author: VARDARO, J,

text:
    McCall v. Rangru

      C.P. of Crawford County,
    no. 2006-835.

      Dennis G. Kuftic, for plaintiffs.

      Kathleen A. Segmiller, for defendant.

      Joanna K Budde, for additional defendant.
    February 1, 2007
   VARDARO, J,

BACKGROUND

On July 16,2004, the plaintiffs were traveling in their vehicle within a westbound lane of State Route 322, approaching the Sears strip mall in Vernon Township. The vehicle’s right turn signal was in use as the plaintiffs neared the strip mall exit. About this time, the defendant drove her vehicle from the strip mall exit onto State Route 322. The two vehicles came into contact and plaintiff-wife was injured as a result.

On June 12, 2006, the plaintiffs filed a praecipe for writ of summons in this matter. This writ was successfully served on July 7, 2006. On September 11, 2006, the defendant filed a praecipe for rule to file complaint. The plaintiffs filed their complaint in this matter on September 22, 2006.

On October 18,2006, the defendant filed an answer, new matter and new matter pursuant to Pa.R.C.P. 2252(d). In response, plaintiff-husband, as additional defendant pursuant to Rule 2252(d), filed preliminary objections.

We turn now to consideration of the additional defendant’s preliminary objections.

DISCUSSION

In his first objection, the additional defendant has set forth a motion to strike/motion for more specific pleading. He contends that the phrase “generally and in the following particulars” stated within the prefatory paragraph of paragraph 26 of the defendant’s Rule 2252(d) new matter should be stricken as overly broad and vague pursuant to Pa.R.C.P. 1019(a) and pursuant to Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).

At the time of oral argument, the additional defendant indicated that his first objection had been resolved. The defendant indicated that she agreed to the removal of the term “generally” from the prefatory paragraph of paragraph 26. Accordingly, we will sustain the additional defendant’s first objection and we strike the words “generally and” from the third line of the prefatory paragraph of paragraph 26 of the defendant’s Rule 2252(d) new matter.

In his second objection, the additional defendant has set forth a demurrer/motion to strike/misjoinder of cause of action. Specifically, the additional defendant contends that the defendant’s Rule 2252(d) new matter claim against him for sole liability should be stricken since it has been improperly asserted after the expiration of the applicable statute of limitations.

The parties appear to agree that a two-year statutory limitation period applies in this matter. Indeed, negligence causes of action must generally be commenced within two years of the occurrence of the events forming the bases for such claims. (See 42 Pa.C.S. §5524.)

In the instant case, the defendant was successfully served with a writ of summons on July 7,2006, roughly nine days before the expiration of the two-year statutory limitation period. However, the plaintiffs did not file their complaint in this matter until September 22, 2006. By this point, the defendant could not have possibly filed her Rule 2252(d) new matter sole liability claim against the additional defendant [and co-plaintiff] prior to the expiration of the two-year statutory limitation period. It would not have been proper for the defendant to have filed her Rule 2252(d) new matter sole liability claim prior to being served with the plaintiffs’ complaint. A new matter claim is part of a responsive pleading. By definition then, the defendant could not assert her Rule 2252(d) new matter sole liability claim until there was an actual complaint against which to offer a response.

In the context of the propriety of the filing of Rule 2252(d) claims after the expiration of the applicable statutes of limitations, both parties have asserted that the holdings in Hileman v. Morelli, 413 Pa. Super. 316, 605 A.2d 377 (1992), support their respective positions. We find that Hileman is not dispositive of the central issue involved in the additional defendant’s second objection.

The additional defendant cites to the following rule set forth by the Hileman court:

“It is well established that where an original defendant wishes to join an additional defendant who is not already a defendant in the action on the ground that the additional defendant is solely liable on the plaintiff’s cause of action, the original defendant must act within the statute of limitations applicable to the plaintiff’s cause of action.” Id. at 326, 605 A.2d at 382. (citations omitted) (emphasis in original)

The problem with applying this rule in the instant case is that the plaintiffs, by their own delay, prevented the defendant from filing her Rule 2252(d) sole liability claim prior to the expiration of the applicable statutory limitation period. The plaintiffs filed their complaint over two months after the expiration of the applicable statutory limitation period.

