author: NANOVIC, RJ,

text:
    Fallabel v. Brophy-Wolter
    C.P. of Carbon County,
    no. 05-0520.

      Richard N. Shapiro, for plaintiff.

      Steven R Serfass and John A. Adams, for defendant.
    November 26, 2008
   NANOVIC, RJ,

PROCEDURAL AND FACTUAL BACKGROUND

The parties to this litigation are both professionals who, for 16 months (between August 11, 2003 and December 1, 2004), practiced dentistry together in an employer-employee relationship pursuant to a written employment contract. This contract, designated as an associate contract, provided for the employment of Shannon Brophy-Wolter by John Fallabel for an initial term of one year effective August 11, 2003. The agreement also provided for automatic renewal on an annual basis if not otherwise terminated (contract, section 2.1) and further provided that either party could terminate the contract without cause by giving 90 days written notice to the other. (Contract, section 6.1.)

At the time the contract was executed on July 30,2003, Brophy had just graduated from dental school; Fallabel was a 51-year-old solo-practitioner with more than 26 years experience and with offices located at 1212 North Street, Jim Thorpe, Carbon County, Pennsylvania. Fallabel hoped — although not expressed in the contract— that if the arrangement were successful, Brophy would eventually purchase his practice and employ him, and after several years he would be able to retire. Unfortunately, the arrangement was not successful; Brophy chose to terminate the relationship; and Fallabel commenced the instant litigation.

Fallabel filed his complaint, in both equity and law, on March 14,2005. In Count 1 of the complaint, Fallabel seeks to enforce and enjoin Brophy’s alleged violation of a covenant not to compete, together with other provisions of the contract. In this count, damages, both specific and general, are requested. In Count 2 of the two-count complaint, Fallabel seeks liquidated damages as provided for in the contract for violation of certain provisions, as well as general relief.

Fallabel’s request for a preliminary injunction was denied by the Honorable Richard W. Webb following a hearing held on April 8,2005. Upon Judge Webb’s retirement at the end of 2004, the case was assigned to the Honorable David W. Addy, who recused himself on May 2, 2007, at Fallabel’s request, following a hearing on Fallabel’s petition to enforce a purported settlement agreement which Judge Addy denied. The case was then assigned to the undersigned before whom a non-jury trial was held on September 21, 2007.

During the first year of the contract it appears that the parties’ employment relationship worked reasonably well. Brophy took her job seriously and worked hard. Fallabel agreed that she was “responsible, honest, hardworking, cooperative and professional while employed in [his] office.” (N.T. 9/21/07, p. 58.) Although disagreements arose between Brophy and some of the longer-serving staff in the office and Brophy was, at times, offended by several comments made by Fallabel, these difficulties were not enough to cause either party to elect to sever their relationship or to opt not to renew the agreement after the first year. (Contract, section 2.1.)

During the latter half of September 2004, Fallabel and Brophy argued about the treatment provided to one of the patients Brophy had seen. A second argument occurred on October 1, 2004, about inputting the office’s patient list into a computer which office staff had been in the process of compiling for approximately three months. The argument got out of hand and unfortunately things were said that should never have been said: Fallabel belittled, berated, and demeaned Brophy. Brophy was upset, mad and offended. She was also pregnant and less than a month away from delivering her first child. The argument ended with Brophy informing Fallabel that she was then and there giving him a 90-day notice of her intent to terminate the contract. Fallabel was dumbfounded and in disbelief at what was happening. He apologized to Brophy later that same day, but it was too late.

Brophy was on maternity leave from October 8 to November 5,2004. During this period, Fallabel received a mailed letter from Brophy dated October 21, 2004, confirming, in her words, the “agreement [they] made on October 1, 2004, stating that [their] contract would be terminated in 90 days” and calculating the official termination date to be December 29, 2004, that is, 90 days from October 1, 2004. Notwithstanding the contractual requirement that the 90-day notice be in writing, Fallabel acquiesced in this timing of Brophy’s departure, hoping nevertheless that he would be able to convince her to change her mind.

Within a week after Brophy’s return from maternity leave, Fallabel learned that Brophy’s decision to leave was irrevocable. At that time, Brophy told him that she had purchased the LeMaster’s building along Route 443 in West Penn Township, Schuylkill County, Pennsylvania and planned to open her practice there. He also learned that Brophy was planning to take Tina Gerhardt, a front desk receptionist, with her. Ms. Gerhardt replaced another employee of Fallabel’s (Jennifer Soates) who had been hired to support the addition of Brophy to his practice. Ms. Gerhardt was trained from scratch by Fallabel for this position. She was also Brophy’s cousin.

Devastated by this turn of events, and also determined to enforce his contractual rights, Fallabel drove from his office to the LeMaster’s building to measure the distance between the two. It was less than 15 miles. The parties’ contract provided that Brophy would not open a competing dental practice for a period of 12 months after termination of her employment within a straight-line radius of 15 miles of Fallabel’s office. (Contract, section 8.2.) The contract further provided that Brophy would not solicit any of Fallabel’s patients or staff during this same 12-month time frame. (Contract, sections 8.3 and 8.7.)

Within days, Fallabel advised Brophy that where she intended to locate was too close to his office and she should get an attorney. She did. On December 1, 2004, Fallabel received a hand-delivered letter from Brophy’s counsel accusing Fallabel of workplace harassment and declaring that the agreement was immediately terminated. This basis for termination was not pursued at trial.

The parties do not dispute that the LeMaster’s building is within 15 miles of FallabePs office. They also agree that prohibiting Brophy from opening a practice at this location at this time is no longer a viable remedy. The one-year restriction on opening an office within 15 miles of Fallabel’s office has long since passed. The question is one of damages: for what, how measured, and in what amount.

Fallabel presented expert testimony from his certified public accountant of 29 years, Geoffrey B. Borda, that during the one-year period between December 1, 2004 and November 30,2005, he sustained a loss in net patient income of somewhere between $116,000 and $145,000 attributable to Brophy opening an office within 15 miles of his. Fallabel also contends that within one year of the termination date, Brophy employed a dental hygienist and receptionist who had been employed by him during the term of their employment relationship and that, in accordance with the contract, he is entitled to liquidated damages of $7,500 for the hygienist and $5,000 for the receptionist. (Contract, section 8.7.) Fallabel also claims that as the prevailing party, pursuant to the contract, he is entitled to recover all costs of litigation, including his legal fees and expert witness expenses. (Contract, section 13.11.) Brophy disputes that these, or any damages, are due, or have even been proven.

DISCUSSION

In a breach of contract claim, a plaintiff must prove three elements: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages.” See Omicron Systems Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. 2004). To sustain this burden, the elements must be proven by a preponderance of the evidence. See Snyder v. Gravell, 446 Pa. Super. 124, 127, 666 A.2d 341, 343 (1995), appeal denied, 544 Pa. 676, 678 A.2d 366 (1996).

It is the province of the fact-finder to determine what loss, if any, has been sustained and in what amount. See Omicron Systems Inc., 860 A.2d at 564. In doing so, “[t]he fact-finder must assess the testimony, by weighing the evidence and determining its credibility, and by accepting or rejecting the estimates of the damages given by the witnesses.” Id.

1. Compensatory Damages

In order to establish compensatory damages, the burden is upon the proponent to produce evidence which affords a reasonably fair basis for calculating the amount of loss actually sustained. See Kaczkowski v. Bolubasz, 491 Pa. 561, 567, 421 A.2d 1027, 1030 (1980). Though such evidence need not quantify damages according to a standard of mathematical exactness, it must, at a minimum, fairly approximate actual damages caused by the breach. See Fish v. Gosnell, 316 Pa. Super. 565, 583, 463 A.2d 1042, 1051 (1983). Where one party has been injured and another is at fault, and the only uncertainty is in valuing the loss because certain types of damages are not capable of precise measurement or because they are of an inherently uncertain nature, recovery will not be denied if the evidence presented affords a fair basis for making a reasonable calculation of the loss sustained. See Greer v. Bryant, 423 Pa. Super. 608, 618, 621 A.2d 999, 1004-1005 (1993). Under these circumstances, “[substantial justice is better than exact injustice.” Osterling v. Frick, 284 Pa. Super. 397, 404, 131 A. 250, 252 (1925).

To a certain extent, the fact-finder may use a measure of speculation in estimating damages: “The fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable, inferential, as well as direct and positive proof.” Omicron Systems Inc., 860 A.2d at 565. However, damages cannot be awarded on the basis of speculation, guesswork, or conjecture. Id.

Borda testified that he computed Fallabel’s loss by averaging Brophy’s actual monthly gross receipts from patients for the second and third quarters of2004, applied a productivity factor to this monthly average based on anticipated future growth in the number of patients she would have seen had she remained in Fallabel’s employ, and made an adjustment for a fee increase which Fallabel implemented in March 2005. From this monthly average, Borda subtracted the expenses attributable to this income, including Brophy’s anticipated salary computed pursuant to the contract, to determine a projected loss of net income for 2005. On cross-examination, however, it became apparent that these figures bore no relationship to any actual damages Fallabel may have sustained from a breach of the covenant not to compete.

Borda candidly admitted that his calculations had nothing to do with where Brophy located her office. Whether Brophy opened her office within a 15-mile radius of Fallabel’s office, beyond this 15-mile range, or decided not to open an office at all, made no difference in Borda’s computation of the amount of the loss sustained by Fallabel for Brophy’s breach of the contract’s covenant not to compete. In effect, the amount computed by Borda was not an estimate of any loss sustained by Fallabel due to competition from Brophy, but was the projected amount Fallabel would have realized had Brophy remained in his employment for an additional year.

The two are not the same: while Brophy was clearly prohibited by the contract from competing within the restricted 15-mile territory for one year after termination of the contract, she was not obligated by the contract to remain in Fallabel’s employ for one year following notice of her intent to terminate. At most, she was committed to continuing her employment with Fallabel for 90 days after giving notice of her intent to terminate. Borda’s testimony does not prove that Fallabel sustained any actual financial loss as a result of Brophy opening a dental practice within 15 miles of his office — an essential element of his claim.

