author: FORD, J.,

text:
    FPM Development, LLC v. Borough of Coopersburg

      C.P. of Lehigh County,
    no. 2007-C-0468.

      Patrick J. Reilly, for plaintiff.

      Christopher W Gittinger, for defendant Borough of Coopersburg.

      Frank G. Procyk, for defendant Coopersburg Municipal Authority.
    December 15, 2010
   FORD, J.,

The plaintiff, FPM Development, LLC, filed a petition for appointment of a board of viewers under 26 Pa.C.S. § 502. In the petition, plaintiff claims that the actions of the defendants, the borough of Coopersburg (“Coopersburg”) and the Municipal Authority of the Borough of Coopersburg (“Coopersburg Authority”), have made development of plaintiff’s property located in Coopersburg impossible. Plaintiff asserts that the defendants’ actions amount to a de facto taking for which plaintiff is entitled to compensation. Defendants have filed preliminary objections to the plaintiff’s petition which include the argument that there was no de facto taking. Defendants are correct that there was no taking so this preliminary objection is sustained. As a result, plaintiff’s petition for appointment of a board of viewers and this suit are dismissed.

Procedural History

On February 9, 2007, plaintiff filed the petition for appointment of a board of viewers. In the petition, plaintiff avers that the defendants, through their actions, have denied plaintiff all reasonable use of property it owns in Coopersburg, Lehigh County. On February 14, 2007, the Honorable J. Brian Johnson entered an order appointing a three-person board to review plaintiff’s claim of a de facto taking.

In March of 2007, both defendants filed preliminary objections to plaintiff’s petition for appointment of a board of viewers. On April 19, 2007, the plaintiff answered the preliminary objections. Through an order dated June 29, 2007, the Honorable Barry McAndrews vacated the court’s order of February 14, 2007, and disbanded the board of viewers pending resolution of the preliminary objections.

On August 24, 2010, I conducted an argument on the defendants’ preliminary objections. The parties engaged in discovery to develop a factual record for the disposition of the preliminary objections. (Defendants attach to their supplemental brief in support of the preliminary objections a factual record which contains Exhibits A through Q. Plaintiff stipulates that Exhibits A through I constitute the factual record. However, plaintiff does not stipulate that Exhibits J through Q are part of the record. Thus, in addressing defendants’ preliminary objections, I considered only Exhibits A through I.)

Findings of Fact

1. Plaintiff, FPM, is a Pennsylvania limited liability corporation with its address at 33 South Seventh Street, Allentown, Pennsylvania. Plaintiff is owned exclusively by Fred Derby, Patrick Reilly and Mark Ford.

2. Defendant Coopersburg is a Pennsylvania municipality with a mailing address of 5 North Main Street, Coopersburg, Pennsylvania.

3. Coopersburg Authority is a municipal authority established by defendant Coopersburg with a mailing address of 5 North Main Street, Coopersburg, Pennsylvania.

4. Decades ago, Coopersburg created the Coopersburg Authority and granted that body responsibility for the building and construction of a sanitary sewer within the borough. Coopersburg Authority then constructed a sewer system in the borough.

5. CoopersburgleasesthesewersystemtoCoopersburg Authority which is responsible for operating, maintaining and repairing the system.

6. Property owners within Coopersburg who wish to connect to the borough’s sewer system must submit a permit request to Coopersburg.

7. On October 15, 1970, Coopersburg and Coopersburg Authority entered an agreement with Upper Saucon Township (“Saucon Township”) and Upper Saucon Township Municipal Authority (“Saucon Authority”). Under the agreement, Saucon Township and Saucon Authority allowed Coopersburg and Coopersburg Authority to connect their sewer system to the Saucon sewer system. Saucon Township’s sewer system has a sewage collection component and a sewage transfer and disposal component. Under the agreement, sewage and waste collected in the Coopersburg sewer system was to be discharged into the Saucon Township sewer system for treatment and then disposal. The agreement set limits on the amount of sewer inflow from Coopersburg into Saucon Township’s sewer system during peak flow conditions.

8. On February 22, 1996, Saucon Authority imposed a moratorium on all new sewer connections within Coopersburg. Saucon Authority imposed the moratorium because the inflow from the Coopersburg sewer system into the Saucon sewer system regularly exceeded the maximum amount of inflow allowed under the 1970 agreement.

9. Under the terms of the 1970 agreement, Saucon Township sought arbitration to address its dispute with Coopersburg over the sewer inflow problem.

10. An arbitration panel comprised of Donald H. Lipson, Dennis E. Harman and Michael S. Moulds issued an award on May 8, 2003. The arbitrators’ award was confirmed by court order dated September 24, 2003, in Lehigh County case number 2003-C-2267. Under the arbitrators’ award, Coopersburg was required to use good faith and to take all appropriate steps to accelerate the elimination of excess infiltration and inflow from the Coopersburg sewer system into the Saucon sewer system. The award required that Coopersburg complete its remedial efforts by the end of 2004. This deadline was based on the arbitration testimony of William A. Erdman, a Coopersburg engineer. Mr. Erdman testified before the arbitration panel that the inflow and infiltration issues would be corrected by 2005.

11. In June of2003, shortly after the arbitrators ’ award, plaintiff purchased a 8.5970 acre tract within Coopersburg with the intent to create a residential development at this site.

12. On June 11, 2002, prior to plaintiff’s purchase of the property, the previous owner of the property, McQuiddy Family Properties, Inc. (“McQuiddy”), obtained conditional final approval from Coopersburg to construct 27 single homes on the lot. Plaintiff intended to carry out this development on the property.

13. As part of the conditional final approval previously obtained by McQuiddy, plaintiff had to obtain permits from Coopersburg to connect the homes in the proposed development to the Coopersburg sewer system.

14. When plaintiff purchased the property in 2003, its three owners knew of the moratorium on sewer connections within Coopersburg. However, plaintiff’s owners were also aware of the arbitration award which required that repairs to the Coopersburg sewer system be completed by the end of 2004. Based on this consideration, plaintiff’s owners believed that Saucon Township would remove the moratorium on sewer connections within Coopersburg by 2005. They intended to start construction of the development at that time.

15. Based on the estimates of its realtor, Jasper Torchia, plaintiff’s owners anticipated profits of 1.6 to 2.7 million dollars from sales of homes in the development.

16. Through July of 2009, Coopersburg spent approximately $800,000 in attempting to correct the inflow problem with its sewer system. For each of the past several years, these appropriations on repairs to the sewer system have accounted for 30 to 35 percent of Coopersburg’s annual budget.

17. In attempting to repair its sewer system, Coopersburg has submitted numerous Corrective Action Plans (“CAP”) to the Pennsylvania Department of Environmental Protection (“DEP”). The most recent CAP was submitted to the DEP on October 31, 2006.

The DEP approved this CAP, but Saucon Township appealed the approval.

18. Since the entry of the arbitration award, Coopersburg and Coopersburg Authority have made good faith efforts to alleviate the excess infiltration and inflow from the Coopersburg sewer system into the Saucon sewer system. Specifically, defendants have repaired numerous main and lateral sewer lines and manholes within the sewer system. For an extensive itemization of repairs to the Coopersburg sewer system as of July 31, 2006, see appendix 7B of the most recent Coopersburg CAP, which is attached to the deposition of Mr. Erdman (exhibit E of defendants’ supplemental brief) as Erdman exhibit No. 1.

19. In spite of their efforts, Coopersburg and Coopersburg Authority have been unsuccessful in eliminating the inflow problem with the Coopersburg sewer system. Thus, Saucon Authority has not yet removed the moratorium on sewer connections in Coopersburg.

20. Recently, Coopersburg and Saucon Township entered an agreement which established deadlines for Coopersburg to complete the corrective measures set forth in the CAP. The parties agreed that the necessary repairs to the Coopersburg sewer system should be completed by the occurrence of ten significant storm events that produce peak flows in excess of 1.4 million gallons per day at Coopersburg’s metering station, or by December 20, 2011, whichever is later. This agreement does not address the question of when Saucon Township would lift the moratorium on Coopersburg sewer connections. Pursuant to this agreement, Saucon Township withdrew its appeal of the DEP’s approval of Coopersburg’s most recent CAP.

