author: LESKINEN, J.,

text:
    Fayette County Office of Planning, Zoning and Community Development v. Cellurale

      John S. Cupp, for plaintiff.

      David F. Toal, for defendant.
    October 22, 2007
   LESKINEN, J.,

This matter comes before the court on defendant’s preliminary objections. Because there appears to be justifiable confusion about how zoning enforcement should be conducted, the court writes at length to clarify what can and cannot be done.

This case started out with a zoning “enforcement notice” issued by the plaintiff zoning authority, Fayette County. The original claims in the “enforcement notice” were essentially that defendant, Cellurale, (1) maintained “junk” items on his property that were not permitted in a “business” zone, (2) maintained signs that were not permitted, and (3) had erected a privacy fence without a permit. Evidently, Cellurale did not appeal the “enforcement notice” to the zoning hearing board, as was his right.

After the allotted time for corrective action under the “enforcement notice,” Fayette County filed a “civil complaint” with the magisterial district judge. The citation specifically referenced “the two signs,” and indicated that the signs had been removed, but that the “truck bed” (evidently used as part of the signage) still remained. The original civil complaint presented to the magisterial district judge contained no reference to the other violations listed in the “enforcement notice.”

At the hearing, the magisterial district judge found no current violations and dismissed the complaint without prejudice to file a new complaint if violations of the “enforcement notice” recurred.

Fayette County then filed the within appeal of the magisterial district judge’s decision. Fayette County asserts that the magisterial district judge was mistaken, and that the zoning violations were finally established when defendant failed to appeal the “enforcement notice” through the zoning hearing board, leaving the magisterial district judge with no discretion, and no decision to make, other than to impose an appropriate fine. (That argument is correct, but only in part — in order to impose a fine, the magisterial district judge would have to find— as a fact — that the violation continued after the time for curative action in the “enforcement notice” expired. Whether the violations listed in the “enforcement notice” were actual violations or not could not be relitigated before the magisterial district judge, but only before the zoning hearing board.)

On the other hand, counsel for Cellurale asserts that he cured the violations contained in the “enforcement notice” by moving the operable farm equipment onto his “agricultural” zoned land (where he asserts it is permitted under the ordinance), by removing all inoperable “junk” equipment, by removing the unpermitted signs, and by obtaining a permit for the fence — and that the magisterial district judge properly found no continuing violations at the time of the hearing. (The record does not establish whether or not the “truck bed” referenced in the civil complaint was removed or not, and in light of the court’s disposition below, that finding was for the magisterial district judge alone to make.)

The preliminary objections filed by counsel for Cellurale assert that the zoning ordinance as authorized by the Municipalities Planning Code (MPC) does not allow the plaintiff county to appeal an adverse decision in a civil zoning enforcement action brought before the magisterial district judge. Cellurale’s preliminary objection is essentially that an appeal by the zoning authority is not allowed under the law, and the only appeal allowed is an appeal by the landowner against a decision made in favor of the zoning authority.

To understand why this is a legitimate argument requires some knowledge of the origins of zoning law. Zoning law is relatively recent, in existence in this country for less than a century. Zoning was first introduced in crowded American cities because of the clear dangers of fire, contaminated water, inadequate sewage, stench and disease.

“Zoning at first was considered one of the most radical departures from the traditional concepts of private property because it was perceived as prohibiting a citizen from devoting his property to a purpose useful and entirely harmless, in the ordinary sense, in certain districts in a community.” The Law of Zoning and Planning, Rathkopf, 4th ed., vol. I., pp. 1-10.

The United States Supreme Court held zoning to be a valid exercise of a state’s constitutional “police power” in the landmark case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). That decision justified zoning, in part, on the basis of the existing “law of nuisances,” and the court stated:

“A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities____Thus, the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality, (citation omitted) A nuisance may be merely the right thing in the wrong place — like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” 272 U.S. at 387-388. (emphasis supplied) (The Law of Zoning and Planning, Rathkopf, 4th ed., vol. I., pp. 1-10.).

Subsequently, the use of zoning expanded across the nation, and the proper subjects of zoning regulation expanded as well. As noted by Rathkopf:

“This further expansion in the lawful scope of the police power, in the context of land use regulation, is marked by the statement of the Supreme Court in the frequently cited case Berman v. Parker (citation omitted) (1954) that: ‘The concept of the public welfare is broad and inconclusive.... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.’ The statement of the court in Village of Belle Terre v. Borras (citation omitted) (1974), also reflects that: ‘The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values and the blessings of quiet, seclusion and clean air make the area a sanctuary for people,’ and to establish a ‘quiet place, where yards are wide, people few, and motor vehicles restricted.’” Rathlcopf, supra, atpp. 1-12.

Zoning was intended to be inflexible (and therefore immune from political influence), with the permitted uses of a property finally determined by the specific “zone” in which it is situated. Unfortunately, it is impossible to remove politics from zoning — any time public officials have the power to control the use of private property, politics are inevitably part of the process. As a result, there remains a substantial minority position that believes that any zoning is an unreasonable restriction on the rights of private property owners.

In fact, significant areas of the country (including the city of Houston, Texas) have no zoning, and landowners there can still do anything they want on their own property, so long as it is otherwise legal. In such areas, the only way to restrict the use of property is to buy the property.

Just as “zoning” is a relatively recent legal development throughout the country, zoning has only existed in Fayette County for less than 50 years. Many “conflicting” uses that were already legally in place when the zoning ordinance was passed or amended are still “conflicting” uses, and the zoning ordinance cannot outlaw uses that were legal when the ordinance was enacted (or amended). Outlawing an existing lawful land use would be a violation of the constitutional prohibition against “ex post facto” laws. Such pre-existing lawful uses are known in zoning law as “non-conforming uses.” The name is deceptive, because the landowner has the absolute right to continue (and reasonably expand) the legal “non-conforming use” despite the provisions of a subsequent zoning ordinance or amendment.

“Non-conforming uses” are supposed to be registered under the zoning ordinance, to avoid disputes later as to whether or not it was actually a legal pre-existing use. However, in actual practice, many such uses were never registered. The failure to register a non-conforming use was generally not charged as a violation because the zoning enforcement officers knew which properties had legal pre-existing uses; and a short-staffed office only had time to process obvious violations of the ordinance. (Registration itself is suspect as an “ex post facto” law.) As time went on, however; between gradual changes (and expansions) in the use of a property, and successive amendments to the zoning ordinance (Fayette County’s Zoning Ordinance has been amended at least 31 times since 1963); it gets to the point where no one really knows whether a particular use is a legal “non-conforming use” or a violation of the ordinance.

In the instant case, it appears that defendant operated an auto body shop for many years in an area not zoned for such use. After the conflict was noticed, much of defendant’s property was rezoned. It appears that the rezoning may have occurred precisely because the auto body use had been in place for so many years. Could it have been a legal non-conforming use that just was never registered? In any event, the rezoning was challenged in court and upheld. The rezoning is beyond challenge now, just as the violations set forth in the “enforcement notice” are beyond challenge now.

Zoning law has developed a torturously intricate system for enforcement. Overall, the system is designed to give everyone involved notice and an opportunity to be heard (the hallmarks of constitutional “due process”) before punitive action can be taken. That is one of the reasons that section 616.1 of the MPC, 53 P.S. §10616.1, requires the issuance of an “enforcement notice” with an opportunity to contest the violation, and an opportunity to cure the violation, before a civil complaint can be filed.

Because zoning was an exercise of the “police power,” it was natural to think that zoning law enforcement would be similar to enforcement of criminal laws. As a result, zoning violations were originally prosecuted as summary criminal offenses. As summary cases, the district justices had primary jurisdiction. Violations were punishable by up to 60 days in jail. As criminal cases, a verdict of “not guilty” was final, while a defendant could appeal a “guilty” verdict to the court of common pleas.

Prosecution of zoning violations as summary criminal offenses created problems, however. The burden of proof was “beyond a reasonable doubt,” and the defendant had a whole panoply of criminal constitutional rights that did not seem to be appropriate in the context of societal control of the use of private property, especially where defendants rarely, if ever, went to jail anyway. (Parties to civil proceedings who disobey court orders can be sent to jail as a sanction for contempt, so criminal proceedings were not necessary even for that reason.)

As a result, the Pennsylvania Legislature amended the MPC on December 21,1988, and converted enforcement proceedings from criminal proceedings to civil proceedings. Nevertheless, because zoning violations had always been criminal, and there were no other existing procedures for the district judges to follow, the appellate courts ruled that civil zoning enforcement actions should continue to follow criminal procedures.

“Under section 617.2 of the MPC, added by section 62 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10617.2, a zoning enforcement proceeding is now civil rather than criminal. However, the defendants in such proceeding are afforded the same protection as the criminal defendants under the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Harchelroad, 154 Pa. Commw. 259, 623 A.2d 878 (1993), appeal denied, 535 Pa. 649, 633 A.2d 153 (1993).” Commonwealth v. Marcus, 690 A.2d 842, 845 n.5 (Pa. Commw. 1997).

While the appellate courts have more recently recognized that criminal procedures are not necessary when a defendant cannot be sentenced to jail, Township of Penn v. Seymour, 708 A.2d 861 (Pa. Commw. 1998), the actual procedures used have been slow to change.

The above history shows why zoning enforcement proceedings — being of mixed parentage — can euphemistically be described as a “hybrid” between civil and criminal. This is the reason that Fayette County and Cellurale, the plaintiff and the defendant in this case, have some understandable confusion as to the procedures to follow. Civil cases can normally be appealed by either party, while summary criminal convictions can only be appealed by the defendant.

