author: SHEPPARD JR., J,

text:
    Chapski v. The Moravian at Independence Square Condominium Association

      Robert D. Greenbaum, for plaintiffs.

      Michael N. Onufrak, for defendants.
    November 30, 2007
   SHEPPARD JR., J,

Presently before the court are defendants’ preliminary objections seeking dismissal of the instant action. For the reasons discussed, the preliminary objections are sustained, in part, as they pertain to plaintiffs’ fraud, conversion, RICO and attorneys’ fees claims. Defendants’ remaining preliminary objections are denied.

BACKGROUND

Plaintiffs, Jeffrey Chapski and Jennifer M. Lee are husband and wife, residing at 143 S. 2nd Street, Apt. #204, Philadelphia, PA 19106 (Unit 204). Defendants include: The Moravian at Independence Square Condominium Association, Moravian Associates L.L.C., Moravian Associates L.P., Renaissance Properties Inc., Renaissance Development Real Estate Services L.L.C., Renaissance Properties Real Estate Service L.L.C., and Travelers Property Casualty Company of America.

This action stems from various interactions between plaintiffs and defendants concerning Unit 204. The complaint alleges, among other things, that plaintiffs were defrauded in the purchase of Unit 204 by all of the above-mentioned defendants acting in unison, as the property failed to conform to the pre-sale representations.

On December 19, 2005, after about a month of negotiations, plaintiffs entered into an agreement of sale with Moravian L.P. for the purchase of Unit 204 at a price of $1,165,000. As part of the agreement, Unit 204 was to be conveyed to the plaintiffs free and clear of all monetary liens and latent defects.

By deed dated March 28, 2006, Moravian L.P. conveyed the property to the plaintiffs. Unbeknownst to the plaintiffs at the time, Unit 204 was subject to a mortgage. Defendants are alleged to have been aware of this fact prior, during, and after the sale.

On February 10,2007 at approximately 4 p.m., apipe abutting the exterior building wall of Unit 204 ruptured causing plaintiffs’ property to sustain significant water damage to the kitchen, living room, study on the second floor, master bedroom and bathroom on the first floor, and various hallways.

In response to this incident, plaintiffs communicated with defendants through phone, fax and email regarding the damage sustained and the plans for repair. Plaintiffs allege that defendants refused to diligently pursue the repair of Unit 204, which prompted plaintiffs to engage their own public adjustor and contractor to assess the damage and perform the demolition of the damage and reconstruction, respectively.

In performing the demolition work, plaintiffs’ contractor discovered numerous defects with Unit 204 including: improper installation of the fire system pipe, insufficient insulation of the fire system pipe, insufficient insulation of the exterior wall(s), improper penetrations of the interior and exterior wall(s) and floor, improper venting of plumbing systems, and a rotting roof. Plaintiffs allege that these construction defects are latent defects under the purchase agreement, and therefore the property does not conform to the provisions of said agreement. Also, plaintiffs claim that defendants had a responsibility to repair and correct the construction defects as well as assure that all such renovation and construction work performed on Unit 204 conformed to all applicable building codes.

As part of the negotiations for purchase of Unit 204, defendants represented that all owners of condominium units would be governed by the declaration, bylaws and related documents of the association (governing documents). These documents state that Moravian L.P. is entitled to all three seats on the association’s executive board until 60 days after Moravian L.P. has conveyed 25 percent of the units, at which time the unit owners other than Moravian L.P. would be entitled to elect one member of the executive board. All of the members of the executive board are to be elected by the unit owners, including Moravian L.P. to the extent Moravian L.P. continues to own any units, not later than the earlier of September 9, 2009 or 120 days after Moravian L.P. has conveyed 75 percent of the units. Plaintiffs allege that the apartment unit and 13 residential units, including Unit 204, have been sold thus triggering the requirement for the election of the executive board by all the unit owners. No such election has been held to date.

Plaintiffs also claim that defendants have failed to fulfill other obligations under the governing documents, including failure: to provide accounting records, to prepare timely and disclose annual and capital budgets, to make the repairs resulting from faulty common elements in a timely fashion, to have its insurance company pay for repairs made necessary by the construction defects and the fire system pipe rupture, and to collect all association fees from all members of the association.

On July 31, 2007, plaintiffs brought the underlying action alleging fraud, breach of contract, violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), conversion, bad faith and unjust enrichment. Plaintiffs also ask for rescission of the original purchase agreement.

Defendants now ask the court to dismiss the complaint for: legal insufficiency, factual insufficiency and failure to join an indispensable party.

DISCUSSION

The court’s role is limited in reviewing preliminary objections. “All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review.” “The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Any doubts as to whether a demurrer should be sustained, shall be resolved in favor of overruling it. “In ruling on preliminary objections, the focus of the inquiry is the pleadings as a court must sustain preliminary objections only where it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief.”

I. The Henderson Corporation Is Not an Indispensable Party

“In Pennsylvania, an indispensable party is one whose rights are so directly connected with, and affected by, litigation that he must be a party of record to protect such rights, . . . .” “The determination of indispensability requires consideration of the following: (1) whether the absent party has a right or interest related to the claim, (2) the nature of that right or interest, (3) is the right or interest essential to the merits of the issue and (4) can justice be afforded without violating the due process rights of absent parties.”

The present action is a breach of contract case between plaintiffs and defendants solely. The Henderson Corporation is not a party to the contracts at issue and therefore does not have a right or interest in this claim. Because subject-matter jurisdiction can be objected to at any time, defendants will still have an opportunity to address this issue if it appears during the course of discovery that Henderson is an indispensable party to this action. The court overrules this preliminary objection.

II. Counts I and VAre Dismissed Pursuant to the “Gist of the Action ’’ Doctrine

“The gist of the action doctrine precludes plaintiffs from recasting ordinary breach of contract claims into tort claims.” Specifically, the doctrine bars “tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; and (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract.”

Plaintiffs’ entire case surrounds the contractual agreement with the defendants for the purchase of Unit 204. Though plaintiffs, in theory, plead separate causes of action in Counts I (fraud) and II (breach of contract), upon closer examination, the factual allegations in support of both claims are identical. Because the duties allegedly breached in both causes of action stem from the purchase agreement, the breach of contract claim is the only viable claim under the “gist of the action” doctrine. Therefore, Count I (fraud) is dismissed.

Similarly, plaintiffs’ success on its conversion claim depends entirely on the obligations of the parties as defined in the contractual agreement. Therefore, the breach of contract claim and conversion claim are inextricably intertwined. Because the conversion claim in Count V is duplicative to the Count II breach of contract claim, the court dismisses Count V pursuant to the “gist of the action” doctrine.

III. Plaintiffs Have Failed To Allege an Adequate RICO Claim in Count IV

“The allegations necessary to support a RICO claim by a private plaintiff under 18 U.S.C. §1962 are (1) the conducting of, (2) an enterprise, (3) through a pattern, (4) of racketeering activity, and (5) injury to the plaintiff’s business or property.” Defendants argue that the “pattern” aspect of a civil RICO claim has not been adequately supported in the complaint.

A pattern “requires the showing of a relationship between the predicates and of the threat of continuing activity.” “RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” Therefore, the “pattern” element includes two prongs: relatedness of predicate acts and continuity. “Continuity . . . refers ‘either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. ’ ” Having reviewed the allegations in plaintiffs’ complaint, the court finds that continuity has not been alleged.

Plaintiffs argue that defendants’ fraud has spanned over four years and therefore “closed-period” continuity has been demonstrated. The court disagrees. Plaintiffs began negotiations in December 2005 and were conveyed the property in March 2006. The alleged fraud occurred within that time period, which amounts to approximately four months. This fails to constitute “a substantial period of time” under the RICO statute.

Plaintiffs also allege an open-ended pattern of racketeering, one that is threatening criminal activity into the future. Again, the court disagrees. “While any threat of continuity is by its nature hypothetical, to infer a threat of repeated fraud from a single alleged scheme would in effect render the pattern requirement meaningless.” Plaintiffs’ fraud allegations surround only one particular transaction. Plaintiffs have failed to adequately allege an ongoing scheme. The mere assertion that some of defendants’ condominiums have remained unsold fails to establish a threat of future criminal activity.