2. Liquidated Damages

(a) Solicitation of Patients

Beyond the issue of whether Borda has measured the proper damages is the equally important question of whether Borda has assumed the proper measure of damages. At issue is whether a party may sue for a different measure of damages than that which was agreed upon in the contract. Specifically, as to damages for solicitation of FallabePs patients, the parties’ contract provides:

“[Brophy] will not solicit or aid in the solicitation of any patients of [Fallabel], for her own account or for the account of others, for a period of 12 months after the termination of this agreement. In the event of a breach of this subsection by [Brophy], then in addition to any other remedy the employer may have, [Brophy] will pay to [Fallabel], not as a penalty but as a reasonable estimate of damages, the liquidated sum of $350 for each patient of the practice who transfers to [Brophy] as a result of such solicitation.” (Contract, section 8.3.)

“[A] provision which represents a good-faith and reasonable forecast of anticipated damages for breach which are otherwise difficult to prove with certainty will be construed as one for liquidated damages ....” Geisinger Clinic v. DiCuccio, 414 Pa. Super. 85, 101, 606 A.2d 509, 517 (1992), appeal denied, 536 Pa. 625, 637 A.2d 285 (1993), cert. denied, 513 U.S. 1112 (1995). Liquidated damages are those which “a party to a contract agrees to pay if he breaks some promise, and which, having been arrived at by a good-faith effort to estimate in advance the actual damage that will probably ensue from the breach, [are] legally recoverable... if the breach occurs.” Pantuso Motors Inc. v. CoreStates Bank N.A., 568 Pa. 601, 608, 798 A.2d 1277, 1282 (2002). Liquidated damage clauses are enforceable provided, “at the time the parties enter into the contract, the sum agreed to is a reasonable approximation of the expected loss rather than an unlawful penalty.” A. G. Cullen Construction Inc. v. State System of Higher Education, 898 A.2d 1145, 1162 (Pa. Commw. 2006); see also, Geisinger Clinic, 414 Pa. Super. at 99, 606 A.2d at 516 (1992) (identifying four criteria to differentiate a liquidated damage provision from a penalty or forfeiture term in a restrictive covenant clause of an employment agreement). When the parties to a contract have themselves agreed upon a fair means of measuring damages which are difficult to estimate in advance or to prove after a breach occurs, the fundamental fairness of awarding damages as bargained-for by the parties should be beyond reproach. See Worldwide Auditing Services Inc. v. Richter, 402 Pa. Super. 584, 594, 587 A.2d 772, 777-78 (1991) (“Damages arising out of a breach of a covenant not to compete are difficult to compute with precision.”); see also, West Conshohocken Restaurant Associates Inc. v. Flanigan, 737 A.2d 1245, 1249 (Pa. Super. 1999), appeal denied, 563 Pa. 619, 757 A.2d 934 (2000) (limiting total damages for breach of a contract to the liquidated damages set forth in the contract).

The contract in issue does not provide that Brophy may be subject to certain defined damages for soliciting and accepting Fallabel’s patients. Rather, it provides that in such event, Brophy “will pay to [Fallabel], not as a penalty but as a reasonable estimate of damages, the liquidated sum of $350 for each patient of the practice who transfers to [Brophy] as a result of such solicitation.” (Contract, section 8.3.) (emphasis added)

This provision, however, is of no benefit to Fallabel since no evidence was presented that Brophy acquired any of his patients during the prohibited period. The burden is upon the party claiming a breach to establish that breach and to prove that liquidated damages are due and owing. A.G. Cullen Construction Inc., 898 A.2d at 1162.

(b) Solicitation of Staff

Section 8.7 of the contract prohibits Brophy for a period of 12 months after termination of the agreement from hiring or engaging the services of any hygienist, dental assistant, or any other person employed by Fallabel at any time during the term, until 12 months after such person was last employed by Fallabel, without Fallabel’s consent. Similar to section 8.3, section 8.7 further provides that “[i]n the event of a breach of this section 8.7 by [Brophy], and in addition to any other remedy which [Fallabel] may have, [Brophy] will pay to [Fallabel], not as a penalty but as a genuine estimate of damages, a liquidated sum equal to” $7,500 for any hygienist and $5,000 for any other employee hired by Brophy in violation of this restriction. Fallabel claims that Brophy hired two of his employees, a receptionist (Tina Gerhardt) and a hygienist in violation of the contract and that he is entitled to $12,500 in liquidated damages as a consequence.

Again, this claim has not been proven. Fallabel presented no evidence of any hygienist formerly employed by him who was hired by Brophy. With respect to Tina Gerhardt, Fallabel testified only that when he learned in November 2004 that Brophy had purchased the LeMaster’s building and was intending to open a practice there, he also learned that Brophy was intending to have Gerhardt, her cousin, accompany her.

The agreement was not terminated until December 29, 2004, or December 1, 2004, at the earliest, the last day Brophy worked for Fallabel. Fallabel testified that after Brophy left, he asked Gerhardt to stay on and she asked to be laid off. Fallabel did so, however, there is no evidence that after Gerhardt left Fallabel’s employ she was subsequently employed by Brophy.

3. Counsel Fees

The agreement in this case provides for an award of counsel fees to the prevailing party. (Contract, section 13.11.) Neither party, however, presented any evidence at the time of trial as to the amount or reasonableness of any counsel fees they incurred. Having failed to do so, this claim has been waived.

Attorney fees, when provided for in a contract, are an element of compensable damages resulting from a breach of duty imposed by the contract and which the parties have agreed the prevailing party is entitled to recover. Attorney fees, as so provided, are qualitatively distinct from attorney fees authorized by statute or other governing authority to be taxed as costs under certain specifically defined and limited circumstances. See e.g., 42 Pa.C.S. § 1726(a)(1) (providing that attorney fees are not an item of taxable costs except to the extent authorized by 42 Pa.C.S. §2503). In cases such as this, the recovery of attorney fees is part of the contract claim for which evidence of the fees incurred and their reasonableness must be presented to the fact-finder at the time of trial. Cf. Matter of Howarth’s Estate, 310 N.W.2d 255, 257 (Mich. App. 1981) (In denying a claim for attorney fees because the expenses incurred were not introduced at trial, the court stated, “We believe that the better rule is to require introduction of evidence. A party asserting a breach of contract claim bears the burden of proving his damages with reasonable certainty. Appellee’s claim for attorney fees here was simply a claim for damages for breach of contract and should have been treated as any other such claim.”). While the parties, with the approval of the court, can agree that the amount of compensable attorney fees will be determined in a post-trial evidentiary hearing, unless statutory or other authority exists to tax attorney fees as costs to be assessed after trial, a party proceeds at his own risk in failing to address this issue up front at the time of hearing. Such a request was not made by either party prior to the close of the evidence.

CONCLUSION

In accordance with the foregoing, Fallabel has failed to prove either compensatory damages caused by breach of the covenant not to compete or liquidated damages as provided for in the contract for soliciting patients or employing members of his staff. Therefore, judgment will be entered in favor of Brophy and against Fallabel on both counts of the complaint.

      . In characterizing these difficulties as being relatively minor, it is important to note that this is from Fallabel’s perspective. Brophy did not testify at the time of trial and instead chose to rest immediately after the conclusion of Fallabel’s case in chief.

      . “At a minimum, for a non-competition or restrictive covenant to be enforceable, it must be ‘reasonably related to the protection of a legitimate business interest.’ ” WellSpan Health v. Bayliss, 869 A.2d 990, 996 (Pa. Super. 2005) (quoting Hess v. Gebhard & Co. Inc., 570 Pa. 148, 160, 808 A.2d 912, 918 (2002)). If this threshold requirement is met, the court must next balance the private and public interests at stake: the employer’s protectable business interest against the employee’s interest in earning a living, and the interests of the employer and employee with the interests of the public, in particular, when the covenant involves a healthcare professional, the paramount interest of the public in access to healthcare. See WellSpan Health, 869 A.2d at 999; New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 469, 392 A.2d 1383, 1387-88 (1978).

        ta addressing the private interests, to be valid and enforceable a restrictive employment covenant must be (1) reasonably limited in duration of time and geographic extent, (2) reasonably necessary to protect the employer without imposing an undue hardship on the employee, (3) ancillary to an employment relation, and (4) supported by consideration. See Hess, 570 Pa. at 157, 808 A.2d at 917; see also, John G. Bryant Co. Inc. v. Sling Testing and Repair Inc., 471 Pa. 1, 11, 369 A.2d 1164, 1168 (1977). “In contrast, a post-employment covenant that merely seeks to eliminate competition per se to give the employer an economic advantage is generally not enforceable.” WellSpan Health, 869 A.2d at 996. Additionally, “[t]he law is clear that the burden is on him who sets up unreasonableness as the basis of contractual illegality to show how and why it is unlawful.” John G. Bryant Co. Inc., 471 Pa. at 12, 369 A.2d at 1169.
      Brophy has not proven that the non-competition covenant found in section 8.2 is unreasonable. At the time of trial, the evidence was undisputed that 80 percent of Fallabel’s patients live within 15 miles of his practice. The preservation of patient relationships is a legitimate, protectable business interest. See WellSpan Health, 869 A.2d at 997 (discussing various protectable interests recognized by our Supreme Court). Further, the geographic area and time period set forth in this covenant were specifically negotiated between Fallabel and Brophy, who was represented by counsel at the time the contract was entered, and the duration, at Brophy’s request, was reduced from 24 months in the initial draft to 12 months in the final contract. The evidence is also undisputed that within one year of the contract’s termination Brophy was able to attract approximately 700 patients to her practice. Finally, no evidence was presented of a shortage of dentists or unmet patient demands within the restricted area; instead, the evidence established that within this area between 80 to 85 dentists maintain a dental practice.

      . Under the contract, if the decision to terminate is for cause, as that term is defined in the contract, no period of advance notice is required for termination. (Contract, section 6.2.)

      . Fallabel’s argument that an alternate measure of damages is permitted because the contract provides that an injured party is entitled to liquidated damages “in addition to any other remedy,” misreads the agreement. Since liquidated damages are a substitute for actual damages, permitting the recovery of both liquidated and actual damages for the same loss could be nothing but a penalty. We do not believe this was intended by the parties. Instead, a fair and plausible reading of this language, and the one we accept, is that the term “any other remedy” refers to other remedies, including equitable relief, for harm which is not otherwise compensated for and contemplated by the provision for liquidated damages. Cf. section 8.9 of the contract (providing that equitable remedies are available when monetary damages are insufficient to adequately compensate for a breach of duty imposed by the agreement).