21. Mr. Erdman, in his deposition, testified that he did not know when, if ever, Saucon Township will agree that the inflow and infiltration issues have been addressed to the point where there can be new connections to the Coopersburg sewer system.

Discussion and Conclusions of Law

The plaintiff, in the petition for appointment of a board of viewers, claims that the actions of Coopersburg and Coopersburg Authority, in failing to correct the inflow problem, have made development of plaintiff’s property impossible and amount to a de facto taking. In Paragraphs 11 through 14 of the petition, plaintiff specifically describes the actions of defendants which allegedly led to the de facto taking:

11. The borough has failed to comply with the decision and Award of [the] arbitrators and the Coopersburg Sewer System remains non-operational.
12. The borough has failed to act diligently and in good faith to resolve the issues which cause the moratorium to remain in effect, by delaying, stalling and failing to undertake the work required to repair the Coopersburg Sewer System.
13. The borough’s failure to remedy and make operational the Coopersburg Sewer System is unduly oppressive to [plaintiff], and forces it to bear a public burden which in all fairness and justice should be borne by the borough as a whole. Such inaction by the borough has had a significant impact on [plaintiff], and has interfered with its distinct investment-backed expectations.
14. As a direct and proximate result of the failure of the borough to remedy and make operational the Coopersburg Sewer System, and thereby eliminate the moratorium on [sewer connections] in the borough, and because the borough does not permit on site septic systems, [plaintiff] has been deprived of all economically beneficial uses of its land. All of the damages sustained by [plaintiff] were due to the direct failure of the borough to remedy and make the Coopersburg Sewer System operational.

A court may not dismiss preliminary objections to a petition for appointment of a board of viewers that alleges a de facto taking without first conducting an evidentiary hearing to determine whether a de facto taking has occurred. See Nether Providence Township v. Jacobs, 297 A.2d 550 (Pa. Super. 1972). I read and used the stipulated factual record to decide if the actions of the defendants constitute a de facto taking of plaintiff’s property.

According to 26 Pa.C.S. § 502, a de facto taking occurs when the actions of any entity clothed with the power of eminent domain substantially deprive an owner of the use and enjoyment of his property. Lehigh-Northampton Airport Authority v. WBF Associates, L.P., 728 A.2d 981, 985 (Pa. Cmwlth. 1999). A de facto taking occurs only where a governmental entity “either exercise[s] legislative or regulatory powers or engage [s] in activities that anticipate [] the acquisition or destruction of property for a public purpose.” Moore v. Department of Environmental Resources, 660 A.2d 677, 682 (Pa. Cmwlth. 1995).

There is no bright line test to determine when government action results in a de facto taking. Instead, each case must be examined and decided on its own facts. Id. at 680.

Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.... These inquiries are informed by the purpose of the Takings Clause, which is to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (Citations omitted.) Nolen v. Newtown Township, 854 A.2d 705, 708 (Pa.Cmwlth. 2004) (citing Palazzolo v. Rhode Island, 533 U.S. 606, 617-18 (2001)).

When determining whether a de facto taking has occurred, a court must focus on the nature ofthe government action in question. Appeal of Jacobs, 423 A.2d 442, 443 (Pa. Cmwlth 1980). In Pennsylvania, courts are more likely to find a taking where the government action complained of is “purposeful and deliberate.” Id. Conversely, courts decline to find a taking where the harm to the property owner stems not from deliberate government action, but from negligence or shortcomings on the part of the government actor. For instance, in Appeal of Jacobs, the Commonwealth Court held that no de facto taking occurred when a property owner experienced flooding due to a township’s unlawfully issuing building permits, improperly approving a subdivision and wrongfully contributing to the design of a drainage plan. Id. In explaining its holding, the Commonwealth Court observed that the government actions in question “were in no way related or incidental to the Township’s condemnation power.” Id. at 443-44.

In the case before me, the actions of defendants which plaintiff contends caused a de facto taking were not “purposeful and deliberate.” They were akin to the shortcomings of the government entity in Appeal of Jacobs. Here, defendants made good faith efforts to abide by the terms of the arbitration award and correct the water inflow problem with the Coopersburg sewer system. In attempting to address the problem, defendants submitted numerous CAPs to the DEP. Defendants also made repairs to many main and lateral sewer lines and manholes within the Coopersburg sewer system. Defendants spent approximately $800,000 on these corrective measures through July of 2009.

Unfortunately, none of these efforts has alleviated the inflow problem so the moratorium on sewer connections in Coopersburg remains in place.

The moratorium harms plaintiff by preventing it from developing its land in Coopersburg. However, plaintiff’s harm did not result from any intentional act by defendants, such as the enactment of a new ordinance or the commencement of a new government project. On the contrary, plaintiff’s harm is an unintended consequence of defendants’ inability to adequately repair the Coopersburg sewer system despite its efforts. The defendants’ predicament is not related or incidental to its condemnation power. Under Appeal of Jacobs, the nature of the defendants’ actions prohibits a finding that a de facto taking of plaintiff’s property occurred.

Because the defendants’ actions do not amount to a de facto taking of plaintiff’s property, the preliminary objection raising this issue is sustained. The petition for appointment of a board of viewers and the suit are dismissed. The remaining preliminary objections are dismissed as moot.


source: Caselaw Access Project

author: DOZOR, J.,

license: Public Domain

text:
    Commonwealth v. Cephas

      C.P. of Delaware County,
    no. 3668-09 & 4665-09.

      Katayoun Copeland, for Commonwealth.

      Darren Cephas, pro se.

      December 2, 2010
   DOZOR, J.,

NATURE AND HISTORY OF THE CASE

This is a direct appeal from the judgment of sentence entered into on August 24,2010. The nature and history of the case is as follows:

This court notes that appellant filed and litigated numerous counseled and pro se pre-trial motions, including but not limited to motions to suppress and numerous rule 600 motions. This court notes that appellant also filed and litigated interlocutory appeals, which were all ultimately dismissed by the Superior Court. Additionally, during the time this court was assigned appellant’s cases, appellant continually sent this court pro se letters, petitions and motions, despite being continually represented by counsel.

On August 24, 2010, appellant entered into a negotiated nolo contendere plea on both of the above captioned cases. On transcript 4665-09, appellant entered a nolo contendere plea to information A, possession of a controlled substance with intent to deliver (one consolidated count). On transcript 3668-06, appellant entered a negotiated nolo contendere plea to information A, possession of a controlled substance with intent to deliver (one consolidated count). Appellant waived his right to a pre sentence report and was immediately sentenced by this court as follows: on transcript 4665-09, appellant entered a negotiated nolo contendere plea to information A, possession of a controlled substance with intent to deliver (one consolidated count); five to ten years in a state correctional institution, concurrent to all Federal Sentences; on transcript 3668-06, appellant entered a negotiated nolo contendere plea to information A, possession of a controlled substance with intent to deliver (one consolidated count), five to ten years in a state correctional institution, concurrent to all federal sentences and concurrent to the sentence on transcript 4665-09. Both sentences are non mandatory sentences. Appellant was deemed not RRRI eligible and must submit to DNA testing. Appellant was also to forfeit one thousand three hundred and seven dollars and one cellular telephone. On transcript 4665-09, appellant received credit for time served from April 23, 2008 to August 24, 2010 and on transcript 3668-06, appellant received credit from January 25, 2006 to January 27, 2006 and September 7, 2007 to August 24, 2010.

On September 21, 2010, appellant filed a timely pro se notice of appeal. This court sent to appellant a request for a concise statement of matters complained of on appeal. This court notes that appellant’s pro se appeal informed this court that appellant was still in George C. Hill Correctional Facility and as such this court sent the September 28, 2010, request for a concise statement to the George C. Hill Correctional Facility via certified mail. On September 30, 2010, personnel at the George C. Hill Correctional Facility signed and returned the certified receipt which indicated that as of September 30, 2010 appellant was still housed there and had in fact received this court’s request.

In an abundance of caution, this court also sent appellant the concise statement request to the federal detention center. This court also sent this request via certified mail and this court received the return receipt confirmation that personnel at the federal detention center received the letter on October 6, 2010.

This court notes that in speaking with personnel at the George C. Hill Correctional Facility, appellant was transported from the facility by U.S. Marshals to the federal detention center on September 30, 2010.

