes the risk of destruction for acts of insane individuals, unless the policy includes a specific provision that excludes coverage for those acts. This holding is in keeping with the principle that courts must “ascertain the intent of the parties as manifested by the language of the written instrument.” Madison Construction Co., 735 A.2d at 106. A policy that is silent as to whether coverage was excluded for acts of insane individuals suggests that the parties did not intend to exclude coverage for those acts.

However, there are other insurance cases in Pennsylvania, usually involving shootings, that may conflict with Showalter, or at least lead to some confusion about its holding. Most notably, the three-judge panel decisions in Germantown Insurance Co. v. Martin, 407 Pa. Super. 326, 595 A.2d 1172 (1991), and Donegal Mutual Insurance Co. v. Baumhammers, 893 A.2d 797 (Pa. Super. 2006), seem to achieve a contrary result without even mentioning the Showalter full-panel decision.

In Germantown, an insured shot several people and himself. The victims and their families sought to recover from the insured’s homeowner’s insurance policy under the theory that he had acted “accidentally, negligently or inadvertently.” Germantown, 407 Pa. Super. at 329, 595 A.2d at 1173. The policy however excluded coverage for injuries or loss that is “expected or intended by the insured.” Id. at 332, 595 A.2d at 1175. The trial court entered a declaratory judgment against the insurer, holding that the insured was insane at the time of the shooting, which meant the insurer had a duty to defend. Id. at 330, 595 A.2d at 1174. The trial court applied the “irrational impulse” test and admitted expert psychiatric testimony to determine insanity.

The Superior Court reversed, and held that the trial court had applied the wrong test to determine the insured’s intent. First, the court used the definition of intent from the Restatement (Second) of Torts §8A, that “[a]n insured intends an injury if he desired to cause the consequences of his act or if he acted knowingly that such consequences were substantially certain to result.” Id. at 332, 595 A.2d at 1175, citing United Services Automobile Association v. Elitzky, 358 Pa. Super. 362, 375, 517 A.2d 982, 989 (1986). The court applied that standard and determined that, on the basis of the insured’s actions and words, he had acted intentionally. Germantown, 407 Pa. Super. at 332-33, 595 A.2d at 1175. The court refused to consider irrelevant psychiatric evidence since it did not address the M’Naghten test (which is the appropriate standard to determine mental incapacity in criminal and civil cases), and opined generally that courts should not “[delve] into the subjective state of mind or rationality of the actor” because it sought to avoid disputes between expert witnesses “one of whom can be found to testify on any position.” Id. at 334, 595 A.2d at 1176.

The Baumhammers panel decision relied heavily upon Germantown in its holding that Baumhammers had acted intentionally when he shot and killed five people, and was later convicted of five counts of murder in the first degree. It held that “an insured intends an injury if he wanted to cause the consequences of his act or acted knowing that those consequences were substantially certain to result.” Baumhammers, 893 A.2d at 822. Additionally, “[i]n the absence of facts contradicting what human experience teaches are volitional acts, the shootings indicate that Baumhammers sought to cause the harm that he inflicted and, therefore, acted intentionally. An ‘actor is presumed to intend the natural and probable consequences of his actions.’” Id. at 823, quoting Commonwealth v. Sirianni, 286 Pa. Super. 176, 183 n.7, 428 A.2d 629, 633 n.7 (1981). The critical point for the Baumhammers court was the lack of evidence under the M’Naghten test to negate the shooter’s presumed mental capacity.

Among shooting cases, Pennsylvania courts seem to have only found a genuine issue of material fact with respect to an intentional act exclusion in Stidham v. Millvale Sportmen’s Club, 421 Pa. Super. 548, 618 A.2d 945 (1992). In Stidham, the shooter consumed alcohol and blacked out, such that he had no memory of getting his gun, or shooting anyone. Id. at 555, 618 A.2d at 949. He pled guilty to third-degree murder but denied he acted intentionally. The court held that “[i]f the actor does not have the ability to formulate an intent, the resulting act cannot be intentional.” Id. at 563, 618 A.2d at 953, citing Nationwide Mutual Insurance Co. v. Hassinger, 325 Pa. Super. 484, 493, 473 A.2d 171, 176 (1984). Additionally, intent connoted “an element of conscious awareness on the part of the insured.” Id., citing Elitzky, 358 Pa. Super. 362, 379, 517 A.2d 982, 991. Since the evidence in Stidham suggested that the shooter might not have had a conscious awareness of his actions, the court held there was a genuine issue of material fact with respect to that issue. Id. at 568, 618 A.2d at 954.

When read together, these cases seem to suggest that the Superior Court has abandoned the Show alter requirement of including a specific exclusion with respect to acts of insane individuals. Rather, the court has treated an intentional act exclusion as an exclusion of any act, regardless of mental state or defect, so long as the actor falls under the tort definition of objective intent. Additionally, it appears that only an individual with no conscious control over his actions has been found to fall outside of this interpretation. Showalter on the other hand, clearly differentiated between intentional acts, and acts committed by insane individuals. Showalter also stands for the proposition that if an insurance company wishes to avoid coverage for acts performed by insane individuals, it must include an exclusion to that effect in its policy. No such exclusion exists here.

Certainly, there is a difference between the insurance policy discussed in Showalter, and those in more modem cases because the modern policies include a specific exclusion for intentional acts, whereas the Showalter policy contained no intentional act exclusion. Nevertheless, the public policy of preventing an individual from profiting from his own criminal and/or intentional acts, still prevented recovery based upon “voluntary act, assent, procurement or design” of the insured. Showalter, 3 Pa. Super. at 451. This public policy exclusion is no less broad than the modern intentional exclusionary clauses. Thus, the mere inclusion of an intentional act exclusion does not differentiate modern cases from Showalter. Rather, an intentional act exclusion contained in a modern policy appears to be an effort to express to insureds the long-standing public policy against allowing a person to recover insurance proceeds for his criminal and/or intentional acts. Modem exclusions still generally fail to specify that the acts of an insane individual are excluded from coverage.

It is noteworthy, however, that none of the modem shooting cases properly alleged an insanity defense under M’Naghten. Furthermore, the opinions seem to leave an opening for cases that contain certain facts that contradict “what human experience teaches are volitional acts.” Baumhammers, 893 A.2d at 823. Insanity is precisely the type of condition (like a blackout) that human experience teaches negates the requisite intent. Thus, to this extent Show alter can be viewed in pari materia with the modem cases.

On the other hand, if Showalter is inconsistent with modem panel decisions, there is at least a split in the Superior Court decisions. Nonetheless, this court finds the rationale oí Show alter and Stidham to be more in line with human experience and the body of law dealing with mental incapacity due to insanity.

Therefore, in the present case, defendant agreed in its insurance policy to cover all risk of loss not specifically excluded. Its intentional act exclusion merely incorporated the common-law rule that a person may not recover for his own intentional acts or those of a co-insured. The exclusion did not include language that would similarly exclude acts by insane individuals. Since this court must accept as true the fact that plaintiff Wife was insane when she set fire to her home, this court cannot conclude that she acted intentionally as set forth in the exclusion. Therefore, this court cannot conclude as a matter of law that plaintiff Husband may be precluded from coverage under the intentional act exclusion, based upon plaintiff Wife’s actions while insane. Consequently, defendant’s preliminary objection in the nature of a demurrer will be denied as to this exclusion.

II. NEGLECT EXCLUSION

Defendant also argues that plaintiff Husband cannot recover because plaintiff Wife failed to take remedial steps to notify emergency personnel, or prevent further damage to her home, after she started the fire. Defendant argues that this failure constituted neglect by a co-insured to take reasonable action to prevent a loss, and therefore falls under the neglect exclusion in the policy. Defendant has failed to cite any case law interpreting similar exclusions.