      . In an attempt to correct this deficiency, Fallabel asks that we consider his testimony at the preliminary injunction hearing held before Judge Webb on April 8, 2005. Fallabel argues that this testimony is automatically part of the trial record and must be considered as a matter of law. In response, Brophy argues that it would be fundamentally unfair to consider this testimony; that, at the time of trial, the parties reached a stipulation to incorporate the preliminary hearing testimony of Ralph Clay, a surveyor, but not that of Fallabel; and that based upon this stipulation and her assessment of the testimony Fallabel presented at trial, she made a tactical decision to rest her case without presenting any evidence.
      At the time of trial, counsel for both parties represented to the court that a stipulation had been reached to incorporate the testimony of Mr. Clay taken at the preliminary hearing, thus avoiding the necessity of calling this witness again at trial. As pertinent to this issue, the following exchange occurred at the time of trial:
      “The Court: So the testimony in the preliminary injunction hearing before Judge Webb with respect to Mr. Clay has been stipulated to and will become part of the record in this proceeding?

        “Mr. Shapiro: Yes. And I guess the affidavit of Mr. Clay that was marked and admitted in the hearing was stipulated to as well.
      “The Court: I know that Dr. Fallabel also testified at that time. His testimony is not being stipulated as being made part of this proceeding, just so I am clear?
      “Mr. Shapiro: Yes, that is correct.
      “The Court: Okay. So the stipulation is that Mr. Clay’s testimony in its entirety, plus his affidavit which I believe was marked as exhibit 7 in that proceeding is admitted in this proceeding?
      “Mr. Adams: That is correct, your honor.
      “The Court: So stipulated and it will be admitted. Dr. Fallabel, you can take the stand. Mr. Clay, you are free to go.” (N.T. 9/21/07, p. 68.)
      Under these circumstances, we agree that it would be fundamentally unfair to enlarge the record beyond that which was agreed to at the time of trial. Had such evidence been offered by Fallabel and admitted by the court, at a minimum Brophy would have been placed on notice that all of the testimony taken at the preliminary hearing would be considered by the court, and she would have had an opportunity, in light of this notice, to decide whether to cross-examine Fallabel about his prior testimony and whether to present any direct testimony to the contrary. Cf. Lackey v. Sacoolas, 411 Pa. 235, 239, 191 A.2d 395, 397-98 (1963) (upholding the trial court’s incorporation of the testimony from a preliminary hearing into the final hearing on the injunction, over defendants’ objection, where defendants had a full opportunity to present additional direct testimony and to subject the witnesses at the preliminary hearing to cross-examination).
      We further believe that absent a stipulation by the parties or Fallabel’s request at the time of trial to incorporate this testimony, with a full opportunity for Brophy to respond, Fallabel’s preliminary hearing testimony cannot be considered. Unlike Federal Rule of Civil Procedure 65(a)(2) which automatically incorporates that evidence from a preliminary injunction hearing which is admissible at trial into the trial

        record, Pa.R.C.P. 1531 does not contain similar authority and is, in fact, silent on the issue. Moreover, Fallabel’s preliminary hearing testimony does not fit the hearsay exception for former testimony since he in fact was available and was present at the time of trial. Pa.R.E. 804(b)(1).

      . At the time of trial, the issue of attorney fees was first raised by Fallabel after both parties had rested. After expressing concern about the timing of the request, the court suggested that if both parties were in agreement, the issue of attorney fees could be addressed in a post-verdict proceeding. Brophy advised she would not agree with a post-trial submission and was taking the position that the issue had been waived by both parties. Moreover, since Fallabel is not a prevailing party under our decision, Fallabel’s claim for attorney fees is moot.


source: Caselaw Access Project

author: LUDGATE, J,

license: Public Domain

text:
    Commonwealth v. Pulanco

      C.P. of Berks County,
    no. CP-06-5771-03.

      Kelly Kline, assistant district attorney, for Commonwealth.

      Michael Dautrich, for defendant.
    December 3, 2008
   LUDGATE, J,

PROCEDURAL AND FACTUAL HISTORY

On November 12, 2003, Henry Pulanco, the defendant, was charged in a Bill of Information with: one count of possession of a controlled substance, 35 P.S. §780-113(a)(16); one count of possession with intent to deliver a controlled substance, 35 P.S. §780-113(a)(30); one count ofpossession of drug paraphernalia, 35 P.S. §780-113(a)(32); one count of receiving stolen property, 18 Pa.C.S. §3925(a); one count of conspiracy to commit possession of a controlled substance, 18 Pa.C.S. §903(a)(l)(2); one count of conspiracy to commit possession with intent to deliver a controlled substance, 18 Pa.C.S. §903(a)(l)(2); one count of conspiracy to commit possession of drug paraphernalia, 18 Pa.C.S. §903(a)(l)(2); and, one count of conspiracy to commit receiving stolen property, 18 Pa.C.S. §903(a)(l)(2).

Attorney Kurt B. Geishauser represented the defendant at a bench trial held on July 30, 2004, wherein the defendant was found guilty of Count 1, possession with intent to deliver a controlled substance, 35 P.S. §780-113(a)(30); Count 2, possession of a controlled substance, 35 P.S. §780-113(a)(16); Count 3, possession of drug paraphernalia, 35 P.S. §780-113(a)(32); Count 5, conspiracy to commit possession with intent to deliver a controlled substance, 18 Pa.C.S. §903(a)(l)(2); Count 6, conspiracy to commit possession of a controlled substance, 18 Pa.C.S. §903(a)(l)(2); and Count 7, conspiracy to commit possession of drug paraphernalia, 18 Pa.C.S. §903(a)(l)(2).

The defendant was sentenced on these charges on August 16, 2004 to a period of 10 to 20 years incarceration by the Bureau of Corrections in a state correctional facility. The defendant, through appellate counsel Attorney Geishauser, filed his notice of appeal on September 10,2004. On September 14,2004 this court ordered that counsel file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The defendant, through his counsel, filed a concise statement on September 27,2004, raising insufficiency of the evidence and generally claiming error in the denial of the defendant’s pretrial suppression motion.

On October 12,2004, this court issued a memorandum opinion in response to the defendant’s concise statement of matters complained of on appeal, filed by Attorney Geishauser. On November 17,2004, Mr. Geishauser was replaced as defendant’s counsel by Michael Cammarano, Esquire. On September 16,2004, Attorney Cammarano filed a brief in support of the 1925(b) statement on behalf of the defendant, raising more specific suppression claims. However, in its opinion dated February 3, 2006, the Pennsylvania Superior Court deemed the additional and more specific issues raised by Mr. Cammarano to be waived and upheld this court’s judgment of sentence.

On September 21, 2006, the defendant filed his first pro se “motion for post-conviction collateral relief,” pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq. On September 26, 2006, the court appointed Gail Chiodo, Esquire to represent the defendant in all proceedings regarding the disposition of his PCRA petition. On November 2, 2006, the court ordered that the appointment and appearance of Attorney Chiodo, as counsel for the defendant, was vacated and withdrawn due to a conflict of interest. On that same date, the court appointed Michael Dautrich, Esquire to represent the defendant in the disposition of his PCRA petition.

On May 4, 2007, Michael Dautrich, Esquire filed an “amended motion under the Post-Conviction Relief Act.” The court scheduled a PCRA hearing to be held on June 26, 2007 via video conferencing. The hearing was rescheduled to take place on July 24, 2007. On that date, by agreement of counsel, the court entered an order allowing the defendant to file an amended 1925(b) statement within seven days from the date of the hearing. On July 31, 2007, the defendant filed his timely “nunc pro tunc concise statement of errors complained of on appeal pursuant to order of court on July 24, 2007.”

On July 23, 2008, the Superior Court issued a published opinion vacating the order of July 24,2007, which permitted the defendant to file an amended 1925(b) statement nunc pro tunc and remanding the case to this court with instructions to conduct a PCRA analysis as to the merits of the defendant’s PCRA petition. Commonwealth v. Pulanco, 954 A.2d 639 (Pa. Super. 2008).

On October 7, 2008, a PCRA hearing was held for purposes of complying with the Superior Court’s remand. Attorney Geishauser testified that he was informed at the bench trial, or shortly thereafter, that the defendant intended to hire Attorney Cammarano to handle any appeal. (Notes of testimony PCRAhearing, 10/7/2008 p. 6.) Mr. Geishauser filed a notice of appeal with the Superior Court which was timely filed. (N.T. PCRA hearing 10/7/2008 p. 10.) Mr. Geishauser further testified that he filed a 1925(b) statement raising insufficiency of evidence at trial and error in the denial of the defendant’s pretrial suppression motion. (N.T. PCRA hearing 10/7/2008 p. 7.) The 1925(b) statement was filed within the time frame set by this court. (N.T. PCRA hearing 10/7/2008 p. 10.) Mr. Geishauser also testified that he did not request an extension of time in which to file a 1925(b) statement from this court. Id. Mr. Geishauser stated he was familiar with the Superior Court’s case law on waiver of appellate issues for lack of specificity at the time he filed the statement. (N.T. PCRA hearing 10/7/2008 pp. 9-10.) Mr. Cammarano was retained to represent the defendant on or about November 14,2004. (N.T. PCRA hearing 10/7/2008 p. 19.) Mr. Cammarano testified that the issues contained in the brief he filed on behalf of the defendant were more specific than the issues raised in the 1925(b) statement filed by Mr. Geishauser. (N.T. PCRA hearing 10/7/2008 p. 15.) Mr. Cammarano did not seek permission from this court nor the Superior Court to file an amended 1925(b) statement. Id. Mr. Cammarano was aware that this court had already issued an opinion regarding the 1925(b) issues raised by Mr. Geishauser at the time Mr. Cammarano filed his brief. (N.T. PCRA hearing 10/7/2008 p. 19.)

DISCUSSION

Ineffective Assistance of Counsel

In cases where counsel fails to file a 1925(b) statement when ordered to do so by the court, counsel is per se ineffective. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008). Nunc pro tunc appeal is proper when counsel’s actions entirely denied a defendant his right of direct appeal. Commonwealth v. Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super. 2000). However, in instances where counsel’s acts or omissions caused waiver of one or more, but not all, issues on direct appeal, the defendant must establish that counsel’s ineffectiveness so undermined the truth-determining process so as to render unreliable the adjudication of guilt or innocence. Id.