In sum, the court finds that plaintiffs have failed to establish the “pattern” element of a civil RICO claim, and thus Count IV must be dismissed.

IV. Plaintiffs Have Alleged a Claim for Unjust Enrichment in Count VII

The elements of unjust enrichment include: “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” The complaint properly alleges these three elements.

The defendants argue that because the cause of action is based upon a written contract, a quasi-contractual scenario does not exist and therefore an unjust enrichment claim must fail. Though it is true that a plaintiff cannot recover on an unjust enrichment claim that is based upon a breach of a written contract, Pennsylvania Civil Procedure Rule 1020 allows a plaintiff to plead causes of action in the alternative. It is also established that “ [p] laintiffs may properly plead causes of action for breach of contract and unjust enrichment in the same complaint.” The court finds that plaintiffs have adequately done so and therefore overrule defendants’ preliminary objection pertaining to this claim.

V. Plaintiffs’ Claim for Attorneys’ Fees Pursuant to Count III Are Permitted

The Supreme Court of Pennsylvania has consistently followed the American Rule, and under this rule, “there can be no recovery of attorneys’ fees from an adverse party, absent an express statutory authorization, a clear agreement by the parties or some other established exception.” Because attorneys’ fees are permitted under 73 P.S. §201-9.2(a), the court overrules defendants’ preliminary objection pertaining to Count III (violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law) and such fees are permitted. The remaining claims for fees are dismissed.

CONCLUSION

For these reasons, defendants’ preliminary objections are sustained, in part, as to Counts I (fraud), IV (RICO), V (conversion), and plaintiffs’ claim for attorneys’ fees in Counts I, II, IV, V, VII, and VIII are stricken. The remaining preliminary objections are overruled.

ORDER

And now, November 30,2007, upon consideration of the preliminary objections to plaintiffs’ complaint, the response in opposition, all other matters of record, and in accord with the opinion issued contemporaneously, it is ordered that said preliminary objections are sustained, in part, as they pertain to plaintiffs’ fraud, conversion, RICO, and attorneys’ fees claims. Defendants remaining preliminary objections are denied.

      . The association is a Pennsylvania non-profit (non-stock) corporation that operates 17 residential condominium units (including Unit 204 involved in this suit) and one apartment unit (comprised of eight rental apartments).

      . Travelers is a Connecticut corporation authorized to conduct business and licensed to sell insurance in the Commonwealth of Pennsylvania and has a principal place of business in Hartford, CT.

      . With the exception of Travelers, the defendants are all Pennsylvania entities that share the same business address: c/o Renaissance Development Real Estate Service LLC, 1926 Arch Street, Suite 4R, Philadelphia, PA 19103. It is alleged in the complaint that Renaissance Development is the majority member of Moravian LLC, which is the general partner in a limited partnership with Moravian L.P.

      . In November 2005, the plaintiffs began negotiations with Moravian L.P. for the purchase of Unit 204. Plaintiffs discussed the purchase with Edward W. Coslett of Moravian LLC numerous times via phone, fax, and email. Such communications involved the sale, construction, and repair issues.

      . Section 4(b) of the purchase agreement states: “Seller shall discharge all monetary liens against the premises on or before settlement hereunder.”

      . The Henderson Corporation was the original general contractor employed to develop the condominiums. In April 2005, Henderson filed suit against Moravian L.P. et al, for failure to pay $3.7 million in fees owed them for the development. As part of a settlement agreement, the suit was dropped and Henderson recorded a mortgage against the condominiums in October 2005.

      . This unit consists of eight apartments fronting on Walnut Street.

      . Employers Insurance of Wausau, A Mutual Company v. PennDOT, 581 Pa. 381, 388 n.5, 865 A.2d 825, 829 n.5 (2005).

        . Id.

      . Id.

      . DeStefano & Associates v. Cohen, 2002 Phila. C.C.P. Lexis 54, *8 (2002).

      . Mechanicsburg Area School District v. Kline, 494 Pa. 476, 483, 431 A.2d 953, 957 (1981). (emphasis in original)

      . Kvaerner U.S. Inc. v. OneBeacon Insurance Co., 2003 Phila. C.C.P. Lexis 43, *3 (2003).

      . The Henderson Corporation completed construction on the property well before plaintiffs entered into negotiations concerning Unit 204.

      . City of Philadelphia v. Human Services Consultants, 2004 Phila. C.C.P. Lexis 26, *6 (2004).

      . Id. at *7.

      . Defendants’ remaining preliminary objections that relate to Count I (fraud) concerning: specificity of fraud, failure to allege duty to disclose and failure to establish alter-ego liability, are moot and need not be addressed.

      . The doctrine bars “tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; and (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract.” City of Philadelphia, 2004 Phila. C.C.P. Lexis at *7.

      . Alberici v. United States Government Department of Justice, 1992 U.S. Dist. Lexis 3334, *16 (Pa. Dist. Ct. 1992).

      . The predicate offenses are listed in 18 U.S.C. §1961(a)(l). The predicate offenses alleged by plaintiffs include fraud by wire (ex: use of fax, email, phone), as defined under 18 U.S.C. §1343.

      . H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989).

      . Id. (emphasis in original)

      . Menasco Inc. v. Wasserman, 886 F.2d 681, 683 (4th Cir. 1989).

      . “A close-ended pattern of racketeering refers to a series of related predicate acts extending over a substantial period of time concluded by the time the RICO action is brought. Predicate acts extending over a few weeks or months and threatening no future conduct do not satisfy [the continuity] requirement: Congress with RICO was concerned with long-term criminal conduct.” Alter v. DBLKM Inc., 840 F. Supp. 799, 809 (D. Colo. 1993).

      . Continental Realty Corp. v. J.C. Penney Co., 729 F. Supp. 1452, 1455 (D. N.Y. 1990).

      . Schenck v. K.E. David Ltd., 446 Pa. Super. 94, 97, 666 A.2d 327, 328 (1995).

      . See complaint ¶¶216-21.

      . Birchwood Lakes Community Association v. Comis., 296 Pa. Super. 77, 87, 442 A.2d 304, 308 (1982).

      . Honeywell International Inc. v. Archdiocese of Phila., 2001 Phila. C.C.P. Lexis 40, *4 (2001).

      . Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999).

      . The court need not address plaintiffs’ claims for attorneys’ fees related to Counts I (fraud), IV (RICO), and V (conversion) because they have already been dismissed. The court also rejects plaintiffs’ claim for attorneys’ fees associated with Count II (breach of contract) because the contract does not call for such fees. For Counts VII (unjust enrichment) and VIII (rescission), the court notes plaintiffs’ failure to allege any statutory authorization or exception that would permit attorneys’ fees. Therefore, such fees are denied.

      . Count II properly alleges breaches of contract by defendants. The complaint alleges the breach of two contracts: purchase of sale agreement and agreements contained within the “governing documents.” Though the court is hesitant to find alter-ego liability from the scant factual allegations within the complaint, it does agree that discovery is needed to address this issue. Therefore, the court overrules defendants’ preliminary objection and all defendants, absent Travelers, remain as parties to the contracts at issue.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Citibank (South Dakota) N.A. v. King

      Derek C. Blasker, for plaintiff.

      William G. Tressler, for defendant.
    November 9, 2007
   GRINE, J.,

Presently before this court are the preliminary objections of defendant Robert J. King to plaintiff’s complaint. Defendant’s motion contains a preliminary objection in the form of a demurrer. By order dated September 20,2007, having received defendant’s preliminary objections, the defendant was ordered to file a brief in support by October 15, 2007. Further, plaintiff Citibank (South Dakota) N.A. was ordered to file a brief in response by October 29, 2007. Counsel for both parties filed their respective briefs, both in timely manner, and the matter is ripe for consideration. After reviewing the memorandums filed by counsel, this court overrules defendant’s preliminary objections.