This policy exclusion requires the insured to use all reasonable means to protect the covered property at and after the time of loss or when property is threatened by a peril. Thus, in order to prevail, it must be clear that the facts as pled establish that plaintiff Wife failed to take remedial action and that such action would have prevented or mitigated the loss. Notably, the record does not indicate the extent to which plaintiff Wife poured an accelerant in the house, how quickly therefore the house became engulfed in flames, whether any phones or other devices were available to plaintiff Wife after the initial conflagration began and/or whether remedial actions would have mitigated the loss. Obviously, this court cannot make this determination on the current state of the record.

Even if the record were clear, it is impossible to determine exactly what the clause excludes from coverage. Neglect is not defined in the policy. It is defined in the dictionary as “[t]he omission of proper attention to a person or thing, whether inadvertent, negligent, or willful; the act or condition of disregarding.” Black’s Law Dictionary 1055 (7th ed. 1999). Reasonable is defined as “[f]air, proper, or moderate under the circumstances.” Id. at 1272.

Under the Restatement (Second) of Torts §283B, a person’s insanity does not relieve him of liability for negligence due to his failure to conform his actions to the standard of a reasonably prudent person. However, this neglect exclusion does not bar coverage for, or relate directly to, negligence. Rather, the policy fails to define neglect. Thus, under the dictionary definition of the term, a person’s neglect could be the result of negligence, or could be the result of an inadvertent failure to take remedial action. Therefore, the definition and interpretation of reasonableness used in the context of negligence would appear to be inapposite in this context.

Moreover, this court cannot determine as a matter of law that this policy should be governed by a tort definition of reasonableness. Insurance policies are contracts, and the policies underlying contract and tort law are different. On the one hand, contract law is meant to protect the expectations that have “been bargained for by the parties to the contract. It is necessary to determine whether losses incurred by a party were contemplated ... at the time that the contract was executed.” Hazleton Area School District v. Bosak, 671 A.2d 277, 283 (Pa. Commw. 1996). On the other hand, tort law is meant to protect “persons and property from losses resulting from injury to that person or property. To recover in negligence, there must be showing of harm above and beyond disappointed expectations.” Id.

Additionally, the tort policy that insane individuals are responsible for their actions is based upon a policy of deterrence, in that those who care for insane individuals have a better incentive to watch them carefully. See Restatement (Second) of Torts §283B. It is also based upon a consideration that between two parties, an insane individual should be required to pay, rather than the innocent victim. Id. On the other hand, contract law is intended to compensate an individual based upon his expectation interest from the terms of the contract. Hahn v. Atlantic Richfield Co., 625 F.2d 1095, 1104 (3d Cir.1980).

Since the neglect and reasonableness terms are susceptible to multiple interpretations, the neglect exclusion is ambiguous. Baumhammers, 893 A.2d at 806. Since it is ambiguous, it must be construed in favor of plaintiffs. Id.

In construing the exclusion in favor of plaintiffs, this court cannot conclude that the parties contemplated in their contract of insurance that the reasonableness standard included in the exclusion would operate the same regardless of a person’s insanity. The parties failed to specifically define the term or use unambiguous language in the exclusion to allow this court to interpret as a matter of law the standard they meant to apply to insane individuals. Thus, this court cannot conclude as a matter of law that plaintiffs would be unable to prove facts sufficient to establish that the parties did not contemplate that an insane individual would be held to a different standard for reasonableness than a sane individual. Such a different standard could mean that an insured’s neglect to take remedial action was actually reasonable, due to his insanity.

The Showalter holding is also relevant here. The Showalter court did not restrict its holding to intentional act clauses. Rather, it held that the insurer assumed the risk of any act by insane individuals unless expressly excluded, which would include neglect. 3 Pa. Super. at 451. There is no language in the policy with respect to neglect by insane individuals, nor is there a definition of neglect that requires that insane individuals be treated identically to sane individuals. Thus, it cannot be determined as a matter of law that defendant did not assume the risk of neglectful acts by insane individuals.

As a result, this court cannot conclude as a matter of law that plaintiffs would be excluded from coverage based upon plaintiff Wife’s alleged neglect, and/or whether she could have taken any remedial action that would have mitigated the loss. Defendant’s preliminaiy objection will therefore be denied as to this exclusion.

III. INCREASE OF HAZARD SUSPENSION OF COVERAGE CLAUSE

Finally, defendant argues that plaintiffs are precluded from recovery based upon the fact that plaintiff Wife violated the increase of hazard clause. Defendant argues that policy coverage was suspended due to plaintiff Wife’s failure to take remedial action, after setting fire to her home. Under defendant’s interpretation, the clause would apparently result in suspension of coverage immediately upon the occurrence of the increase in the hazard.

Notably, the increase of hazard clause is not an exclusion of coverage provision. This clause appears as a paragraph in section I of the policy entitled “Rights and Duties — Conditions.” Complaint, exhibit 1, Erie insurance policy, 14. In contrast, the exclusions discussed in the previous sections of the opinion appear in the policy four pages earlier under the subheading “What We Do Not Cover — Exclusions.” Thus, defendant’s argument that the increase of hazard clause is tantamount to a policy exclusion is unfounded according to the policy itself.

Moreover, while Wife’s actions and/or inactions may have increased the hazard to her home, it does not appear that coverage would automatically be suspended as a result. This policy is a “continuous policy” under its own terms. Complaint, exhibit 1, Erie insurance policy, 23. The policy states that it “will continue in force until cancelled by us as explained in the cancellation condition.” Id. Thus, by the agreement of the parties, coverage continues until a notice is sent to the plaintiffs. The record here is silent regarding any such notice. Despite the lack of any averment that notice was given, “cancellation or refusal to continue this policy will not take effect until at least 30 days after we send it.” Id. at 22.

As plaintiff points out, under the Unfair Trade Practices Act, 40 Pa.C.S. §1171.5(a)(9), insurance coverage cancellations are not effective until the insured receives written notice of the cancellation on forms approved by the Insurance Commissioner. See Donegal Mutual Insurance Co. v. Insurance Department, 719 A.2d 825 (Pa. Commw. 1998). This notice provision specifically applies where “there is a substantial increase in hazards insured against by reason of willful or negligent acts or omissions by the insured. . . .” 40 Pa.C.S. §1171.5(a)(9). Thus, defendant cannot provide for instantaneous cancellation of coverage (under the disguise of a “suspension”) upon the occurrence of an increase in hazard. Rather, if defendant sought to cancel coverage for the event, it would first have to send written notice of the cancellation to plaintiffs, which of course cannot be retroactive.

Accordingly, defendant’s preliminary objection in the nature of a demurrer will be denied as to this clause as well.

Hence this order:

ORDER

AND NOW March 13,2009, defendant’s preliminary objections in the nature of a demurrer are denied.

      . The Superior Court originally had only seven judges when it was created in 1895. Pennsylvania Manual 5-5 2007. The Showalter panel included all seven judges.

      . A recent Third Circuit opinion demonstrates that parties can agree to exclude coverage for acts of insane individuals. Allstate Insurance Co. v. Lombardi, 142 Fed.Appx. 549 (3d Cir.) (not selected for publication). This case was a declaratory judgment action brought by the insurer to avoid providing a defense and indemnification to an insured who assaulted another individual during a psychotic episode. The policy excluded coverage for any bodily injury:

        “intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
      “(a) such insured person lacks the mental capacity to govern his or her conduct. ...” Id. at 552. (emphasis added)
      The federal district court granted summary judgment in favor of the insurer that was affirmed by the Third Circuit Court of Appeals.
      Applying Pennsylvania law, the Lombardi court followed the Superior Court’s holding in Elitzky that the “expected or intended” language in exclusionary clauses is capable of several interpretations and is therefore ambiguous. Id. The Third Circuit then held that the exclusion in section (a) of the policy for acts of insane insureds does not violate public policy and is enforceable. Therefore, the insurer was relieved of its duty to defend and provide coverage for its insane insured.


source: Caselaw Access Project

author: GRINE, P.J.,

license: Public Domain

text:
    Commonwealth v. Stewart

      Nathan Boob, for Commonwealth.