The standard by which a defendant may prove ineffective assistance of counsel is well established. First, counsel is presumed to be effective. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (2007). In order to overcome the presumption of effectiveness and obtain relief on a claim of ineffective assistance of appellate counsel, a defendant must plead and prove (1) the underlying claim was of arguable merit; (2) that counsel had no reasonable basis for the action or inaction; and (3) the defendant was prejudiced by counsel’s acts or omissions. Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994). Failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067 (2006). Prejudice is established when a defendant has sufficiently shown that “but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1996). (emphasis added) Counsel cannot be deemed ineffective for failure to raise a meritless claim. Commonwealth v. Nolan, 579 Pa. 300, 855 A.2d 834 (2004).

The three-prong Pierce test for ineffective assistance governs this case. The per se standard is inapplicable to the instant analysis because Mr. Geishauser did file a 1925(b) statement of errors complained of on appeal; the defendant did obtain direct review of some of his issues. Mr. Geishauser’s actions do not meet the Pierce test. Although the more specific claims of error which Mr. Geishauser failed to raise on appeal were of arguable merit and lacked reasonable basis, Mr. Geishauser’s acts or omissions do not meet the remaining prong of ineffective assistance. There is no reasonable probability that the outcome of the appeal would have been different had Mr. Geishauser or Mr. Cammarano raised the more specific issues which Mr. Cammarano addressed in his brief because such issues lack merit.

Mr. Cammarano attempted to elaborate on Mr. Geishauser’s 1925(b) statement in his brief in support. In the brief, Mr. Cammarano raised the following issues:

“(I) Whether the affidavit filed in support of the search warrant application states sufficient probable cause?

“(II) Whether a warrant issued for 109 South 5th Street, Reading, PA authorized the search of 111 South 5th Street, Reading PA?

“(Ill) Whether a warrant issued for the second floor rear apartment authorized the search of an adjacent apartment accessible only through a closet?

“(IV) Whether the search of an adjacent apartment was authorized as a protective sweep?

“(V) Whether a protective sweep authorized the search of objects incapable of concealing a person?” (See defendant’s PCRA hearing exhibit no. 3 p. 5.)

The first claim challenges the probable cause upon which the search warrant was issued. Pennsylvania courts employ a “totality of the circumstances” test, as enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983), for determining the existence of probable cause of the issuance of a search warrant. See Commonwealth v. Singleton, 412 Pa. Super. 550, 551, 603 A.2d 1072 (1992) citing Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The United States Supreme Court has held that the magistrate’s determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given of the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Singleton, 412 Pa. Super. 550, 552, 603 A.2d 1072, 1073 (1992) citing Commonwealth v. Miller, 334 Pa. Super. 374, 382, 483 A.2d 498, 501-502, (1984).

In the present case, the warrant’s underlying affidavit of probable cause contains averments that allege, inter alia, that the affiant, Trooper Teresa Cloman, is a trooper with the Pennsylvania State Police presently assigned to the Reading Vice Unit. The affidavit avers that the affiant has received special training in the area of drug law enforcement/investigation from the Pennsylvania Office of the Attorney General, the Pennsylvania State Police Academy, United States Department of Justice Drug Enforcement Agency, and the Pennsylvania National Guard Northeast Counterdrug Training Center. Additionally, the affidavit avers that the affiant has received numerous trainings and certifications, specifically in the area of illegal trafficking of controlled substances. (See Commonwealth’s bench trial exhibit no. 1, p. 2.)

The affidavit of probable cause goes on to state that “[t]hrough a combination of training, education and experience, your affiant has become familiar with the manner and methods of operations of persons involved in the distribution and use of controlled substances and based on that training, education and experience, your affiant knows that: (1) drug traffickers commonly have in their possession, and/or conceal on their persons, controlled substances, drug-related paraphernalia, weapons, and/or other equipment or items utilized in the distribution of controlled substances; (2) that drug traffickers maintain books, records, receipts, notes, ledgers and other papers pertaining to the transportation, sale, and distribution of controlled substances and that the aforementioned items are maintained where traffickers have ready access to them; (3) that drug traffickers commonly maintain address and telephone records which reflect the names, addresses, and/or telephone numbers of their associates in the trafficking organization; (4) that persons involved in drug trafficking maintain, on hand, large amounts of cash in order to finance and facilitate their ongoing drug business; (5) that drug traffickers take or cause to be taken photographs of themselves, their associates, their property and their product and usually maintain those photographs in their possession; (6) that drug traffickers are frequently present for the purpose of purchasing or using controlled substances. I know that these individuals, if present, will commonly make attempts to conceal on their person, or to destroy any evidence.” (See Commonwealth’s bench trial exhibit no. 1, p. 2.)

Next, the affidavit of probable cause describes occurrences that happened while the affiant was working in an undercover capacity. The affidavit avers that on September 3, 2003 and on September 16, 2003, the affiant purchased heroin from a female named “India” and an unknown Hispanic male in the area between 107 and 109 South 5th Street in Reading City, Berks County, Pennsylvania. On both occasions, the affidavit states that the affiant saw two additional unidentified Hispanic males. Both times, the affiant transported the evidence back to the Reading State Police barracks and field tested the substance. A positive reaction for the presence of heroin was indicated both times. (See Commonwealth’s bench trial exhibit no. 1, p. 3.)

Finally, the affidavit of probable cause states, inter alia, that the affiant contacted the Reading City Vice Unit and was informed by Criminal Investigator Pat Leporace of ongoing drug activity in this location. The affidavit goes on to state that during this investigation, the affiant and other members of the Pennsylvania State Police Vice Unit had observed numerous drive-up and on-foot “buyers” at the rear lot of 107 and 109 South 5th Street. The affiant states in the affidavit that she believes that apartment number 5, at 109 South 5th Street is the main source of the supply of the heroin, which is being distributed through the lower level drug dealers in the area, and that the unknown Hispanic males control the distribution of the heroin and utilize the apartment as a means of concealing the “stash” of heroin. (See Commonwealth’s bench trial exhibit no. 1, p. 4.)

In considering the “totality of the circumstances” of this case and viewing the affidavit from a commonsense, non-technical perspective, the court finds that the affidavit contains sufficient facts to determine that there was probable cause that there were drugs at the premises. See Commonwealth v. Baker, 532 Pa. 121, 126, 615 A.2d 23, 25 (1992) (sufficient information existed for magistrate to make a neutral and detached decision whether there was a fair probability that contraband or evidence of a crime existed in a particular place based on hearsay information corroborated by officer’s drug purchase). Therefore, the claim is meritless and failure to preserve or raise the issue did not result in prejudice to the defendant.

The second issue raised by the defendant is whether a warrant issued for 109 South 5th Street, Reading, PA, authorized the search of 111 South 5th Street, Reading, PA. Article I, Section 8 of the Pennsylvania Constitution, like its federal counterpart, secures the right to be free from unreasonable searches and states, “no warrant to search any place or seize any person or thing shall issue without describing them as nearly as may be____” Pennsylvania Constitution Article I, Section 8; Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 896 (1998). Further:

“A search warrant directed against an apartment house, or other multiple-occupancy structure will be held invalid for lack of specificity if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units. Commonwealth v. Carlisle, 517 Pa. 36, 40, 534 A.2d 469, 471 (1987). (citations omitted) Where the description is precise enough to enable the officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity. In re Search Warrant B-21778, 341 Pa. Super. 350, 359, 491 A.2d 851, 856 (1985).” In the Interest of Wilks, 418 Pa. Super. 73, 78, 613 A.2d 577, 579 (1992).

In the present case, the application for the search warrant clearly denoted a specific apartment to be searched. Namely, the description of the premises states:

“The dwelling located at 109 South 5th Street, Reading City, Berks County, Pennsylvania is described as a three-stoiy row apartment building. Specifically, the rear second floor apartment display[ing] the number ‘5’ on the exterior white door. Two Hispanic males and any other persons in the aforementioned apartment to prevent the destruction and removal of evidence.” (See Commonwealth’s bench trial exhibit no. 1, p. 1.)

However, the warrant was for 109 South 5th Street while the apartment’s actual address was 111 South 5th Street. The Superior Court has held that Pennsylvania Rule of Criminal Procedure 206 is not so technical as to require a search to be found unconstitutional if there is a mistake regarding the address of the building to be searched; a mistake as to the actual number of the apartment to be searched will not render the search unconstitutional so long as there is sufficient evidence that the police knew which residence it was that they intended to search and there was no question that probable cause for the search existed. Commonwealth v. Washington, 858 A.2d 1255, 1257 (Pa. Super. 2004) citing Commonwealth v. Belenky, 777 A.2d 483 (Pa. Super. 2001).

In Belenky, a confidential informant had advised the police that the defendant was selling drugs from an apartment located at 4252 Salem Street in Philadelphia, Pennsylvania. Commonwealth v. Belenky, 777 A.2d 483, 485 (Pa. Super. 2001). After the police went to what they believed was this address and did a controlled buy, they sought and obtained a search warrant for the premises. While in the process of executing the search warrant three days later, it became apparent that the actual address of the building was 4251 Frankford Avenue. The court, finding that there was no ambiguity about the location where the criminal activity occurred and no question that probable cause for the search existed at the location that was searched, held the search to be constitutional. Id. at 487.

In the instant case, prior to execution of the search warrant, the police had made several controlled buys from the residence that was searched. Each buy had occurred from the back of the building, which was located next to 107 South 5th Street. The officer who applied for the warrant was unfamiliar with the area and assumed that the building next to 107 South 5th Street would be 109, when in fact, it was 111 South 5th Street. (Omnibus pretrial hearing N.T. 3/18/04, p. 118.) It is clear from the testimony presented at the pretrial hearing that 111 South 5th Street was indeed the residence that the police intended to search. Therefore, the mistake as to number of the apartment did not render the search unconstitutional. Failure of counsel to raise or preserve this issue did not result in prejudice to the defendant and was not ineffective assistance of counsel.