PROCEDURAL BACKGROUND

The plaintiff initiated this cause of action by filing a complaint on August 10, 2007. In the complaint, the plaintiff seeks to recover $10,091.18, which is the statement balance of a consumer credit card furnished to the defendant by the plaintiff in the form of an AT&T Universal credit card. The plaintiff’s complaint states that the defendant’s actions constituted an account stated between the parties to the sum of $10,091.18. On September 20, 2007, the defendant filed preliminary objections to the plaintiff’s complaint on the grounds that the plaintiff failed to state a cause of action. In the preliminary objections to the complaint, defendants asks this court to dismiss the plaintiff’s complaint.

DISCUSSION

The preliminary objection that is before this court is that the plaintiff failed to establish a cause of action against the defendant. The primary question is whether the plaintiff properly pleaded an account stated cause of action. The standard for such a pleading is as follows: “In pleading a complaint based upon an account stated, plaintiff must allege that there had been a running account, that a balance remains due, that the account has been rendered upon the defendant and that the defendant has assented to the account.” Rush’s Service Center Inc. v. Genareo, 10 D.&C.4th 445, 447 (Lawrence Cty. 1991). The plaintiff’s complaint does properly aver these elements. The plaintiff averred that it furnished consumer credit to the defendant. Additionally, the plaintiff’s complaint stated that the plaintiff mailed monthly statements which set forth the detail of the defendant’s account, and a copy of the current statement was attached to the complaint showing a balance remains due. The most essential element of the complaint is the parties’ agreement to the accuracy and correctness of the account. Connolly Epstein Chicco Foxman Engelmyer & Ewing v. Fanslow, 1995 W.L. 686045, 5 (E.D. Pa. 1995), quoting David v. Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa. 335, 35 A.2d 346 (1944). Additionally courts in Pennsylvania have found that such agreement can be implied when the retention without objection by one party for an unreasonably long time of a statement of account rendered by the other is a manifestation of assent to the amount shown as an accurate computation of the amount due. Donahue v. City of Philadelphia, 157 Pa. Super. 124, 128, 41 A.2d 879, 881 (1945). Therefore it is clear that the defendant has assented to the account based on paragraph 7 of the plaintiff’s complaint where it stated that the “defendant had for many months made payments on account of the billing statement or retained the statement without payment.” Based on the foregoing, and accepting all of the material averments made in plaintiff’s complaint as true, this court finds that the plaintiff has provided facts within the complaint sufficient to sustain a cause of action based on an account stated claim. Therefore, the court overrules defendant’s preliminary objection.

ORDER

And now, November 9, 2007, after a review of the arguments submitted by counsel, it is hereby ordered and decreed that defendant’s preliminary obj ections are overruled.


author: FINLEY, J.,

text:
    Commonwealth v. Brzezinski

      Edward M. Louka, for Commonwealth.

      Mel D. Kardos, for defendant.
    November 5, 2007
   FINLEY, J.,

Brian Brzezinski has filed a motion for a new trial and petitioned for relief under the Post Conviction Relief Act (PCRA) following his conviction for burglary and other related offenses.

On January 8, 2007, petitioner was convicted, after a non-jury trial, of the crimes of burglary, theft by unlawful taking, receiving stolen property, criminal trespass, and criminal mischief.

On March 15,2007, petitioner filed a motion for a new trial alleging ineffective assistance of counsel.

Petitioner was sentenced on April 4, 2007, to 90 days to 23 months incarceration in the Bucks County Correctional Facility.

On April 16, 2007, pursuant to Pa.R.Crim.P. 720(b), defendant filed a post verdict motion alleging that the evidence was insufficient to support his conviction.

On June 4, 2007, a hearing was held to consider petitioner’s motions. At that time, upon request of counsel, the court ordered that the motions be consolidated under the PCRA, and that the Commonwealth respond to the petition.

A PCRA hearing was held on September 18, 2007, with testimony by several witnesses to supplement the record. At the conclusion of the hearing, the matter was taken under advisement, and time was afforded to the parties to submit legal memoranda supporting their respective positions.

The issues condense to:

(1) whether, viewed in the light most favorable to the Commonwealth, the evidence was sufficient, under the totality of the circumstances, to sustain a conviction for burglary and related offenses; and,

(2) whether trial counsel was ineffective for (1) strategically introducing petitioner’s prior conviction for theft on direct examination; (2) failing to object to comments by the assistant district attorney and the court regarding the person who accompanied petitioner during the burglary; and, (3) failing to call certain witnesses.

Petitioner’s conviction resulted from an incident that occurred on October 20,2006 shortly after flooding from the Delaware River had damaged many homes. Petitioner owns and operates Premier Excavation Company which performs both excavation and demolition.

On October 20, 2006, a homeowner was driving by his home at 102 Overlook Avenue in Upper Malcefield Township (an area that had been damaged by the floods) when he noticed petitioner’s truck in his driveway and found petitioner inside his house. When the homeowner questioned petitioner as to what he was doing there, petitioner indicated that he had been contracted to demolish the house. The homeowner was understandably surprised. As the conversation continued, petitioner told the homeowner that he had mistakenly entered the wrong home. Petitioner told the homeowner that he had removed numerous items including tools and guns. He then left to retrieve and voluntarily return the things he had taken. Petitioner maintained that his removal of the items was not unusual, as owners would often leave behind many items in houses that were to be demolished.

Later, after thinking over the events, the homeowner came to believe that petitioner was actually there to burglarize his house. He was fortunate to come along and discover petitioner in the act. The homeowner then called the police, and petitioner was arrested for burglary and related crimes.

Petitioner had contracted with Upper Makefield Township to demolish two flood-damaged properties, one on River Road and one at 115 Overlook Avenue, a different property from the one which he burglarized. The home from which petitioner removed the items was situated as the first house at the corner of River Road and Overlook Avenue and had no house number or mailbox. The address of that house was actually 102 Overlook Avenue.

Petitioner did not deny removing the items. Testimony revealed that he had cut a chain securing the power tools, cut open the hinges on a steel gun cabinet removing the guns, took bottles of liquor, removed a fur from a cedar closet, dumped out the contents of drawers that included personal documents including passports, Social Security numbers and birth certificates, and had otherwise ransacked the house. Petitioner defends his actions by asserting that he was mistaken about which house to demolish, and that he removed the property only because he believed that it had been abandoned.

At trial, petitioner admitted that he did not look at any other houses on the street to determine whether he was at the right house. He also testified that he did not remember being told by the township engineer that there were no salvage rights on this demolition job.

Larry Young of Gilmore and Associates, the township engineer, testified at trial that he told petitioner that there were no salvage rights on this job. Petitioner had not attended a non-mandatory pre-bid meeting at which the prohibition of salvage rights was among the topics of discussion.

Gary Bulick, also of Gilmore and Associates, testified that when he confronted petitioner with the information that a homeowner at 102 Overlook Drive had reported some personal property missing, petitioner told Mr. Bu-lick that he was there to give an estimate to the owner. Petitioner told the homeowner and the police that he had mistakenly entered the house thinking that it was the one that he was to demolish. At trial, petitioner admitted that he had lied to Mr. Bulick.

The owner of 102 Overlook Drive testified that he was sure that he had locked all of the doors and windows of the house. Contradicting that, petitioner testified that he simply pushed the door and it opened.

The court did not find petitioner credible, and did not accept petitioner’s defense of ignorance or mistake as plausible. The explanation given by petitioner for being at the wrong address and removing valuable items that had been secured was simply not reasonable. The testimony established that petitioner ignored the contract requirements that forbade salvage, and did not make any reasonable attempt to determine whether he was entering the house that he had contracted to demolish or a different house. The court noted that petitioner went upstairs, dumped out the content of bureau drawers, including personal papers, passports, Social Security numbers, and birth certificates. He sorted out things of value to him, and left the remainder lying about. He entered a cedar chest that contained furs, removing one fur, broke into a locked gun cabinet that had suffered no damage from the flood, and took power tools that had been secured by a locked chain.