      Karen G. Muir, for defendant.
    January 20, 2009
   GRINE, P.J.,

Presently before the court is a motion to dismiss due to illegal search and seizure and a motion for processing of evidence filed by counsel for defendant, William M. Stewart. Defendant is charged with possession of a small amount of marijuana (35 P.S. §780-113(a)(31)(M)) and possession of drug paraphernalia (35 P.S. §780-113(a)(32)(M)). Defendant requests suppression of evidence seized from his home on the grounds that his estranged wife, Stacy Stewart, lacked actual or apparent authority to consent to a police search. A hearing on these motions was held on November 20,2008. At the conclusion of the hearing, the court ordered both parties to submit findings of fact and conclusions of law. After careful consideration, the court now renders its decisions.

FINDINGS OF FACT

(1) Wife shares custody of their two children with defendant but does not live in defendant’s home. Her name does not appear on the deed to defendant’s house.

(2) On May 19, 2008, defendant asked his estranged wife to his home to care for their children while he went to the hospital emergency room.

(3) While babysitting, Wife discovered a suspicious white powder inside a bowl containing a razor blade and straw atop the refrigerator in the kitchen.

(4) Suspecting the substance to be cocaine, Wife dialed 911 and requested an officer come to defendant’s home to remove it.

(5) Shortly thereafter, Officer J.D. Tlumac was dispatched to investigate Wife’s claims that the home contained cocaine.

(6) The 911 dispatcher advised Officer Tlumac that Wife did not live at the home and was there babysitting because defendant had to go to the emergency room.

(7) When Officer Tlumac arrived, Wife ushered him into the home and insisted he immediately remove the suspected drugs.

(8) Wife led Officer Tlumac to the kitchen where the officer confirmed the presence of the white powder atop of the refrigerator.

(9) Officer Tlumac testified he could clearly see the bowl containing the white power atop the refrigerator and believed the powder to be contraband because it possessed the characteristics of cocaine and was found near tools commonly used in the consumption of cocaine.

(10) Officer Tlumac seized the white powder, bowl, razor blade, and straw for further processing.

(11) After seizing the suspicious white powder and its accompanying paraphernalia from atop the refrigerator, Officer Tlumac conducted a visual sweep of the surrounding areas.

(12) During this inspection, Officer Tlumac spotted a rolled, plastic cellophane bag filled with “green vegetable matter” on a nearby pantry shelf.

(13) Officer Tlumac noticed the substance inside the cellophane bag mirrored the texture of marijuana and he decided to seize the bag and its contents.

(14) All evidence seized was in plain view; Officer Tlumac did not move any objects or disturb his surroundings to discover it.

CONCLUSIONS OF LAW

(1) “Both the [F]ederal and Pennsylvania constitutions permit third party consent to a search.” Commonwealth v. Hughes, 575 Pa. 447, 459, 836 A.2d 893, 900 (2003) (opinion announcing judgment of the court), (citations omitted) See also, United States v. Matlock, 415 U.S. 164, 171 (1974).

(2) “When police officers obtain the voluntary consent of a third party who has the authority to give consent, they are not required to obtain a search warrant based upon probable cause.” Hughes at 459, 836 A.2d at 900.

(3) “The ‘apparent authority exception’ allows the admission of evidence where the police officers reasonably, and even mistakenly, relied upon the consent of a third party who did not have actual authority to consent to the search.” Hughes at 464, 836 A.2d at 903, adopting the standard announced in Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990).

(4) To determine whether an officer’s mistake was reasonable, the court evaluates the totality of circumstances to determine whether facts available to police at the moment would lead a person of reasonable caution to believe the consenting third party had authority over the premises. Hughes at 465, 836 A.2d at 903-904.

(5) In Commonwealth v. Hughes, 575 Pa. 447, 836 A.2d 893 (2003), the Supreme Court of Pennsylvania determined it was reasonable for officer to assume teenage girls outside of premises had the apparent authority to allow a search of a parolee’s residence.

(6) In Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593 (1990), appeal denied, 526 Pa. 646, 585 A.2d 466 (1991), the Superior Court of Pennsylvania upheld third-party consent to police entry given by a neighbor whom the officer knew was not the owner or resident of the premises to be searched.

(7) In Commonwealth v. Quiles, 422 Pa. Super. 153, 619 A.2d 291 (1993), the Superior Court held that it is reasonable for an officer to assume a person inside a premises who says “come on in” has the power to grant consent to police entry.

DISCUSSION

Based on the facts known to the responding officer at the time, it was reasonable to believe defendant granted the baby sitter authority to allow police entry. When the officer responded, he knew Wife was baby-sitting children at defendant’s home. Although he knew she did not live there permanently, he knew Wife had defendant’s permission to be inside the home. When Officer Tlumac approached the door, Wife ushered him inside and at all times acted as though she had authority to allow police entry. At all times, Wife remained adamant that an officer remove the drugs in order to keep them away from the children currently in the home.

Once inside the home, the officer did not need to conduct a search to discover the items in question. Officer Tlumac testified that both the bowl with the white powder and the cellophane bag with the green vegetable matter were in plain sight. He did not disturb the surroundings in any way before recognizing the items as contraband. The officer’s movements were restricted to common areas of the kitchen and living room. The officer was in the home for a short duration of time and never opened closed doors or entered other areas of the home.

Furthermore, several Pennsylvania cases support the reasonableness of an officer’s belief even if the third person granting consent does not have actual ownership rights in the searched premises. In Commonwealth v. Hughes, 575 Pa. 447, 836 A.2d 893 (2003), the Supreme Court of Pennsylvania determined it was reasonable for officer to assume teenage girls outside of premises had the apparent authority to allow a search of a parolee’s residence. In Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593 (1990), appeal denied, 526 Pa. 646, 585 A.2d 466 (1991), the Superior Court of Pennsylvania upheld third-party consent to police entry given by a neighbor whom the officer knew was not the owner or resident of the premises to be searched. In Commonwealth v. Quiles, 422 Pa. Super. 153, 619 A.2d 291 (1993), the Superior Court held that it is reasonable for an officer to assume a person inside a premises who says “come on in” has the power to grant consent to police entry.

The facts in Blair and the facts of the instant case sufficiently align. Commonwealth v. Blair, 394 Pa. Super. 207, 218, 575 A.2d 593, 598-99 (1990). Both the defendant and the defendant in Blair protest reasonableness of a consent granted by a non-tenant, non-owner. Both cases involved an officer being ushered into the home by a person acting as though they have consent. Both cases involve evidence seized in plain sight.

In Blair, id., the responding police officer knew that the woman who answered the door was not the owner. The officer asked the woman if the owner of a vehicle parked outside was home. The woman responded affirmatively and ushered the officer inside the residence where “the officer almost immediately saw [evidence to be seized] in plain view.” Id. The court found that under these facts, the officer was “reasonably mistaken when he assumed that the woman who answered the door had actual authority to admit him.” Id.

Based on the Commonwealth’s interpretation of the apparent authority exception and the facts known to responding officer at the time he entered defendant’s home, the court concludes it was reasonable for Officer Tlumac to believe Wife had the authority to allow police entry into defendant’s home. Therefore, the court denies defendant’s motion to dismiss.

Notwithstanding legal entry by the police, the court finds circumstances of the case necessitate further processing of evidence recovered from defendant’s home. Currently, defendant and his wife are litigating custody of their two children. At the time drugs were found in defendant’s home, Wife was the only adult present. Most compelling, however, is that Pennsylvania State Police laboratories indicated the white powder, straw, and razor blade removed from defendant’s home did not contain cocaine. The court finds these facts persuasive and grants defendant’s motion for processing of evidence.

ORDER

And now, January 20, 2009, the following is ordered:

(1) Defendant’s motion to dismiss due to illegal search and seizure is denied.

(2) Defendant’s motion for processing of evidence is granted.