The third issue raised by the defendant is whether a warrant issued for the second floor rear apartment authorized the search of an adjacent apartment accessible only though a closet. In essence, the defendant is claiming that the officers executing the search warrant exceeded the scope of the search warrant by searching what the defendant claims was an entirely separate, adjoining apartment. The Fourth Amendment standard under which the warrant is reviewed is whether the officers’ error in executing the warrant was reasonable under the circumstances. Commonwealth v. Kiessling, 380 Pa. Super. 442, 444, 552 A.2d 270, 271 (1988). In Maryland v. Garrison, 107 S.Ct. 1013 (U.S. 1987), the United States Supreme Court established the standard for determining whether a search warrant was properly executed in circumstances similar to the case at bar. Commonwealth v. Wilson, 395 Pa. Super. 523, 525, 577 A.2d 913, 914 (1990).

In Garrison, officers obtained a search warrant for the “third floor apartment” at 2036 Park Avenue. Unbeknownst to the officers, the third floor of this building was divided into two separate apartments. However, it was only after discovering the contraband that the officers realized that they were not in the correct apartment. The Garrison court was called upon to determine if the seizure of contraband from Garrison’s apartment violated the defendant’s Fourth Amendment rights. The United States Supreme Court held that the execution of the search warrant was proper, stating that “the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.” Commonwealth v. Kiessling, 380 Pa. Super. 442, 447, 552 A.2d 270, 273 (1988) citing Garrison, 480 U.S. 79, 86 (1987). The court based its conclusion on the fact that the objective facts available to the officers at the time of the search suggested no distinction between the two apartments. Id.

Here, the validity of the search of the adjacent apartment depends upon whether the officers knew or should have known that they exceeded the scope of the search warrant by searching an area of the structure beyond apartment number five. The court finds that the officers who executed the search warrant in this matter certainly possessed “objectively understandable and reasonable reasons” to believe that apartment number five extended beyond the closet through which Trooper Gauntlett proceeded for the following reasons: (1) Trooper Gauntlett quite understandably believed that the apartment continued into the adjoining room on the other side of the closet, as the room the officers initially entered was very small, sparsely furnished, and generally not appearing to be fit to exist as a completely separate residence, as there was not even a kitchen within that space; (2) an orange power cord, which ran from a power strip in the first room, through the closet, and into a wall outlet in the adjoining room, prevented the back closet door from being closed; (3) both C.I. Leporace and Trooper Gauntlett testified that the front door to the closet was open and that both the front and back closet doors were unlatched; (4) upon proceeding through the closet, Trooper Gauntlett almost immediately observed Mr. Pulanco, who fit the description of the men the officers were looking for and who ignored his request to stop and raise his hands. (N.T. bench trial 7/30/04, p. 119.)

Accordingly, the circumstances here justified the officer’s belief that apartment number five continued beyond the closet in the room that they had initially entered and that those rooms beyond the closet area were not a separate and distinct residence. Thus, according to the officers’justifiable and reasonable belief that they were still in apartment number five, they had every right to search the nightstand, the trap door, and any other area in the adjoining room where the incriminating evidence was found. Just like in Garrison, the objective facts available to the officers at the time of execution of the search warrant offered no distinction between apartment number five and the adj oining room. The officers executing the search warrant did not exceed the scope of the search warrant, and post-conviction relief cannot be granted on this issue as it is meritless.

The fourth and fifth issue raised by the defendant is whether the search of an adjacent apartment was authorized as a protective sweep and whether a protective sweep authorized the search of objects incapable of concealing a person. Under emergent circumstances, protective sweeps are a well-recognized exception to the warrant requirement. A protective sweep is “a quick and limited search of [the] premises, incident to an arrest and conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). There are two levels of protective sweeps: (1) officers can, without probable cause or reasonable suspicion, look in closets and other spaces close to the place of arrest from which an attack could be launched and (2) officers can search for attackers further away from the place of arrest if they can sufficiently articulate specific facts that justify a reasonable fear for the safety of officers on the premises. See Commonwealth v. Taylor, 565 Pa. 140, 150, 771 A.2d 1261, 1267 (2001). Under the State Constitution, protective sweeps for persons are permissible; however, they must be swift and target only those areas where a person could reasonably be expected to hide; protective sweeps cannot be used as pretext for evidentiary search. Pennsylvania Constitution Article I, Section 8.

The defendant’s reliance on the protective sweep exception to the warrant requirement is misplaced. Here, the officers did not enter the adjacent apartment with the intent to effectuate a protective sweep. Instead, the officers entered the adjacent apartment in reliance on a valid search warrant for apartment number five. The officers walked through a closet into the adjacent apartment under a reasonable but mistaken belief that the adjacent room was an extension of apartment number five. The officers who executed the search warrant did not search the adjacent room pursuant to the protective sweep exception to the warrant requirement. Issues four and five are meritless and counsel cannot be found ineffective for failure to raise such issues on appeal or preserve the same for appeal.

The defendant’s nunc pro tunc 1925(b) statement raised a new issue, that being whether the defendant’s statement must be suppressed as the fruit of an illegal search. Because reinstatement of appellate rights nunc pro tunc has been reversed, the court will treat this issue as not properly preserved for consideration. However, in the interest of judicial economy, the court will address the merits of the claim, which are lacking. The fruit-of-the-poisonous-tree doctrine “requires the exclusion of tangible evidence seized during an unlawful search, and derivative evidence, both tangible and testimonial, acquired as a result of the unlawful search.” Commonwealth v. Cleland, 66 D.&C.4th 225, 237 n.10 (2004), citing United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992), cert. denied, 506 U.S. 958, 113 S.Ct. 421 (1992). In the present case, the underlying search was lawful. The warrant was based on probable cause and, for the reasons discussed above, the execution of the search warrant was proper. Therefore, the fruit-of-the-poisonous-tree doctrine does not apply and the defendant is not entitled to have his statements suppressed. Even if the issue had been properly preserved and waived for review, the defendant would have received no relief on the basis of the issue and thus has suffered no prejudice.

Having concluded that actions or inactions of Attorneys Geishauser and Cammarano only caused waiver of claims which are meritless, the defendant has failed to meet the burden of showing reasonable probability that relief would have been obtained on appeal. The defendant’s “amended motion under the Post Conviction Relief Act” is therefore denied.

      . The brief in support also raised a sufficiency of evidence claim. Because the Superior Court addressed this issue on direct appeal, it will not be considered for PCRA purposes.


author: RUEST, J.,

text:
    Commonwealth v. Cassatt

      C.P. of Centre County,
    no. CP-14-CR-1300-2008.

      Yvette L. Willson, for Commonwealth.

      Ronald S. McGlaughlin, for defendant.
    December 1, 2008
   RUEST, J.,

Presently before the court is defendant David M. Cassatt’s motion to suppress filed on September 12, 2008. An amended motion to suppress was filed on November 3, 2008. Defendant claims that Patton Township Police Officer Mark Swindell did not have reasonable suspicion to stop defendant’s vehicle. A hearing was held on November 3,2008. Both parties submitted proposed findings of fact, conclusions of law and briefs. After consideration of the arguments, the court denies defendant’s motion to suppress. The court determines Officer Swindell had reasonable suspicion to stop defendant’s vehicle.

FINDINGS OF FACT

(1) Defendant was charged by criminal complaint dated June 15,2008 with one count of driving under the influence pursuant to 75 Pa.C.S. §3802(a)(l), one count of driving under the influence pursuant to 75 Pa.C.S. §3802(a)(2), and one count of driving while operating privilege is suspended or revoked pursuant to 75 Pa.C.S. §1543(b)(l.l)(i).

(2) On June 14, defendant and his wife were at the McDonald’s fast food restaurant on North Atherton Street at approximately 2:30 a.m. in the drive-through lane.

(3) As defendant was attempting to order, he was asked to wait a minute, to which defendant in a joking manner responded that the employee should hurry up.

(4) Another employee then came on the loudspeaker and told defendant that if he wanted any food, he needed to come inside and see the manager.

(5) Defendant pulled his vehicle forward to the area in front of the drive-through lane where customers wait for orders, put his car in park, left the engine running, and went into the McDonald’s.

(6) The employee who apparently spoke to the defendant over the intercom system began yelling at defendant, and there was some yelling back and forth between the two individuals.

(7) At some point during the altercation, the manager, Shiv Javia, appeared and defendant spoke with him. Defendant was eventually given free food and left the restaurant. The employee who was involved in the altercation was told to leave, but was not fired.

(8) Julia Dahl, who was driving the vehicle sitting directly behind defendant’s vehicle, which was parked in the drive-through lane with its engine on, called 911 and reported a possible DUI.

(9) Ms. Dahl provided a description of the vehicle being driven by defendant and the license plate number to the 911 operator.

(10) Ms. Dahl told the 911 operator that defendant was inside the restaurant yelling at an employee.

(11) Officer Swindell did not know what was going on when he received information from dispatch (both orally and in writing on the computer).

(12) The police dispatch report indicated a possible public intoxication at McDonald’s, described the type of vehicle being driven by the defendant, and indicated that the occupant of the vehicle was inside the restaurant yelling at employees.

(13) As Officer Swindell was driving to the McDonald’s restaurant, he received an address on Douglas Drive that corresponded to the license plate number provided by the informant, Ms. Dahl.

(14) On his way to McDonald’s, Officer Swindell observed what he believed to be a vehicle similar to the description provided by Ms. Dahl passing him on North Atherton Street traveling in the opposite direction.

(15) Officer Swindell turned his vehicle around on North Atherton Street and began following defendant’s vehicle, which made a left-hand turn onto Douglas Drive.

(16) Officer McElrath was also dispatched and proceeded to the McDonald’s restaurant where he spoke to the manager, at which time the manager advised him that he did not want to proceed with any charges.

(17) Based upon all facts known to Officer Swindell, he suspected he was dealing with a potential disorderly conduct, fight, public intoxication, or DUI.

(18) Officer Swindell did not make any observations to support a suspicion that the defendant was driving under the influence.

(19) Once on Douglas Drive, Officer Swindell turned on his overhead lights in order to pull defendant over.

(20) Defendant eventually pulled into his driveway with Officer Swindell behind him, but only after Officer Swindell also put on his siren.

(21) As a result of the stop, defendant was arrested and charged with those offenses defined herein, and had a blood alcohol level of .084.