The defendant notes that, ultimately, the Hileman court allowed for the assertion of a Rule 2252(d) sole liability claim after the expiration of the applicable statutory limitation period. However, underlying the court’s basis for allowing such an assertion of a Rule 2252(d) claim was the conclusion that the Rule 2252(d) claim in question would not allege anything more against the additional defendant than what had already been alleged against the additional defendant by the plaintiff. (See Hileman at 328, 605 A.2d at 383.)

In the instant case, the defendant is attempting, through her Rule 2252(d) new matter sole liability claim, to assert sole liability against the additional defendant, whereas the plaintiff-wife had not previously asserted any claims against the additional defendant in this matter. Thus, in contrast to the co-defendant in Hileman, the additional defendant would be facing a claim that had not been asserted against him previously in this matter.

In any event, it was the plaintiffs’ own actions or inactions that prevented the defendant from filing her Rule 2252(d) new matter sole liability claim prior to the expiration of the statutory limitation period in the first place. Certainly an unjust result would occur if the defendant’s Rule 2252(d) new matter sole liability claim could be defeated in this manner. Further, if this technique were permitted, plaintiffs could regularly preclude the assertion of such claims simply by filing their complaints past the expiration of the applicable statutory limitation periods, as was done here. We will not set a precedent that approves of such a tactic.

The defendant contends that she filed her Rule 2252(d) new matter within the requisite 60-day period. It is . likely that she is making reference to the 60-day filing period referred to within Pa.R.C.R 2253(a). However, the 60-day filing period required under Rule 2253(a) does not apply to an attempt at joinder through Rule 2252(d). Rule 2253(a) states, in pertinent part, as follows:

“Except as provided by Rule 1041.1 (e) [not applicable in the instant case], neither a praecipe for a writ to join an additional defendant nor a complaint if the j oinder is commenced by complaint, shall be filed by the original defendant or an additional defendant later than 60 days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by order of court or by written consent of all parties approved by and filed with the court.”

Rule 2253(a) contemplates a 60-day filing period when joinder is to be effected by praecipe or by complaint. However, a joinder effected pursuant to Rule 2252(d) is to be asserted as new matter. Rule 2252(d) states:

“If the person sought to be joined is a party, the joining party shall, without moving for severance or thefiling of a praecipe for a writ or a complaint, assert in the answer as new matter that such party is alone liable to the plaintiff or liable over to the joining party or jointly or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor. The case shall proceed thereafter as if such party had been joined by a writ or a complaint, (emphasis supplied)

We turn then to the filing period set forth within Pa.R.C.P. 1026(a). Rule 1026(a) states:

“Except as provided by Rule 1042.4 [not applicable in the instant case] or by subdivision (b) of this rule [not applicable in the instant case], every pleading subsequent to the complaint shall be filed within 20 days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.”

The plaintiffs filed their complaint on September 22, 2006. The defendant filed her answer, new matter and new matter pursuant to Pa.R.C.P. 2252(d) on October 18,2006. However, the plaintiffs did not file a certificate of service or otherwise indicate when service of their complaint was effected. The defendant has acknowledged receiving service by first class mail, but she has not indicated a date for such service. We cannot determine therefore, based on the record, whether the defendant filed her responsive pleading within 20 days of the effective service upon her of the plaintiffs’ complaint.

Further, since the additional defendant has not raised this particular issue within his preliminary objections, any potential objection based upon noncompliance with Rule 1026(a) has been waived by the additional defendant in any event. (See Pa.R.C.P. 1028(b) and Pa.R.C.P. 1032(a).)

In the interest of justice, we conclude that the defendant, under the circumstances in this case, must be allowed to assert her Rule 2252(d) new matter sole liability claim against the additional defendant. Accordingly, we will overrule the additional defendant’s second objection.