The specific question presented to the court by the parties is whether the zoning authority (Fayette County) can file an appeal to the court of common pleas after the magisterial district judge in a civil zoning enforcement action has found the defendant “not liable” for an alleged violation. (In the context of a civil enforcement proceeding, the use of the phrase “not guilty” is an obsolete historical artifact.) This court finds that the answer to that question is “no.”

The reason the zoning authority (Fayette County) cannot appeal the adverse decision ofthe magisterial district judge is not because ofthe “double jeopardy” protections of the Pennsylvania and United States Constitutions. Defendants in civil zoning enforcement actions are not entitled to any such protection against successive civil prosecutions for continuing or new violations.

In fact, the zoning authority has multiple options to enforce the zoning ordinance — it can proceed by a summary zoning enforcement action before the magisterial district judge pursuant to section617.2 ofthe MPC, or— the zoning authority can obtain injunctive relief subject to the contempt powers of the common pleas court pursuant to section 617 of the MPC. It would appear that summary zoning enforcement actions before the magisterial district judge would be preferable in a relatively simple less-contested case, while an injunction action might be advantageous in a more complicated, more-contested case. Both methods can be used to address the same violations, and an injunction can be revisited with new contempt sanctions any number of times. Either way, it is clear that “double jeopardy” protections simply cannot apply.

The reason the zoning authority cannot appeal a “not liable” verdict from the magisterial district judge is set forth in the clear, unequivocal language ofthe statute:

“Section 617.2(a) (53 P.S.§10617.2(a))
“No judgment shall commence or be imposed, levied or payable until the date of the determination ofa viola tion by the district justice [now ‘magisterial district judge’].”

There is no language in that statute providing for the court of common pleas to make an initial determination of a violation. (The court of common pleas has the power to “grant an order of stay, upon cause shown, tolling the per diem fine” under section 617.2(b) (53 P.S. §10617.2(b), but that is only after the magisterial district judge first finds a violation.) It may be true that the genesis of this provision lies in the obsolete criminal roots of zoning enforcement, and that the existing provision is the result of a legislative “error.” Nevertheless, the court of common pleas only has the power to act (in zoning matters) where the legislature has granted that power. Enforcement proceedings, as opposed to injunction proceedings, have clearly been assigned to the minor judiciary.

It may also be instructive to note that counsel for Fayette County was unable to find even a single precedent where a zoning authority anywhere in Pennsylvania was permitted to appeal an adverse decision of the magisterial district judge. The fact that there are no reported cases where a zoning authority appeal has been permitted in more than 18 years (since enforcement was converted to civil) is strong evidence that the law does not allow it to be done.

In addition, the complaint filed in support of the “appeal” attempts to raise an issue — the presence of “junk” on the agricultural portion of the property — that was not raised in the civil complaint filed with the magisterial district judge. Under the clear language of the above-cited statute, Fayette County cannot introduce issues in the common pleas court that were not first found to be violations by the magisterial district judge.

It is evident from the verdict below that the magisterial district judge believed that the sign violation contained in the civil complaint presented to him had been properly cured within the time allotted in the “enforcement notice.” There is absolutely no authority in the MPC that would allow this court to overrule that factual determination, even in the presence of strong evidence to the contrary. (On the other hand, if the magisterial district judge found a violation, this court would have authority to review the factual determinations.) Even if this is a legislative “error,” the common pleas court simply cannot act where the legislature has not delegated that power.

That does not prevent the zoning authority from filing new civil complaints if the zoning enforcement officers believe that there are new or continuing violations. The magisterial district judge’s decision of “no violation” is final for alleged violations occurring up to the date the initial civil complaint was filed, but each subsequent day that a violation continues can be the subject of a new complaint. Moreover, as noted above, if the case is more complicated, an injunction proceeding under section 617,53 P.S. §10617, directed directly to the common pleas court may be the most efficient method of resolving any continuing conflicts. (The magisterial district judge can only impose a $500 per day fine, but the common pleas court can put a defendant who deliberately violates an injunction in jail for contempt until the violation is cured.)

In any event, as noted above, there is no statutory basis for this court to act on Fayette County’s “appeal” at this time. Therefore, this court enters the following:

ORDER

And now, October 22, 2007, the preliminary objections filed by the defendant are hereby granted. Plaintiff’s appeal is hereby denied and dismissed without prejudice.


source: Caselaw Access Project

author: SPRECHER, J.,

license: Public Domain

text:
    Ziegler v. James Decrescenso Reporting Inc.

      William F. Ochs, for appellant.

      Amanda D. Saslow, for appellee.
    September 11, 2007
   SPRECHER, J.,

Appellant, Alan B. Ziegler, Esquire, appeals from this court’s order of May 21, 2007 granting the preliminary objections of appellee, James Decrescenso Reporting LLC.

Appellant was sued in Philadelphia Municipal Court by appellee for alleged non-payment of court reporting fees generated in Philadelphia, Pennsylvania and the Philadelphia area. Neither party appealed. Subsequently, appellant filed a complaint in Berks County Magisterial District Court alleging the Philadelphia action filed by appellee was malicious and an abuse of civil process. The case before this court is his appeal from judgment entered by the magisterial district judge.

FACTS

Appellant Ziegler commenced this matter on March 12, 2007 by filing a notice of appeal with the Berks County Prothonotary. On March 27, 2007, appellant filed a complaint in this matter. Appellee filed preliminary objections to appellant’s complaint on April 18, 2007. On April 24, 2007, appellant filed preliminary objections to appellee’s preliminary objections to appellant’s complaint (second set) and a praecipe for argument, requesting an argument court date of May 21, 2007.

On April 26,2007, this court entered an order, submitted by appellee pursuant to B.R.C.P. 1028(c)(2)(a), in response to appellee’s preliminary objections. On May 11, 2007, appellant filed “objections to and answers to defendant’s (appellee’s) preliminary objections to plaintiff’s (appellant’s) complaint.”

This court heard oral argument in the instant matter on May 21, 2007 and, following argument, entered an order sustaining appellee’s preliminary objections and dismissing appellant’s complaint with prejudice. Appellant appeals this order.

ISSUES

Appellant’s concise statement of errors complained of on appeal raises four issues:

(1) The lower court erred in failing to rule on “preliminary objections to defendant’s preliminary objection to plaintiff’s complaint.”

(2) Assuming that the lower court for some reason would deny “preliminary objections to defendant’s preliminary objection to plaintiff’s complaint,” the lower court erred in failing to follow the Berks County Rules of Court including but not limited to Berks County Rule 211.1, 211.2, 211.3, 211.4 and 211.7 in not permitting appellant to file a responsive brief to appellee’s preliminary objections and to have oral argument on “defendant’s (appellee’s) preliminary objections to plaintiff’s (appellant’s) complaint.

(3) The lower court erred in sustaining the “defendant’s (appellee’s) preliminary objections to plaintiff’s (appellant’s) complaint” with prejudice.

(4) The lower court abused its discretion in failing to grant appellant an opportunity to amend his complaint rather than dismissing his complaint with prejudice.

DISCUSSION

Issue 1

Appellant first claims this court committed error by failing to rule on his second set of preliminary objections. This court disagrees and asks the Superior Court to deny appellant’s claim.

This court ruled on appellant’s second set of preliminary objections when it sustained appellee’s preliminary objections, thereby overruling appellant’s preliminary objections. After hearing oral argument on appellant’s second set of preliminary objections, it was determined that they were without merit. Appellant’s sole objection was that appellee’s preliminary objections, filed on April 18, 2007, were not timely filed because they were not filed within 20 days of when appellant filed his complaint on March 27,2007. However, Pa.R.C.P. 1026(a) provides that “every pleading subsequent to the complaint shall be filed within 20 days after service of the preceding pleading.” (emphasis added) Appellant’s complaint was served on March 30, 2007. Thus, as a cursory reading of the statute reveals, appellee timely filed its preliminary objections when it did so on April 18, 2007.

After determining appellant’s preliminary objections were without merit, this court “proceeded] with the consideration and disposition of the first set of preliminary objections... immediately after the conclusion of argument of the second set of preliminary objections.” B.R.C.P. 1028(c)(8). This court chose to dispose of appellant’s second set of preliminary objections by sustaining appellee’s preliminary objections and dismissing appellant’s complaint with prejudice. This court thus did not err by failing to rule on appellant’s preliminary objections and asks the Superior Court to deny appellant’s claim.

Issue 2

Appellant’s second claim on appeal is that this court erred in failing to follow the Berks County Argument Court rules, including but not limited to B.R.C.P. 211.1, 211.2, 211.3, 211.4 and 211.7, in not permitting appellant to file a responsive brief to appellee’s preliminary objections or to have oral argument on these objections.

Initially, this court notes that responsibility for following these rules does not rest with this court. Instead this responsibility lies with the parties to an action. With the exception of cases where a court specially orders a case for argument under B.R.C.P. 211.2(f), which was not done in this case, enforcement of the parties’ compliance with the rules for argument court rests primarily with the Berks County Prothonotary and Berks County Court Administrator. B.R.C.P. 211.2(h); 211.5(b). After appellant filed a praecipe for argument requesting argument be held on May 21, 2007, the Berks County Prothonotary placed appellant’s second set of preliminary objections on the argument list for that date. Appellant appeared and argued on May 21,2007. Accordingly, Berks County Argument Court rules were followed in this case.