Considering all of these circumstances, the court found that the Commonwealth had proved its case against petitioner beyond a reasonable doubt. At the request of counsel, sentencing was delayed for a period of 30 days, and bail was set at $25,000.

In his post verdict motion for a new trial, petitioner alleges that he lacked the specific intent necessary to commit the crime of burglary. He appropriately cites Commonwealth v. Taylor, 324 Pa. Super. 420, 471 A.2d 1228 (1984) that when reviewing a challenge to sufficiency of the evidence, the court must view the evidence, along with all inferences therefrom, in the light most favorable to the verdict-winner, in this case, the Commonwealth.

Burglary is defined as the act of entering or occupying a structure with intent to commit a crime therein. 18 Pa.C.S. §3502. Petitioner argues that he mistakenly went to the wrong house, and that he did not know that there were no salvage rights. Therefore, he asserts, he did not form the requisite intent for the crime of burglary.

In Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993), our Supreme Court found that consideration of the “totality of the circumstances” is an appropriate approach in evaluating the Commonwealth’s evidence supporting the element of specific intent in the crime of burglary. Id. at 380, 633 A.2d at 144.

Petitioner’s arguments to the contrary do not survive inspection. He claims to have entered the home, thinking it was the home to be demolished. However, petitioner testified that he did not even look at any surrounding houses for addresses. The correct house, 115 Overlook, is an odd-numbered address and therefore would have been on the other side of the road from the house petitioner entered, bearing an even-numbered address of 102. Neither would it be reasonable to conclude that the house had been abandoned, since the occupants left important personal effects behind and had locked up items such as undamaged tools and valuable guns. Considering the totality of the circumstances, the court found the evidence more than sufficient to establish, beyond a reasonable doubt, that petitioner entered the locked building with the intent to steal the personal property therein.

Petitioner also argues that if he were at the house to steal he would not have done it during daylight hours using a truck bearing his logo and telephone number. The Commonwealth counters this assertion by proposing that such actions are perfect cover for a burglary. A workman’s truck, parked at a house in a flood-damaged area during daylight hours, would be unlikely to engender suspicion.

Finally, petitioner asserts that his entry was privileged. Fie was, by contract, permitted to enter the house at 115 Overlook Avenue, and that is the house he mistakenly thought that he was entering. Furthermore, petitioner asserts that he did not have to break into the house to gain entry. He claims that it was not secured completely. The homeowner refutes this contention. The court did not find petitioner credible in his assertion that he had reasonably mistaken the house at 102 Overlook for the house at 115 Overlook. Petitioner admitted that he took no steps to ascertain whether he was at the right house, but based his identification solely on the observation that the house had suffered flood damage. Again the homeowner sheds doubt on petitioner’s story, testifying that he had repaired any water damage that was visible from the exterior of the home.

The Superior Court opined upon sufficiency of evidence claims:

“Our well-settled standard of review when evaluating a challenge to the sufficiency of the evidence mandates that we assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner. . . . We must determine whether there is sufficient evidence to enable the fact-finder to have found every element of the crime beyond a reasonable doubt.
“In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence.” Commonwealth v. Evans, 901 A.2d 528, 532-33 (Pa. Super. 2006).

Viewing the entire record in the light most favorable to the Commonwealth, and looking at the totality of the circumstances establishes the requisite proof. Petitioner gave different versions of why he was at 102 Overlook and did not give a reasonable explanation for how he failed to ascertain whether he was at the correct house. Even if he had been at the proper house to be demolished, he should have known (because he was told beforehand) that he did not have salvage rights. Petitioner sorted through the premises and took multiple items of value that had been secured by the homeowner from a locked house. The evidence is sufficient to establish petitioner’s intent as well as the other elements of the crime of burglary.

Petitioner also claims that he is eligible for relief under the PCRA, alleging that he was afforded ineffective assistance of counsel.

A PCRA court, considering an ineffectiveness claim, is guided by a three-pronged standard set forth in Strickland v. Washington, 466 U.S. 668(1984)and adopted by our Pennsylvania Supreme Court in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Pursuant to Strickland, a defendant must establish that: (1) the underlying claim is of arguable merit; (2) counsel’s challenged acts or omissions did not have a reasonable strategic or tactical basis; and, (3) the defendant suffered actual prejudice as a result of counsel’s conduct. Strickland, 466 U.S. at 687.

It should first be noted that petitioner’s memorandum in support of post-trial motions addresses only one of his three claims of ineffective assistance: trial counsel’s failure to call additional witnesses. Therefore, the other two claims are waived.

Even if not waived, the two claims are without merit.

In the first claim, petitioner alleged that trial counsel was ineffective because he had petitioner testify to his earlier conviction for a crimen falsi offense. To meet the second prong of Strickland, supra, petitioner bears the burden of establishing that his trial counsel had no reasonable strategic basis for his or her action or inaction. Commonwealth v. Jones, 324 Pa. Super. 359, 471 A.2d 879 (1984). Trial counsel testified at the evidentiary hearing that the Commonwealth had indicated that it was prepared to call petitioner’s former probation officer to testify that petitioner had been convicted of felony theft in 2001. Trial counsel also testified that he had discussed with petitioner his Fifth Amendment right not to testify in his own defense, but petitioner decided to take the stand anyway. Given that the Commonwealth would likely make the conviction known, the strategy to volunteer that information in direct examination is certainly reasonable.

Petitioner’s second claim of ineffectiveness faults counsel for not objecting to questions by the Commonwealth and the court regarding the person who was present with petitioner during the burglary. The police corporal had testified at trial that petitioner refused to disclose the identity of the person. Both the prosecutor and the court asked petitioner if he did not think that the testimony of the person with him would help his case.

In establishing the reasonable basis and arguable merit prong of the Strickland test, trial counsel’s error or omission must have “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”. Commonwealth v. Hawkins, 894 A.2d 716, 722 (Pa. Super. 2006). Neither petitioner nor PCRA counsel articulated any theory for how trial counsel’s failure to object to these questions would have prejudiced the fact-finder from arriving at the proper verdict.

The only claim of ineffectiveness that was not waived was whether counsel was ineffective for failing to call certain witnesses to testify. Petitioner alleges that Ron West (petitioner’s employee who was present at the burglary), Joseph Bush (Director of Public Works for Bucks County), Bruce Jones (possesses knowledge of demolition practices), and Bob White (Director of the Redevelopment Authority) should have been called to testify.

At the PCRA hearing, trial counsel testified that petitioner had not told him about Joseph Bush or Bruce Jones. Neither did he think that Bob White was ever specifically mentioned to him by petitioner. Counsel cannot be ineffective for not calling witnesses that he or she does not know about. Commonwealth v. Horton, 434 Pa. Super. 478, 644 A.2d 181 (1994). Furthermore, the testimony that Jones and White would have given about the nature of petitioner’s demolition business would have been cumulative, and therefore would not have affected the outcome of the trial. Petitioner has not established how his case was prejudiced by the absence of these potential witnesses.

With respect to trial counsel’s failure to call Ron West, trial counsel testified that he did intend to call West, and twice instructed petitioner to have West present. Nevertheless, West failed to appear both times. West was present at the PCRA hearing, but soon after PCRA counsel began questioning him, West exercised his Fifth Amendment right against self-incrimination and left the witness stand without presenting any substantive testimony that would have helped petitioner’s case. Further diluting the potential value of West’s testimony is the fact that West also has a criminal history including a conviction for theft.

Had West testified, he purportedly would have confirmed that petitioner had committed the acts with which he was charged, but would have asserted that it was by mistake.

Petitioner does not articulate why trial counsel could not have had a strategic basis for not calling West. West was a crimen falsi witness whose testimony would have merely been duplicative of petitioner’s. As an employee of petitioner, he would be expected to support his employer, and this would further weaken the value of his testimony. This presents a reasonable strategic basis for not using West as a witness.

Petitioner has not even demonstrated that West was actually available, given that he exercised his Fifth Amendment rights at the PCRA hearing and gave no useful testimony.

Finally, petitioner has not shown how he suffered prejudice by the absence of West’s testimony. Counsel cannot be held ineffective for not calling a witness who would not have changed the outcome of the trial, and whose availability was questionable. Commonwealth v. Horton, supra.