Again, in an abundance of caution, this court requested on October 21,2010, that amember ofthePublicDefender’s Office of Delaware County communicate with appellant regarding the pending appeal. This court made such request because at the time of his nolo contendere plea, appellant was represented by a public defender. On October 29, 2010, this court received a letter from the appeals unit of the office of the public defender who informed this court that they were attempting to locate appellant to ascertain whether or not he wished to be represented. On November 9, 2010, a member of the appeals unit of the office of the public defender filed a statement that he had not been in communication with appellant and was therefore unable to comply with this court’s October 21, 2010 order. On November 12, 2010, the same public defender informed this court that he had located appellant but had not determined if appellant wished to be represented.

As of the date of this opinion, this court has not heard from appellant as to the issues he wishes to raise on appeal, despite the fact that this court received receipts that appellant received the initial request to provide this court with a concise statement of matters complained of on appeal.

In compliance with Pa.R.A.P. 1925, this court properly requested that appellant provide this court with a concise statement of matters complained of on appeal within twenty one (21) days. This rule reads as follows:

(b)(2) Time for filing and service. - The judge shall allow the appellant at least 21 days from the date of the order’s entry on the docket for the filing and service of the statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental statement to be filed. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental statement nunc pro tunc.

As of the date of this opinion, appellant has not responded to the court’s order. This court considers appellant’s failure to file the required statement as a waiver of all issues, since this failure “prevents meaningful appellate review.” Conforti v. McGarvey, 563 A.2d 1268 (Pa/ Super. 1989). The appellate courts are adamant that the failure to file a concise statement of matters complained of on appeal or a request for an extension of time within the 21-day time limit set forth in rule 1925(b)(2) will result in waiver of all issues not raised by that date. Commonwealth v. Gravely, 601 Pa. 68, 73, 82, 970 A.2d 1137,1140, 1145 (2009); Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Thus, waiver under rule 1925 is automatic. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Commonwealth v. Butler, 812 A.2d 631, 633 (pa. Super. 2002).

This court, following the determination of the Supreme Court in Lord, which was reiterated most recently by the Supreme Court in Gravely, asserts that any issues not raised in a timely 1925(b) statement should be deemed waived, since waiver is automatic and since appellant has not complied with the September 28, 2010, order and thus, any issues raised on appeal are waived. See Lord, 719 A.2d at 309; Butler, 812 A.2d at 633; Gravely, 970 A.2d at 1140.

However, out of an abundance of caution, this opinion will address the only possible issue, which the court believes appellant could have raised on appeal. That issue is as follows: Did appellant enter a knowing, voluntary, and intelligent guilty plea to the offense charged?

This court has determined that appellant entered a knowing, voluntary, and intelligent nolo contendere plea to each offense charged, as was evidenced by the completion of the plea statement and the complete plea colloquy, which occurred on the record. A nolo contendere plea will be considered knowing, voluntary, and intelligent if, at a minimum, the court inquires about six subjects concerning the defendant’s plea. Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)). These six areas are listed in the comment to Pa.R.Crim.P. 319, and include the following:

1. Does the defendant know and understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
2. Is there a factual basis for the plea?
3. Does the defendant understand that he or she has the right to trial by jury?
4. Does the defendant understand that he or she is presumed innocent until found guilty?
5. Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
6. Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? Id.

The court, appellant’s trial counsel and appellant all entered into an extensive nolo contendere plea colloquy before the plea was entered as to all charges to which appellant pled nolo contendere. In addition, appellant indicated to the court during the colloquy that he read and understood all statements which he placed initials next to on the plea statement, and notice of post sentence rights. The colloquy, together with the plea statement, as well at the notice of post-sentence rights covered all six areas listed above from Pa.R.Crim.P. 319. Therefore, appellant’s plea was knowing, voluntary and intelligent, and the only issue the court sees appellant could raise on appeal, is therefore, without merit.

CONCLUSION

For all of the foregoing reasons, the trial court’s judgment of sentence should be affirmed.

      . 35 P.S. § 780-113(a)(32).

      . 35 P.S. § 780-113(a)(32).

      . 35 P.S. § 780-113(a)(32).

      . 35 P.S. § 780-113(a)(32).

      . This court notes that on September 28, 2010, this court denied appellant’s September 21, 2010, request for an extension of time to file an appeal, pending the outcome of the interlocutory appeals which were pending before the Superior Court at the time. This court notes that those interlocutory appeals were denied on October 18, 2010.


author: SIBUM, J.,

text:
    Commonwealth v. Checo
    C.P. of Monroe County,
    no. 883 Criminal 2009.

      Barbara J. Fitzgerald, assistant district attorney, for Commonwealth.

      Jason Leon, for defendant.
    October 20, 2010
   SIBUM, J.,

Defendant has filed a pretrial motion requesting that he be discharged from prosecution for failure of the Commonwealth to comply with rule 600 of the Pennsylvania Rules of Criminal Procedure. In his motion, defendant also renews a prior pretrial motion seeking to exclude from evidence at trial the preliminary hearing transcript of a deceased witness. For the reasons that follow, we will deny defendant’s motion.

BACKGROUND

Defendant was arrested on April 16, 2009 on drug charges. A criminal complaint was filed that same day charging defendant with possession with intent to deliver a controlled substance, heroin, and a number of related offenses.

Defendant’s preliminary hearing was held on May 20, 2009 at which time all charges were bound over for court. Defendant was arraigned on July 6, 2009 and placed on the September 2009 criminal trial term. On July 14, 2009, defendant’s counsel filed a motion to withdraw. Hearing on the motion was held on July 28, 2009 at which time the court granted counsel’s motion. Due to a conflict in the public defender’s office, which rendered it unable to represent the defendant, the public defender filed a motion to appoint conflict counsel on August 18, 2009. The next day, August 19, 2009, attorney Jason Leon was appointed as counsel for the defendant.

The defendant, through his attorney, filed a motion to compel discovery on October 21, 2009, which was immediately prior to the first call of the November criminal trial list. Hearing on the defendant’s motion was held on November 18, 2009, which was after the date for jury selection for the November criminal trial term. At the November 18, 2009 hearing on defendant’s motion, counsel advised the court that the discovery issues had been resolved between the parties and that the motion was now moot. The court issued an order at the November 18, 2009 hearing in which it indicated that the discovery motion was moot. The court’s November 18, 2009 order also extended the deadline for defendant to file an omnibus pretrial motion for thirty (30) days.

On December 18,2009, the last day in which defendant had to file an omnibus motion, defendant did in fact file such motion. Hearing on the motion occurred on January 12,2010, a date after the date reserved for jury selection for the January criminal trial term. A decision on defendant’s motion was not issued by the court until March 25,2010, a date after the date for jury selection for the March criminal trial term.

On April 19, 2010, defendant filed a motion to exclude the preliminary hearing transcript from evidence. The filing of defendant’s motion to exclude the transcript occurred directly prior to the call of the May criminal trial list. A hearing on defendant’s motion to exclude transcript was held on April 29, 2010, and a decision on the motion was not issued by the court until June 3, 2010, which was after the conclusion of the May criminal trial term.

The case was then scheduled for the July 2010 criminal trial term, a jury was empanelled, and testimony began on August 4, 2010. At the August 4, 2010 trial, counsel for the defendant uncovered discovery sitting on the assistant district attorney’s table which had not been turned over by the Commonwealth to the defendant. Due to the nature of the discovery, this court granted defendant’s motion for mistrial due to concern that the newly discovered evidence may have presented a conflict of interest for defendant’s counsel, which issue needed further investigation. The defendant’s case was then placed on the next trial term, September 2010 criminal term of court.

On September 1, 2010, immediately prior to the commencement of the September 2010 criminal trial term, defendant filed the present motion. We are now prepared to dispose of defendant’s motion.

DISCUSSION

In his motion, defendant argues that he should be discharged from prosecution because his rights to a speedy trial under Rule 600 of the Pennsylvania Rules of Criminal Procedure have been violated. Rule 600, Prompt Trial, reads in relevant part, as follows:

(A)(2) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed.
(3) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.
(C) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives rule 600;
(3) such period of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant’s attorney;
(b) any continuance granted at the request of the defendant or the defendant’s attorney.
(E) No defendant shall be held in pretrial incarceration on a given case for a period exceeding 180 days excluding time described in paragraph (C) above. Any defendant held in excess of 180 days is entitled upon petition to immediate release on nominal bail. Pa.R.Crim.P. §600.