Appellant claims this court did not permit him to file a responsive brief to defendant’s preliminary objections. In fact, this court ordered appellant to do so. On April 26, 2007, this court entered an order, pursuant to B.R.C.P. 1028(c)(2)(a), which provided that if appellant opposed appellee’s preliminary objections, he “shall file with the prothonotary an original and one copy of a brief of argument... no longer than 20 days after the dates listed on the proof of service accompanying the brief of the party which filed the preliminary objections.” Appellee served its brief on April 17,2007, thus appellant had until May 7,2007 to file a brief. Appellant failed to do so. The order of April 26, 2007 further provided that the party which filed the preliminary objections (appellee) “shall serve notice of the entry of this order . . . upon all counsel ... no later than two business days after receiving a copy of this order.” Appellee served a copy of the order upon appellant’s counsel on May 1, 2007. Appellant thus had six days to either comply with the order or request an extension of time for filing his brief under B.R.C.R 211.5. Appellant chose to do neither. In light of these facts, this court did not, in any way, prevent appellant from having an opportunity to file a brief responding to appellee’s preliminary objections.

Appellant further alleges that this court did not permit appellant to have oral argument on appellee’s preliminary objections to his complaint. This is simply not the case. B.R.C.R 1028(c)(8) provides that where a second set of preliminary objections have been filed, argument on the first set of preliminary objections will be held on the same date as argument for the second set. Appellant filed a praecipe for argument on April 24, 2007, which requested an argument court date of May 21, 2007. In the April 26, 2007 order, this court set argument on appellee’s preliminary objections for May 21,2007. Because this court hears many such arguments and because these arguments are generally not on the record, this court is unable to recall whether appellant actually argued against appellee’s preliminary objections. However, this court believes that it dealt with arguments regarding both parties’ preliminary objections on May 21, 2007 and that both parties had ample opportunity to argue and did so.

Issues 3 and 4

Appellant’s third and fourth issues are related and will be considered together. In his third issue appellant alleges that this court erred in sustaining the appellee’s preliminary objections to his complaint with prejudice. Appellant’s final error complained of is that this court abused its discretion in failing to grant appellant an opportunity to amend his complaint rather than dismissing it with prejudice.

This court sustained appellee’s preliminary objections because appellant’s complaint is legally insufficient. See Pa.R.C.P. 1028(a)(6). Appellant’s first claim in his complaint is apparently that by simply bringing an action, appellee committed the tort of wrongful use of civil proceedings. A person is liable for this tort if he participates “in the procurement, initiation, or continuation of civil proceedings” and acts:

“(1) in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing ... adjudication of the claim in which the proceeding is based; and
“(2) the proceedings have terminated in favor of the person against whom they are brought.” 42 Pa.C.S. §8351(a).

In support of this claim, appellant alleges appellee was grossly negligent in bringing its suit against him in Philadelphia Municipal Court. Gross negligence is defined as “the want of even scant care.” Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 704 (Pa. Super. 2000). However, appellant fails to allege any facts that support gross negligence.

Appellant brought this action in the Court of Common Pleas of Berks County on March 27,2007. In that action, appellee sued to collect a debt for a contract entered into for appellant’s purchase of copies of the notes of testimony of depositions. (See appellant’s complaint, at 7-9.) It is obvious to this court that appellant entered into the contract by ordering the transcripts. Although appellant claims he was not assuming the debt of his client, nowhere in his complaint does appellant claim that his client actually entered into the contract in his place. The common practice for ordering transcripts is for the attorney to enter into the contract by either advancing the costs of deposition for his client and collecting later, or collecting the costs from his client in advance of or contemporaneously with his entering into the contract. There would be no reason for the client himself to order a transcript unless he was proceeding pro se. Appellant further pleads that appellee was hired for stenographic services by opposing counsel in the underlying worker’s compensation case. (See appellant’s brief, at 6.) This allegation gives full support to appellee’s claim that the transcription services were performed in the worker’s compensation case and that if appellant wanted to prepare properly in that case he would have to order a transcription of the record from appellee. Accordingly, there is nothing approaching gross negligence in this case.

Also in support of his apparent wrongful use claim, appellant alleges that appellee acted without probable cause in bringing suit. A person has probable cause and is thus not liable for wrongful use of civil proceedings if the person:

“(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
“(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
“(3) Believes as an attorney of record, in good faith that his procurement, initiation, or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.” 42 Pa.C.S. §8352.

Appellant has not pled sufficient facts to support his allegation that defendant did not have probable cause to bring the action in Philadelphia Municipal Court. It appears that appellee had a reasonable belief that the suit for non-payment was a valid claim and thus brought suit for legitimate purposes. Appellant does not and apparently cannot support a wrongful use of civil proceedings claim.

Appellant has also failed to plead sufficient facts to support the required wrongful use element that appellee’s suit was for any purpose other than the adjudication of its claim for monies due for the court transcription services it provided. Pa.R.C.P. 8351(a).

Furthermore, for appellant to be successful in this claim he must show that the proceedings have “terminated in favor of the person against whom they are brought.” 42 Pa.C.S. §8351(a). Appellant failed to attach any writing supporting his claim that the action in Philadelphia Municipal Court terminated in his favor. See Pa.R.C.P. 1019(1). Accordingly, his claim fails to conform to “law or rule of court.” Pa.R.C.P. 1028(a)(2). For these reasons, appellant’s claims regarding any wrongful use claim are legally insufficient. See Pa.R.C.P. 1028(a)(4).

Due to the vagueness of appellant’s complaint, he may also be alleging that appellee committed the common-law tort of abuse of process. To establish a claim for abuse of process, it must be shown that a defendant has “(1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff.” Cruz v. Princeton Insurance Company, 925 A.2d 853, 856 (Pa. Super. 2007) (quoting Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002)). As noted above in regard to wrongful use of civil proceedings, appellant has not alleged any facts showing that appellee brought suit for any reason other than for remuneration of monies to which appellee was entitled. Accordingly, any claim of appellant’s based upon a legal theory of common-law abuse of process is also legally insufficient.

Likewise, in his complaint, appellant claims he is entitled to punitive damages. However, appellant fails to even allege outrageous behavior, a required element to support an action for punitive damages, and any facts showing he is entitled to punitive damages. Pestco Inc. v. Associated Products Inc., 880 A.2d 700, 709 (Pa. Super. 2005). This claim then too is legally insufficient.

Even if appellant’s complaint was legally sufficient it is wanting of specificity in many areas. See Pa.R.C.P. 1028(a)(3). As appellee’s preliminary objections detail, appellant’s complaint fails to set forth any allegations of fact that form the basis of his claims that appellee acted in a grossly negligent manner, acted without probable cause, and/or acted primarily for a purpose other than adjudication of the underlying claim. Appellant also does not allege facts or law in support of his claim for costs of suit and interest. (See defendant’s preliminary objections to plaintiff’s complaint, ¶42.)

Due to these compounded inadequacies, this court sustained appellee’s preliminary objections and dismissed appellant’s complaint with prejudice.

This court finds it troubling that appellant, who is an attorney, surrendered to the jurisdiction of Philadelphia County for an action filed in Philadelphia Municipal Court and then, for some reason, filed his claim for malicious prosecution/abuse of civil process before a magisterial district judge in Berks County. Having lost in this matter, appellant then filed an appeal in the Court of Common Pleas of Berks County. Appellee’s affidavit of April 17,2007 supports appellee’s claim that the underlying cause of action, the three depositions, occurred in Philadelphia and Montgomery Counties, not in Berks County. This court questions which party is actually wrongfully using or abusing civil process and the court system: One who sues to collect for services rendered for transcription services provided or one who voluntarily submitted to the jurisdiction of Philadelphia County and then files an alleged related action before a district judge in Berks County, his home county. It’s certainly very inconvenient and expensive for appellee to travel to Berks County to defend this action. Obviously appellant picked his home county to file this action because of the convenience of walking down the street to the Berks County Courthouse to prosecute his claim.

In his final claim on appeal, appellant alleges this court abused its discretion in failing to grant him the opportunity to amend his complaint. A court abuses its discretion only if “it misapplies the law, exercises its discretion in a manner lacking reason, or does not follow legal procedure.” Continental Casualty Co. v. Pro Machine, 916 A.2d 1111, 1116 (Pa. Super. 2007).

After appellee filed preliminary objections, appellant had the right to correct any errors in his complaint that appellee had identified by filing an amended complaint. Pa.R.C.P. 1028(c)(1). Appellant chose not to do so. This court was under no obligation to allow appellant to submit an amended complaint. For the reasons stated, this court believes the proper resolution of a frivolous lawsuit is dismissal with prejudice.

In conclusion, appellant’s complaint is without merit, legally insufficient, lacking sufficient specificity, and fails to conform to a rule of law or court. As such, appellant’s complaint had “no basis in law or fact,” and was thus frivolous. Menna v. St. Agnes Medical Center, 456 Pa. Super. 301, 310, 690 A.2d 299, 304 (1997). (citation omitted) This court believes it did not abuse its discretion by sustaining appellee’s preliminary objections and dismissing appellant’s complaint with prejudice.

For the foregoing reasons, this court respectfully requests that the Superior Court deny appellant’s appeal and affirm this court’s order of May 21, 2007.

      . This court had not yet received appellant’s second set of preliminary objections, filed on April 24, 2007.

      . Appellant acknowledged receiving this order on May 1, 2007. See appellant’s “objections to and answers to defendant’s preliminary objections to plaintiff’s complaint,” at 1.

      . The order provided for argument on appellee’s preliminary objections “on an argument court date next following the expiration of 24 days from the date of such filing.” This filing was on April 17, 2007 and the next available argument court date following the expiration of 24 days was May 21,2007.