For the aforementioned reasons, petitioner’s post verdict motion is denied and his PCRA petition is dismissed as follows:

ORDER

And now, November 5, 2007, upon consideration of the post verdict motion pursuant to Pa.R.Crim.P. 720(b) and the petition under the Post Conviction Relief Act (PCRA), the parties’ memoranda of law, and after hearing, it is hereby ordered and decreed that said post verdict motion is denied and dismissed and the petition under the PCRA is also denied and dismissed.

      .42 Pa.C.S. §9541 etseq.

      . 18 Pa.C.S. §3502 §§A.

      . 18 Pa.C.S. §3921 §§A.

      . 18 Pa.C.S. §3925 §§A.

      . 18 Pa.C.S. §3503 §§Alii.

      .18 Pa.C.S. §3304 §§A5.

      . The homeowner and his family were not currently living in the house as the first floor of the house had been damaged by the flood. While repair of the house was underway, even though the family was overnighting at another house, their personal property was still inside the undamaged portion of the house.

      . Joseph Bush testified at the PCRA hearing that petitioner had completed over 100 jobs for the county without a single problem. He also confirmed that people sometimes leave personal belongings in a home that is to be demolished.


author: SOLOMON, J,

text:
    Commonwealth v. Bubonovich

      JackR. Hencks Jr., for Commonwealth.

      Jack W. Conner, for defendant.
    November 14, 2007
   SOLOMON, J,

the present case, the defendant, Kaelin Nicole Bubonovich, is charged with hindering apprehension or prosecution pursuant to 18 Pa.C.S. §5105(a)(1). The defendant filed an omnibus pretrial motion in the nature of a motion to suppress evidence asserting that an illegal search of her residence by the Pennsylvania State Police was conducted, and a hearing on the motion was held.

BACKGROUND

On March 30, 2007, at approximately 10 a.m., Pennsylvania State Police Trooper David W. Simpson arrived at the scene of an automobile accident on Route 40 westbound. N.T., 9/05/07, at 5-6. Acting on reports that an individual involved in the accident had fled the scene, Trooper Simpson followed a trail of fluid hoping to find the alleged hit and run driver, described as a white male, id. at 7-8, driving a tan Buick LeSabre. M at 10-11. After spending some time searching for the vehicle without success, Trooper Simpson abandoned the search and went to the Uniontown Hospital to interview Christine Bedner, another individual involved in the accident. Id. at 11.

While at Uniontown Hospital, Trooper Simpson received information that an abandoned vehicle matching the description of the one involved in the accident was discovered near the Village of Searights. Id. at 12. After arriving at Searights, Trooper Simpson was informed by Trooper Petrosky that he had been told by residents of the area that a tan vehicle had been frequently parked in front of apartment 305 in the Village of Searights during the prior week. Id. at 21. Trooper Simpson then went to apartment 305 and came into contact with the defendant, the lessee of the apartment, and questioned her about the white male suspect from the vehicle accident. Id. at 14, 22-23. Observing several persons in the apartment, Trooper Simpson asked the defendant about their identity and was told by the defendant that it was her boyfriend and another friend. Id. at 14. The trooper then requested to search the apartment, which request was denied by the defendant. Id. at 15. Trooper Simpson then questioned the defendant about the tan car allegedly parked in front of the apartment during the previous week, and the defendant responded with conflicting answers regarding the car, first that it was owned by her uncle, and later that it was owned by a friend. Id. at 15.

After the defendant denied the request of Simpson to search the apartment, another trooper contacted the property manager and obtained permission to enter the apartment. Id. at 22-23. Trooper Mrosko and Trooper Petrosky were permitted by the property manager to enter the residence and, once inside, they located Keith Thomas, an individual that was wanted by the Pennsylvania State Police on another, non-related, charge. Id. at 17. In total, approximately three hours had elapsed from the time Trooper Simpson was notified about the accident and when he arrived at the defendant’s apartment. Id. at 20.

DISCUSSION

The defendant’s omnibus pretrial motion seeks to suppress all evidence arising from the search that occurred on March 30,2007, contending that the search performed by the Pennsylvania State Police was illegal because no warrant or valid consent was obtained. The position of the Commonwealth is that consent for a search of the apartment was not required because exigent circumstances existed or, in the alternative, consent to search was given by the property manager.

The Fourth Amendment of the United States Constitution protects people from unreasonable governmental intrusions into their legitimate expectations of privacy. Commonwealth v. Rathfon, 705 A.2d 448, 450 (Pa. Super. 1997). The expectation of privacy protected under the Fourth Amendment has been held to be greatest in one’s home. Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978). Additionally, the Pennsylvania Constitution provides that:

“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.” Pennsylvania Constitution Article I, Section 8.

Therefore, both the United States Constitution and the Pennsylvania Constitution place a high priority on protecting an individual’s right to privacy in his own home. To advance the protection of this privacy interest, courts have “established that, absent consent or exigent circumstances, private homes may not be constitutionally entered to conduct a search or effectuate an arrest without a warrant, even where probable cause exists.” United States v. Cruz Jimenez, 894 F.2d 1, 5 (1990), citing Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534 (1981); Payton v. New York, 445 U.S. 573, 575, 100 S.Ct. 1371 (1980).

Although generally unreasonable, a warrantless search of property is permitted when consent is given by a third party possessing “common authority” over the premises sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993 (1974). However, such “common authority” is not implied by a mere property interest and a “landlord or lessor cannot consent to a search of a tenant’s premises,” regardless of a right to “enter and inspect.” Commonwealth v. Lowery, 305 Pa. Super. 66, 73, 451 A.2d 245, 248 (1982), quoting United States v. Matlock, 415 U.S. 164, 173 n.7, 94 S.Ct. 988, 993 n.7 (1974).

Applying this principle to the present case, the consent to search given to the police by the property manager for the Village of Searights is not consistent with the Fourth Amendment’s protection of privacy, or case law. Therefore, his consent was not valid and, therefore, no valid consent to search was obtained prior to the search.

We now turn to whether the warrantless search of the defendant’s apartment could be justified under the exigent circumstances exception to the warrant requirement. Federal and Pennsylvania courts have held that a “warrantless search of a private residence may take place” if the police are acting on “exigent circumstances.” Commonwealth v. McAliley, 919 A.2d 272, 276 (Pa. Super. 2007). In determining whether exigent circumstances exist, “[ajmong the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless search is justified.” Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270-71 (1994). “Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take time to obtain a warrant, or a danger to police or persons inside or outside the dwelling, (citation omitted) Nevertheless, ‘police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.’” Id.

In the present case, the Pennsylvania State Police were seeking to search the defendant’s apartment to see if a suspect was present in the residence. If, in fact, the defendant was concealing the presence of the suspect, the likely charge would be hindering apprehension or prosecution pursuant to 18 Pa.C.S. §5105(a). Generally, this offense is graded as a misdemeanor ofthe second degree unless the person being aided is liable to be charged with a felony ofthe first or second degree. 18Pa.C.S. §5105(b). The suspect who was the subject ofthe search here could be charged under 75 Pa.C.S. §3742, accidents involving death or personal injury, since he allegedly left the scene of a vehicle accident involving an injury. This offense is generally a misdemeanor of the first degree unless serious bodily injury or death has occurred, which is not documented here. Since the alleged offense involved was not especially grave, the police are required to meet a higher burden to prove exigent circumstances.

Another factor in determining the existence of exigent circumstances is whether there is above and beyond a clear showing of probable cause to believe criminal activity is taking place. Generally, probable cause exists “where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense had been or is being committed.” Commonwealth v. Rogers, 578 Pa. 127, 138, 849 A.2d 1185, 1192 (2004). In the present case, only two facts support the state troopers’ basis for belief that the suspect was in the defendant’s residence. One is that there were reports of a tan vehicle being parked outside her house earlier in the past week and the other is that the defendant gave conflicting answers as to the owner of the vehicle. However, there are no reports of witnesses seeing the suspect enter into the defendant’s apartment, nor was the vehicle parked near the residence when the police arrived. Thus, there was no strong reason to believe the suspect was within the premises. Further, there is nothing documented that would lead to a reasonable belief that the suspect was armed. Consequently, the Commonwealth has failed to present enough evidence to demonstrate an urgent need that might justify a warrantless search.