      . The state also charged defendant with possession of a controlled substance — cocaine pursuant to 35 P.S. §780-113(a)(16)(M); however, the district attorney assigned to the case agreed to dismiss this charge after receiving a report from the Pennsylvania State Police indicating that neither the white powder, straw, nor razor blade removed from defendant’s home tested positive for cocaine.


author: ASHWORTH, J.,

text:
    Commonwealth v. London

      Deborah L. Muzereus, assistant district attorney, for Commonwealth.

      Vincent J Quinn, for defendant.

      December 19, 2008
   ASHWORTH, J.,

Dorian D. London has filed an amended petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46. For the reasons set forth below, the amended petition will be granted, petitioner’s sentence will be vacated, and a new sentencing hearing scheduled.

I. BACKGROUND

At the conclusion of a jury trial, petitioner Dorian D. London was found guilty of delivery of a controlled substance. The basis for petitioner’s conviction was a cocaine sale to a confidential informant (Cl) operating under the direction of Trooper Jason J. Reed of the Pennsylvania State Police, Troop J, and Detective Roland William Breault of the Lancaster City Police Department on June 9, 2005. Petitioner filed a pretrial motion to compel production of (1) the identity of the Cl who participated in the drug purchase and (2) the CI’s prior criminal record. A hearing was held in chambers prior to the start of the trial at which time it was argued that the Cl was the sole agent who established prior contacts with petitioner and was also the individual who initiated the transaction that formed the basis for this conviction. The Commonwealth countered there was no need to jeopardize the safety of the Cl given the fact that there were two police officers who were eyewitnesses to the transaction.

Following this in-chambers hearing, I denied petitioner’s motion to compel disclosure and the case proceeded to jury trial on March 5, 2007. (Notes of testimony, trial (N.T.T.) at 37-39.) Petitioner was ultimately convicted of delivering two bags of cocaine. A presentence investigation report was ordered. On May 18, 2007, petitioner was sentenced to a mandatory minimum term of two to four years incarceration under the “drug-free school zones” provision and ordered to pay a mandatory fine of $1,000. Petitioner was represented at trial by the Public Defender’s Office of Lancaster County, specifically, Andrew Spade, Esquire.

Petitioner did not file any post-sentence motions, but did file a timely appeal to the Superior Court of Pennsylvania. On February 15,2008, a three-judge panel of the Superior Court affirmed the judgment of sentence in an unpublished memorandum opinion. Petitioner was represented on direct appeal by the Public Defender’s Office of Lancaster County, specifically, MaryJean Glick, Esquire.

On April 28, 2008, London, acting pro se, filed this timely pro se petition for post-conviction collateral relief raising issues of ineffective assistance of trial counsel and violation of his constitutional rights by police entrapment. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Vincent J. Quinn, Esquire, was appointed to represent London on his collateral claims. Attorney Quinn filed an amended petition on October 24, 2008, raising ineffective assistance of counsel for failing to litigate the imposition of the mandatory minimum sentence of two years incarceration pursuant to the provisions of 18 Pa.C.S. §6317(a) in the absence of facts indicating that the delivery of the cocaine occurred within 1,000 feet of a school or within 250 feet of a recreation center or playground, and violation of petitioner’s constitutional rights for the same reason. A timely response to the amended petition was received from the Commonwealth on November 18, 2008, in which the Commonwealth denied that an evidentiary hearing was necessary but conceded that a sentencing hearing needed to be scheduled so that proof of the applicable school zone could be placed on the record.

By order dated November 21, 2008, this court directed the parties to file briefs on the limited issue of whether the Commonwealth should be permitted to introduce evidence at the resentencing hearing with regard to the existence of a school zone for purposes of establishing a mandatory minimum sentence under 42 Pa.C.S. §6317. Briefs having been received from counsel, this matter is now ripe for disposition.

II. FACTUAL HISTORY

On June 9, 2005, two officers, one working for the vice and narcotics unit of the Pennsylvania State Police as an undercover officer, and the other working with the selective enforcement unit of the Lancaster City Police Department, were conducting a “buy-walk” program in the City of Lancaster. This investigation was aimed at eliminating or reducing drug trafficking in problem areas of the city by identifying street-level drug dealers. In such an operation, the dealer is allowed to walk away from the buy. A warrant is subsequently obtained and the actual arrest is made weeks and sometimes months later. This protects the identity of the undercover officer and the Cl, if one is being used. (N.T.T. at 63-64.)

On the day in question, at approximately 8 p.m., the undercover officer, Trooper Jason Reed, met with his Cl. The informant used Trooper Reed’s cell phone to call petitioner to arrange a drug purchase. (N.T.T. at 83.) After finishing the call, the Cl instructed Trooper Reed to drive to the parking lot of a Chinese restaurant in the 400 block of South Duke Street. Almost immediately after entering the parking lot, another vehicle pulled up beside Trooper Reed’s vehicle. Petitioner was driving and an unidentified individual was in the passenger seat. The Cl and petitioner engaged in conversation, during the course of which, the Cl purchased two baggies of crack cocaine from petitioner for $40. After the transaction occurred, the Cl told petitioner: “Remember, this is my boy, take care of him if you see him,” and petitioner responded, “okay.” (Id. at 86.) With that, Trooper Reed exited the restaurant parking lot and made contact with Detective Roland Breault, who was staked out in the immediate area monitoring the situation with high powered, low-light sensitive binoculars. Detective Breault took custody of the narcotics from Trooper Reed and put out a description of the dealer’s vehicle and license plate over the radio.

Officer Donald Morant, another member of the City’s Selective Enforcement Unit assigned to provide security for Trooper Reed during the controlled buy, recognized the description of the vehicle and the specific license number and suspected the dealer might be petitioner. He ran the plate through county dispatch and the registered owner of the vehicle came back as one “Dorian London.” Officer Morant then ran petitioner’s name through JNET and received a driver’s license photograph of petitioner later that evening. Trooper Reed positively identified petitioner from the photograph as the individual who had delivered the drugs earlier that evening. (N.T.T. at 88.) Officer Morant field tested the substance delivered by petitioner and it was positive for crack cocaine.

III. ELIGIBILITY FOR PCRA RELIEF

A petitioner seeking relief pursuant to the PCRA is eligible only if he pleads and proves, by a preponderance of the evidence, that (1) he has been convicted of a crime under the laws of this Commonwealth and is currently serving a sentence of imprisonment, probation or parole for the crime, (2) his conviction has resulted from one or more of the enumerated errors or defects found in section 9543(a)(2) of the PCRA, (3) he has not waived or previously litigated the issues he raises, and (4) the failure to litigate the issue prior to and during trial, or on direct appeal could not have been the result of any rational, strategic, or tactical decision by counsel. 42 Pa.C.S. §9543(a)(2)-(4).

A petitioner has previously litigated an issue if (1) “the highest appellate court in which a petitioner could have had review as a matter of right has ruled on the merits of the issue,” Commonwealth v. Romero, 595 Pa. 275, 287, 938 A.2d 362, 369 (2007), or (2) the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. §9544(a); Commonwealth v. Jones, 932 A.2d 179, 181 (Pa. Super. 2007). With respect to claims that have not been previously litigated, a petitioner must also demonstrate that the claims have not been waived. A petitioner has waived an issue if the petitioner could have raised the issue but failed to do so before trial, on appeal, or in a prior state post conviction proceeding. 42 Pa.C.S. §9544(b); Jones, 932 A.2d at 181. Waiver, however, will be excused under the PCRA if the petitioner can meet the conditions of section 9543(a)(3)(h) or (iii) or by making a showing of ineffective assistance of counsel.

IV. DISCUSSION

After an exhaustive review of the record and zealous endeavor to uncover all possible issues for review, counsel for petitioner has raised just one issue with regard to the ineffective assistance of both trial and appellate counsel in this case.