Pa.R.Crim.P. §600 “provides for dismissal of charges only in cases in which the defendant has not been brought to trial within the term of the adjusted run date, after subtracting all excludable and excusable time.” Commonwealth v. Murray, 879 A.2d 309, 314 (Pa. Super. 2006). The burden of ensuring that trial is commenced in a timely manner rests with the Commonwealth, not the defendant. Commonwealth v. McCutcheon, 488 A.2d 281, 284 (Pa. Super. 1985). The Commonwealth must demonstrate by a preponderance of evidence that it exercised due diligence in attempting to timely bring a case to trial. Commonwealth v. Johnson, 592 A.2d 706, 709 (Pa. Super. 1991). The standard of due diligence does not require the Commonwealth to exercise eveiy conceivable effort, but rather requires the Commonwealth to make reasonable efforts to bring a case to trial in a timely manner. Id. See also Commonwealth v. Wentzel, 641 A.2d 1207, 1209 (Pa. Super. 1994).

When a case has a possible rule 600 problem, prosecutors must do everything reasonable within their power to see that the case is tried on time. Commonwealth v. Aaron, 804 A.2d 39,44 (Pa. Super. 2002). When a delay occurs in a case as a result of the filing of a pretrial motion by a defendant, the Commonwealth must demonstrate by a preponderance of the evidence that it exercised due diligence in opposing or responding to the pretrial motion. Commonwealth v. Hill, 558 Pa. 238, 254, 736 A.2d 578, 587 (1999); Commonwealth v. Lynn, 2003 WL 22497438 (Pa. Com. Pl. 2003).

In this case, the Commonwealth has been prepared to bringthe defendantto trial during every trial term subsequent to arraignment. The Commonwealth, however, was denied this opportunity by the timing of the filing of defendant’s motions and the subsequent delay caused while awaiting judicial decision. In addition, the Commonwealth opposed or responded to every motion filed by the defendant in a timely manner. Further delay has been caused by the schedule of criminal trial term occurring in the Monroe County Court of Common Pleas. There is no evidence presented to suggest that the Commonwealth allowed this case to “slip through the cracks” or failed to try this case on time. Accordingly, we find that the Commonwealth has demonstrated due diligence. Defendant’s motion for dismissal pursuant to rule 600 will be denied.

The second issue raised by defendant in his pretrial motion is that the preliminary hearing transcript of the late Elaine Volkert should be excluded from evidence at trial on the grounds that defendant did not have a full and fair opportunity to cross examine Ms. Volkert with respect to discovery received by defendant after the time of the preliminary hearing. This issue was previously raised by defendant in his motion to exclude preliminary hearing transcript which he filed on April 19, 2010. Said motion was denied by this court by the Honorable Ronald E. Vican, President Judge, by virtue of Judge Vican’s opinion and order dated June 3, 2010.

In renewing his motion, the defendant argues that the deceased witness was not confronted with inconsistencies at the time of the preliminary hearing in as much as the discovery received at the time of the August 4, 2010 mistrial and thereafter was not available at the time of the preliminary hearing for use in cross-examining Elaine Volkert. The previously undisclosed discovery includes a small notebook titled “Betty’s phone book,” photographs, fingerprints of unknown result, the defendant’s fingerprint card, an e-mail between police departments identifying several of the key players in the Volkert/Grube drug dealings, letters allegedly written by the defendant to other individuals, Accurint searches and additional drug task force reports. Defendant claims that because this information was not available to him at the time of the preliminary hearing and was not disclosed until just prior to the filing of the instant motion, the defendant was unable to cross examine Ms. Volkert with regard to these alleged material issues. Defendant argues that given the circumstances, his constitutional right to confront witnesses would be violated if the preliminary hearing transcript were allowed into evidence at the time of trial. We disagree.

Under both the Pennsylvania and United States Constitutions, a criminal defendant has a right to confront and cross examine the witnesses against him. Commonwealth v. Bazemore, 531 Pa. 582, 585, 614 A.2d 684, 685 (1992) (citing Commonwealth v. McGrogan, 523, Pa. 619, 620, 568 A.2d 924, 927 (1990)). The introduction of an unavailable witnesses’ prior recorded testimony from the preliminary hearing is admissible at trial and will not offend the defendant’s right of confrontation, provided the defendant had counsel and a full opportunity to cross examine that witness at hearing. Bazemore, 614 A.2d at 685; Commonwealth v. Paddy, 569 Pa. 97, 77, 800 A.2d 294, 312-13 (2002). In order to have a full and fair opportunity for cross examination, defendant must be apprised of all impeachment evidence at the time of the prior testimony. Commonwealth v. Johnson, 758 A.2d 166, 169 (Pa. Super. 2000).

In this case, defendant does not allege and we fail to find how Ms. Volkert would have any knowledge of the small notebook titled “Betty’s phone book,” photographs, fingerprints of unknown result, the defendant’s fingerprint card, an e-mail between police departments identifying several of the key players in the Volkert/Grube drug dealings, letters allegedly written by the defendant to other individuals, Accurint searches and additional drug task force reports. Nor does defendant allege how these items are relevant or material to his defense. Similarly, the phone book in question is a personal book belonging to Elizabeth Grabe. Ms. Grabe is still alive and available to testify as to the contents of the book, which was found in her residence and which contains her name on the front page. The same holds true for the photographs at issue. Further, the notebook and photographs were, as was all physical evidence, available for inspection by defendant at anytime, yet defendant never requested to inspect same in preparation for trial. As such, we do not find that counsel’s failure to question Ms. Volkert about these above matters renders the transcript of Ms. Volkert’s preliminary hearing testimony inadmissible at trial or denies defendant his due process rights.

Accordingly, we enter the following order.

ORDER

And now, October20,2010, after hearing on defendant’s motion in Limine, it is ordered as follows:

1. Defendant’s motion to dismiss pursuant to rule 600 is denied.
2. Defendant’s motion seeking to exclude from trial the preliminary hearing transcript is denied.
3. It is further ordered and directed that defendant and trial counsel shall appear in Courtroom No. 3, Monroe County Courthouse, Stroudsburg, Pennsylvania, on November 3,2010 at 9:00 A.M., for jury selection with trial to commence as called.


author: AMMERMAN, J,

text:
    Cherry Timber Associates, Inc. v. Mitchell
    C.P. of Clearfield County,
    no. 06-1498-CD.

      Keith Pemrick, for plaintiffs.

      Christopher Mohney & Dawn Sugrue, for defendants.
    February 10, 2010
   AMMERMAN, J,

On September 14, 2006, Cheny Timber Associates, Inc. and Chagrin Land Limited Partnership, (hereinafter “plaintiffs”), filed a complaint for declaratory judgment against Audra Mitchell, JohnD. Duttry, Thelma Bush, and Beverly R. Williams (a/k/a Beverly Copelli), (hereinafter “defendants”). Said declaratory judgment pertains to funds placed in escrow, as a result of timber harvesting contract, where the parties dispute the ownership of property in Huston Township, Clearfield County, from which the timber was harvested. The remaining defendants are all one-third (1/3) owners as tenants-in-common of a parcel of land in Huston Township, and on October 18, 1994, entered into a Timber Harvest Agreement, (“agreement”) with Mitchell Lumber Company, (“Mitchell Lumber”). Between October 18,1994 and October 18,1995, Mitchell Lumber harvested timber pursuant to the agreement. Plaintiffs alleged that in the course of harvesting, Mitchell Lumber did cut and remove merchantable timber from Cheny Timber property.

When plaintiffs advised Mitchell Lumber that they believed it had wrongfully removed timber from the Cheny Timber property, it agreed to deposit forty-five thousand ($45,000.00) dollars into an escrow account pending a resolution of the dispute as to the ownership of the harvested timber. The funds were sent to Scott V. Jones, Esquire (“escrow agent”) and were deposited as “Scott V. Jones, Escrow agent for Mitchell Lumber Co. and Chagrin Land Limited Partnership,” (hereinafter “escrow” or “escrow funds”). The parties agreed via correspondence that said funds in escrow would remain in escrow until an agreement was reached, and if that did not occur, upon decision of a court of competent jurisdiction. The parties were unable to reach an agreement regarding the disposition of the escrow funds, and the present matter was instituted.