CONCLUSIONS OF LAW

(1) An officer may stop a car if he has reasonable suspicion to suspect that a violation of the Motor Vehicle Code is occurring. 75 Pa.C.S. §6308(b); Commonwealth v. Smith, 917 A.2d 848 (Pa. Super. 2007); Martin v. PennDOT, 588 Pa. 429, 905 A.2d 438 (2006).

(2) “There is no requirement that an actual violation be established, only that there be a reasonable basis for the officer’s action in stopping the vehicle.” Commonwealth v. Vincett, 806 A.2d 31, 33 (Pa. Super. 2002).

(3) A determination of reasonable suspicion is reached by a court by looking at the totality of the circumstances and determining if there are facts to support a reasonable belief that the law is being broken. Commonwealth v. Smith, 917 A.2d 848 (Pa. Super. 2007); Commonwealth v. Fulton, 921 A.2d 1239 (Pa. Super. 2007).

(4) Circumstances giving rise to a reasonable suspicion must be viewed through the eyes of a trained officer. Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super. 1998), citing U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

(5) “ ‘Reasonable suspicion’ does not require that the activity in question [be] unquestionably criminal before an officer may investigate further.” Commonwealth v. Ulman, 902 A.2d 514, 518 (Pa. Super. 2006), citing Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 (2004).

(6) “[T]he totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, ‘even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.’” Commonwealth v. Smith, 917 A.2d 848, 851 n.4 (Pa. Super. 2007), citing Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 676(1999).

(7) There are three separate categories of interaction between police officers and citizens. The first category is a mere encounter or request for information which does not require any level of suspicion. The second category is an investigative detention that must be supported by reasonable suspicion. The third category of interaction is an arrest or custodial interrogation that must be supported by probable cause. Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003).

(8) “Reasonable suspicion depends upon both the content of the information possessed by the police and its degree of reliability.” Commonwealth v. Kondash, 808 A.2d 943, 946 (Pa. Super. 2002).

(9) “To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third patties, including ‘tips’ from citizens. Naturally, ‘if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.’ ” Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001). (citations omitted)

(10) Identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances, since a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk. Commonwealth v. George, 878 A.2d 881 (Pa. Super. 2005).

(11) An investigatory stop is justified only if the officer in question can point to specific and articulable facts which, in conjunction with any rational inferences therefrom, lead to a suspicion that criminal activity is taking place and therefore warrants an intrusion upon the defendant. Commonwealth v. Wiley, 858 A.2d 1191 (Pa. Super. 2004). This standard also applies when the police stop a vehicle for investigatory purposes. The detaining officer must have reasonable suspicion that the vehicle’s occupants are presently involved in criminal activity. Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001).

DISCUSSION

The defendant argues Officer Swindell did not possess sufficient grounds upon which to base a vehicle stop. Specifically, defendant argues Officer Swindell did not have reasonable suspicion that a violation of the Vehicle Code had occurred, that defendant was driving erratically, or that criminal activity was otherwise afoot.

Reasonable suspicion does not require that the activity observed be unquestionably criminal before an officer can investigate further. Commonwealth v. Ulman, 902 A.2d 514, 518 (Pa. Super. 2006), citing Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 (2004). The circumstances giving rise to a reasonable suspicion must be viewed through the eyes of a trained officer. Commonwealth v. Hall, 713 A.2d 650, 653 (Pa. Super. 1998), citing U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). A determination of reasonable suspicion is reached by a court by looking at the totality of the circumstances and determining if there are facts to support a reasonable belief that the law is being broken. Commonwealth v. Smith, 917 A.2d 848 (Pa. Super. 2007); Commonwealth v. Fulton, 921 A.2d 1239 (Pa. Super. 2007).

The initial report received by Officer Swindell from the 911 dispatcher indicated a “public intox,” that the driver was inside the McDonald’s yelling at employees, and that the car was in the drive-through lane with the engine running and the keys inside. Officer Swindell did not know if he was responding to disorderly conduct, a fight, or a possible DUI. In responding to this unknown situation, Officer Swindell went directly to the location of this incident. En route to the location, he passed a vehicle matching the description provided by a presumed-reliable member of the public, which he followed and positively identified as the vehicle from the incident at McDonald’s. Officer Swindell then conducted a traffic stop to further investigate what was going on.

Contemporaneous with this traffic stop, Officer McElrath was responding at the McDonald’s. At the time he initiated the traffic stop, Officer Swindell did not yet know the outcome of Officer McElrath’s investigation at McDonald’s.

Defendant argues that Officer Swindell observed no driving errors that would amount to violations of the Vehicle Code or possible DUI behavior. Officer Swindell had only followed defendant’s vehicle for approximately two blocks until the stop was made. Officer Swindell activated his overhead lights, but defendant did not stop his vehicle immediately upon seeing the overhead lights. Officer Swindell then activated his siren. Only then did defendant stop his vehicle, after turning into a driveway.

For the reasons stated above, based on the totality of the circumstances and the information he had, the court determines Officer Swindell had reasonable suspicion to stop defendant’s vehicle. Therefore, all evidence obtained in the course of the traffic stop and DUI investigation is admissible.

Accordingly, the following is entered:

ORDER

And now, December 1, 2008, defendant’s motion to suppress is denied.


author: RUEST, J,

text:
    Stein v. PennDOT

      C.P. of Centre County,
    no. 2008-3733.

      Shawn B. Cohen, for appellant.

      Philip M. Bricknell, for appellee.
    December 3, 2008
   RUEST, J,

Presently before the court is appellant’s petition for leave to file appeal nunc pro tunc from order of the Pennsylvania Department of Transportation suspending driver’s license. Oral argument was held on October 31, 2008, and both parties submitted briefs. Upon consideration of the briefs, arguments, and relevant case law, the court determines appellant’s petition for leave to file appeal nunc pro tunc is granted.

BACKGROUND

Appellant pled guilty on December 15,2003, to Centre County criminal case numbers 1648,1649,1650, and 1651 of 2003. On February 12, 2004, appellant was sentenced to a total of seven counts of possession with intent to deliver a controlled substance, four counts of possession of a controlled substance, and three counts of criminal use of a communication facility. Appellant was sentenced to incarceration for an aggregate of four years, three months to eight years, six months. Appellant was transported to SCI Camp Hill for diagnostic evaluation and spent the next three and one-half years in various correctional institutions. As a result of prior convictions in Blair County on drug charges, appellant’s driver’s license was suspended for two years for each count of possession with intent to deliver and possession for a total suspension period of 22 years.

Appellant was released to a halfway house near Pittsburgh, Pennsylvania in November 2007 and shortly thereafter moved to Ohio. In January 2008, appellant went to the Ohio Department of Transportation in an attempt to obtain a work driver’s license. He was advised by Ohio DOT that his license was suspended in Pennsylvania and that Ohio could not issue him a license. Appellant then contacted PennDOT and had no success in restoring his driving privileges. He was informed he was eligible for a probationary license in Pennsylvania, but that it would not be valid for driving in Ohio. Appellant also learned of his suspension for 22 years.

Appellant brought the instant appeal, filed September 3, 2008, to ask the court to correct the length of his suspension.

DISCUSSION

There are two questions before the court. First, whether the court can allow the licensee to file a nunc pro tunc appeal of his license suspension; and second, what should be the length of the licensee’s driver’s license suspension?

Appeal Nunc Pro Tunc

Before it can reach the merits of plaintiff’s claim, the court must determine whether it has jurisdiction to rule on plaintiff’s appeal. The 30-day appeal period has been held to be jurisdictional. PennDOT v. Stollsteimer, 156 Pa. Commw. 64, 67, 626 A.2d 1255, 1256 (1993). Failure to bring an appeal within the statutorily prescribed period precludes the common pleas court from exercising subject matter jurisdiction. Hudson v. PennDOT, 830 A.2d 594, 598 (Pa. Commw. 2003). In cases brought outside the 30-day appeal period, a common pleas court may only assume jurisdiction if the party requests to appeal nunc pro tunc and establishes sufficient evidence to merit such an appeal. Stollsteimer, supra.

Initially, the grounds for filing an appeal nunc pro tunc were limited to fraud or a breakdown in the court’s operations. Commonwealth v. Stock, 545 Pa. 13, 18, 679 A.2d 760, 763 (1996). Our courts have since then held that when an appeal is not filed for non-negligent reasons it should be permitted. Bass v. Commonwealth Bureau of Corrections, 485 Pa. 256, 401 A.2d 1133 (1979). Over time, our courts have expanded the right to appeal nunc pro tunc to situations where “extraordinary circumstances” exist that prevented the appeal from being filed in a timely manner. Stock, supra.

Appellant was incarcerated at the time that the suspension letter would have been sent to him by PennDOT. The Commonwealth maintains appellant was obligated, pursuant to 75 Pa.C.S. §1515, to keep his address up-to-date with PennDOT. The Commonwealth argues it mailed proper notice to the last known address of appellant, and that no extraordinary circumstances existed because of appellant’s incarceration that prevented him from filing the proper address updates when he changed prisons and when he was ultimately released. Defendant maintains he was unable to comply with this requirement because, initially, he was addicted to drugs, and later he was in intensive treatment programs and was routinely moved to various state correctional institutions.

PennDOT presented an exhibit indicating that the letter was prepared by PennDOT Appellant testified that he never received any letter from PennDOT notifying him of a driver’s license suspension or a right to appeal said suspension. The Pennsylvania Supreme Court has not dealt directly with the notice issue since PennDOT v. Warenczuk, 534 Pa. 623, 633 A.2d 1167 (1993), when the court split 3-3 over the issue of whether PennDOT should have to prove actual notice by either certified mail or another means. No definitive decision was rendered, although three of the justices wrote an opinion in favor of requiring proof of notice to the licensee, arguing that a constitutional right, such as due process, cannot be waived by merely failing to fill out a change of address form.

Regardless, the court determines appellant has met the requirement for “extraordinary circumstances” relative to the granting of an appeal nunc pro tunc. Appellant never received notice of his driver’s license suspensions until January 2008. It would be an inequity to disregard the injustice that would occur by allowing appellant to be penalized by the improper imposition of suspension when the suspension was miscalculated on the DL-21 form. Appellant is facing a license suspension of over 20 years. To deprive him of his liberty by forcing him to forego employment opportunities and to limit the time he can spend with his daughter because PennDOT miscalculated his suspension or interpreted the DL-21 forms incorrectly is unconscionable. The court cannot determine what mistakes led PennDOT to incorrectly calculate a suspension nearly three times the length appellant’s license should be suspended, but this situation is clearly an “extraordinary circumstance.” Accordingly, appellant’s petition for leave to file appeal nunc pro tunc is granted.