ORDER

And now, February 1, 2007, for the reasons set forth in the attached memorandum, the first preliminary objection of the additional defendant is sustained and the words “generally and” are stricken from the third line of the prefatory paragraph of paragraph 26 of the defendant’s Rule 2252(d) new matter.

The additional defendant’s second preliminary objection in the nature of a demurrer/motion to strike/misjoinder of cause of action is denied.

The additional defendant may file a responsive pleading within 20 days from the date of this order.


source: Caselaw Access Project

author:
CURRAN, Member,
     O’CONNOR, Member,

license: Public Domain

text:
    Office of Disciplinary Counsel v. Pazuhanich

      Disciplinary Docket no. 15 D.B. 2005.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

August 11, 2006

CURRAN, Member,

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

I. HISTORY OF PROCEEDINGS

On February 25, 2005, the Supreme Court of Pennsylvania entered an order placing Mark Peter Pazuhanich on temporary suspension and referring the matter to the Disciplinary Board. Office of Disciplinary Counsel filed a petition for discipline against respondent on May 3, 2005, charging him with professional misconduct arising out of his criminal conviction of two counts of indecent assault, one count of endangering the welfare of children, one count of corruption of minors, and the summary offense of public drunkenness. Respondent filed an answer to petition for discipline on June 7, 2005.

A disciplinary hearing was held on August 30, 2005 before a District III Hearing Committee comprised of Chair Samuel Leach Andes, Esquire, and Members John H. Reed, Esquire, and Jeffrey P. Edmonds, Esquire. Respondent was represented by Marshall E. Anders, Esquire.

Following the submission of briefs by the parties, the Hearing Committee filed a report on January 20, 2006, finding that respondent engaged in professional misconduct and recommending that he be disbarred.

Respondent filed a brief on exceptions and request for oral argument on February 13, 2006.

Petitioner filed a brief opposing exceptions on March 1,2006.

Oral argument was held on March 24, 2006 before a three-member panel of the Disciplinary Board chaired by Robert EJ. Curran, Esquire, with Marc S. Raspanti, Esquire and Francis X. O’Connor, Esquire.

This matter was adjudicated by the Disciplinary Board at the meeting on March 29, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

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

(2) Respondent, Mark Peter Pazuhanich, was bom in 1956 and was admitted to practice law in the Commonwealth of Pennsylvania in 1981. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) In 1985 respondent moved to Stroudsburg, Pennsylvania, where he was employed as an associate with a local firm, and eventually became a partner at that firm.

(5) After working for several years as an assistant district attorney and prosecuting criminal cases, in 1995 respondent was elected to the office of district attorney of Monroe County.

(6) After serving two terms as district attorney, respondent was elected as a judge in the Court of Common Pleas of Monroe County in November 2003. He was scheduled to assume the office of judge in January 2004.

(7) On November 29, 2003, respondent attended a music concert at the F.M. Kirby Center in Wilkes-Barre, Pennsylvania with his 10-year-old daughter. Shortly before arriving at the concert, while driving his car with his daughter present, respondent drank approximately three to five ounces of vodka, and took Flexoral, a muscle relaxant.

(8) While at the concert, in the presence of several adult witnesses, respondent fondled his daughter, touching intimate parts of her body.

(9) Following the concert, respondent was detained and questioned by the Wilkes-Barre police and eventually arrested and charged with two counts of indecent assault, one count of endangering the welfare of children, and one count of corruption of minors, and the summary offense of public drunkenness.

(10) In December 2003 respondent and petitioner filed a joint petition requesting that respondent be transferred to inactive status by the Supreme Court. By an order dated December 22,2003, the Supreme Court transferred respondent to inactive status in response to that petition.

(11) Respondent was sworn in by a notary public as judge of the Court of Common Pleas of Monroe County on January 5, 2004. He was subsequently placed on administrative leave.

(12) On July 12,2004, respondent pleaded no contest to all of the charges and was sentenced to an aggregate sentence of 10 years probation and was directed to comply with and register pursuant to “Megan’s Law II.” (42 Pa.C.S. §9791 et seq.) Respondent’s sentence included other terms and conditions, including a provision that he have no contact with his minor daughter except under court supervision, that he remain in substance abuse treatment, and that he not utilize intoxicants or drugs.