On April 21-22, 2009 a non-jury trial was held, and on July 28, 2009 this court issued an order in favor of the plaintiffs. Defendant, John D. Duttry, filed a notice of appeal on December 16,2009. By order of this court dated December 22,2009, defendant Duttry was ordered to file a concise statement of the matters complained of on appeal in accordance with PA.R.A.P. 1925(b). Defendant Duttry timely filed said concise statement, setting forth various issues raised on appeal.

Defendant Duttry first contends that this court erred in awarding the escrow funds to Chagrin Land Limited Partnership, (hereinafter “Chagrin”), and by failing to find that Chagrin had no color of title to the land and timber, and therefore to the proceeds. By clarification, the court, in its order dated July 28,2009, found that plaintiff Cherry Timber Associates, (hereinafter “Cherry Timber”), had met its burden of proof to establish ownership of the property where the timber was harvested. At no time did plaintiff Chagrin claim ownership to the property in question, but merely was an affiliate of plaintiff Cherry Timber through common ownership. Chagrin’s involvement in this matter, beyond the common ownership with Cherry Timber, dealt with the escrow account originally being deposited as “Scott V. Jones, Escrow agent for Mitchell Lumber Co. and Chagrin Land Limited Partnership.” Further, the escrow funds had been in various interest bearing accounts and instruments since 1995, and in 2005 said funds were re-invested in a two-year certificate of deposit at First Commonwealth Bank. The aforesaid certificate of deposit identifies Mitchell Lumber and Chagrin Land Limited Partnership as the owners. The court finds that Chagrin was merely listed as the owner on the escrow funds, acting as a quasi-agent of Cherry Timber, and as such was correctly determined to that both Chagrin and Cherry Timber were entitled to the funds in escrow.

Defendant Duttry broadly asserts that this court erred in awarding the money in the escrow account to Cherry Timber. Defendant Duttry similarly asserts that the court erred in failing to conclude that defendants were the owners of the disputed sixty (60) acre tract in Huston Township, Clearfield County. Specifically, defendant Duttiy avers that the court erred in failing to conclude that plaintiffs’ predecessors in title, Green Glen Corporation, (hereinafter “Green Glen”), had recognized and acquiesced in the location of the sixty (60) acre tract in the northern end of the old Bucksbee Farm. This court finds that defendant Duttry (and defendants as a whole) did not present sufficient evidence to establish the elements of the doctrine of recognition and acquiescence as a means of rebutting plaintiffs’ evidence regarding the boundary line between the subject properties. Conversely, this court finds that plaintiff Cherry Timber presented sufficient evidence to clearly establish chain of title and ownership of the sixty (60) acre tract in question, with its location at the southern end of the old Bucksbee Farm.

“The establishment of a boundary line by acquiescence of a statutory period of time of twenty-one years has long been recognized in Pennsylvania. Zeglin v. Gahagen, 571 Pa. 321, 325-26, 812 A.2d 558, 561 (2002). Two elements are required to be shown in order to establish a boundary line by acquiescence: (1) each party must have claimed and occupied the land on his side of the line as his own, and (2) such occupation must have continued for the statutory period of twenty-one years. Id. at 326, 561 (citations omitted); see also, Moore v. Moore, 921 A.2d 1, 5 (Pa. Super. 2007). Further, the doctrine of acquiescence is commonly associated with the erection and maintenance of a fence as a visible demarcation of the boundary line. See Zeglin, 571 Pa. 321, 812 A.2d 558; Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1011 (1896); Schimp v. Allaman, 659 A.2d 1032 (Pa. Super. 1995).

In Niles v. Fall Creek, the court explained the evidence necessary to establish a consentable line by recognition and acquiescence:

[Ojur courts have long recognized, however, that a boundary line may be proved by a long-standing fence without proof of a dispute and its settlement by a compromise. In Dimura v. Williams, [446 Pa. 316, 286 A.2d 370 (Pa. 1972)], the court noted:
It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not. Id. 446 Pa. at 319, 286 A.2d at 371.
In such a situation the parties need not have specifically consented to the location of the line. Dimura v. Williams, supra [446 Pa.] at 319, 286 A.2d at 371. It must nevertheless appear that for the requisite twenty-one years a line was recognized and acquiesced in as a boundary by adjoining landowners. See Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A.211 (Pa. 1914); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1012 (Pa. 1896).

545 A.2d 926, 930 (Pa. Super. 1988) (quoting Inn Le’Daerda, Inc. v. Davis, 360 A.2d 209, 215-16 (Pa. Super. 1976)).

In the present matter, defendant Duttiy did not set forth sufficient evidence to show that there was occupation up to a fence and/or other boundary by his predecessors in interest. Moreover, Lional Alexander testified that there was no fence line or indication of a prior fence line separating the properties; therefore defendants cannot argue they occupied the land up to any particular point or border. Defendant Duttry and defendant Thelma Bush acknowledged that there were no structures on the property, and neither they nor their father (previous owner) had ever posted said property. Mere occasional timbering and/or hunting are not sufficient to establish a consentable line by recognition and acquiescence. Mr. Christopher Guth (employee of plaintiffs’ parent company-industrial Timber and Lumber Company) testified that on a prior occasion, there had been a question about timber harvesting in this area, but after employing an abstractor, Fran McDermott, it was determined that the harvesting was occurring on the 123 acres northeast of the sixty (60) acre tract. The court deems the testimony of Mr. Guth to be credible. Also, this court finds that defendants’ assertion that no one had previously challenged their ownership of the property from which the timber was cut was insufficient to establish ownership through the doctrine of recognition and acquiescence. Defendant Duttry has not shown that he and/or his fellow tenants-in-common or predecessors in title actually occupied the land in dispute for the requisite twenty-one (21) years.

Plaintiff Cherry Timber met its burden of proving that it owned the property where the timber was harvested. Plaintiffs’ presented the 1927 Deed from John E. Dubois to Bucksbee, which contained a metes and bounds description of the property based on a May 29,1922 survey by J.E. Fry, (plaintiffs’ exhibit 1). Lional Alexander, a land surveyor, was engaged to perform a retracement survey of the property to establish its actual location. Mr. Alexander testified that J.E. Fry was known to be a surveyor who performed surveying work for John E. Dubois in the early 1900s, and that he was able to locate original field notes made by Mr. Fry when he surveyed the Cherry Timber property in 1922, (plaintiffs’ exhibit 6). Mr. Alexander testified that he also located extensive evidence of boundary lines for the sixty (60) acre parcel in the southern portion of the old Bucksbee Farm during his investigation of the field, including but not limited to: tree lines, fence lines and a comer tree. Additionally, Mr. Alexander testified while doing research at the courthouse he located a deed for an adjoining property (plaintiffs’ exhibit 5), which contained several calls that matched calls in the description in the 1927 deed from Dubois to Bucksbee. As a result, Mr. Alexander testified that it was his opinion “with certainty” that the sixty (60) acre parcel was parcel No. 119-E4-16 as shown on plaintiff’s exhibit 9, which locates the parcel in the southwestern portion. Having noted his extensive training and experience, the court deems the testimony of Mr. Alexander to be credible.

The plaintiff’s also presented the testimony of Zoe Withey and Michael D. Snyder, Esquire, in support of Cherry Timber’s claim of ownership to the sixty (60) acre parcel from which the timber was harvested. Ms. Withey, an independent title abstractor, testified that during the course of constmcting the chain of title for the Cherry Timber property, she checked all appropriate indices for adverse conveyances and found none. Regarding the 123 acre parcel, Ms. Withey also testified that the deed dated February 21,1955, from Harry and Annie Bender to Harold E. Duttry and Mary Duttry (Deed Book 440, page 573), was the first to actually contain a description of the property, and said description placed the 123 acre parcel on the northern end of the land of the Green Glen.