Merits of Plaintiff’s Claim

PennDOT concedes that multiple charges at each docket constitute a single offense that would be subject to a single suspension. In Reinhart v. PennDOT, 946 A.2d 167, 171 (Pa. Commw. 2008), the Pennsylvania Commonwealth Court held that to determine the length of a license suspension, lesser included offenses merge with greater offenses for a single license suspension. In the case at bar, possession with intent to deliver a controlled substance includes all of the elements included in possession of a controlled substance. This would result in four two-year suspensions, one for each Information, for a total suspension period of eight years.

Appellant argues the four cases should merge for suspension calculation purposes, noting that “where there is one criminal episode, regardless of whether there were multiple convictions or offenses,” only one suspension is mandated. Freundt v. PennDOT, 584 Pa. 283, 287, 883 A.2d 503, 505 (2005). The court disagrees that this is the situation in the case at bar. The evidence submitted at the October 31, 2008 hearing established that appellant was involved in four separate criminal drug violation episodes on three separate dates. Appellant was convicted of selling controlled substances to an informant on August 1, 3, and 9, 2003. Appellant’s dwelling was searched, and that search resulted in additional convictions. Even though the search occurred on the same date as one of the transactions, the evidence at the October 31, 2008 hearing established that it was a separate criminal episode. In accordance with Reinhart, each of appellant’s four episodes should receive a two-year suspension under 75 Pa.C.S. § 1532(c).

Accordingly, the following is entered:

ORDER

And now, December 3, 2008, the following is ordered:

(1) Appellant’s petition for leave to file appeal nunc pro tunc from order of PennDOT suspending driver’s license is granted.

(2) PennDOT shall consolidate the various license suspensions in this matter into four two-year suspensions and recalculate appellant’s period of suspension to determine when he will be eligible for restoration of his driving privileges.


author: NANO VIC, P.J.,

text:
    Rutch v. Pennsylvania Liquor Control Board

      C.P. of Carbon County,
    no. 06-3438.

      Robert T. Yurchak, for plaintiff.

      James F. Maher, for defendant.
    December 17, 2008
   NANO VIC, P.J.,

Eugene A. Rutch t/a M.J.’s Cocktail Lounge, appeals from the Pennsylvania Liquor Control Board’s denial of his application to renew the liquor license for M.J.’s Cocktail Lounge, a bar and restaurant located at 106 East Catawissa Street, Nesquehoning, Carbon County, Pennsylvania. The primary issue before us is whether Rutch is a person of good repute within the meaning of the Liquor Code 47 P.S. §§1-101- — 8-803, the basis of the board’s denial of Rutch’s renewal application.

FACTUAL AND PROCEDURAL BACKGROUND

Rutch is the owner, operator and sole employee of M.J.’s Cocktail Lounge. Rutch has held a restaurant liquor license in his name for this establishment since July 1991. The business is operated as a sole proprietorship.

On June 30, 2004, Rutch applied to renew the liquor license for M.J.’s for the licensing period beginning September 1, 2004, and ending August 31, 2006. By letter dated August 20, 2004, the board’s Bureau of Licensing advised Rutch pursuant to section 470 of the code that it objected to the renewal of his liquor license, finding, on the basis of his citation history and prior criminal record, that he was no longer reputable as required by sections 102,404 and 470 of the code, 47 P.S. §§1-102, 4-404, and 4-470.

An administration hearing to determine whether Rutch’s prior record warranted non-renewal of his license was held before a hearing examiner designated by the board on December 21,2005, pursuant to section 464 of the code, 47 P.S. §4-464. At this hearing, the board presented certified documentary evidence of Rutch’s prior criminal record and history of adjudicated citations; no further evidence was presented on behalf of the board. Rutch testified on his own behalf.

By order dated October 18, 2006, the board denied , Rutch’s application. Rutch appealed the board’s denial to this court on October 19, 2006, whereupon, by order dated October 20, 2006, we granted a supersedeas and stay pursuant to section 464 of the code, 47 P.S. §4-464, permitting Rutch to continue operating during the administrative process. On November 20,2006, the board issued its opinion in which it concluded that “[a]s a result of the adjudicated citations and the misdemeanor convictions, [Rutch] is no longer a person of good repute as required by the code and, therefore, he has abused the privilege of holding a liquor license.” (Board opinion, p. 15.)

Following several continuance requests by Rutch, a de novo hearing was held before this court on April 19, 2007. At this hearing, the board placed in evidence the record of the proceedings held before the hearing examiner and a copy of the board’s opinion. No new evidence was presented by the board.

In support of his appeal, Rutch testified that his difficulties with alcohol are in the past, that he is well respected in the community, and that recently he was notified by the Nesquehoning Veterans of Foreign Wars Outpost that he has been chosen to receive its Business Loyalty Day Award. Rutch also presented three additional witnesses each of whom testified that since 2004 Rutch has addressed his drinking problems, and that he is a good person. These witnesses were Todd Leslie, a full-time officer with the Jim Thorpe Borough Police Department and a resident and former council member in Nesquehoning; Charles Parker Sr., a retired police officer who resides in Beaver Meadows, Carbon County, Pennsylvania, and who is a former constable in Carbon County; and Cynthia S. Ray, Esquire, a practicing attorney who represented Rutch in several of the matters on which the board based its decision not to renew his application.

DISCUSSION

“When an appeal is taken If om a board decision, under section 464 of the Liquor Code, the trial court hears the matter de novo and renders its own findings of fact and conclusions of law. Two Sophias Inc. v. Pennsylvania Liquor Control Board, 799 A.2d 917, 919 (Pa. Commw. 2002). The trial court must receive the record of the proceedings below, if offered, and may hear new evidence. Id. at 922. The trial court has the authority to sustain, alter, change, modify or amend a decision of the board, even if the court does not make findings of fact that are materially different from those found by the board. Id. at 922 n.5.” Goodfellas Inc. v. Pennsylvania Liquor Control Board, 921 A.2d 559, 565 (Pa. Commw. 2007), appeal denied, 594 Pa. 700, 934 A.2d 1279 (2007).

The trial court enjoys broad discretion in conducting its de novo review of the board’s decision. See id. at 566. In exercising its judgment, the court has the authority “to sustain or overrule the board, without regard to whether the same or different findings of fact or conclusions of law are made.” Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina Gloria’s Lounge Inc., 536 Pa. 254, 265, 639 A.2d 14, 19 (1994).

Section 404 of the Liquor Code provides, in pertinent part, that “[ujpon receipt of the application and proper fees, and upon being satisfied ... that the applicant is a person of good repute, . . . the board shall. . . issue to the applicant a liquor license ....” 47 P.S. §4-404. Section 470 (a) of the code, 47 P.S. §4-470(a), provides that a license shall be renewed unless, among other things, “the applicant has by his own act become a person of ill repute.” Additionally, section 470(a.l) of the code, 47 P.S. §4-470(a.l)(l) and (2), grants the board the authority to refuse to renew a liquor license if the licensee has violated any of the laws of this Commonwealth, any regulations of the board, or has one or more adjudicated citations with respect to the involved license.

Whether a person is one of “good repute” concerns primarily whether that person is appropriate to hold a liquor license, whether he will comply with the provisions of the Liquor Code and its regulations, and whether he will properly exercise the trust reposed in a licensee to assure that the public is protected in the sale and service of alcoholic beverages. See e.g., Street Road Bar & Grille Inc. v. Pennsylvania Liquor Control Board, 583 Pa. 72, 92, 876 A.2d 346, 357 (2005) (“The ‘repute’ of which the code speaks can only be understood in terms of the purpose for which repute is to be considered, i.e., to determine if issuance of a liquor license is appropriate.”). The question is essentially one of the applicant’s character — whether he is a person who is predisposed to act in certain ways — with the focus on those traits of character relevant to being in the liquor business. “[I]n light of the ‘peculiar nature’ of this particular type of business endeavor, a person ‘who applies for, and receives permission from, the Commonwealth to carry on the liquor trade assumes the highest degree of responsibility to his fellow citizens.’” Street Road, 876 A.2d at 355 (quoting Commonwealth v. Koczwara, 397 Pa. 575, 581, 155 A.2d 825, 828 (1959)). Unlike in a criminal case, however, where character evidence predictive of a defendant’s conduct is confined to reputation evidence, in a civil proceeding, such as this, “where character or a trait of character is admissible as an element of a claim or defense, character may be proved by specific instances of conduct.” Pa.R.E. 405(b)(1). In these proceedings, Rutch’s “citation history and prior misdemeanor convictions are relevant to the question of good repute.” Street Road, 876 A.2d at 347-48; see also, Board Regulation section 1.5, 40 Pa.Code §1.5.

The burden of establishing good repute is upon the applicant. See Street Road, 876 A.2d at 347. Rutch knows this and understands as well that his conduct in the past will not sustain this burden. Recognizing this, Rutch seeks to distance himself from his past. To do so, he argues that he is no longer the person he once was, that he has reformed himself, and that he is currently eligible and qualified to hold a license. Rutch asks us in effect to judge him not by what he has done, but by what he says he has become.

Both Leslie and Parker testified that Rutch no longer consumes alcohol to the degree he once did, that he offers assistance to and demonstrates respect for the police, and that he is, in general, a good person. All this may well be true, however, the fact that an applicant “has a localized reputation as a ‘good guy’ generally,” is not the issue. Id. at 357. Moreover, when questioned specifically about the effect of Rutch’s prior convictions on his reputation, Leslie stated there was none. See generally, Commonwealth v. Becker, 326 Pa. 105, 114, 191 A. 351, 356 (1937) (explaining that a character witness may be questioned on specific acts of prior misconduct to establish “either that the witness is not familiar with the reputation concerning which he has testified [i.e., his basis of knowledge of the person or trait] or that his standard of what constitutes good repute is unsound”); see also, Street Road, 876 A.2d at 358-59 (quoting McCormick on Evidence, §191, at 676-77 n.27 (5th edition 1999) to the same effect).