(13) Respondent’s probation is currently supervised by Luzerne County.

(14) By order dated October 1, 2004, the Court of Judicial Discipline removed respondent from his position as a judge of the court of common pleas and ordered that respondent “shall be ineligible to hold judicial office in the future.”

(15) By an order dated February 25,2005, the Supreme Court of Pennsylvania temporarily suspended respondent from the practice of law on the basis of his criminal conviction.

(16) Respondent’s arrest and conviction generated significant news coverage in the Wilkes-Barre and Stroudsburg areas as well as throughout portions of the Commonwealth of Pennsylvania.

(17) Approximately 15 years prior to the incident which led to his criminal prosecution in this matter, respondent had problems with alcohol abuse. He sought and received treatment in 1993, overcame those problems and was free of problems resulting from alcohol abuse for approximately seven years.

(18) Respondent resumed occasional consumption of alcohol several months prior to the incident in question.

(19) Respondent admitted that he drank vodka the night of the concert while in his vehicle driving his daughter to the concert. Respondent denied he was intoxicated at the time of the incident.

(20) After the incident respondent committed himself to an inpatient drug and alcohol facility in Reading, Pennsylvania. He has not used alcohol since that time.

(21) Respondent receives psychological counseling once a month. His doctors have provided documentation that he is unable to work at this time due to severe depression and bi-polar disorder.

(22) Respondent takes Lexipro, an antidepressant; Lamictal, a mood stabilizer; and Seroquel, which also stabilizes his thought process.

(23) Respondent has not seen his daughter since the incident in November 2003. He has made little or no effort to contact the child or to obtain supervised visitation with her.

(24) Respondent has not been employed since July 2004. His finances are in disarray and he is not certain he can maintain his home. At the time of the hearing, respondent was receiving public assistance from the Commonwealth of Pennsylvania and had applied for Social Security disability payments.

(25) On September 21, 2004, respondent filed a petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. His debts were discharged on March 21,2005.

(26) Respondent did not admit that he engaged in the conduct for which he was convicted. Respondent states he may have recklessly touched his daughter when he was tickling her but not for sexual gratification. (N.T. 154, 176, 179.)

(27) Respondent has doubts whether he actually touched his daughter at all in intimate areas. (N.T. 176.)

(28) Respondent does not attribute the incident to a lapse of his judgment due to alcohol and the muscle relaxant. He believes it was an accident. (N.T. 177, 178, 179.)

(29) Respondent feels great anguish over what happened to his daughter, but does not feel he can admit he was wrong and express remorse for something he believes he did not do. (N.T. 177, 178.)

(30) Respondent indicated he entered a plea of nolo contendere to the charges because he thought it was the shortest path to rebuild a relationship with his daughter. (N.T. 145.)

III. CONCLUSIONS OF LAW

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

(1) Pa.R.D.E. 203(b)(1) — Conviction of a serious crime shall constitute an independent basis for discipline.

(2) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.

IV. DISCUSSION

Respondent is charged with professional misconduct arising out of his conviction of the crimes of indecent assault, endangering the welfare of children, corruption of minors and the summary offense of public drunkenness. As with all criminal conviction matters, the sole issue to be resolved is the extent of discipline to be recommended. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982).

Respondent engaged in the inappropriate touching of his 10-year-old daughter’s intimate body parts, while at a music concert. Respondent’s fondling was observed by patrons as well as security guards at the concert. Respondent was observed to be intoxicated, and he later admitted that he drank three to five ounces of vodka on the way to the concert and simultaneously took a muscle relaxant. Respondent entered a plea of no contest to the charges against him in July 2004 and received a sentence of 10 years of probation and was directed to comply with and register pursuant to “Megan’s Law II”, 42 Pa.C.S. §9791, et seq. Respondent is not permitted contact with his daughter except under court approved supervision. At the time of the incident, respondent was the district attorney of Monroe County and judge-elect of the Court of Common Pleas of Monroe County. After he was criminally charged, respondent still attempted to fulfill his judicial office after being sworn in by a notary public. He presided over a few legal proceedings until he was forced to take administrative leave.