Attorney Snyder reviewed the information contained in the Withey abstract, and concluded that the inclusion of parcel no. 21 in the deed of Green Glen to Cherry Timber, was legally sufficient to convey title to the sixty (60) acre parcel to Cherry Timber. In addition, attorney Snyder testified that the “...chain of title to this sixty (60) acre parcel clearly identifies that sixty (60) acre piece right there,” indicating the southwestern part of the Bucksbee tract. See Trial Transcript, Day II of II, p. 32, lines 4-5. The court finds the testimony of Ms. Withey and attorney Snyder to be credible. Also, the court finds further support from the tax assessment map for Huston Township (plaintiffs’ exhibit 9) that located the sixty (60) acre parcel southwest of the 123 acre Duttry parcel.

In contrast to the abundant evidence presented by Cherry Timber in support of its claim to ownership of the sixty (60) acre tract in the southern portion, the defendants only presented a small amount of evidence in support of their claim of ownership. Defendants did not present any evidence or expert testimony to rebut the plaintiffs’ evidence regarding Cherry Timber’s ownership of the sixty (60) acre parcel. The testimony of Mary Anne Jackson merely showed that there had been mistakes in assessments records, which in itself was not sufficient to rebut the evidence set forth by plaintiffs. As testified by attorney Snyder, “...[assessment records] can be indicative. But deeds convey title to property, not assessment records.” See Trial Transcript, Day II of II, p. 25, lines 12-13. Attorney Snyder further averred that if there’s a conflict between an assessment record and a deed filed of record, “[t]he deed would control.” See Trial Transcript, Day II of II, p. 25, lines 14-16. Defendants John Duttry and Thelma Bush’s self-serving testimony merely showed they believed they owned the southwestern tract, but offered no viable evidence to support that claim beyond using the land for hunting and occasional timbering. The court finds this insufficient to rebut the plethora of evidence presented by plaintiffs.

The next ground for appeal set forth by defendant Duttry argues that the court erred in failing to find that the plaintiffs either individually and/or jointly were required to bring their claim for unlawful removal of timber from real estate within two (2) years of the date of such conversion pursuant to 42. PA.C.S.A. §8311(a) and 42. PA.C.S.A. §§5524(3), (4), (5), and (7). Similarly, defendant Duttry avers that the court also erred in failing to grants defendants’ motion for summary judgment on the basis that plaintiffs’ claim was barred by the statute of limitations. Plaintiffs’ claim was filed as a declaratory judgment action seeking resolution of a dispute as to the ownership of the timber wrongfully harvested by Mitchell Lumber, and the funds deposited into escrow. The declaratory judgment act provides that, “courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” 42 PA.C.S.A §7532. The central issues of this action are: (1) the ownership of property from which Mitchell Lumber harvested timber pursuant to a Timber Harvest Agreement and (2) the ownership of escrow funds which are directly tied to the ownership of the property and timber.

Declaratory judgments are subject to the four-year “catch all” statute of limitations. Wagner v. Apollo Gas Co., 582 A.2d 364 (Pa. Super. 1990) (citing 42 Pa.C.S.A. §5525(8)). The statute of limitations may be waived by the persons for whose benefit it exists, and the right to recover may be based on a waiver of the statute. Com., Dept. of Public Welfare v. UEC, Inc., 483 Pa. 503, 397 A.2d 779 (Pa. 1979); Smith v. Pennsylvania Railroad Co., 304 Pa. 294, 156 A.89 (Pa. 1931); Borough of Greensburg v. Public Service Commission of Pennsylvania, 268 Pa. 177, 110 A. 750 (PA. 1920). It can be waived by explicit consent or by conduct. Checchio By and Through Checchio v. Frankford Hospital-Torresdale Div., 717 A.2d 1058 (Pa. Super. 1998); Cobbs v. Allied Chemical Corp., 661 A.2d 1375 (Pa. Super. 1995).

In this action, the court finds that defendants waived the four-year statute of limitations by their conduct. The court finds that in the correspondences between the parties’ attorneys and the escrow agent, the parties agreed that the proceeds should remain in escrow until this matter was resolved. Specifically, by letter dated, April 5, 1995, counsel for defendant Duttry stated:

[TJhus, I renew my suggestion to both you and Scott [escrow agent]. The money should be placed in an escrow account in the name of a representative of each landowner and Mr. Mitchell if he desires. The owner as determined by a court of competent jurisdiction would ultimately receive the funds. Resolution of the matter would require a court determination absent an earlier agreement and in any event, would require a survey of the entire tract, a survey of the individual tracts, and location of the disputed timber tract within it.

Plaintiff’s exhibit no. 26. In response to the above quoted letter, counsel for plaintiffs replied via letter dated, April 10,1995, stating:

[P] lease be assured that the money presently held in escrow by Scott Jones will remain in escrow until after we have met and attempted to resolve this matter. In the event we agree that we cannot amicably resolve this dispute I would expect that we would enter into an agreement for the disposition of the escrow pending a decision of the court.

Defendants’ Exhibit H.

Also, Stephen Jilk testified that a meeting between the parties in this matter took place in July of 1996, and regarding the funds in escrow, Mr. Jilk stated “...they were to remain in escrow until the parties could agree or until it went to trial.” See Trial Transcript, Day I of II, p. 81, lines 10-11. Scott V. Jones, Esquire, mirrored this same understanding, stating that the funds were to remain in escrow and “I was to continue as escrow agent until the matter was resolved either by agreement or litigation.” See Trial Transcript, Day I of II, p. 126, lines 13-14. Additionally, Barry Garbarino, Esquire, formally counsel for plaintiffs’ at the July 2006 meeting, testified it was his understanding at the conclusion of said meeting that, “Scott [Jones, Esq.] would continue to keep, retain, the escrow account until either John [Sughrue, Esq.] and I agreed and resolved the matter or one of us litigated the issue and we had a final result from the court.” See Trial Transcript, Day I of II, p. 137, lines 15-18.

In accordance with the agreement between the parties, having not been able to come to a mutual agreement on the underlying dispute, the funds remained in escrow until this court determined that plaintiffs were entitled to the funds after non-jury trial on April 21-22, 2009. Therefore, the court properly denied defendant Duttry’s motion for summary judgment and the case went to trial for a determination as to the ownership of the property and funds in escrow, as agreed by the parties.

Defendant Duttry’s last contention is that the court erred in discontinuing the actions against co-defendant Audra Mitchell, and dismissing her from this case. Specifically, defendant Duttry avers that the court erred in dismissing Mrs. Mitchell because she was a necessary and indispensable party to this litigation. Mrs. Mitchell, as the widow and sole heir of Paul Mitchell, was the successor in interest to any claim Mitchell Lumber might have had to the escrow funds. Mitchell Lumber originally paid the money into escrow because there was a dispute as to the ownership of a portion of the trees harvested under the agreement. Mitchell Lumber understood that it owed the proceeds to the owner of the property from which the timber was removed, and it voluntarily paid the money into escrow pending the resolution of who was entitled to the funds. Defendants’ attempts to argue that plaintiffs threatened or coerced Paul Mitchell into having the funds placed into escrow are unfounded. After being asked, “Did he [Mr. Jilk] make any kind of threats or try to intimidate or coerce you in any way?” Mrs. Mitchell definitely testified, “No.” See Trial Transcript, Day I of II, p. 109, lines 20-22.

During pendency of this case Mrs. Mitchell filed a petition wherein she asked the court to discontinue the action as to her, pursuant to PA.R.C.P. 229(b). In said petition, Mrs. Mitchell stated that she “...stakes no claim to the money deposited into escrow by Mitchell Lumber Company, generally releases any claim to the money that she is deemed to have under law...” Therefore Mrs. Mitchell released any claim to the escrow funds, which were the subject of this case, and thus the dispute was only between remaining parties. While plaintiffs’ did not oppose said petition, defendant Duttry did not affirmatively consent to the relief requested, however he failed set forth any persuasive argument as to why the relief requested should not be granted. Defendant Duttry merely made broad assertions that Mrs. Mitchell was a necessary and indispensable party, but provides no support for such an allegation. The court finds that it was still able to accord complete relief to the remaining parties in this action without Mrs. Mitchell’s presence as a party, and granting the discontinuance did not impair or impede Mrs. Mitchell’s ability to protect her interest, nor did it leave defendant Duttry at risk of incurring double, multiple, or inconsistent obligations. Defendant Duttry made no counterclaims (cross-claims) against Mrs. Mitchell, and the court finds that it was correct in discontinuing the action as to Mrs. Mitchell.