In a collateral attack on the effectiveness of trial counsel, the courts presume counsel is effective. Common wealth v. Hawkins, 586 Pa. 366, 389, 894 A.2d 716, 730 (2006). To overcome this presumption, the petitioner must establish three factors:

“First, that the underlying claim has arguable merit.... Second, that counsel had no reasonable basis for his action or inaction. ... In determining whether counsel’s action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis. ... Finally, ‘Appellant must establish that he has been prejudiced by counsel’s ineffectiveness; in order to meet this burden, he must show that “but for the act or omission in question, the outcome of the proceedings would have been different.” ’... A claim of ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs . . . .” Commonwealth v. Washington, 592 Pa. 698, 712, 927 A.2d 586, 594 (2007) (citing Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987).

Moreover, “[i]n the context of a PCRA proceeding, [the petitioner] must establish that the ineffective assistance of counsel was of the type ‘which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. ’ 42 Pa.C.S. §9543(a)(2)(ii).” Id. at 712-13, 927 A.2d at 594.

Counsel for petitioner has challenged the effectiveness of both trial counsel and appellate counsel with respect to petitioner’s sentence. In this case, the court imposed a mandatory minimum sentence of two years incarceration in this case pursuant to the provisions of 18 Pa.C.S. §6317(a). There were, however, no facts developed either at the trial or at sentencing indicating that the drug delivery occurred within 1,000 feet of a school or within 250 feet of a recreation center or playground. Accordingly, there were no facts on the record justifying the court’s imposition of the mandatory minimum sentence of two years incarceration.

Petitioner questions the statutory authority of the trial court to impose the mandatory minimum sentence of section 6317 without supporting evidence. Since section 6317 cannot be applied unless petitioner delivered drugs within 1,000 feet of a school or within 250 feet of a recreation center or playground, absent such evidence, petitioner’s sentence is not within the legal parameters of that statute. Thus, petitioner’s challenge to the application of the mandatory minimum sentence relates to the legality of his sentence. See Commonwealth v. Bongiorno, 905 A.2d 998 (Pa. Super. 2006) (mandatory minimum sentence under 18 Pa.C.S. §6317 improperly applied where Commonwealth did not establish that sale of drugs occurred in an area within 1,000 feet of a school or 250 feet of a playground). Thus, this claim is clearly cognizable under the PCRA given petitioner’s assertion that both trial and appellate counsel were ineffective for agreeing that the mandatory minimum applied in the absence of evidence to support the sentence. See 42 Pa.C.S. §9543(a)(2).

Specifically, trial counsel neither objected to the imposition of the mandatory minimum sentence nor filed a post-sentence motion challenging the imposition of such sentence in light of the fact that there were no facts on the record justifying the mandatory minimum sentence for a drug delivery in a school zone. During the direct appeal, appellate counsel did not challenge the legality of the imposition of the mandatory minimum sentence either. Counsel had no reasonable strategic basis for failing to litigate the erroneous imposition of the mandatory minimum sentence. Moreover, petitioner was clearly prejudiced since without the imposition of the mandatory minimum sentence he could have been sentenced to serve a lesser period of incarceration, as the standard range of the sentencing guidelines was 15 to 48 months.

Consequently, petitioner has established the ineffectiveness of previous counsel, both trial and appellate, and is entitled to post-conviction collateral relief. Petitioner’s sentence must be vacated, and a new sentencing hearing scheduled.

The issue in this case, where the sentence must be vacated due to insufficient evidence supporting a mandatory minimum and the Defendant re-sentenced, then becomes whether the Commonwealth may introduce evidence on the “drug-free school zone” issue at the re-sentencing. The plain meaning of the statute bars the Commonwealth from introducing evidence at a re-sentencing which would require the court to impose the two-year mandatory minimum sentence. Section 6317(b) provides: “The applicability of this section shall be determined at sentencing.” The Superior Court has specifically held that the Commonwealth is limited to presenting evidence at the initial sentencing hearing.

In Commonwealth v. Kunkle, 817 A.2d 498 (Pa. Super. 2003), the Superior Court held:

“Section 6317(b) of the Crimes Code states that ‘[t]he applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.’ 18 Pa.C.S. §6317(b). (emphasis added) If the Commonwealth disputes the trial court’s refusal to apply the mandatory minimum, section 6317 provides a statutory right of appeal; however, section 6317 does not contemplate a second sentencing hearing where the Commonwealth failed to meet its burden at the first sentencing hearing. See 18 Pa.C.S. §6317.” Id. at 500. (emphasis added)

Based upon a review of the record in Kunkle, the Superior Court agreed with the trial court that “under section 6317, the Commonwealth must present its evidence supporting a mandatory sentence enhancement at the original sentencing hearing. . . . Accordingly, we conclude that where, as here, the Commonwealth fails to meet that burden, the sentencing court shall not apply the sentence enhancement, and the Commonwealth cannot circumvent the mandates of section 6317 by filing a motion for modification of sentence. See 18 Pa.C.S. §6317(b).” Id. (citation omitted; emphasis added)

Similarly, in the instant action, having failed to present its evidence supporting a mandatory sentence pursuant to section 6317 at the original sentencing hearing, the Commonwealth is precluded from doing so at a second sentencing hearing.

V. CONCLUSION

Based upon the foregoing, petitioner’s amended petition for post-conviction collateral relief will be granted, petitioner’s sentence vacated and anew sentencing hearing held.

Accordingly, I enter the following:

ORDER

And now, December 19, 2008, it is hereby ordered that Dorian D. London’s amended Post Conviction Relief Act petition is granted and his judgment of sentence entered on May 18, 2007, is vacated. Anew sentencing hearing is scheduled for January 5, 2009, at 9 a.m. in courtroom no. 12.

      . 35 Pa.C.S. §780-113(A)(30).

      . Petitioner filed a statement of matters complained of on appeal which set forth three bases for appeal: (1) the court erred in denying petitioner’s motion to compel disclosure of the identity of the Cl; (2) the court erred in declining to rule on the matter of entrapment as a matter of law; and (3) the court erred in denying petitioner’s request that the jury be instructed on the Commonwealth’s failure to call a witness, specifically, the Cl.

      . We note that petitioner’s PCRA petition was filed within one year of the date his judgment became final. As such, his petition was filed in a timely manner. 42 Pa.C.S. §9545(b).

      . Section 6317 of the Crimes Code, entitled “Drug-iree school zones,” provides in pertinent part:
      “(a) General rule. — A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of... The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university, or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary ....
      “(b) Proof at sentencing. — The provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.” 18 Pa.C.S. §6317(a), (b).

      . Trooper Reed had been working with this particular Cl for approximately one year prior to this incident. (N.T.T. at 80.) In that time, this Cl had participated in approximately 20 controlled buys. (Id. at 82.) By the time of petitioner’s trial, March 5, 2007, this Cl had conducted approximately 50 controlled buys and was still actively working with the state police. (Id. at 90.)

      . Pennsylvania’s Justice Network (JNET) is the Commonwealth’s primary public safety and criminal justice information broker. JNET’s integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state, and federal agencies. See www.pajnet.state. pa.us.

      . Section 9543(a)(3) provides:
      “[T]hat the allegation of error has not been previously litigated and one of the following applies:... (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual, (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a state procedural default barring federal habeas corpus relief.” 42 Pa.C.S. §9543(a)(3).

      . The Commonwealth relies on Commonwealth v. Wilson, 594 Pa. 106, 934 A.2d 1191 (2007), in arguing that evidence regarding the school zone mandatory can be introduced at a re-sentencing. The Wilson case is, however, inapposite in that it involved the “youth/school enhancement” provision found in the Sentencing Guidelines and not the mandatory minimum provisions of section 6317. Id at 116-17, 934 A.2d at 1197. The Supreme Court acknowledged that the Kunkle case was not relevant to its analysis when it stated: “Kunkle relied upon the language of section 6317, which is inapplicable here.” Id. at 117-18, 934 A.2d at 1198.


author: CURRAN, Member,

text:
    Office of Disciplinary Counsel v. Barrish

      December 6, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CURRAN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On August 31, 2004, Office of Disciplinary Counsel filed a petition for discipline against Daniel C. Barrish, respondent. The petition charged respondent with violating Rules of Professional Conduct 4.1(a), 8.2(b), 8.4(c) and 8.4(d) in connection with his actions of making false allegations of judicial misconduct in pleadings to the Supreme Court of Pennsylvania and in an article published over the Internet against the Honorable Phyllis W. Beck of the Superior Court of Pennsylvania and the Honorable Rhonda Lee Daniele of the Court of Common Pleas of Montgomery County. On September 23,2004, respondent filed an answer to the petition for discipline.