      . This is apparently appellant’s claim as he claims appellee committed elements of this oifense without stating a specific cause of action or citing any statute or case law.


author: PANEPINTO, J.,

text:
    In re Hamilton

      Judicial Conduct Board, no. 2 JD 2006.
    BEFORE: CAPOFERRI, P.J., PANEPINTO, SPRAGUE, O’TOOLE, LAMB, MUSMANNO, STREIB AND BUCCI, JJ.
    June 13, 2007
   PANEPINTO, J.,

I. INTRODUCTION

The Judicial Conduct Board filed a complaint with this court on November 2, 2006 against Magisterial District Judge Maynard A. Hamilton (respondent) consisting of two counts which charge that the respondent:

(1) Violated Article V, Section 18(d)(1) of the Pennsylvania Constitution by engaging in conduct which brings the judicial office into disrepute (Count 1).

(2) Violated Rule 2(A) of the Rules Governing Standards of Conduct of Magisterial District Judges (Count 2).

By order dated January 26,2007, this court dismissed Count 2.

The board and the respondent have submitted stipulations of fact in lieu of trial under C.J.D.R.P. no. 502(D) (1) and a waiver of trial. The court hereby accepts those stipulations of fact in pertinent part, recited below, as the facts necessary for the disposition of this case.

II. FINDINGS OF FACT

(1) This action is taken pursuant to the authority of the board under Article V, Section 18 of the Constitution of the Commonwealth of Pennsylvania and Judicial Conduct Board Rule of Procedure 31(A)(3), promulgated by the Pennsylvania Supreme Court on March 20,1995 (amended 1996) which granted authority to the board to determine whether there is probable cause to file formal charges, and when it concludes that probable cause exists, to file formal charges against a judicial officer for proscribed conduct and to present the case in support of such charges before the Court of Judicial Discipline.

(2) Since on or about January 4,1988, and at all times relevant hereto, the respondent has served as a district justice and, as renamed, a magisterial district judge of Magisterial District 02-3-03, Lancaster County, Pennsylvania, encompassing the Townships of Pequea, Strasburg, and West Lampeter; and the Borough of Strasburg, with an office located at 324 Beaver Valley Pike, Willow Street, Pennsylvania 17584. As a district justice and a magisterial district judge, he was subject to all the duties and responsibilities imposed on him by the Rules Governing Standards of Conduct of District Justices and the recently renamed Rules Governing Standards of Conduct of Magisterial District Judges. The respondent is charged with violating his judicial duties as set forth in the following paragraphs.

(3) On or about June 8, 2006, Sergeant Robert Buser of the Southern Regional Police Department came to respondent’s office to drop off citations and respondent asked Sergeant Buser for a year’s schedule of work rosters from the Southern Regional Police Department. Sergeant Buser informed respondent that he could provide three months but not a year’s worth of assignments. Respondent became angry and argued with Sergeant Buser for several minutes. Sergeant Buser then left respondent’s office.

(4) On or about June 9, 2006, Sergeant Buser got another, fourth month’s roster prepared and brought the roster to respondent’s office. He also put a check for $ 15 0 in respondent’s office for a golf trip in July.

(5) On June 10,2006, Sergeant Buser went to the Cross Gates Golf Course, a public facility, to attend a birthday party that was being thrown for a friend, in one of the open, covered pavilions.

(6) At or about 5 p.m., respondent and his wife, Doris, were standing in the adjacent pavilion near the bar area.

(7) At approximately 6:30 p.m., Sergeant Buser observed respondent seated at a table, got his attention, and asked if respondent received his “golfing trip” check. Respondent nodded yes.

(8) With numerous people in the vicinity, several moments later, respondent walked toward Sergeant Buser, who extended his hand in greeting. Without legal provocation, respondent stated, “I have had enough of your shit. I am not going to take anymore.” Respondent then said, “Let’s go downstairs and take care of this man-to-man. I’m gonna kick your ass.”

(9) Sergeant Buser followed respondent. Respondent kept asking Sergeant Buser to take off his glasses. Sergeant Buser stated that he simply wanted to talk, had no intention of fighting with respondent, and that he was not going to take off his glasses.

(10) When respondent and Sergeant Buser got to the lower landing, respondent physically confronted Sergeant Buser by moving toward him, butting his chest against Sergeant Buser. Respondent then punched Sergeant Buser on the left side of his face, knocking his glasses off which broke as they hit the steps.

(11) Sergeant Buser then picked up his glasses and told respondent that he would have to pay for the glasses and that he was going to call the cops. Respondent replied that this was a mutual fight and it would not do any good to call the cops. Respondent then punched Sergeant Buser again on the left temple, knocking him down onto the concrete floor, and walked away.

(11.1) At no time did Sergeant Buser punch respondent.

(12) Respondent then went upstairs and told Sergeant Buser’s wife that she could “Go pick your piece of shit husband up off the floor.”

(13) Respondent refused to speak to law enforcement officers about the incident.

(14) Respondent subsequently met with Sergeant Buser and his wife and apologized for his conduct. Respondent agreed to pay any costs incurred.

(15) During the week of June 12, 2006, respondent and his wife met with Sergeant Buser and his wife and apologized to them at that time.

(17) The Lancaster County District Attorney’s Office conducted an investigation of the incident and concluded: “there would be probable cause to charge Judge Hamilton with simple assault.”

(18) The Lancaster County District Attorney’s Office did not file criminal charges against respondent because Sergeant Buser informed investigators that for personal reasons he did not wish to pursue a criminal investigation. Also, the Cross Gates Golf Club did not wish to see charges filed on behalf of the club for any disruption caused.

(19) This altercation, occurring in a public place, received media publicity in and around the area of Magisterial District 02-3-03, including articles and letters to the editor in the Sunday News, and/or the Lancaster Intelligencer. These newspapers alone, as media outlets, have tens of thousands of subscribers.

III. DISCUSSION

The board has charged that the conduct described in the findings of fact is conduct which brings the judicial office into disrepute. The Pennsylvania Constitution, at Article V, Section 18(d)(1), provides that a judicial officer whose conduct brings the judicial office into disrepute is subject to discipline imposed by this Court.

On numerous occasions, this court has considered conduct which the board has charged as being such that brought the judicial office into disrepute.

In In re Smith, 687 A.2d 1229, 1239 (Pa.Ct.Jud.Disc. 1996), this court noted that the conduct of a judge which results in diminishment of the public esteem for that judge, may not support the conclusion that the conduct has brought the judiciaiy as a whole into disrepute, absent a persuasive showing by the board that the conduct is so extreme as to have brought the judicial office itself into disrepute. In In re Cicchetti, 697 A.2d 297, 312 (Pa. Ct.Jud.Disc. 1997), this court reiterated that notion as it concluded that a judge’s conduct in making persistent sexual advances towards a subordinate employee, who repeatedly rejected the advances, constituted conduct of such an extreme nature that the judicial officer had brought the judicial office itself into disrepute.

In In re Trkula, 699 A.2d 3 (Pa.CtJud.Disc. 1997), we held that an overt, ex parte attempt by a judicial officer to influence the outcome of a case on appeal from her court was a subversion of the appellate process and would “assuredly dash public confidence in [the adjudicatory system] and in the judicial office itself.” Id. at 8. See also, In re Joyce, 712 A.2d 834, 844 (Pa.Ct.Jud.Disc. 1998).

In Cicchetti, 697 A.2d at 312, this court noted that:

“The determination of whether particular conduct has brought the judicial office into disrepute, of necessity, is a determination which must be made on a case-by-case basis as the particular conduct in each case is scrutinized and weighed.”

In this case the stipulated facts establish that, in a very public place, respondent, in a very public way, “without legal provocation” challenged Sergeant Buser to fight him, contemporaneously advising that he had “had enough of [Buser’s] shit” and that he was “gonna kick [Buser’s] ass.”

In this case the stipulated facts establish that Buser followed respondent advising that he simply wanted to talk and had no intention of fighting with respondent.

The stipulated facts establish that respondent first “chested” Buser and then punched him twice in the face knocking him down and breaking his glasses, and, further, that at no time did Buser punch respondent.

The stipulated facts establish that respondent returned to the pavilion where the party was being held, sought out Buser’s wife, and told her she could “Go pick [her] piece of shit husband up off the floor.”

The stipulated facts establish that respondent refused to speak with law enforcement officers about the incident, and that he did apologize to Buser and his wife five days later.

The stipulated facts establish that the incident gave rise to a criminal investigation by the Lancaster County District Attorney’s Office and that no charges were filed. Sergeant Buser did not wish to pursue the matter and Cross Gates Golf Club was interested in having no more publicity that such pugilistic adventures were taking place on its premises.

In Smith, 687 A.2d at 1239 we said that:

“ ‘Disrepute’ necessarily incorporates some standard with regard to the reasonable expectations of the public of a judicial officer’s conduct.”

We believe that the reasonable expectations of the public would include the expectation that a member of the judiciary, elected, as he is, to enforce the laws, would not violate them — and do so on a public stage. We believe that the reasonable expectations of the public would include the expectation that a judicial officer will not act lawlessly by provoking a fistfight in the midst of a party being held at a local golf club and then commit assault and battery on a member of the local community.

The scene is a singular one: here is a judge announcing at this party to another guest that he had “had enough of your shit” and “I’m going to kick your ass” and then proceeding to physically and violently attack the other guest. All this was done, it is stipulated, without any “legal” provocation, which, put in the vernacular, means that there was no threat to respondent, actual or reasonably perceived, such that could have justified the attack.

We agree with the board that in physically assaulting an off-duty police officer and verbally abusing the officer’s wife, the respondent failed to exercise even a modicum of the sensitivity or self control so vital to the demands of his judicial position.

We have no difficulty finding that this conduct of respondent was so extreme as to qualify as conduct proscribed by the constitution as that which brings the judicial office into disrepute. See e.g., In re McCarthy, 828 A.2d 25, 29 (Pa.Ct.Jud.Disc. 2003). The reasonable expectations of the public certainly include the expectation that its judges will act with good judgment, with a modicum of dignity, and with respect for all. The stipulated facts describe conduct antithetical to those expectations.