      . By order dated August 20, 2008, this action was discontinued as to defendant Audra Mitchell, upon her petition for order to discontinue action as to defendant Audra Mitchell, which was granted by this court.

      . During trial the same tract was referred to as sixty (60) acres and fifty-eight (58) acres, and the court will reference said tract as being sixty (60) acres herein.

      . The old Bucksbee Farm property included a total acreage of roughly 180 acres. Having been split into two separate parcels of 123, acres and sixty (60) acres by subsequent owner Green Glen, the parties dispute rests on the location of the parcels within the overall 180 acres. Plaintiff Cherry Timber asserts that its sixty (60) acre tract is in the southwestern portion, with defendants ’ property being in the northeastern portion. Defendants’ claim the opposite, arguing their 123 acre tract is in the southern portion, and plaintiff’s tract is in the northeastern portion.

      . The court finds defendants’ attempt to characterize plaintiffs’ action as one of unlawful conversion of timber, which carries a two (2) year statute of Limitations, is improper. Plaintiffs’ dispute is against defendants as to the ownership of the escrow funds, which is necessarily tied with the ownership of the timber, and is not against Mitchell Lumber for removing said timber.

      . Appeared prior as defendants’ exhibit 11 to defendants’ motion for summary judgment, and was considered in the court’s decision to deny said motion.

      . Appeared prior as defendants’ exhibit 12 to defendants’ motion for summary judgment, and was considered in the court’s decision to deny said motion.


text:
    Y-Doow-It, Inc. v. Pennsylvania Liquor Control Bd.

      C.P. of Lehigh County,
    no. 2010-C-1909.

      Theodore J. Zeller III, for appellant.

      Roy Harkavy, for appellees.
    December 16,2010
   FORD, J.,

The appellant, Y-Doow-It, Inc., a liquor licensee, filed an appeal from an order of the Pennsylvania Liquor Control Board (PLCB) dated March 17, 2010. In that order, the PLCB affirmed a November 18, 2009, adjudication and order of an administrative law judge (ALJ) which sustained a citation and fine against appellant for a violation of the Pennsylvania Liquor Code, 47 P.S. §§ 1-101 through 10-1001. After conducting a de novo review of the evidence presented before the ALJ, I find appellant violated the Liquor Code. Thus, appellant’s appeal must be dismissed.

Procedural History

On June 3,2008, the Pennsylvania State Police, Bureau of Liquor Control Enforcement, issued citation number 08-1167 to appellant. Through the citation, the Bureau charged appellant with a violation of Section 4-493(1) of the Liquor Code. According to the citation, agents of the appellant furnished alcohol to two visibly intoxicated patrons in appellant’s bar on April 26, 2008.

On September 18, 2009, ALJ David L. Shenkle conducted an evidentiary hearing on the allegations contained in the citation. On November 18,2009, the ALJ issued an adjudication and order sustaining the citation and ordering the appellant to pay a fine of $1,000.

On December 17, 2009, appellant appealed the November 18, 2009, adjudication and order to the PLCB. On March 17,2010, the PLCB issued an order affirming the decision of the ALJ and dismissing appellant’s appeal.

OnApril 16,2010, appellant, acting pursuant to Section 4-471 of the Liquor Code, filed the current appeal with this court. Through the appeal, appellant challenges the PLCB’s order of March 17, 2010.

On September 17,2010, appellant filed a memorandum in support of its appeal. On the same day, the appellee, the bureau, filed a brief in opposition to the appeal.

Instead of conducting an evidentiary hearing before the court, the parties stipulated to the court’s review based on the factual record developed through the administrative proceedings, including the hearing before the ALJ on September 18, 2009. This is an appropriate procedure. See Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Kelly’s Bar, Inc., 536 Pa. 310, 639 A.2d 440 (1994).)

Findings of Fact

1. Appellant operates a bar located at 1841 South Street, Allentown, Pennsylvania.

2. Appellant holds Pennsylvania liquor license number R-SS-11835; LID 453863.

3. On April 26, 2008, at approximately 9:40 p.m., Richard Stegman, Jr., an enforcement officer employed by the Bureau, entered appellant’s bar in an undercover capacity. N.T., 9/18/09, p. 6.

4. Officer Stegman took a seat at the bar and observed two patrons, a man and a woman, behaving in a loud and obnoxious manner and yelling obscenities at the bartender, identified as Charlie. N.T., 9/18/09, pp. 6-7.

5. The speech of the two patrons was slurred. The man had bloodshot eyes. N.T., 9/18/09, pp. 6-8.

6. The man had in front of him a draft beer and another drink (that was not proven to be alcoholic). He drank from both drinks. The man loudly yelled at the bartender, “Just throw me the f_out of here, throw me the f_out of here. Where’s my f_ing ziti?” N.T., 9/18/09, p. 8.

7. The woman yelled loudly several times at the bartender, “Bend over and let me see that f_ing ass.” N.T., 9/18/09, p. 8.

8. The bartender served each of these two patrons one shot of Goldschlager schnapps which was observed by Officer Stegman. N.T., 9/18/09), pp. 8-9.

9. The male patron seen by Officer Stegman was Jeffrey Bissey and the female patron was Mr. Bissey’s wife.

10. Mr. and Mrs. Bissey arrived at appellant’s bar shortly after 7:00 p.m. and left the premises around 10:15 p.m., N.T., 9/18/09, pp. 17-18.

11. Mr. Bissey admitted to drinking draft beer and a shot of Goldschlager at the appellant’s bar on the night in question. N.T., 9/18/09, p. 21. Althoughhe could not recall the exact number of alcoholic beverages he consumed at the bar that night, Mr. Bissey testified that he “most likely” had more than one shot. N.T., 9/18/09, p. 22. When asked if it was possible that he consumed “four or five or six” shots at the bar that night, Mr. Bissey testified, “I don’t think that many, but I don’t count.” N.T., 9/18/09, p. 22.

12. When asked if he was intoxicated when he left appellant’s bar, Mr. Bissey testified, “No, not too bad that I couldn’t leave.” N.T., 9/18/09, p. 20.

13. In the opinion of Officer Stegman, Mr. and Mrs. Bissey were visibly intoxicated when he saw them inside appellant’s bar.

14. Mr. and Mrs. Bissey were visibly intoxicated when Officer Stegman saw the bartender serve them the alcoholic beverage, Goldschlager.

Discussion and Conclusions of Law

The standard of review for a court of common pleas hearing an appeal from an order of the PLCB is de nova. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina Gloria’s Lounge, Inc., 536 Pa. 254, 259, 639 A.2d 14, 16 (1994).

Thus, the court of common pleas must make its own findings of fact and conclusions of law and may modify or amend the penalty imposed by the PLCB. Id. The commonwealth bears the burden of proving a violation of the Liquor Code by a fair preponderance of the evidence. In re Greensburg Lodge No. 1151, 260 A.2d 500, 501 (Pa. Super. 1969).

Appellant is charged with violating Section 4-493(31) of the Liquor Code, which makes it unlawful for a liquor licensee to permit alcoholic beverages to be sold, furnished or given to a visibly intoxicated person. In Pennsylvania, all people who are intoxicated are not necessarily visibly intoxicated. See Suskey v. Loyal Order of Moose Lodge No. 86, 472 A.2d 663 (Pa. Super. 1984). In order to prove a violation of Section 4-493(1), the Commonwealth must present evidence that a patron was visibly intoxicated at the time he was served alcohol. Couts v. Ghion, 421 A.2d 1184, 1188 (Pa. Super. 1980). Evidence of visible intoxication includes staggering, slurred speech, bloodshot eyes, a strong odor of alcohol or unusual behavior. See Baker v. Township of Lebanon, 512 A.2d 71 (Pa. Cmwlth. 1986); and Cows v. Ghion, 421 A.2d at 1184.