A disciplinary hearing was held on December 3,2004, January 10, 2005 and March 8, 2005, before a District II Hearing Committee comprised of Chair Michael S. Dinney, Esquire, and Members Caitlin Curran Hatch, Esquire, and William J. Gallagher, Esquire. Respondent appeared pro se.

Following the submission of briefs by the parties, the Hearing Committee filed a report on June 22,2005, finding that respondent engaged in professional misconduct as charged in the petition for discipline and recommending that he be disbarred.

Respondent filed a brief on exceptions on July 11, 2005, and requested oral argument before the Disciplinary Board.

Petitioner filed a brief opposing exceptions on July 28, 2005.

Oral argument was held on August 16,2005, before a three-member panel of the Disciplinaiy Board chaired by Robert E. J. Curran, Esquire, with Laurence H. Brown, Esquire and C. Eugene McLaughlin.

This matter was adjudicated by the Disciplinary Board at the meeting on September 12, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinaiy proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Daniel C. Barrish, was bom in 1941 and was admitted to practice law in the Commonwealth in 1967. He maintains his office at 1912 Guernsey Avenue, Abington PA 19001.

(3) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(4) Respondent has no prior history of discipline.

(5) In 2002, respondent represented Thomas Tracy in a custody case captioned Thomas Edward Tracy v. Andrea Lynn Tracy (Cockfield) filed in the Montgomery County Court of Common Pleas.

(6) The Honorable Rhonda Lee Daniele presided over the custody trial and on August 2, 2002 ruled in Ms. Cockfield’s favor.

(7) On September 4, 2002, respondent appealed the decision to the Superior Court of Pennsylvania.

(8) The Honorable Phyllis W. Beck was a member of the three-judge panel that decided the appeal. The other members were the Honorable Joseph A. Del Sole and the Honorable Robert A. Graci.

(9) The panel quashed the appeal because respondent failed to comply with requirements of applicable rules of appellate procedure.

(10) Respondent filed a petition for reconsideration that was denied.

(11) Respondent filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. The court denied the petition.

(12) Respondent filed numerous king’s bench petitions, none of which were granted.

(13) On September 4,2003, respondent posted a letter/ article that was disseminated over the Internet. In the article, respondent made the following accusations:

“(1) The Tracy custody case was ‘fixed’ by the trial judge;
“(2) The Tracy custody case was ‘fixed’ in the Superior Court by the Superior Court judge;
“(3) There were three cases which Judge Daniele ‘fixed,’ and almost certainly others; and
“(4) ‘Judge Daniele was obligated (money talks!) to include all sorts of bizarre provisions in her final order’ in the Tracy custody case.”

(14) On August 11,2003, respondent filed an application for extraordinary relief pursuant to Rule 3309 in the Supreme Court of Pennsylvania.

(15) Respondent attached to the application a signed verification certifying that the facts set forth in the application were “true and correct to the best of [respondent’s] knowledge, information and belief,” and that the verification was “taken, subject to the penalties of 18 Pa.C.S. §4909 relating to unsworn falsification to authorities.”

(16) In the application, respondent made the following accusations:

“(1) Judge Beck directed the deputy prothonotary to either not docket the Tracy matter or if it were docketed, to delay its disposition until a time when Judge Beck would be sitting on a panel, meaning late April and/or May;
“(2) Judge Beck approached Judge Montemuro to take his place on the panel and she did in fact do so; and
“(3) Judge Beck persuaded two panel members not to read the record, order and opinion for which she provided a summary.”

(17) On March 24,2004, respondent filed an application for reconsideration (the second application) in the Supreme Court of Pennsylvania.

(18) Respondent attached to the second application a signed verification certifying that the facts set forth in the second application were “true and correct to the best of [respondent’s] knowledge, infonnation and belief,” and that the verification was “taken, subject to the penalties of 18 Pa.C.S.§4904 relating to unsworn falsification to authorities.”

(19) In the second application, respondent made the following accusation against the Honorable Phyllis W. Beck:

“(1) ‘Judge Beck seriously violated Canons of Ethics,’
“(2) Judge Beck ‘filed seemingly intentional false financial statements,’
“(3) Judge Beck is ‘surely unable to maintain her credibility in the legal community because of her actions,’ and
“(4) Judge Beck is ‘someone of questionable virtue.’”

(20) In the second application, respondent made the following accusations against the Honorable Rhonda Lee Daniele:

“(1) Judge Daniele ‘has made a mockery of the judiciary by openly and notoriously repeatedly violating serious filing obligations,’ and
“(2) Judge Daniele serves ‘at the risk of injuring the public, especially the children.’”

(21) Judge Daniele denied fixing the Tracy case.

(22) Judge Daniele denied fixing any case.

(23) Judge Daniele denied knowing either plaintiff or defendant prior to the Tracy case.

(24) Judge Daniele learned of respondent’s September 2003 Internet article from her children.

(25) Judge Daniele denied intentionally making misrepresentations on her case reporting Forms 703.

(26) Judge Daniele did not report certain cases on case reporting Form 703 because she was not required to do so.

(27) On one occasion in regard to a case other than the Tracy case, the court administrator’s office directed Judge Daniele to include cases where she was waiting for transcripts and/or memoranda from parties on case reporting Form 703 and she did so thereafter.

(28) Judge Daniele did not include the Tracy case on Form 703 because it was not ripe for reporting.

(29) Judge Daniele never filed intentionally false financial statements.

(30) Judge Daniele did not include certain properties on her yearly financial reporting form because the form did not require reporting the properties.

(31) Judge Daniele did not respond to respondent’s allegations in his pleading to the Supreme Court of Pennsylvania because she was represented by counsel from the Administrative Office of Pennsylvania Courts who handled the matter.

(32) Judge Daniele has served on the Court of Common Pleas of Montgomery County since 1995.

(33) Judge Daniele has served as administrative judge of Family Court since 2000.

(34) Judge Daniele has approximately 2,500 cases assigned to her docket at any one time.

(35) Judge Daniele ordered the parties, including the daughter of respondent’s client, to participate in counseling because of the history of respondent’s client’s relationship with his two other children.

(36) Whenever Judge Daniele includes children in her custody orders, a petition for govemability is a remedy when a child does not comply with the custody order.

(37) Judge Daniele has committed children to Montgomery County Children and Youth Services when the children have failed to comply with a custody order.

(38) Judge Daniele has directed therapy sessions in other custody cases, particularly when there is valid reason for concern about the relationship between the child and parent.

(39) The president judge of Montgomery County Court of Common Pleas received copies of respondent’s allegations concerning Judge Daniele’s Form 703s and financial forms from respondent.

(40) The president judge did not discipline or discuss the Form 703s and financial forms with Judge Daniele after receiving information from respondent.

(41) The court administrator of the Supreme Court of Pennsylvania, Zygmont Pines, Esquire, received copies of respondent’s allegations concerning Judge Daniele’s Forms 703s and financial forms from respondent in respondent’s petition to the Supreme Court and under cover of letters from respondent.

(42) Mr. Pines did not contact, discipline or discuss the Form 703s and financial forms with Judge Daniele.

(43) Respondent communicated the accusations against Judge Daniele which he included in his Internet article and court pleadings to numerous entities and individuals, including but not limited to the list serve of the Family Law Division of the Montgomery Bar Association; letters to the Montgomery County Commissioners; and letters to Montgomery County Court of Common Pleas Judges Rodgers and Corso.