We turn now to address, separately, the stipulated facts set out in finding of fact no. 12, i.e., that after the attack on Sergeant Buser, respondent returned to the pavilion and told Sergeant Buser’s wife that she could “Go pick [her] piece of shit husband off the floor.”

It would be hard to invent a remark which could have been more poignantly and maliciously designed to offend and humiliate this woman — and which could have had no other purpose, thoroughly gratuitous as it was. Such conduct is so extreme — so extremely injudicious and malevolent as to bring dishonor, disesteem and disrepute to the office he holds, and, as such, is proscribed by the constitution.

In In re Smith, this court identified the footing upon which judicial authority rests. There we said:

“The judicial function can only be performed when the public accedes to its authority. The preservation of the authority of the office requires that judges conduct themselves so that public confidence in the judiciary is undiminished, and that judicial authority is therefore maintained.” 687 A.2d at 1238.

Respect for the authority of judges can only be sustained so long as the public “accedes” to that authority, Smith, supra, and the public will accede to that authority so long as it views the judges as possessed of good judgment, regard for the law, knowledge of and respect for decency, and sensitivity for the concerns of those who may come into their courts expecting evenhanded treatment. If this is the case, then the public will expect the likelihood of justice at the hands of their judges and will accede to judicial authority. On the other hand, if a judicial officer conducts himself — on or off the bench — no better than the lowlifes and hoodlums who sometimes pass through his court then the public’s confidence in the judiciary will be diminished and its authority threatened. Such is the consequence of this respondent’s conduct.

We are disposed to address one further point. The stipulated findings of fact in this case include one (no. 19) which recites that the events which are the subject of this complaint “received media publicity” and were “reported in newspapers which have tens of thousands of subscribers.” In addition, the board attached several newspaper articles as exhibits to the complaint in this case and has attached to its suggested conclusions of law a copy of an editorial which appeared in the Lancaster Intelligencer Journal presumably to illustrate widespread coverage of respondent’s conduct at the golf club.

It merits emphasis that this court does not make its decisions on whether particular conduct is a violation of the constitution as conduct which brings the judicial office into disrepute based upon the level of media coverage the conduct may attract. We do not attach any probative weight to allegations that media coverage of a particular occurrence was heavy — or that it was covered at all. In no case has this court referred to media coverage, or the extent of it, in determining whether particular conduct was such that brought the judicial office itself into disrepute and, thus, was a violation of the constitution. To do so would be to bestow upon the media a role in determining what is a violation of the constitution. To do so would be to give attention to considerations incompatible, even antagonistic, to the constitutional instructions we must heed. The media prints, or broadcasts, what it considers is important for the public to know, what it considers the public will be interested in, i.e., what it considers will sell newspapers or attract listeners or viewers. These may well be legitimate considerations for the successful operation of a print or electronic media business, but, they have no place in the business of this court.

The respondent presents a telling argument when he observes that:

“If media publicity was an element of the offense then the courts would be faced with the situation where judicial officers in smaller counties in the state with no daily newspaper coverage could engage in conduct and not be subject to sanctions while judges in a larger more news-starved jurisdiction would be found to have brought the office into disrepute.” Respondent’s brief in support of his request for conclusions of law (p. 7).

An even more troubling problem, and one likely to be found in a large majority of cases, is that the determination of the level of coverage to be given any particular case — rather than depending on whether a daily newspaper exists in a community or not — will be in the hands of persons making decisions which, as pointed out earlier, are driven by considerations which often may not be in consonance with the assigned mission of this court. Simply put, it is the members of this court who have been appointed, pursuant to the constitution, by the Supreme Court of Pennsylvania and by the Governor of Pennsylvania, to determine those cases where conduct is so extreme as to bring the judicial office itself into disrepute — not the representatives of the media.

IV. CONCLUSIONS OF LAW

(1) The conduct of respondent was such that brings the judicial office into disrepute.

(2) The respondent is subject to discipline under Article V, Section 18(d)(1) of the Pennsylvania Constitution.

ORDER

AND NOW, June 13, 2007, based upon the opinion filed herewith, it is hereby ordered:

“That, pursuant to C.J.D.R.P. no. 503, the attached opinion with findings of fact and conclusions of law be and it is hereby filed, and shall be served on the Judicial Conduct Board and upon the respondent,
“That, either party may file written objections to the court’s conclusions of law within 10 days of this order. Said objections shall include the basis therefor and shall be served on the opposing party,
“That, in the event that such objections are filed, the court shall determine whether to entertain oral argument upon the objections, and issue an order setting a date for such oral argument, and
“That, in the event objections are not filed, within the time set forth above, the findings of fact and conclusions of law shall become final, and this court will conduct a hearing on the issue of sanctions on July 18, 2007 at 1 p.m. in the Supreme Court Courtroom, 5th Floor, Main Capitol Building, Flarrisburg, Pennsylvania.
“That, the Judicial Conduct Board and the respondent shall each file on or before July 11, 2007 a list of such witnesses as either party may intend to present for testimony at that hearing, and shall serve a copy of said list upon the other party.”

      . This section of the constitution provides that discipline may be imposed for this type of conduct “whether or not the conduct occurred while acting in a judicial capacity or is prohibited by law.”

      . See e.g., In re Zupsic, 893 A.2d 875 (Pa.Ct.Jud.Disc. 2005); In re Berkhimer, 877 A.2d 579 (Pa.Ct.Jud.Disc. 2005); In re Harrington, 877 A.2d 570 (Pa.Ct.Jud.Disc. 2005); In re McCarthy, 828 A.2d 25 (Pa.Ct.Jud.Disc. 2003); In re Zoller, 792 A.2d 34 (Pa.Ct.Jud.Disc. 2002); In re Kelly 757 A.2d 456 (Pa.Ct.Jud.Disc. 2000); In re Nakoski, 742 A.2d 260 (Pa.Ct.Jud.Disc. 1999); In re Strock, 727 A.2d 653 (Pa.Ct.Jud.Disc. 1998); In re Joyce and Terrick, 712 A.2d 834 (Pa.Ct.Jud.Disc. 1998); In re Cicchetti, 697 A.2d 297 (Pa.Ct.Jud.Disc. 1997); In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc. 1996).


author: WETTICK JR., A.J.,

text:
    Mine Safety Appliances Co. v. Century Indemnity Co.

      George L. Stewart II and Michael H. Sampson, for plaintiff.

      Nicholas A. Pasciullo and Melvin R. Shuster, for defendant.
    November 29, 2007
   WETTICK JR., A.J.,

The issue that I consider in this opinion and order of court is whether Vale Chemical Co. v. Hartford Accident Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986), and its progeny apply when an insurance company, without joining any persons having past, current, or future claims against the insured, seeks declaratory relief as to defense and coverage issues, only as to claimants whose claims have been resolved and potential claimants who have not yet raised claims against the insured.

Mine Safety Appliance Company sued Century Indemnity Company, as successor in interest to the issuers of insurance policies issued to Mine Safety, raising breach of contract and bad faith counts for failure to defend and provide coverage. Mine Safety alleges that it has been sued in numerous personal injury lawsuits and Century has not reimbursed Mine Safety for settlements and defense costs which it has paid.

Mine Safety’s breach of contract counts are based on breaches of a 1961 policy, a 1964 policy, a 1969 policy, a 1970 policy, and a policy identified as a Cal Union Policy. The relief which Mine Safety seeks is a judgment in the sum Mine Safety has paid for defense costs and settlements. The final count is a claim for breach of the duty of good faith and fair dealing under which Mine Safety seeks consequential and punitive damages.

Century’s second amended answer, new matter and counterclaims includes a five-count counterclaim. In Count I (Declaration of rights and obligations — “Other insurance”), Century seeks a declaration that Century’s total obligation to Mine Safety for any of the underlying claims against Mine Safety that have been settled or otherwise fully resolved and for any future claims that have yet to be filed against Mine Safety is limited to Century’s obligations under the 1970 policy (i.e., Century has no obligations under the 1961, 1964, and 1969 policies).

In Count II (Declaration of rights and obligations— Number of occurrences), Century seeks a declaration that the underlying claims against Mine Safety that have , been settled or otherwise finally resolved, and any future claims that have yet to be filed against Mine Safety result from or arise out of a single occurrence.

In Count III (Declaration of rights and obligations— Obligation to defend or pay defense costs), Century seeks a declaration that Century’s obligation to pay defense costs incurred by or on behalf of Mine Safety and reflected in invoices provided to Century during the period June 15, 2005 to December 31, 2005 is limited to the payment of the agreed-upon share of such defense costs and Century has no obligation to defend any underlying claims that have not been forwarded to the law firm designated by Century for defense.

In Count IV (Declaration of rights and obligations), Century requests this court to enter an award consistent with Century’s contentions at paragraphs 15-19. Paragraph 15 is an incorporation provision. Paragraph 16 states that to the extent the court determines that Century is liable for any portion of the costs of the defense and/or indemnity of any of the underlying claims that have been settled or otherwise fully resolved, Century is entitled to a determination of the proper allocation of such costs, if any, as between Mine Safety and Century. Paragraph 17 states that to the extent that the court determines that Century is liable for the costs of defense and/or indemnity of any of the underlying claims that have been settled or otherwise fully resolved, Century is entitled to a determination that it could only be obligated to pay its pro rata or proportionate share of such costs that were properly settled and which fall within the terms, conditions, and exclusions of the insurance policies. Paragraph 18 states that until the applicable Century policies are exhausted, Mine Safety will demand that Century pay 100 percent of all costs of defense and indemnity associated with underlying claims that will in the future be alleged against Mine Safety. Paragraph 19 states that Century seeks a determination that it could only be obligated to pay its pro rata or proportionate share of the costs associated with the underlying claims that will in the future be alleged against Mine Safety that fall within the terms, conditions, and exclusions of the policies.