This is a disturbing matter on many levels. At the time of the incident, respondent had a reputation as an astute and competent lawyer and prosecutor who had just been elected to the broad and powerful responsibility of judicial office. In a very short period of time, respondent destroyed his reputation and ruined his life as he knew it. He is currently serving a 10-year sentence of probation. He was placed on administrative leave from his judgeship and later was barred from judicial office for life. He was placed on temporary suspension from the practice of law by the Supreme Court in February 2005. Respondent has been unemployed since July 2004, has declared bankruptcy, and is seeking assistance and Social Security disability. He has not seen his daughter since November 2003, nor has he even talked to her or communicated through the mail. There is no doubt that respondent has suffered enormous personal loss.

Respondent, while admitting that what he did was inappropriate, did not admit at the hearing that he touched his daughter in a sexual manner, even though he entered a plea of nolo contendere to the criminal charges after being advised that such would be treated as an admission of guilt. Respondent believes it was either reckless touching or an accident that happened when he was tickling her, and at one point in his testimony he indicated, somewhat inconsistently, that he did not remember touching his daughter in her private areas, and that he did not believe that he did so. Respondent would not attribute his conduct to a loss of judgment due to alcohol and prescription pill use. He did not express remorse for the crimes of which he was convicted, and plainly stated his intention not to do so, but rather expressed anguish for the pain his daughter experienced. He did not acknowledge any harm done to the public perception of the judicial system and the legal profession due to his position as district attorney and judge-elect.

The record briefly indicated that respondent sought mental health counseling subsequent to the incident, and is taking several medications. There was also testimony of respondent’s alcohol use and treatment. Respondent did not produce expert testimony on these issues. There is clearly not sufficient evidence that would allow the board to find a causal connection between the mental health issues and the misconduct. Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989).

Any time an attorney engages in criminal conduct a cloud is cast on the reputation of the legal profession and the court system. Herein, several facts combine to render this case more egregious than usual. Respondent, as a district attorney and judge-elect, sexually fondled his 10-year-old daughter. This conduct is outside the realm of any acceptable standards of professional or social behavior. That the criminal conduct did not involve a client or the practice of law is of no moment in the board’s consideration of discipline. That respondent was the district attorney and judge-elect is a critical fact in the board’s analysis. Office of Disciplinary Counsel v. Preate, 557 Pa. 4, 731 A.2d 129 (1999). Respondent held the most powerful law enforcement position in his county. He was a public figure subject to public scrutiny when he committed the wrongful acts. Respondent did not express remorse for his actions, but rightly acknowledged that harm occurred to the victim, his daughter. He does not appear to accept or comprehend that he harmed the public, the people who put trust in him and elected him.

Respondent’s acts warrant severe discipline; respondent’s request for a five-year suspension is an acknowledgement of the seriousness of the matter. After careful consideration of the Hearing Committee Report and the parties’ positions at oral argument, the board is persuaded that disbarment is appropriate, retroactive to the date of temporary suspension. In other cases of criminal conviction for inappropriate sexual touching by an attorney, suspension has been imposed. In Office of Disciplinary Counsel v. Sangiamo, 35 D.B. 2001, 652 Disciplinary Docket no. 3 (Pa. July 25, 2002), the criminal conviction of one count of corrupting the morals of a minor resulted from respondent’s inappropriate behavior with a 16-year-old intern during a visit to her home. Respondent was sentenced to imprisonment of two to 23 months. He was suspended by the Supreme Court for 20 months. There are several key differences between Sangiamo and the instant case. The victim was 16 years old and the record was clear that she initiated the touching, although that did not justify Mr. Sangiamo’s conduct. Also, Mr. Sangiamo was not the district attorney or judge-elect of his county at the time of the commission of the criminal activity. In the matter of In re Anonymous No. 77 D.B. 97, 49 D.&C.4th 119 (2000), the attorney was convicted of one count of indecent assault after he fondled a female client in his law office. This attorney was sentenced to two years of probation. The board recommended, and the Supreme Court imposed, a suspension of three years, retroactive to the temporary suspension. In the matter of In re Anonymous 127 D.B. 94, 64 Disciplinary Docket no. 3 (June 2, 1998), the attorney was suspended for five years retroactive to his temporary suspension following his conviction of three counts of indecent assault. This attorney was sentenced to imprisonment of three to 18 months and two years of probation. The indecent assaults were perpetrated on three different female clients who were asked by the attorney to come to his office in order to review legal matters. Again, neither of the attorneys in the above cited cases were the district attorney of their respective counties nor were they about to ascend the bench.