(44) Respondent stated in his letter to the Montgomery County Commissioners, dated September 10,2004, that Judge Daniele has taken bribes since her first year on the bench in 1995.

(45) Judge Daniele was aware of respondent’s statements in his September 10, 2004 letter to the County Commissioners and denied ever taking a bribe.

(46) Judge Daniele believes she has never had any other unhappy litigant attack her professional integrity by saying she “threw” or fixed a case because she was being paid to do so.

(47) No one from the federal government, the Federal Bureau of Investigation, or the Montgomeiy County District Attorney’s Office contacted Judge Daniele concerning respondent’s accusations.

(48) Respondent’s accusations against Judge Daniele have caused her distress; have taken her time in loss of sleep and in thinking as to whether she filled out the forms involved correctly.

(49) Judge Daniele is concerned about respondent’s conduct because someone may believe his statements. It is constantly on her mind that her personal business is “splashed” in articles and pleadings.

(50) Judge Beck denied fixing the Tracy appeal.

(51) Judge Beck denied approaching the Superior Court Prothonotary and asking to be placed on the Tracy appeal panel.

(52) Judge Beck denied directing the Superior Court Deputy Prothonotary to either delay docketing or to not docket the Tracy appeal.

(53) Judge Beck denied directing the delay of the disposition of the Tracy appeal until she would be sitting on the panel.

(54) Judge Beck denied approaching Judge Montemuro or any other member assigned to the original Superior Court panel to take their place on the panel.

(55) Judge Beck denied persuading the other judges not to read the lower court opinion.

(56) Judge Beck denied providing a summaiy of the record to the other judges on the panel.

(57) Judge Beck denied violating the Canons of Ethics.

(58) Judge Beck denied filing intentionally false financial statements.

(59) Judge Beck was assigned to sit on the Superior Court panel in the Tracy appeal because one of the judges initially assigned, Judge McEwen, had a fractured ankle.

(60) On February 4, 2003, Charles O’Connor, the deputy prothonotary for the Superior Court for the Eastern District of Pennsylvania, scheduled the Tracy appeal for March 13, 2003 before a panel including Judge Del Sole, Judge Graci and Judge McEwen.

(61) On March 7, 2003, Judge McE wen’s secretary called David Szewczak, the prothonotary, and advised that Judge McEwen would not be available due to a fractured ankle.

(62) On March 7,2003, Mr. Szewczak appointed Judge Beck to serve on the Tracy appellate panel.

(63) Judge Beck did not know the plaintiff or defendant in the Tracy case before her assignment to the panel.

(64) Because of the emergency assignment to the panel, this was the first time in 20 years where Judge Beck had not read the briefs filed by the litigants in advance of the argument.

(65) The appellate panel decided to quash the appeal because respondent had not filed a proper brief and had failed to comply with the requirements of the appellate rules in filing the brief.

(66) The appellate panel found that respondent’s brief did not comply with the requirements ofPa.R.A.P. 2101 and 2111 because respondent’s “vituperative discussion of three issues preserved for appeal was devoid of citation to case law, specific references to places in the record and organized legal argument.”

(67) The Superior Court panel did not grant reargument and reconsideration of its decision to quash the appeal in response to respondent’s petition for reconsideration because respondent did not properly tell the panel what mistake had been made in compliance with the rules of appellate procedure.

(68) Judge Beck has served for 24 years on the Superior Court of Pennsylvania.

(69) Judge Beck has served as a senior judge since 1999.

(70) Judge Beck participated in a total of 225 Superior Court opinions and memoranda in 2004.

(71) Judge Beck was particularly concerned about respondent’s brief to the Superior Court in the Tracy case because he made statements about Judge Daniele including the following “the trial judge who conducted the lower court proceedings in this matter should immediately be removed from the bench because of a viciously contrived court order which both mocks the law and cavalierly disregards the best interests of children and others, whether such action resulted from ignorance of the law, mental illness, substance abuse and/or judicial misconduct.”

(72) Judge Beck had never before seen statements attacking a judge personally, such as the ones respondent made against Judge Daniele in his brief to the Superior Court.

(73) Judge Beck became aware of respondent’s September 2003 Internet article from Judge Daniele.

(74) Judge Beck was aware that respondent communicated the accusations contained in the Internet article against Judge Beck to Governor Rendell, Dean Reinstein, the dean of Temple University Law School, Lynn A. Marks, Esquire, the head of Pennsylvanians for Modem Courts, and Judge Beck’s colleagues: Judge Del Sole, President Judge of the Superior Court of Pennsylvania, Senior Judge McEwen, Judge Ford Elliot and Judge Panella.

(75) President Judge Del Sole did not contact or reprimand Judge Beck concerning respondent’s allegations.

(76) Judge Beck denied filing intentionally false financial statements.

(77) Judge Beck did not report the $250,000 award her husband received from the Heinz Foundation because it was turned over to the Beck Foundation.

(78) Judge Beck did not report her role in Third Avenue Funds because she did not believe she was required to do so under the reporting rules.

(79) Judge Beck has suffered embarrassment before her colleagues, sleepless nights and concerns and questions from family members.

(80) Respondent testified at the disciplinary hearings.

(81) Respondent did not know who paid money to Judge Daniele and Judge Beck to allegedly “fix” the Tracy case.

(82) Respondent presented no evidence that anyone paid money to Judge Daniele and Judge Beck to “fix” the Tracy case.

(83) Respondent did not know how much money was paid to the judges to “fix” the Tracy case.

(84) Respondent presented no evidence as to how much money was paid to the judges.

(85) Respondent did not know how the Tracy case was “fixed” by the judges and presented no evidence on that issue.

(86) Respondent did not know how Judge Daniele fixed other cases besides the Tracy case and presented no evidence to support this allegation.

(87) Respondent did not know how Judge Beck was paid to “fix” the Tracy appeal or who paid her to do so, nor did he present evidence concerning this issue.

(88) Respondent did not know whether Judge Beck directed the deputy prothonotary to either not docket the Tracy matter or, if it were docketed, to delay its disposition until a time when Judge Beck would be sitting on a panel.

(89) Respondent did not present evidence other than his unsupported conclusions, speculations and suppositions concerning Judge Beck’s assignment to the panel in the Tracy case.

(90) Respondent did not know whether Judge Beck approached Judge Montemuro to take his place on the panel.

(91) Respondent did not know whether Judge Beck persuaded two panel members not to read the record, order and opinions for which she provided a summary.

(92) Respondent presented no evidence concerning the Superior Court panel’s determination in the Tracy appeal.

(93) Respondent did not present evidence other than his unsupported conclusions, speculations and suppositions concerning Judge Daniele’s filling out of case reporting Form 703.

(94) Respondent did not present evidence other than his unsupported conclusions, speculations and suppositions as to Judge Daniele’s yearly financial reports.

(95) Respondent did not present sufficient evidence as to how Judge Daniele’s reporting of cases on Form 703 and financial information related to her ruling in the Tracy case.

(96) Respondent did not present sufficient evidence as to how Judge Beck’s reporting of financial information related to her participation on the Superior Court panel in the Tracy case.

(97) Respondent did not conduct a reasonably diligent inquiry before making the allegations he made in the Internet article and in sworn pleadings to the Supreme Court of Pennsylvania and the Supreme Court of the United States.

(100) Respondent filed complaints with the Judicial Conduct Board against Judge Beck and Judge Daniele.

(101) The Judicial Conduct Board advised respondent that his complaints against Judge Beck and Judge Daniele had been dismissed by letter dated January 21,2005.

(102) Respondent does not believe that he has violated any Rules of Professional Conduct and is not remorseful for his actions.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 8.2(b) — A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officers.