In Count V (Contribution, allocation, or setoff), Century requests the court to enter an award consistent with its contentions at paragraphs 20-23. Paragraph 23 is the only applicable paragraph. It provides that to the extent Century is obligated to pay more than its proportionate share of the defense and indemnity costs demanded by Mine Safety, Century is entitled to apportionment, contribution, indemnification, payment, reimbursement, and/ or setoff from Mine Safety to the extent appropriate under applicable law, in the amounts of its respective proportionate share of the defense and indemnity costs incurred in connection with the underlying claims.

Mine Safety seeks dismissal of Counts I-III based on Vale Chemical Co. v. Hartford Accident Indemnity Co., supra. In an underlying lawsuit, Vale Chemical was sued in Illinois by a woman who claimed that her cancer was caused by her mother’s use of a product manufactured by Vale Chemical during her mother’s pregnancy. Vale Chemical then sued in the Pennsylvania state courts under Pennsylvania’s Declaratory Judgments Act, 42 Pa. C. S. §§7531-7541, to determine whether its insurance contracts with Transamerica and Hartford required them to defend Vale Chemical and indemnify it against the Illinois plaintiff’s claim.

The trial court in the Pennsylvania proceedings ruled that both companies were required to provide a defense. The Superior Court affirmed in an opinion that adopted the multiple trigger theory of liability. The Pennsylvania Supreme Court reversed on the ground that the common pleas court lacked jurisdiction to enter a declaratory judgment because an interested party (i.e., the injured Illinois plaintiff) was not joined. The court held that failure to join the Illinois plaintiff was a fatal defect because she had an interest in seeing that an insurance company paid a judgment entered against its insured. Vale, supra, 512 Pa. at 294, 516 A.2d at 686-87. The court’s opinion cited 42 Pa.C.S. §7540(a) which provides, in relevant part, that “[wjhen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

Century contends that Vale does not apply because Century does not seek declaratory relief as to persons with pending claims. Instead, Century seeks declaratory relief only as to tort claims that have been resolved and future claims that have yet to be filed against Mine Safety.

According to Century, Vale does not bar a request for declaratory relief for underlying claims against Mine Safety that have been settled or otherwise fully resolved because these claimants have no interest which could be affected by a declaration that Century has no obligations under the 1961 policy, 1964 policy, and 1969 policy and that any future claims are limited to those obligations under the 1970 policy.

Century claims that it is entitled to seek declaratory relief as to future claims that have not yet been filed against Mine Safety, including declarations that (i) any future claims only involve Century’s obligations under the terms of the 1970 policy and (ii) any future claims arise from or out of a single occurrence. Century relies on J.H. France Refractories v. Allstate, 521 Pa. 91, 555 A.2d 797 (1989), where the court ruled that Vale does not require a joinder of claimants who assert their claims after the declaratory judgment action is filed.

Century relies on the ruling of the Common Pleas Court of Philadelphia in Kvaerner U.S. Inc. v. OneBeacon Insurance Co., no. 0940 April term 2003, 2003 WL22282606 (C.P. Phila. Sept. 29, 2003), which found merit to the arguments that Century is raising in the present case. In that case, Kvaerner instituted a declaratory judgment action seeking a finding that the insurance policies the defendants issued to Kvaerner obligated the defendants to defend Kvaerner against asbestos-related bodily injury claims and to indemnify Kvaerner for all damages payable by it with respect to asbestos claims. The only parties to the litigation were the insured (Kvaerner) and its insurance companies. Kvaerner did not join any of the tort claimants in the underlying litigation against Kvaerner.

In its complaint, Kvaerner sought declaratory relief as to all asbestos-related claims. In response to Century’s preliminary objections raising a lack of subject matter jurisdiction, the court limited Kvaemer’s claims for declaratory relief to claimants who had settled their claims with Kvaerner and future asbestos-related claimants. With respect to claimants who had settled their claims, the court stated:

“Any effect which the declaratory judgment would have upon the parties that settled is highly speculative and would only be incidental to the issues in the instant action. The settled claimants are not essential to the merits of this issue and justice can be accomplished without violating due process rights. Accordingly, this court finds that claimants that have settled with Kvaemer in the underlying actions do not have an interest in this action.” Id. at *2.

With respect to future asbestos claims, the court, citing J.H. France, stated that future asbestos-related claimants are not indispensable parties to the present action.

I am not following Kvaerner because it denies interested parties the protections which Vale intended to furnish and would render Vale meaningless.

Any ruling as to the coverage available to claimants whose claims have been resolved and as to future claimants would in this case — and in almost all cases — involve the same issues that will be addressed in coverage disputes as to existing claimants. In other words, if Century’s counterclaim also sought declaratory relief as to claimants with existing and unresolved claims, the issues would not change. Since the issues would not change, any rulings favorable to the insurance company would eventually apply in litigation involving coverage for claimants with existing and unresolved claims. The applicable doctrines by which this would occur include a requirement that one common pleas court judge follow the legal rulings made by another judge of the same court; common pleas court judges must follow opinions of the appellate courts; and one Superior Court panel must follow the rulings of an earlier Superior Court panel.

I recognize that section 7540(a) of the Declaratory Judgment Act provides that no declaration shall prejudice the rights of persons not parties to the proceeding. However, at the most, this only means that a person is not bound by a declaration entered in a proceeding in which he or she was not a party. It does not mean that the legal rulings made in the first proceeding do not control the second proceeding. It would be an absurd result to construe section 7540(a) to mean that in the second proceeding, the insurance company could not cite and the common pleas courts and the Superior Court could not follow (or even refer to) an opinion of the Pennsylvania Supreme Court entered in the first proceeding.

Century devotes most of its brief to arguing the obvious — claimants whose claims have been fully resolved have no interest in Century’s counterclaim. However, Century never explains why claimants with pending claims do not have interests which would be affected by the declaration and how a court could make a declaration which did not “prejudice the rights of persons not parties to the proceeding.” 42 Pa.C.S. §7540(a).

It is recognized that an insured or an insurance company cannot pursue a declaratory judgment action in the Pennsylvania state courts whenever there are a large number of claimants with outstanding claims or whenever there are claimants outside the jurisdiction of the Pennsylvania courts who will not voluntarily participate in the Pennsylvania proceedings. If this is an undesirable result, the cure is not to allow proceedings in which claimants with the most to lose are not required to be joined in litigation that will affect their interests. Instead, the cure should be to permit a declaratory judgment action to proceed if the interests of those whom it is impossible or not feasible to join are adequately represented by the present parties. See discussion in Zurich Insurance Co. v. Baxter International Inc., 655 N.E.2d 1173, 1177-80 (Ill. App. Ct. 1995) (discussion of no precedential value); Zurich Insurance Co. v. Baxter International Inc., 670 N.E.2d 664, 668 (Ill. 1996); and Monsanto Co. v. Aetna Casualty and Surety Co., 565 A.2d 268 (Del. Super. Ct. 1989).

Also see City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566 (2003), where the court said that section 7540(a) is subject to reasonable limitations. The “guiding inquiry in any discussion of indispensability is whether justice can be done in the absence of the parties asserted to be necessary.” Id. at 572, 838 A.2d at 584. Thus, where there is a frontal constitutional attack on an act of the General Assembly, the Attorney General stands in a representative capacity for all non-Commonwealth parties having an interest in seeing the statute upheld. Also see Commonwealth, Office of Attorney General v. Richmond Township, 917 A.2d 397 (Pa. Commw. 2007); Stilp v. Commonwealth, 910 A.2d 775, 785-86 (Pa. Commw. 2006).

For these reasons, I am granting Mine Safety’s motion for judgment on the pleadings as to Counts I and II of Century’s counterclaim.

I next consider the motion for judgment on the pleadings as to Count III in which Century seeks a declaration as to its obligation to defend. I also find a lack of subject matter jurisdiction for failure to join an indispensable party because of Century’s failure to join claimants with pending and unresolved claims.

In Vale, the insured sought declaratory relief as to whether its insurance companies were required to defend the action filed against Vale and to indemnify it for liability. In holding that the jurisdictional requirements of the Declaratory Judgment Act with respect to joinder of indispensable parties had not been satisfied, the Pennsylvania Supreme Court did not distinguish between a duty to defend and a duty to provide coverage.

Also, the issues that will be addressed in a declaratory judgment count seeking a declaration as to the duty to provide a defense are very similar to the issues that will be addressed in a declaratory judgment action seeking a declaration as to the duty to indemnify a party making claims under the policy. See General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997). Thus, where declaratory relief is sought only as to the duty to defend, a ruling that does not require joinder of any claimants would, in many cases, result in decisions that would detrimentally affect coverage claims for indemnification without any claimant’s participation. Also, courts would be inviting piecemeal litigation if Vale could be avoided where the plaintiff sought only declaratory relief as to a duty to defend.

I next consider Mine Safety’s motion for judgment as to Counts IV and V of the counterclaim. I am dismissing Count IV — Full declaration of rights and obligations— because it appears to be dependent upon requested rulings as to the declaratory relief that was sought in the earlier counts of the counterclaim which have been dismissed. Furthermore, any claims for declaratory relief sought in this court are dismissed for failure to join indispensable parties.

I am dismissing Count V because it appears to raise matters that are defenses to Mine Safety’s claims. To the extent that declaratory relief is sought, it is barred by the failure to join indispensable parties.