Finally, it must be determined whether the Pennsylvania State Police were in hot pursuit of a fleeing felon. In the instant case, the facts do not support such a finding. Trooper Simpson testified that after he searched for the fleeing vehicle, he went to the Uniontown Hospital to interview another operator involved in the accident. Further, when the state police later found the vehicle, it had already been abandoned. Also, three hours had elapsed between the time when Trooper Simpson arrived at the vehicle accident and when he arrived at the defendant’s residence. Under these circumstances, there is no basis to find that the police were in hot pursuit when they performed the search at the defendant’s apartment.

Wherefore, upon the foregoing, we will enter the following order.

ORDER

And now, November 14, 2007, after hearing, it is hereby ordered and decreed that the omnibus pretrial motion of the defendant in the nature of a motion to suppress, is granted, and that any evidence obtained as a result of the search of the apartment of the defendant is suppressed.


author: HODGSON, P.J.,

text:
    Commonwealth v. Fanelli

      Patricia Coonahan, assistant district attorney, for Commonwealth.

      Henry Hilles, for defendant.
    December 13, 2007
   HODGSON, P.J.,

Appellant, James Patrick Fanelli appeals to the Superior Court from our order dated October 10, 2007, dismissing his Post Conviction Relief Act petition (PCRA).

FACTS AND PROCEDURAL HISTORY

On October 26,2006, appellant pled guilty to a charge of possession with intent to deliver controlled substances. In connection with his plea, appellant initialed and signed a guilty plea colloquy in which he indicated he understood the nature of the crime charged against him, the potential sentence it carried and the rights he was forfeiting by pleading guilty, including his right to a trial by jury. Appellant further testified under oath in court that he committed the crime charged and that no one forced, threatened or coerced him into admitting guilt and that he was doing so of his own free will. As a result, appellant was sentenced to a term of three to six years imprisonment, five years probation and a fine of $1,000. Thereafter, appellant filed a motion on April 9, 2007 entitled “motion for modification or reduction of sentence”, which was ultimately denied. Appellant then filed a pro se PCRA petition and as a result, counsel was appointed to represent him. A hearing was held on October 3,2007 to determine the merit of appellant’s petition, which we later denied on October 10, 2007. Appellant appealed our decision on November 8, 2007. In accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellant to file a concise statement of matters complained of no later than November 27, 2007. Said statement was filed on that date.

LEGAL DISCUSSION

Appellant argues that this court erred in denying him relief under the PCRA after testimony adduced during the October 3, 2007 hearing raised questions regarding whether he originally entered into a guilty plea that was knowing, intelligent and voluntary. Appellant maintains his guilty plea was unlawful because it was entered only to avoid a potentially greater sentence of imprisonment. Appellant also claims that his plea was invalid because he did not realize the viability of his defense which would have involved his girlfriend Shannon Kowalski’s witness testimony that she owned the controlled substances discovered in appellant’s home.

Under Pennsylvania law, a petitioner is entitled to post conviction relief if he pleads and proves by a preponderanee of the evidence that he has been convicted of a crime and the conviction or sentence is the result of “a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.” 42 Pa.C.S. §9543(2)(iii). When a court accepts a guilty plea, it is necessary that an on-the-record colloquy be conducted, during which the following queries must be addressed:

“(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
“(2) Is there a factual basis for the plea?
“(3) Does the defendant understand that he or she has the right to trial by jury?
“(4) Does the defendant understand that he or she is presumed innocent until found guilty?
“(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
“(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?” Commonwealth v. Rush, 909 A.2d 805, 808-809 (Pa. Super. 2006).

To be valid, the guilty plea colloquy must affirmatively establish that the defendant understands the nature of his plea and its consequences. To determine this, the totality of the circumstances surrounding the plea must be considered. In conducting such analysis, the trial court is free to evaluate a “wide array of relevant evidence under this standard in order to determine the validity of a claim and plea agreement including, but not limited to, transcripts from other proceedings, off-the-record communications with counsel, and written plea agreements.” Commonwealth v. Allen, 557 Pa. 135, 147, 732 A.2d 582, 589 (1999).

A review of the surrounding circumstances of appellant’s plea indicates that it was knowingly, intelligently and voluntarily entered. When appellant pled guilty, he stated under oath that he committed the crime of possession of various controlled substances with intent to deliver or sell them. He further testified that no one forced, threatened, or coerced him into pleading and that he was doing so of his own free will. Appellant also expressed that he understood that by pleading guilty, he was giving up his right to a trial by jury and that he was aware of the range of sentences for the crime charged.

Although appellant maintains that he was coerced into pleading guilty to avoid a potentially greater sentence of imprisonment, this is insufficient to render appellant’s guilty plea invalid. A guilty plea may be knowingly and voluntarily entered as a matter of strategy or expedience. Commonwealth v. Blackwell, 436 Pa. Super. 294, 308, 647 A.2d 915, 922 (1994). The reasons why a defendant pleads guilty are not of importance as long as the plea is voluntary. Id. at 310, 647 A.2d at 923 (citing Commonwealth v. Fluharty, 429 Pa. Super. 213, 632 A.2d 312 (1993)). In the instant case, appellant was free to reject the terms of his negotiated plea and proceed to trial. The fact that he chose to plead guilty and receive a lesser sentence rather than stand trial and risk a greater prison term can only be viewed as a strategic decision and not a factor of coercion.

Appellant also claims that he involuntarily pled guilty as a result of his trial counsel’s ineffectiveness in advising him that Kowalski would not be a credible witness. We also find that this does not invalidate appellant’s guilty plea. The Pennsylvania Supreme Court has held that “counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth v. Fields, 463 Pa. 244, 248, 344 A.2d 814, 815 (1975). (emphasis in original) In the instant case, appellant’s attorney informed him that the decision to plead guilty or proceed to trial was appellant’s. However, he advised him that if appellant stood trial, it would be difficult to obtain an acquittal since Kowalski’s testimony may be insufficient to completely exonerate him and acknowledged that the Commonwealth could attack her credibility by exposing her drug problem to the jury. (N.T., October 3, 2007 at pp. 58-59.) Moreover, even if the jury did believe Kowalski, the Commonwealth could argue that appellant should be found guilty based on the legal assumption that the controlled substances were found in a house he owned. (N.T., October 3, 2007 at p. 53.) After reviewing appellant’s trial counsel’s testimony, we find it to be credible and conclude that his assistance and representation of appellant was not ineffective. Counsel’s advice was reasonable and ensured that appellant was aware of the potential challenges he may face by standing trial. On this basis, we find that appellant’s guilty plea was knowingly, intelligently and voluntarily entered and his argument necessarily fails.

CONCLUSION

Based on the forgoing, the undersigned respectfully requests that the court’s dismissal of appellant’s PCRA petition be affirmed.

      . Appellant simultaneously appealed this court’s denial of his “motion for modification or reduction of sentence” and filed his pro se PCRA petition. Appointed counsel then amended said petition and discontinued appellant’s appeal, upon his request.


author: SPRECHER, J.,

text:
    County of Berks v. International Brotherhood of Teamsters Local No. 429

      Joel Seth Barras, for appellant Berks County Board of Inspectors.

      John A. DiNome, for appellant County of Berks.

      Mark Featherman, for appellee Teamsters Local 429.
    October 12, 2007
   SPRECHER, J.,

Appellants County of Berks and Berks County Board of Inspectors of the County Prison appeal this court’s order of May 30, 2007 dismissing the county’s petition to vacate a portion of a grievance arbitration award of arbitrator Thomas G. McConnell Jr., which ruled in favor of appellee International Brotherhood of Teamsters Local Union No. 429.