The evidence of record indicates that Officer Stegman observed both Mr. and Mrs. Bissey yelling loudly and obnoxiously, using obscenities and speaking with slurred speech. The officer further observed that Mr. Bissey had bloodshot eyes. These observations support Officer Stegman’s conclusion that both Mr. and Mrs. Bissey were visibly intoxicated. As observed by the Commonwealth Court, evidence of intoxication is a matter of common observation and, therefore, the testimony of a liquor enforcement officer is sufficient to sustain the Commonwealth’s burden of proof in demonstrating visible intoxication. Laukemann v. Pennsylvania Liquor Control Board, 475 A.2d 955, 955-57 (Pa. Cmwlth. 1984). Officer Stegman observed appellant’s bartender, Charlie, furnish alcohol to Mr. and Mrs. Bissey while they were in a visibly intoxicated state. This furnishing of alcohol constitutes a violation of the Liquor Code.

The testimony of Mr. Bissey corroborates Officer Stegman’s conclusion that Mr. Bissey was visibly intoxicated. Mr. Bissey testified that he and his wife arrived at the appellant’s bar shortly after 7:00 p.m., This means that the couple was present at the bar for approximately two and a half hours before Officer Stegman arrived and made his observations. Mr. Bissey admitted that he drank draft beer and a shot of Goldschlager at appellant’s bar. He further testified that he “most likely” had more than one shot of Goldschlager at the bar, but stated that he did not know how many shots he had in total. Mr. Bissey clearly had several drinks. When asked if he was intoxicated when leaving the bar, Mr. Bissey testified, “No, not too bad.” I interpret this as an admission by Mr. Bissey that he was experiencing some level of intoxication. These admissions bolster the observations and conclusion of Officer Stegman that Mr. Bissey was visibly intoxicated when he saw him get the last Goldschlager from the bartender.

I consider and rej ect the defense presented which was to the effect that Mr. and Mrs. Bissey are loud and obnoxious even when they are not drinking. I do not know if that is true, but I am convinced that their unsavory display on April 26 was not just sour personalities at work. Their intoxication accounted for what Officer Stegman witnessed.

In sum, the evidence of record supports the finding that appellant violated the Liquor Code by furnishing alcoholic beverages to visibly intoxicated persons. Thus, the appellant’s appeal is dismissed and the PLCB’s order of March 17, 2010, is affirmed.


author: MILLER, J,

text:
    Itsines v. Jarovits

      C.P. of Monroe County,
    no. 12212 CIVIL 2008.

      George W. Westervelt Jr, for plaintiff.

      Robert and Lynn Jarovits, pro se.
    October 5, 2010
   MILLER, J,

I.FINDINGS OF FACT

1. Plaintiffs, Nicholas and Christina Itsines, are adult individuals residing at 19385 Whitehall Drive, Brookfield, Wisconsin 53045.

2. Defendants, Robert and Lynn Jarovits, are adult individuals residing at 210 NE 211th Street, Miami, Florida 33179.

3. On February 14,1992, plaintiffs leased the premises at HCR 1 Box 25A, Swiftwater, Pennsylvania 18370, to defendants under a residential lease agreement.

4. The lease provided for a term of one year, at a monthly rent of $1,400.00 payable on the 1st day of every month.

5. Defendants entered into possession of the leased premises on March 1, 1992, in accordance with the terms of the lease signed on February 14, 1992.

6.Defendants agreed to rental increases each year through 2008.

7.The rent for the year beginning January 2008 was $1,800 per month.

8.After December 1,2007, defendants ceased paying the rent due under the lease.

Rent owed for January - September 2008

(Nine months @ $1,800 per month) $16,200.00

Balance unpaid rent for December 2007 $800.00

Total rent owed to plaintiffs $ 17,000.00

9. In September 2008 the defendants vacated the leased premises without notice, and without a forwarding address.

10. Paragraph VIII of the lease states that “If the lessee shall hold over after the expiration of the term hereby created, with the consent of the Lessor, it shall be deemed and taken to be a renewal of this Lease, and of all the terms, conditions, covenants and provisos therein contained, for the term of another 6 months and so on from month to month until either party shall give 45 days previous notice to the other of an intention to determine the tenancy at the end of any month.”

11. Paragraph VIII also states that “should lessee quit the lease, lessee will forfeit security deposit.”

12. Defendants damaged the leased premises and otherwise breached the lease by failing to surrender the leased premises in substantially the same condition in which it was leased to defendants, specifically:

(a) rubbish left throughout house including clothing, garbage, and damaged materials;
(b) three garages full of debris;
(c) replace and install front entrance slates;
(d) repair and paint molding on front door;
(e) replace and install exterior door to laundry room;
(f) replace and install garage door;
(g) replace screened in patio door;
(h) replace all window screens;
(i) tighten and realign stair case banister;
Ü) kitchen/laundry room vinyl floor needs to be removed and replaced;
(k) remove and install island stove;
(l) replace dishwasher, microwave oven, refrigerator, washer, dryer, and disposal;
(m) kitchen pantry cabinets need to be replaced and all other cabinets need to be refinished;
(n) large hole in wall to be repaired;
(o) main bathroom - vanity and tiles need to be repaired;
(p) master bathroom - replace main cabinet and remove and replace tile;
(q) all carpeting on 1st and 2nd floors to be removed and replaced;
(r) repair of sub floor due to water damage around bathtub and toilet;
(s) basement - repair bar, replace gas stove, remove and replace all sheet rock and paneling, and replace carpet due to mold.

13. The fair and reasonable cost of repairing and replacing the broken and missing items is $41,426.27.

14. Plaintiffs were prevented from giving defendants written notice of damages within 30 days after surrender of the leased premises as required by 68 Pa. C.S.A. §250.512, because of defendants’ failure to furnish a new address.

15. Page two of the lease agreement specifically states “at the end of the term, tenant must: leave the apartment clean and in good condition, subject to ordinary wear and tear; remove all of the tenant’s property and all tenant’s installations and decorations; repair all damages to the apartment and building caused by moving; and restore the apartment to its condition at the beginning of the term.” The lease further states the “tenant has inspected the apartment and building. Tenant states they are in good order and repair and takes the apartment ‘as is’...”

16. Defendants failed to leave the leased premises in the condition that they took the premises.

17. Plaintiffs’ costs of filing this action was $70.50.

18. Plaintiffs’ costs of service on defendants was $225.

II. CONCLUSIONS OF LAW

1. Defendants, Robert and Lynn Jarovits, were properly served with the complaint at 210 NE 211th Street, Miami, Florida 33179-1125, by Victor Fernando Racek Carias, a duly-appointed Florida process server.

2. Defendants entered their appearance in the current civil action by filing various motions for judgment on the pleadings and summary judgment.

3. Defendants were properly served by the pothonotary with notice of a pretrial conference that occurred S eptember 23, 2010 at 2:00 p.m. Neither defendant appeared for the pretrial conference.

4. Defendants were properly served by the prothonotary with an order dated September 23, 2010, providing notice that non-jury trial of this case would take place October 5, 2010 in Courtroom No. 4 of the Monroe County Courthouse, Stroudsburg, Pennsylvania, beginning at 9:30 a.m. Neither defendant appeared for the non-jury trial.

5. Plaintiffs and defendants entered into a binding lease agreement by which defendants leased from plaintiffs a house located in Pocono Township, Monroe County, Pennsylvania.

6. Defendants breached the lease agreement by failing to pay rent in the amount specified in the findings of fact.

7. Defendants breached the lease agreement by leaving the premises in a damaged and rubbish strewn condition. The fair value of removing the rubbish and returning the premises to pre-lease condition is reflected in the findings of fact.

8. The total amount due from defendants to plaintiffs is $58,426.27 plus interest from the date of verdict.

VERDICT

And now, October 5, 2010, following a non-jury trial, the court finds in favor of plaintiffs, Nicholas and Christina Itsines, and against defendants, Robert and Lynn Jarovits, in the amount of fifty-eight thousand, four hundred twenty-six dollars and twenty-seven cents ($58,426.27), plus interest from the date of this verdict, and plaintiff’s costs for filing and service of two hundred ninety-five dollars and fifty cents ($295.50), for a total of fifty-eight thousand, seven hundred twenty-one dollars and seventy-seven cents ($58,721.77).

Plaintiffs may enter judgment on this verdict by praecipe in accordance with Pennsylvania Rules of Civil Procedure 227.4 (2010).