ORDER OF COURT

On November 29, 2007, it is hereby ordered that plaintiff’s motion for judgment on the pleadings with respect to the counterclaims of Century Indemnity Company is granted and each count within the counterclaim is dismissed.

      . Mine Safety’s complaint alleges that Mine Safety has been sued in numerous personal injury lawsuits across the country, the vast majority of which involve Mine Safety’s respiratory protection products. The plaintiffs in these lawsuits are suffering from various respiratory diseases. At this time, Mine Safety is a defendant in approximately 23,000 underlying claims.

      .1 do not read J.H. France to allow declaratory relief as to coverage where no claimants are parties to the litigation. In J.H. France, the parties to the litigation included claimants with existing and unpaid claims whose interests were similar to the interests of future claimants and the issue was whether a court with jurisdiction to grant declaratory relief would lose its jurisdiction because of subsequent filings. In the present case, this court never had jurisdiction to grant declaratory relief.

      .1 recognize that rulings made in Mine Safety’s breach of contract claims against Century may affect coverage for claimants with existing and unresolved claims and future claimants. However, there is no legislation which provides that in a breach of contract action all persons who have or may claim any interest that may be affected by the litigation must be made parties.

      .1 believe that this provision means that a court may not furnish declaratory relief whenever the declaration may prejudice the rights of persons not parties to the proceedings.

      . The Kvaerner case rejected Kvaerner’s attempts to distinguish between a duty to defend and a duty to indemnity. The court said that since “the plaintiffs-claimants have an interest in coverage, this court finds that the underlying claimants have an interest in this action.” Kvaerner, supra, 2003 WL 22282606, at *2.


author: FARINA, P.J.,

text:
    Davis v. Gish

      Leonard V. Fodera and Allison Long, for plaintiff.

      Andrew H. Briggs and Karen E. Minehan, for defendants Gish and Lancaster Emergency Associates.

      Christopher W Mattson and Megan R. Ford, for defendant Lancaster General Hospital.
    August 23, 2007
   FARINA, P.J.,

Presently before the court is defendant’s preliminary objection in the nature of a demurrer to plaintiff’s amended complaint. Defendant Lancaster Emergency Associates Ltd. (LEA) contends that the claim against it is a corporate negligence claim that Pennsylvania does not recognize as a theory of liability against a medical professional corporation.

As alleged in the complaint, this matter arose from emergency care rendered to plaintiff Davis on January 9,2007. Plaintiff presented to defendant Lancaster General Hospital with complaints of right groin and testicular pain. Plaintiff was assigned to defendant Dr. Jonathan S. Gish, who is an employee and/or agent of defendants Lancaster General Hospital and LEA.

A physical exam performed by defendant Gish revealed that plaintiff had an enlarged right testicle, approximately twice the size of the left. Defendant Gish diagnosed plaintiff as suffering from epididymitis although no ultrasound or urinalysis were conducted. Plaintiff was discharged around 6:49 p.m. by defendant Gish with a prescription for Cipro.

On January 14, 2007, plaintiff presented to the emergency department of defendant Lancaster General Hospital with a four-day history of progressively worsening right testicular pain. A Doppler ultrasound was performed revealing an absence of blood flow to the right testis. The impression was right testicular torsion with probable infarction. That day plaintiff underwent a right scrotal orchiectomy and left orchipexy. Plaintiff was discharged on January 16, 2007.

This action was filed March 21, 2007, and the complaint was served upon defendants on April 3, 2007. On April 30,2007, plaintiff filed an amended complaint after discussing defendants’ objections to said complaint with counsel. The complaint includes allegations of professional medical liability and corporate negligence. On May 31, 2007, counsel for defendant LEA filed preliminary objections to the amended complaint.

Defendant LEA argues that plaintiff’s corporate negligence claim, paragraph 24 of the amended complaint, has failed to state a cognizable claim required by Pa.R.C.P. 1019(a). The allegation in question states:

“(24) The negligence of defendant LEA also consists of the following:
“(a) failing to supply adequate and skilled medical personnel who could reasonably and safely monitor the physical conditions of plaintiff during the aforementioned treatment;
“(b) utilizing substandard medical techniques in the performance of the aforementioned treatment upon the plaintiff;
“(c) failing to conform to accepted standards of medical practice and care in the diagnosis, treatment and medical and surgical management of an injury of the type suffered by plaintiff as described in the aforementioned paragraphs and subparagraphs;
“(d) failing to provide adequate supervision of its staff and employees to insure that proper medical practices and procedures are followed;
“(e) failing to employ or hire doctors and nursing staff with adequate experience, qualifications and skills to treat persons exhibiting symptoms and complaints as were exhibited by plaintiff;
“(f) failing to employ or hire doctors and nursing staff with adequate experience, qualifications and skills properly to perform medical procedures upon person exhibiting symptoms and complaints as were exhibited by plaintiff;...

Defendant relies on Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991); Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998); and Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super. 2004), in arguing that professional medical corporations are not held liable for corporate negligence within Pennsylvania. In Thompson the Supreme Court defined corporate negligence as a “doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being at the hospital. This theory . . . creates a nondelegable duty which the hospital owes directly to a patient.” 527 Pa. at 339, 591 A.2d at 707. (emphasis added) Defendant LEA argues that the courts have yet to extend the Thompson duties to professional corporations and therefore cannot be liable under the theory of corporate negligence.

Although the policy considerations for extending liability for corporate negligence beyond hospitals were further elaborated upon in Shannon, this does not apply to defendant. In Shannon, the Superior Court held that health maintenance organizations (HMOs) could be liable for breaching any of the corporate duties that were enumerated in Thompson. 718 A.2d at 835-36. In deciding to extend the claim for corporate negligence to HMOs, the Superior Court noted that HMOs “involve themselves daily in decisions affecting their subscriber’s medical care. These decisions may, among others, limit the length of hospital stays, restrict the use of specialists, prohibit or limit post-hospital care, restrict access to therapy, or prevent rendering of emergency room care.” Id. at 835.

More recently, in 2004, the Superior Court was confronted with the issue of whether the claim of corporate negligence should be extended to entities such as physician’s offices. Sutherland, 856 A.2d at 61. After considering the policy considerations behind the claim of corporate negligence, the Superior Court declined to extend this theory of liability to entities such as physician’s offices. Id., 856 A.2d at 62. Specifically, the Superior Court noted that “the corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients. The same cannot be said for a physician’s practice group.” Id. (quoting, in part, Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991)).

Plaintiff, in his amended complaint, has not set forth any factual allegations to suggest that defendant LEA has taken any actions that would lead to the conclusion that it was performing the same or similar functions as a hospital in arranging, managing, or coordinating the total care of patients. Due to the lack of factual allegations to suggest that defendant LEA was taking an active role in patients’ care, the policy reasons for extending the claim of corporate negligence beyond hospitals to other entities, such as HMOs, does not apply to LEA in the present case. Accordingly defendant LEA has shown with certainty that, upon the facts averred, the law will not permit recovery for the plaintiff.

Accordingly, I enter the following:

ORDER

And now August 23, 2007, upon consideration of defendant Lancaster Emergency Associates Ltd.’s preliminary objection and the briefs of the parties, it is hereby ordered and decreed that defendant’s preliminary objection is granted and the corporate negligence claim against defendant is stricken from paragraph 24 of the amended complaint and dismissed.

      . Duties include: (1) to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) to select and retain only competent physicians; (3) to oversee all persons who practice medicine within its walls as to patient care; and (4) to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients.


author: HODGSON, P.J.,

text:
    Board of Commissioners of Upper Moreland Township v. McCauley

      Scott E. Blissman, for plaintiff.

      Blake Dunbar, for defendant.
    January 9, 2008
   HODGSON, P.J.,

The Board of Commissioners of Upper Moreland Township (appellant) appeals the order of this court dated October 18,2007 in which we denied appellant’s petition for review of a decision and order issued by the Upper Moreland Township’s Civil Service Commission (commission).

FACTS AND PROCEDURAL HISTORY

On December 23, 2005, Officer Bryan McCauley, an Upper Moreland Township Police Officer, was on duty when he received a radio dispatch that a probationary police officer was making a traffic stop. McCauley immediately responded to the call and activated his overhead lights and siren. However, he subsequently received a second dispatch from the probationary officer indicating that he no longer needed assistance. Upon hearing this, McCauley deactivated his overhead lights and siren but continued driving toward the traffic stop’s location. While en route, McCauley proceeded to an intersection, at which time he collided with a privately occupied vehicle.

An investigation was conducted in which it was determined that McCauley was traveling at a high rate of speed at the time the accident occurred which was a substantial factor in causing the collision. As a result, McCauley was subsequently charged with violating subsections two and four of the civil service provisions of the First Class Township Code, which includes a charge of neglect or violation of official duties and a charge of inefficiency, neglect, disobedience of orders or conduct unbecoming an officer. Thereafter, appellant, acting pursuant to a recommendation from the Upper Moreland Township Police Chief (Chief Moffett), suspended McCauley for 96 hours, which is the equivalent of eight working days.

McCauley appealed appellant’s decision to the commission and a hearing on the appeal was held on July 17, 2006. At the hearing, Chief Moffett testified that Mc-Cauley had been involved in a prior accident in September 2005. Chief Moffett went on to state that in recommending McCauley’s sentence, he consulted the Upper Moreland Township’s penalty guidelines under General Order 81-1 for second offenses under the charge of neglect of duty, and from this, concluded that an eight-day suspension was appropriate.