STATEMENT OF FACTS

The gravamen of this action is whether the county could discipline correctional officers (COs) employed at the Berks County Prison (BCP) for their failure to qualify for weapons certification.

This issue arose during negotiations for the 2001-2003 collective bargaining agreement (CBA) between the county and the union. The county considered weapons certification to be an essential job qualification and sought to require all COs to become certified. Those who did not obtain certification would be disciplined. The county explained that its reason for seeking to require certification of all COs was to protect itself from liability in the event of an emergency or disturbance at BCP. (See reproduced record, grievance arbitrator’s award, January 19,2007, at 3-5.) The union opposed discipline for COs who failed to qualify; especially those who were hired prior to January 1, 2000 with no expectation that weapons qualification would be a condition of employment. (See R.R., griev. arb. award, at 4-5.) The result of the negotiations was section 9.5 of the 2001-2003 CBA which provided that all employees would be required to qualify on weapons semi-annually and that employees hired before January 1,2000 who failed to qualify would be “required to schedule a time to qualify on a monthly basis, without pay.” The parties interpreted this provision to preclude COs hired before January 1, 2000 from discipline for failure to qualify on weapons. (See R.R., griev. arb. award, at 9.) After the implementation of section 9.5, the county did not strictly enforce its right to discipline newly-hired COs who failed weapons qualification and “gave a lot of room” for these new employees to become qualified. (See R.R., griev. arb. award, at 5.)

After the 2001-2003 CBA expired, the parties began negotiations for a new CBA. The county sought to eliminate section 9.5 from the CBA while the union opposed its elimination. (See R.R., griev. arb. award, at 5.) The parties proceeded to interest arbitration before a panel of the Pennsylvania Labor Relations Board (PLRB) pursuant to section 806 of the Public Employee Relations Act (PERA) as amended by 43 P.S. §1101.806 (Act 195). The panel issued its interest arbitration award in June 2005. This award contained a new provision, item 9 or section 33.2C, amending the parties’ CBA, which stated:

“All employees covered under this agreement will be required to qualify semi-annually. Employees who fail to qualify will be suspended without pay and given four opportunities to qualify within one week. If employee fails to qualify after four attempts in one week they will be terminated.” (See R.R., interest arbitration award, June 2005, at 13.)

Prior to 2005, the county provided COs at least one paid day per year for weapons training, half of which was used in the classroom and half used on the range. (See R.R., griev. arb. award, at 7.) During this period, all COs were also allowed to practice shooting during their shifts prior to weapons qualification testing. (See R.R., griev. arb. award, at 7.) After the June 2005 interest arbitration award, the county eliminated the weapons training day and no longer allowed COs to practice shooting prior to taking the weapons qualification test. (See R.R., griev. arb. award, at 7.) The county currently does make arrangements for COs who wish to practice shooting outside of work time. (See R.R., griev. arb. award, at 8.) In the fall of 2005, the county changed the qualifications test, gearing it toward corrections, by eliminating some of the distance shooting which had been problematic for some COs. (See R.R., griev. arb. award, at 7.)

Following the implementation of section 33.2C, several COs were unable to qualify on weapons and the county subsequently suspended them without pay. The union filed a grievance challenging whether the county had just cause for suspending the COs. The grievance was submitted to binding arbitration pursuant to section 35.1 of the parties’ CBA and PERA. 43 Pa.C.S. §1101.903. On October 18, 2006, the grievance arbitration hearing was held. On January 19,2007, the arbitrator issued an award concluding that the county lacked just cause to impose discipline upon the COs. According to the arbitrator, now that the county could suspend or discharge employees who failed to qualify on weapons under section 33.2C, it should maintain training “which management itself recognized was fair and appropriate in the relatively recent past.” (See griev. arb. award, at 12.) Its failure to do so would not permit the county to then discipline COs for failing to obtain the weapons certification.

On February 17, 2007, the county filed a petition to vacate the grievance arbitration award with the Berks County Court of Common Pleas. This court heard oral argument on the county’s petition and dismissed it on May 30, 2007.

On June 29, 2007, the county filed a notice of appeal to the Commonwealth Court of Pennsylvania. At the direction of this court, pursuant to Pa.R.A.P. 1925(b), the county filed and served a concise statement of errors complained of on appeal, on July 23, 2007.

ISSUES

Appellants’ concise statement of errors complained of on appeal raises three issues:

“(1) Whether this court erred in failing to vacate the arbitration award on the grounds that the arbitrator improperly inserted a contractual requirement into the labor agreement that required the county to provide weapons training to its employees.
“(2) Whether this court erred in failing to vacate the arbitration award on the grounds that the arbitrator improperly applied his definition of ‘just cause’ rather than the definition specified by the labor agreement.
“(3) Whether this court erred in failing to vacate the arbitration award on the grounds that the arbitrator improperly found that the county waived its right to exercise its managerial prerogative in determining how to train its employees.”

DISCUSSION

The standard of review for a court reviewing a grievance arbitration award under PERA is the “essence test.” The essence test is a two-part inquiry whereby (1) the court must determine whether the issue submitted for arbitration is encompassed within the terms of the CBA; and, if so, (2) whether the arbitration award can be rationally derived from the CBA. Office of the Attorney General v. Council 13, American Federation of State, County Municipal Employees, AFL-CIO, 577 Pa. 257, 265, 844 A.2d 1217, 1222 (2004). Under the essence test, a reviewing court will only vacate an arbitrator’s award when “the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.” County of Bedford v. Pennsylvania Social Services Union, 814 A.2d 866, 870 n.l0 (Pa. Commw. 2003) (quoting State System of Higher Education (Cheyney University) v. State College University Professional Association, 560 Pa. 135, 150, 743 A.2d 405, 413(1999). Arbitration is the preferred method of resolving labor disputes in the Commonwealth so that “courts should play an extremely limited role” in resolving such disputes. Office of the Attorney General, 577 Pa. at 266, 844 A.2d at 1223. Accordingly, the essence test is a “very deferential standard.” Id.

This court considered the county’s petition to vacate under the essence test. It is with this deferential standard in mind that this court considers the following issues.

Issue 1

Appellants claim this court erred in failing to vacate the arbitration award because the arbitrator improperly inserted a contractual requirement into the labor agreement that required the county to provide weapons training to its employees. The county takes issue with the following language from the arbitrator’s award: “just cause demands that as the stakes become higher for the results of such [weapons] testing, the county is obliged to maintain, at a minimum, training which management itself recognized was fair and appropriate in the relatively recent past. This includes the use of one training day (part of the day in the classroom and part at the range), including also practice at the range prior to the qualification testing.” (See R.R., griev. arb. award, at 12-13.) According to the county, this language inserts a contractual requirement into the CB A between the parties, and thus the arbitrator exceeded his authority. In support of this argument, the county cites the provision of CB A between the parties governing arbitration which states “[t]he arbitrator shall have neither the jurisdiction nor the authority to add to, detract from, or modify in any way, any provision of this agreement.” (See 2001-2003 CBA, §35.2B.)

In rendering his arbitration award, the arbitrator noted that the county argued that issues before him involved contract interpretation only and not a disciplinary matter, and thus a just cause case. (See R.R., griev. arb. award, at 9.) However, the arbitrator found that “at its core this is a disciplinary case” because the county suspended the COs pursuant to “a contract provision [section 33.2C] which sets forth discipline for failure to qualify.” (See R.R., griev. arb. award at 9.) Additionally, the arbitrator cited the suspension letters as evidence this was a disciplinary grievance. The letters referenced suspensions without pay and provided the COs with notice of possible termination. (See R.R., griev. arb. award at 9.)