(2) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(3) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

Respondent did not violate R.P.C. 4.1 (a), which states that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person. Respondent published accusations on the Internet based on his personal impressions and opinions that his case was fixed. These were not material facts concerning the representation of his client

IV. DISCUSSION

This matter is before the Disciplinary Board for consideration of the petition for discipline filed against respondent charging him with professional misconduct arising out of false accusations against two judges. Respondent represented Thomas E. Tracy in a custody case filed in the Montgomery County Court of Common Pleas. The case was assigned to Honorable Rhonda Lee Daniele. In August 2002, Judge Daniele entered a custody order directing the parties to engage in counseling and directing other aspects of the ongoing custody arrangement. In response, respondent filed a petition for reconsideration that was denied. Respondent then filed an appeal to the Superior Court of Pennsylvania. A Superior Court panel comprised of Honorable Joseph Del Sole, Honorable Robert A. Graci and the Honorable Phyllis W. Beck quashed the appeal because respondent failed to comply with the requirements of the applicable rules of appellate procedure. Respondent filed a petition for reconsideration that was denied. Respondent filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. The court denied the petition.

Respondent accused Judge Daniele and Judge Beck of fixing the custody case, of being dishonest, of filing false case reporting forms, of filing false financial reports, and in the case of Judge Daniele, of taking bribes. Respondent published these accusations in an article over the Internet. Respondent included the accusations in numerous letters to a variety of individuals, including but not limited to: judges, the Governor of Pennsylvania, the Dean of Temple University Law School, and the Montgomery County Commissioners. Respondent also swore to the truthfulness of the accusations in pleadings to the Supreme Court of Pennsylvania and the Supreme Court of the United States.

After three days of hearing, the Hearing Committee filed a report and found that respondent violated Rules of Professional Conduct 4.1(a), 8.2(b), 8.4(c), and 8.4(d). The committee recommended that respondent be disbarred.

Respondent took exception to the report and requested oral argument. The basis for his exception is that there are no specific findings of fact made by the committee, but instead a reference to petitioner’s proposed findings. Respondent contends that, as there are no valid findings of fact, there can be no valid conclusions of law; therefore, the charges against respondent should be dismissed.

Review of the report of the Hearing Committee demonstrates that the committee made findings of fact by adopting the findings made by petitioner in its brief to the Hearing Committee. The committee further stated that respondent acknowledged his statements in the joint stipulation of facts. While the committee did not make numbered findings, certainly their adoption of petitioner’s proposed findings was appropriate and clearly intended to be the findings of the committee. For these reasons the board rejects respondent’s exceptions and recommendation to dismiss the charges against him.

The burden of proving professional misconduct lies with petitioner, which must prove the violations by a preponderance of the evidence that is clear and satisfactory. Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981). Petitioner alleges that respondent violated R.P.C. 4.1(a) by his conduct in publishing false statements about two judges over the Internet, disseminating them to numerous third parties and including them in court pleadings. Specifically, R.P.C. 4.1(a) states that “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” The board’s review of the record demonstrates that respondent made accusations against two judges but did not make a false statement of material fact or law to a third person. Respondent’s accusations constitute his opinions or impressions that the Tracy case was fixed, but do not constitute material facts. A material fact is one which is essential to the case and without which it could not be supported. Black’s Law Dictionary 881 (5th ed. 1979). For this reason R.P.C. 4.1(a) does not apply to the instant matter; accordingly, that charge against respondent is dismissed.

The board’s review of the other rule violations charged demonstrates that petitioner met its burden of proof. R.P.C. 8.2(b) prohibits a lawyer from knowingly making false accusations against a judge. By continually making false accusations against Judge Daniele and Judge Beck, respondent violated this rule. R.P.C. 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. A prima facie case is made where the record establishes that the misrepresentation was knowingly made, or made with reckless ignorance of the truth or falsity of the representation. Office of Disciplinary Counsel v. Anonymous Attorney A, 552 Pa. 223, 714 A.2d 402 (1998). The record establishes that respondent routinely and repeatedly acted recklessly by stating as facts things of which he was ignorant. R.P.C. 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. Respondent’s continued attacks against Judge Daniele and Judge Beck without evidence of the truth of the accusations and without an objective reasonable basis for the accusation prejudices the administration of justice.

The record supports the findings of violations of Rules of Professional Conduct 8.2(b), 8.4(c) and 8.4(d). This matter is ripe for the determination of discipline. It is appropriate for the board to consider both aggravating and mitigating factors in determining the appropriate sanction. At the disciplinary hearings respondent maintained his position as set forth in his accusations and failed to make any apology or retraction. Instead, respondent continued to make disparaging and inappropriate remarks against the two judges. For example, when asked what personal gain Judge Daniele received for deciding the Tracy case as she did, respondent stated “Obviously, she had to have received something because only an idiot who knew nothing about the law would come down to a decision like that, to embarrass herself if it was ever published.” (N.T. 489.) Respondent does not grasp the reason why his conduct was wrong and violated the Rules of Professional Conduct. As an attorney in this Commonwealth for 38 years, respondent should understand the deleterious effects on the legal system of making unfounded accusations against judicial officers. In view of the continuing nature of respondent’s misconduct, his lack of disciplinary history does not weigh heavily in his favor.

Disciplinary cases involving accusations against judicial officers have been considered by this board and the Supreme Court. The two controlling cases are Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000) and Office of Disciplinary Counsel v. Price, 557 Pa. 166, 732 A.2d 599 (1999). The court entered a five-year suspension in each case.

Mr. Price filed three court documents that contained false allegations against two district justices and an assistant district attorney. Mr. Price was found to have falsely completed portions of Department of Public Welfare forms designated to be completed by a medical provider by signing the forms as “Dr. Neil Price J.D.” Mr. Price accused a district justice of participating in an undercover effort against Price to curry favor with state police and the attorney general and of engaging in official oppression by colluding with a state trooper in allowing a baseless lawsuit. Mr. Price made the statements in reaction to the district justice serving as a witness against Price in a then pending criminal action. Mr. Price accused a second district justice of abusing his office by fixing citations from other jurisdictions, assuming a prosecutorial bias to ingratiate him with disciplinary authorities and others and sexually harassing several constituents. Mr. Price accused the assistant district attorney of acting with malice against Price because Price purportedly discovered that the assistant district attorney had embezzled a private client’s judgment.

Mr. Surrick made accusations of case fixing against three judges. In that case, the Supreme Court rejected a subjective approach which would permit a respondent to escape responsibility by simply stating that he personally believed the accusations to be true. The court held that “An attorney proceeds recklessly when he presents assertions without any indicia of the accuracy of those assertions, or without a minimal effort to investigate the accuracy thereof.” Surrick, 561 Pa. at 178, 749 A.2d at 447. Respondent drew unwarranted conclusions from benign events and seemingly willful misinterpretations of filing requirements and then published his false accusations in signed court pleadings, over the Internet and in letters to numerous judges without any evidence of truth or any reasonable objective basis to make the accusations. This behavior was reckless.

Respondent was not able to provide any evidence to support any of his accusations against Judge Daniele and Judge Beck. Respondent has based his entire pursuit of these matters on his illogical deduction that there is no reason for the decisions made by the judges other than judicial impropriety. Respondent has continued to make disparaging remarks against the judges, sees himself as unjustly accused, and does not acknowledge his behavior or its impact on the judicial system. He presented no character evidence or independent testimony that supported his allegations. Respondent’s misconduct calls into question his ability to continue practicing law in a fit manner. In light of this serious misconduct and the controlling case law, the board is persuaded that a suspension of five years is appropriate.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Daniel C. Barrish, be suspended from the practice of law for a period of five years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Newman and Nordenberg did not participate in the September 12, 2005 adjudication.

ORDER

And now, March 15, 2006, upon consideration of the report and recommendations of the Disciplinary Board dated December 6, 2005, the petition for review and responses thereto, it is hereby ordered that Daniel C. Barrish be and he is suspended from the bar of this Commonwealth for a period of five years, and he shall comply with all the provisions of Rule 217 Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Madam Justice Baldwin did not participate in this matter.

Mr. Justice Castille dissents and would disbar respondent.