After the hearing, the commission issued a written order on September 27, 2006, modifying McCauley’s penalty from an eight-day suspension to a four-day suspension. Among its reasons for its decision, the commission held that it did not find that the facts of the September 2005 incident were sufficient to constitute a chargeable offense and therefore, concluded that the December 23, 2005 incident was McCauley’s first offense. The commission went on to find that McCauley’s behavior on December 23,2005 did not rise to the level of conduct unbecoming an officer as it is defined by Pennsylvania law and General Order 81-1 of the Upper Moreland Township’s penalty guidelines. Appellant subsequently petitioned this court to review the commission’s decision, which we affirmed on October 18,2007. Appellant now appeals our decision. In accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellant to file a concise statement of matters complained of. Said statement was filed on December 11, 2007.

LEGAL DISCUSSION

Appellant’s issues raised on appeal may be summarized as follows:

I. This court erred in upholding the commission’s decision to modify McCauley’s sentence since there is no evidence that the original penalty was arbitrary, capricious or discriminatory.

II. The court erred in upholding the commission’s decision to modify McCauley’s sentence because a civil service commission may not partially modify an original penalty.

I. Evidence That Original Penalty Was Arbitrary, Capricious or Discriminatory

Appellant first argues that this court erred in upholding the commission’s decision to amend McCauley’s penalty because there is no substantial evidence that the original eight-day suspension was arbitrary, capricious or discriminatory.

Under Pennsylvania law, a reviewing court must uphold a civil service commission’s decision “unless there has been a violation of constitutional rights, an error of law, noncompliance with the Local Agency Law or if any factual finding made by the commission necessary to support its decision is not supported by substantial evidence.” Murphy v. Board of Commissioners of Lower Merion Twp., 40 D.&C.3d 577, 580 (Montg. Cty. 1985). “Absent evidence of arbitrary or discriminatory conduct or an abuse of discretion, the commission has no authority to modify the penalties imposed by borough officials for violations of the [borough] code where the charges brought against the officer are found by the commission to be supported by the evidence and where the penalties imposed are not otherwise prohibited.” Id. at 583. Thus, in applying this standard, our review of the commission’s adjudication is limited to a determination of whether its decision is supported by substantial evidence and that there is no error of law or abuse of discretion. Appeal of Officer Keith Jordan from the Order of The Lower Merion Township Civil Service Commission, 39 D.&C.3d 632, 636 (Montg. Cty. 1985).

A. Analysis of the September and December 2005 Incidents As Separate Chargeable Offenses

In the instant case, the commission amended McCauley’s penalty because the December 23, 2005 accident could not properly be considered a second chargeable offense since the September 2005 incident did not rise to the level of a first chargeable offense. Appellant argues that the commission erred in conducting such analysis by improperly inferring that McCauley’s original sentence was imposed because of both the September and December 2005 incidents and as such, incorrectly considered the September 2005 event as a mitigating factor in modifying the sentence.

A review of the commission’s findings of fact and law indicate that its decision to modify McCauley’s sentence was proper. At the commission’s July 17, 2006 hearing, Chief Moffett testified that he recommended the sentence after examining General Order 81-1 of the Upper More-land Township Penalty Guidelines for second offenses for the violation of neglect of duty — damage to a township vehicle, from which he derived an eight-day suspension. Appellant then acted pursuant to Chief Moffett’s suggestion and imposed the penalty. In doing so, appellant implicitly accepted the police chief’s analysis that McCauley’s suspension was based on two chargeable offenses. Accordingly, the commission, in reviewing McCauley’s sentence did not err in evaluating both the September and December 2005 accidents as separate incidents. We further agree that there was insufficient evidence to support the September 2005 accident as a first chargeable offense, since the only information presented at the commission’s hearing regarding the event, was that McCauley was involved in a minor automobile accident in which no one was injured. On this basis, the commission’s decision to modify McCauley’s sentence was proper.

B. Conduct Unbecoming an Officer

The commission also based its decision to amend Mc-Cauley’s sentence upon finding that there was insufficient evidence to support the charge of conduct unbecoming an officer. Specifically, the commission found that appellant’s purported behavior did not constitute such conduct as it has been interpreted under Pennsylvania law and as is laid out in General Order 81 -1 of the Upper Moreland Township’s penalty guidelines.

Conduct unbecoming an officer is defined as behavior “that adversely affects the morale or efficiency of the police force or tends to destroy public respect for, and confidence in, the police force.” Brooks v. Civil Service Commission of Shaler Township, 755 A.2d 115, 118 (Pa. Commw. 2000). Moreover, General Order 81-1 of the Upper Moreland Township penalty guidelines provides a list of charges which constitute conduct unbecoming an officer, which includes:

“(1) accepting bribes or gratuities for permitting illegal acts;
“(2) failure to report in writing, offers of bribes or gratuities to permit illegal acts;
“(3) involvement in a crime of moral turpitude;
“(4) knowingly and willingly making a false entry in any departmental report or record or approving same;
“(5) associating, fraternizing or business transactions at any time, or in any manner whatsoever, with known criminals or persons engaged in unlawful activities;
“(6) participating in games of chance or gambling while on duty; and
“(7) fighting or quarrelling with members of the department.” Section I, General Order 81-1, Upper More-land Township Penalty Guidelines.

Applying the standard articulated above and upon review of the relevant guidelines, we find that the commission was correct in its determination that McCauley’s behavior did not rise to the level of conduct unbecoming an officer. Although appellant maintains that McCauley’s operation of his vehicle in excess of the posted speed limit without the use of his overhead lights or siren falls within the definition of such conduct, there is no evidence that McCauley engaged in any of the types of behavior specified in the guidelines that merit a charge of conduct unbecoming an officer. The commission’s decision is further supported by Appeal of Leis, 72 Pa. Commw. 104, 455 A.2d 1277 (1983). In that case, a police officer was charged with engaging in conduct unbecoming an officer based on his failure to activate his siren when responding to an emergency call. The penalty was affirmed by the court of common pleas. On appeal, the Commonwealth Court reversed, finding that although the defendant’s behavior was a mistake in judgment or possible negligent act, it did not constitute conduct unbecoming an officer. The court based its decision after reviewing the defendant’s testimony and the department’s policy that a police officer’s use of his siren is discretionary. This is similar to the instant case where the commission based its decision upon finding that appellant’s behavior did not fall within the gambit of General Order 81-1 and did not rise to the level of such conduct as it has been defined by Pennsylvania common law. Thus, upon review of the commission’s decision and its reasoning we find that its decision to modify McCauley’s sentence was proper.

C. Penalty Guidelines

Appellant additionally claims that McCauley’s original eight-day suspension should be reinstated because it is an appropriate sentence for either a first or second time offense under the penalty guidelines. We find that this is insufficient to disturb the commission’s decision. The Pennsylvania Supreme Court has held that “documents establishing only general guidelines for further consideration, rather than promulgating binding rules of law, constituted statements of policy rather than regulations.” Metro Transportation Company v. Pennsylvania Public Utility Commission, 105 Pa. Commw. 592, 597, 525 A.2d 24, 27 (1987) citing Lopata v. Unemployment Compensation Board of Review, 507 Pa. 570, 493 A.2d 657 (1985). On this basis, the penalty guidelines provided in General Order 81 -1 are not binding upon the commission in modifying a law enforcement officer’s penalty. Thus, the commission was free to review McCauley’s original sentence and modify it as it deemed necessary.

D. Burden of Proof

Appellant also argues that this court erred in requiring it to prove that McCauley’s original eight-day suspension was not arbitrary, capricious or discriminatory when such a burden should have been placed on McCauley. We disagree and find that appellant bears the burden of proof regarding why it believes McCauley’s original suspension was appropriately imposed. This is supported by Soergel v. Board of Supervisors of Middlesex Township, 12 Pa. Commw. 311, 316 A.2d 89 (1974). In that case, a township board reduced the defendant in rank from chief to patrolman. The board’s decision was upheld by the court of common pleas. On appeal to the Commonwealth Court, the court affirmed the defendant’s penalty and held that the board had the burden to present clear and convincing evidence supporting the charges brought against the defendant and that “such charges proved were sufficient to warrant the discipline imposed.” Id. at 314, 316 A.2d at 91. On this basis, we find that the burden of proof was appropriately placed on appellant.

III. Partial Modification of the Penalty

Lastly, appellant maintains that the commission’s decision to reduce McCauley’s sentence was improper because a civil service commission is not permitted to partially modify penalties imposed by borough officials. We reject appellant’s argument and find that the commission properly acted within its authority in reducing McCauley’s sentence. A civil service commission may modify a penalty imposed by borough officials where it finds that it is unsubstantiated by the evidence. This principle is reflected in Borough of Bristol v. Downs, 48 Pa. Commw. 46, 409 A.2d 467 (1979). In that case, a civil service commission reduced the defendant’s punishment from a permanent reduction in rank to a three-day suspension upon finding there was insufficient evidence to substantiate his charges. The borough appealed and argued that the commission did not have power to modify the action taken by the council. The court held otherwise and found that only some of the defendant’s charges were substantiated by evidence and as such, the civil service commission acted appropriately within its discretion in amending the defendant’s punishment. Id. at 50, 409 A.2d at 469. Thus, on this basis, we find that the commission properly acted within its authority in modifying McCauley’s sentence.

CONCLUSION

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

      . No person employed in any police or fire force of any township shall be suspended, removed or reduced in rank except for the following reasons: (2) neglect or violation of your official duties; (4) inefficiency, neglect, intemperance, disobedience of orders, or conduct unbecoming an officer. 55 P.S. §55644(2), (4).

      . Chief Moffett consulted General Order 81-1, section IV neglect of duty, section 17 “damage to a township vehicle as a result of a chargeable accident, whether occupied or unoccupied” for second offenses, which provides a suspension from five to 20 days.