This court finds that this was a disciplinary case which invoked the arbitrator’s authority to determine just cause. Section 35.1 A of the parties’ CBA defines a grievance as “any alleged violation of the terms of this agreement or a controversy as to its interpretation or application.” The parties agreed to submit grievances to binding arbitration in their CBA, and as required by PERA. 43 Pa.C.S. §1101.903. Section 36.1A of the parties’ CBA states that “[t]he employer shall not demote, suspend, discharge, or take any disciplinary action against an employee without just cause.” Where a CBA, such as the one between the county and the union, authorizes an arbitrator to determine whether an employer’s disciplinary action was for just cause, an arbitrator cannot eliminate just cause from his determination. York County Transportation Authority v. Teamsters Local Union No. 430, 746 A.2d 1208, 1217 (Pa. Commw. 2000). Thus, even though section 33.2C sets forth a disciplinary penalty, the county must still prove just cause. In this case, the arbitrator found there was not just cause to suspend the COs because the county provided them with inadequate weapons training prior to their suspensions. (See R.R., griev. arb. award, at 12-13.) Accordingly, the arbitrator’s decision did not insert a contractual requirement into the parties’ CBA but was instead his determination of just cause.

The county continues to have the right to refuse to provide weapons training to COs. But, for the county to discipline those COs failing to qualify in firearms proficiency, it must first provide training to those particular COs. Without providing such training, COs cannot be disciplined with just cause. Having considered this determination under the deferential essence test, this court ruled that the arbitrator had a rational basis for his determination. (See R.R., order of May 30, 2007.) Again considering this issue under the essence test, it is this court’s opinion that the county’s first error claimed of must fail and this court’s denial of the county’s petition to vacate should be upheld.

Issue 2

The county next claims this court erred in failing to vacate the arbitration award on the grounds that the arbitrator improperly applied his definition of just cause rather than the definition specified by the labor agreement.

If the parties’ CBA defines just cause, then an arbitrator’s award must be within confines of that definition. See Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989). Where an arbitrator substitutes his definition of just cause for that of the parties’ within a CBA, the arbitrator commits reversible error. Crawford County v. AFSCME District Council 85, Local Union No. 2643, 693 A.2d 1385 (Pa. Commw. 1997). However, if the CBA does not define just cause, an arbitrator has the authority to adopt a definition of the term. School District of Springfield Township v. Springfield Township Educational Sup port Personnel Association, 711 A.2d 602, 604 (Pa. Commw. 1998).

The county argues that the parties adopted a definition of just cause, pursuant to the June 2005 interest arbitration award, in section 33.2C of the parties’ CBA. According to the county, section 33.2C defines just cause in that if a CO cannot qualify on weapons, which is an essential job qualification, the county has just cause to suspend or terminate a CO. For this proposition, the county relies on Independent State Stores, 520 Pa. 266, 553 A.2d 948 (1989). In Independent State Stores, the Supreme Court overruled a Commonwealth Court ruling which upheld an arbitrator’s finding. The arbitrator found that there was not just cause to terminate an employee who misappropriated employer funds because the employee was suffering from a mental condition and thus was not responsible for his acts. Id. at 271, 553 A.2d at 950-51. Having made this determination, the arbitrator sustained the grievance and restored employment. Id. at 272, 553 A.2d at 951. In that case, the employer’s work rules listed a class of offenses which “may provide just cause for immediate dismissal,” of which theft was one. Id. at 270, 553 A.2d at 950. The Supreme Court held that in such a case, upon finding that the employee had committed the offense, just cause existed and the arbitrator could go no further in his determination and should sustain the employer’s sanction. Id. at 273-74, 278, 553 A.2d at 952, 954.

This case must be distinguished from Independent State Stores. In that case, just cause was defined in the work rules, which is not the case here. Just cause is not defined anywhere in the parties’ CBA despite the county’s claim otherwise. According to the county, the result of the June 2005 interest arbitration award was to identify weapons qualification as a condition of employment for all COs. As a result, the county argues it possesses just cause to suspend COs who fail weapons qualifications. However, this is not a definition, it requires an inferential step. Because there is no such definition, the parties agreed in section 36.1 of their CBA to have the arbitrator interpret just cause to determine whether there was just cause for the county’s suspension of the COs. Office of the Attorney General, 577 Pa. at 270, 844 A.2d at 1224; York County, 746 A.2d at 1211. The arbitrator thus had the authority, and in fact was required, to adopt a definition of just cause. School District of Springfield Township, supra.

Additionally, Independent State Stores involved theft of an employer’s funds, an act of criminal misconduct, invoking a fault-based analysis of just cause. Here the COs’ act of failing the weapons qualifications testing was no-fault conduct. See County of Bedford v. Pennsylvania Social Services Union, 814 A.2d 866, 870 n.11 (Pa. Commw. 2003) (explaining distinction between fault-based and no-fault based just cause analysis). Unlike fault-based cases, in cases where no-fault conduct is involved, an arbitrator is required to consider mitigating circumstances in examining the discipline imposed. Id., York County, 746 A.2d at 1217-18. In this case the arbitrator did just that, determining that the county’s reduction of training mitigated against the suspensions imposed.

The Supreme Court of Pennsylvania has noted that the term just cause, in the context of labor relations, is not easily defined. Office of the Attorney General, 577 Pa. at 270, 844 A.2d at 1224. That court recognized that just cause provisions are a “negotiated form of limited job security” that restrict an employer’s ability to discipline or discharge its employees. Id. The arbitrator’s decision in this case comports with this understanding and it was his role, not this court’s, to interpret and define the undefined just cause provision of the parties’ CBA. Id. at 1225. Accordingly, this court asks that the Commonwealth Court deny the county’s second error complained of on appeal.

Issue 3

Appellant’s final error complained of is that this court erred in failing to vacate the arbitration award because the arbitrator improperly found that the county waived its right to exercise its managerial prerogative in determining how to train its employees.

In support of this claim, the county cites authority providing that public employers are not required to bargain regarding matters of “inherent managerial policy” including “selection and direction of personnel.” 43 P.S. §1101.702. The county argues that a public employer, such as itself, may only bargain away such a managerial prerogative under 43 P.S. §1101.702 through an express, clear, unmistakable waiver. Commonwealth v. PLRB, 75 Pa. Commw. 1, 459 A.2d 452 (1983). Additionally, the county cites PLRB decisions that have interpreted whether employees receive training or not as a public employer’s managerial prerogative that is not subject to bargaining. (See R.R., county brief in support of petition, pp. 15-16.)

This court does not agree with the county’s argument that the arbitrator’s decision required it to bargain away its managerial prerogative. The county’s cited authority is not dispositive of this issue because in this case the county was not required to bargain at all. Instead, it submitted an issue to grievance arbitration, pursuant to its CB A with the union, wherein the arbitrator considered whether the county had just cause for the suspensions and, if it did not, what remedy he should award. (See R.R., griev. arb. award, at 2.) Arbitrators have broad discretion in fashioning remedies. Pennsylvania State Education Association v. Appalachia Intermediate Unit 08, 505 Pa. 1, 476 A.2d 360 (1984). The arbitrator’s remedy was appropriate here because the county has applied new job requirements to a class of employees and added the disciplinary penalties of suspension and discharge, all the while affording the employees less opportunity to comply with these new job requirements.

CONCLUSION

For the foregoing reasons, the court respectfully requests that the county’s appeal be denied and this court’s order dismissing its petition to vacate the grievance arbitration award in this matter be affirmed.

      . The specific weapons at issue were never defined by the parties or the arbitrator but this court believes these weapons include handguns and perhaps other firearms.

      . COs do not carry weapons on the job with the exception of four COs per shift assigned to perimeter duty and COs transporting prisoners to the hospital. (See griev. arb. award, at 3-4.)

      . The provisions of the June 2005 interest arbitration award were added to the existing provisions of the 2001-2003 CBA to form the 2005-2008 CBA. (See interest arbitration award, June 2005, at 23.)

      . All training and target practice occurred either on site or immediately adjacent to BCP.

      . One CO was terminated for failure to qualify but this matter was not challenged in the grievance arbitration proceeding.

      . The separate issue of whether section 9.5 of the 2001-2003 CBA was overridden by section 33.2C of the 2005-2008 CBA is not at issue here. The arbitrator found that it was.

      . The county and the union were unable to agree to a stipulation regarding the issues for the grievance arbitrator’s review. The arbitrator determined that the issue was “[wjhether the county had just cause for the suspensions at issue? If not, what shall the remedy be?” (See griev. arb. award, at 2.)