A primary function of the Disciplinary Board is to protect the public and maintain public confidence in the integrity of the legal system by removing such attorneys who pose a danger to the public and who by their status as a licensed attorney erode the integrity of the legal system. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). Respondent’s egregious and outrageous misconduct while serving as an elected district attorney proves he is not fit to practice law in the Commonwealth.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Mark Peter Pazuhanich, be disbarred from the practice of law retroactive to February 25,2005.

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

Board Members Raspanti, Teti, Gephart, O’Connor and Suh dissented and would recommend a five-year suspension.

DISSENTING OPINION

O’CONNOR, Member,

August 11, 2006—

DISCUSSION

The majority of the Disciplinary Board has recommended that respondent be disbarred from the practice of law as a result of his conviction of indecent assault, endangering the welfare of children, and corruption of minors. For the following reasons, I dissent in favor of a suspension for a period of five years.

As set forth in the majority opinion, the facts of this matter are very serious and disturbing requiring a severe sanction. Respondent acknowledges the severity of his criminal conduct, having argued before a three-member panel of the board for a five-year suspension. My consideration of the facts and circumstances persuades me that a five-year suspension sanction is appropriate.

The majority acknowledges this is a disturbing matter on many levels. Respondent had a reputation as an astute and competent lawyer and a dedicated professional with no history of criminal or disciplinary problems. Respondent’s criminal conviction has had his very existence turned upside down. He received 10 years probation and is a registered sex offender pursuant to Megan’s Law II. He is prohibited from holding judicial office in the future. He is currently unemployed and has had his debts discharged through bankruptcy. He is seeking public assistance from the Commonwealth and has applied for Social Security disability payments. He has not seen or communicated with his daughter since the date of the incident. Respondent is at an extremely low point in his life, both professionally and personally.

The majority opinion cites cases of inappropriate sexual touching wherein suspensions ranging from 20 months up to five years were imposed on the attorneys who committed such crimes. It also notes that respondent did not express remorse for his actions. Respondent’s stated reason for pleading no contest to the charges was to spare his daughter from the anguish of testifying against her father, even though it meant greater harm to respondent himself. Nonetheless, respondent’s status as a public figure was a critical factor in the majority’s recommendation of the increased sanction of disbarment. Although I am persuaded that respondent’s public figure status serves as an aggravating factor, I do not believe that it justifies disbarment. A five-year suspension sufficiently addresses the severity of the underlying misconduct in the light of respondent’s status as district attorney and judge-elect. Five years is a long time to be out of the practice of law, and certainly it is long enough to allow respondent to rehabilitate himself to the point where he is fit to practice. By all accounts, including his own, respondent is not fit to practice at this time. He has taken some steps to help himself, such as abstaining from alcohol and receiving psychological counseling. A five-year suspension still requires respondent to petition for reinstatement and prove his moral qualifications, competency and learning in the law, and to prove he is not a detriment to the public and the integrity of the legal system. These are challenging burdens and will ensure that respondent is a fit and competent individual, should he decide to seek reinstatement in the future. Disbarment merely adds the additional burden of proving that his underlying misconduct is not so egregious as to prohibit him from gaining reinstatement. Based on the prior case law and review of the underlying crimes of other attorneys who have been reinstated from disbarment, it does not appear that respondent would have difficulty meeting this burden, so to disbar him would not achieve any greater measure of security for the public than a five-year suspension would fail to provide.