Ray testified that Rutch is a close personal friend, that she represented him for the 1999 driving under the influence and 2003 disorderly conduct charges, that these incidents were a wake-up call for him, and that since 2004, Rutch has dramatically changed his drinking habits. According to Ray, Rutch is a new man, and today, when he sits at his bar for a drink, he has only water in his beer glass. Ray, who clearly was familiar with Rutch’s criminal history, testified generally that he is highly respected as a law-abiding citizen in his community. In addition to the significance of her specific knowledge of Rutch’s past misconduct as it bears on our assessment of her testimony regarding Rutch’s reputation for being a law-abiding citizen, see Becker, supra, Ray was never asked directly what Rutch’s reputation is for following the laws applicable to the operation of a licensed business or his reputation for sobriety in his personal life. Finally, as a practicing attorney in this Commonwealth, Ray has an ethical obligation not to testify adversely about a client with respect to matters on which she represented him. Pennsylvania Rules of Professional Conduct 1.9(c).

On his own behalf, although Rutch admitted his drinking in 2003 and 2004 was getting out of hand, he denied that he was intoxicated or had consumed alcohol with respect to the 2003 disorderly conduct incident. He asserted that he was a Good Samaritan who came to the rescue of the driver of his car who was being bullied and ridiculed by the police without basis. He submitted that the charges the police filed against him were manufactured to discredit him and to deter him from testifying in support of the driver in the event a civil rights claim was filed. This testimony was in stark contrast to the affidavit of probable cause for this incident filed by the Nesquehoning Police, and made part of the record in these proceedings, in which the arresting officers reported that Rutch repeatedly yelled and verbally abused both officers, screaming obscenities at them, as they tested the driver for intoxication; that Rutch’s conduct frustrated their investigation, inciting the driver to defy the police; and that all the time this was occurring Rutch himself appeared intoxicated: his speech was slurred, his eyes were red and glassy, his breath reeked of alcohol, and his clothes were in disarray.

Rutch also testified that he successfully completed out-patient drug and alcohol counseling on March 19, 2004, and is today a moderate drinker. He opined that he is highly respected for being a law-abiding citizen and is a firm backer of the police. In apparent contradiction, he also acknowledged in the administrative hearing before the hearing examiner that he has a reputation for being a troublemaker.

The board’s evidence established that between March 18, 1998, and January 13, 2004, on three separate occasions, Rutch violated various provisions of the Liquor Code and Board Regulations, two within the most recent licensing period preceding the period in question here. Additionally, between September 12,1999 and September 23, 2003, on three different occasions, Rutch was charged with misdemeanor offenses, all involving alcohol-related incidents and all resulting in convictions, albeit the conviction which is related to the August 17, 2002 incident was reversed on appeal. The September 23, 2003 offense also occurred within the most recent licensing period preceding that at issue here.

The foregoing evidences repeated violations over a recent six-year period of various laws governing the sale and consumption of alcohol, both in Rutch’s business and in his personal life. Such conduct demonstrates a disregard of both the liquor laws and the criminal laws of this Commonwealth. To argue that Rutch’s conduct does not affect his good repute for alcohol-related activities in a small community, or reflect adversely on his reputation as a responsible, law-abiding holder of a liquor license, strains the limits of credibility.

As between character proved by reputation and character proved by conduct, the latter may be a more accurate measure of a person’s true character, particularly when involving multiple acts over an extended period. In contrast to reputation evidence, which, by its very nature, is indirect evidence of a person’s character based upon a general summary opinion prevalent in the community, character proven by specific instances of conduct is direct evidence of how a person actually behaved when confronted with circumstances relevant to those at issue. As stated by our Supreme Court, “[a]rguably, the single most important factor in assessing fitness for the privilege of licensure is the applicant’s Liquor Code performance and compliance in the past.” Street Road, 876 A.2d at 358. “Like prior Liquor Code violations, misdemeanor convictions speak to the applicant’s law-abiding character.” Id. at 359.

When weighing the evidence presented by Rutch as to his good repute against the specific instances of Rutch’s criminal convictions and arrests for alcohol-related matters in his personal life, and violations of the Liquor Code in operating his business, we are not convinced that Rutch has carried his burden of establishing “good repute.” Three of these violations occurred within the immediately preceding license period to that at issue. Rutch’s criminal convictions and arrest record reveal continuing alcohol abuse over a period of at least four years, extending to a time within one year of the renewal period in issue.

The responsibility which accompanies the privilege of holding a liquor license requires that the burden of establishing “good repute” is on the applicant. “As remedial civil legislation, the code is to be liberally construed to effectuate its purpose to protect the public health, welfare, peace and morals.” Hyland Enterprises Inc. v. Pennsylvania Liquor Control Board, 158 Pa. Commw. 283, 288-89, 631 A.2d 789, 792 (1993). Rutch’s history of convictions and arrests for alcohol-related matters during a four-year period inevitably puts in question the appropriateness of his serving alcoholic beverages to the general public. His record of violating the Liquor Code on three separate occasions — once within this same four-year period and once more recently— when even a single violation of the Liquor Code can be a sufficient basis to decline to renew a license, id. at 791, weighs even further against non-renewal.

CONCLUSION

Under the circumstances, Rutch’s appeal will be denied.

      . This letter provided Rutch with notice of the following specific objections upon which the board relied:
      “(1) Rutch’s conviction on June 9, 2000, of two counts of driving under the influence, misdemeanors of the second degree, arising out of an incident which occurred on September 12, 1999. The record of these proceedings is docketed to no. 084 CR 2000 in the Clerk of Courts office for the Carbon County Court of Common Pleas. The conviction followed a jury trial held in Carbon County. On October 30, 2000, Rutch was sentenced to imprisonment for a period of no less than 30 days nor more than 18 months, fined $300, and had his driving privileges suspended for a period of one year.
      “(2) Rutch’s arrest on August 17, 2002, for two counts of driving under the influence, misdemeanors of the second degree, and one count of reckless driving, a summary offense, arising out of an incident which occurred on August 17,2002. At abench trial held on January 13,2004, Rutch was convicted of all offenses charged. On February 24, 2004, he was sentenced to imprisonment for a period of no less than 30 days nor more than 18 months, fined $500, and had his driving privileges suspended for a period of one year. The record of these proceedings is docketed to no. 009 CR 2003 in the Clerk of Courts office for the Carbon County Court of Common Pleas. Subsequently, on appeal to the Pennsylvania Superior Court, this conviction was vacated by order dated January 18,2005. Allowance of appeal was denied by the Pennsylvania Supreme Court on August 30, 2005. The fact of Rutch’s conviction and subsequent reversal on appeal was made part of the record at the hearing before the hearing examiner held on December 21,2005.
      “(3) Rutch’s arrest on September 23, 2003, for two counts of persistent disorderly conduct, misdemeanors of the third degree, two counts of disorderly conduct, both summary offenses, and one count of public drunkenness, a summary offense, arising out of an incident which occurred on September 23,2003. The record of these proceedings is docketed to no. 710 CR 2003 in the Clerk of Courts office for the Carbon County Court of Common Pleas. On December 2, 2005, Rutch entered a plea of nolo contendere to one count of disorderly conduct, graded as a misdemeanor of the third degree, all remaining charges being nolle prossed. The fact of Rutch’s plea was made part of the record at the hearing before the hearing examiner held on December 21, 2005.
      “(4) Three adjudicated violations of the Liquor Code bearing citation numbers 98-0783, 03-0762 and 04-0179.
      “(a) With respect to citation no. 98-0783, Rutch was fined $500 for permitting his 8-year-old daughter behind the bar, tapping beer, in violation of section 493 (13) of the Liquor Code, 47 P.S. §4-493(13). This incident occurred on March 18, 1998.
      “(b) With respect to citation no. 03-0762, Rutch was fined $100 for an incident which occurred on April 15, 2003, at which time Rutch was open for business without a valid health permit or license in violation of section 437 of the Liquor Code, 47 P.S. §4-437, and section 5.41 of the board’s regulations, 40 Pa.Code §5.41.
      “(c) With respect to citation no. 04-0179, Rutch was fined $250 for an incident which occurred on January 13, 2004, in which alcoholic beverages were sold on credit in violation of section 493(2) of the Liquor Code, 47 P.S. §4-493(2), and sections 11.192 and 11.193 ofthe board’s regulations, 40 Pa.Code §§11.192 and 11.193.”

      . This regulation provides as follows:
      “Section 1.5 Reputation: Use of criminal and citation history.
      “When considering whether a person is reputable or the repute of a person under any section of the code or this title, the board may consider whether that person has been convicted of any crimes including misdemeanors and felonies, the person’s history regarding licenses issued by the board, including the citation history of the licensee, and any other factor the board deems appropriate.”

      . At the time of hearing, we were asked by Rutch to take judicial notice of the fact of this reversal. In doing so, we believe it is also appropriate to note that the basis for reversal, as found by the Superior Court, was the legality of the stop and consequent suppression of evidence. Though an arrest itself cannot be used to test a character witness’ knowledge of a defendant’s reputation in a criminal matter, this bar does not preclude consideration of an arrest as it affects a person’s character or reputation for sobriety in a civil proceeding where there has been no expungement of the criminal record. See Street Road Bar & Grille Inc. v. Pennsylvania Liquor Control Board, 583 Pa. 72, 93-94, 876 A.2d 346, 358-59 (2005); see also, V.J.R. Bar Corporation v. Pennsylvania Liquor Control Board, 480 Pa. 322, 390 A.2d 163 (1978) (holding that civil sanctions may be imposed against license holders even when criminal charges have not resulted in a conviction).

      . “The word ‘character’ is frequently used interchangeably with the word ‘reputation’. In a legal sense it means ‘reputation’ as distinguished from ‘disposition’. Character grows out of particular acts, but is not proved by them, inasmuch as a person may under the stress of special circumstances do a thing which is contrary to his ordinary disposition and practice. The method of proving character is by showing the general reputation of the person in the neighborhood in which he lives. What is proven, therefore, is not a person’s real character, but his character as reputed among his neighbors, or what the consensus of opinion of the neighbors is as to his character.” Commonwealth v. Webb, 252 Pa. 187, 196, 97 A. 189, 196 (1916), quoted with approval in Street Road, 876 A.2d at 357.