Board Members Teti, Gephart and Suh join in this dissent.

ORDER

And now, November 17,2006, upon consideration of the report and recommendations of the Disciplinary Board and dissenting opinion dated August 11,2006, the request for oral argument, the petition for review and responses thereto, the request for oral argument is denied, and it is hereby ordered that Mark Peter Pazuhanich be and he is disbarred from the bar of this Commonwealth, retroactive to February 25,2005.

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

Mr. Justice Eakin dissents and would impose a five-year suspension.


author: WALLACH MILLER, J,

text:
    Jensen v. Kohl

      C.P. of Monroe County,
    nos. 8237 Civil 2003, 4567 Civil 2004.

      Linda M. Shick, for plaintiffs.

      James M. Flood, for defendants.
    December 15, 2006
   WALLACH MILLER, J,

We have before us the motion of defendant KLR Associates Inc. for summary judgment in this consolidated matter. For the reasons set forth below, we grant the motion for summary judgment.

J. Carl Kohl was the owner of a building located at 1157 North 9th Street, Stroudsburg, Monroe County, Pennsylvania. It had been a bowling alley for many years. He rented the building to a third party, and the tenant opened a furniture store. Both plaintiffs were employed in the building, first by Heilig Meyers Furniture and then by The Room Store sometime prior to August of 1999.

During the winter of 2000, there were water leaks in the roof from snow and ice which was brought to the attention of Kohl. Kohl hired defendant KLR Associates to repair the roof. In their complaint, the plaintiffs allege that they began to notice a general decline in their health and both left their jobs at The Room Store due to this declining health. They attribute this to mold which accumulated in the building due to the water leaks. Both allege that they have developed medical conditions as well as emotional problems from the moldy condition.

Plaintiffs first filed a complaint against Kohl on October 22,2003 at no. 8237 Civil 2003. They later filed a complaint against defendant KLR Associates on June 17, 2004 at no. 4567 Civil 2004. On December 15,2004, by stipulation of the parties, these cases were consolidated. Defendant KLR requests we grant summary judgment. We have heard oral argument in this matter from all parties and have reviewed all the briefs, reply briefs, affidavits and the seven depositions filed.

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law where the court determines there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2.

The moving party bears the burden of proving that no genuine issue of material facts exists. Also, we must examine the record in a light most favorable to the non-moving party and resolve all doubts against the moving party. A motion for summary judgment may be granted where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 562 A.2d 279 (1989).

More relevant to the case at bar, summary judgment may be entered in favor of a defendant when the plaintiff’s cause of action is barred by the statute of limitations. Brooks v. Sagovia, 431 Pa. Super. 508, 636 A.2d 1201 (1994). Generally, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Lack of knowledge, mistake or misunderstanding does not toll the statute of limitations.

This action is governed by statute, specifically 42 Pa.C.S. §5524, which states:

“The following actions and proceedings must be commenced within two years;. ..

“(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or negligence or unlawful violence or negligence of another.”

Defendant KLR argues that the statute of limitations began to run when the plaintiffs realized the building was making them sick. We agree. We apply the “discovery rule” in this case. That rule states that when the existence of an injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the period prescribed in the limitation statute, the limitation period will not begin to run until the discovery of the injury is reasonably possible. Citsay v. Reich, 380 Pa. Super. 366, 551 A.2d 1096 (1988).

In this case, plaintiff Jensen testified in her deposition that as of February 8, 2002, the building began making her sick. Plaintiff Dunlap, on the other hand, testified in her deposition that as of2001, the building began causing her physical problems. The complaint was originally filed against defendant Kohl on October 22,2003. The second complaint against KLR was filed on June 17,2004.

Because the statute of limitations period for plaintiff Jensen began February 8,2002, the last possible date to file a complaint against defendant KLR would have been February 8, 2004. Likewise, the limitation period for plaintiff Dunlap began sometime in 2001. Therefore, the last possible date to file a complaint against defendant KLR would have been in 2003. Since the plaintiffs did not begin this action until June 17, 2004, their claims against defendant KLR are barred and as such KLR’s motion for summary judgment is granted.

ORDER

And now, December 15,2006, the motion of defendant KLR Associates Inc. for summary judgment is granted.


author: MOTTO, P.J.,

text:
    Castle Cheese Inc. v. Sadler
    C.P. of Lawrence County,
    no. 10363 of 2006, C.A.

      James W. Manolis, for plaintiff.

      James J. Binns, Stewart J. Greenleaf,K. Bradley Mellor and Steven P. Engel, for defendants.

      March 19, 2007
   MOTTO, P.J.,

Before the court for disposition are defendants’ preliminary objections to plaintiff’s amended complaint and plaintiff’s preliminary objections to defendants’ preliminary objections to plaintiff’s amended complaint. Several issues have been presented to the court. First, can defendants assert the existence and enforceability of an arbitration clause in a contract where the applicability of the arbitration clause was not raised in preliminary objections to plaintiff’s original complaint. Second, defendants assert that plaintiff failed to plead with sufficient specificity. Finally, defendants contend plaintiff failed to conform to Pa.R.C.P. 1019(i) by attaching a conglomerate of agreements to the pleading.

This suit arose out of a series of events initiated by the resignation of Stephen W. Sadler from Castle Cheese (plaintiff) and Sadler’s subsequent employment by the Kanter Group, a competitor of Castle Cheese. Plaintiff claims that defendant Sadler provided defendant Kanter Group with trade secrets and customer lists, in breach of the contract that existed between Sadler and Castle Cheese.

Plaintiff filed its original complaint on March 9,2006, to which defendants filed preliminary objections on March 27,2006, and amended preliminary objections on April 3,2006. The applicability of the arbitration clause was not asserted in either pleading. By order dated August 8, 2006, Count I of plaintiff’s original complaint was dismissed. On September 14,2006, plaintiff filed its first amended complaint. On September 29,2006, defendants filed preliminary objections to plaintiff’s first amended complaint, raising for the first time the existence of the arbitration clause. Plaintiff filed an answer and preliminary objections to defendants’ preliminary objections to plaintiff’s first amended complaint on October 17, 2006.

DISMISSAL BASED ON AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION

As a matter of public policy, Pennsylvania courts favor arbitration. Goral v. Fox Ridge Inc., 453 Pa. Super. 316, 321, 683 A.2d 931, 933 (1996). Under Pa.R.C.P. 1028(a) (6), the existence of an agreement for alternative dispute resolution is an allowable preliminary objection. Pa.R.C.P. 1028(b) requires that all preliminary objections shall be raised at one time. Where a party has every opportunity to assert its right to arbitration, yet clearly indicates its preference for judicial proceedings through the party’s participation, that party can no longer assert a right to arbitration. Samuel J. Marranea General Contracting Co. Inc. v. Amerimar Cherry Hill Associates Limited Partnership, 416 Pa. Super. 45, 50-51, 610 A.2d 499, 501-502 (1992). “A waiver of the right to proceed to arbitration may be expressly stated, or it may be inferred from ‘a party’s undisputed acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no opportunity for a reasonable inference to the contrary.’” Goral, 453 Pa. Super. at 321, 683 A.2d at 933.

In Goral, the court concluded that repeated references to an arbitration agreement were not sufficient to avoid waiving arbitration. Id. The Goral court indicated that the defendant did raise the defense of arbitration in new matter, but only as an alternative in hopes of receiving a favorable ruling from the trial court as the result of litigation in the trial court in which defendant participated. Id. Similarly, in the case sub judice defendants now pursue alternative dispute resolution only after an attempt to have plaintiff’s complaint dismissed in their first set of preliminary objections. Defendants have repeatedly acted inconsistent with asserting the contractual arbitration provision by filing preliminary objections without raising the alternative dispute resolution, and further by participating in discovery procedures and litigating discovery as well.

“Acceptance of the judicial process is demonstrated when the party (1) fails to raise the issue of arbitration promptly, (2) engages in discovery, (3) files pretrial motions which do not raise the issue of arbitration, (4) waits for adverse rulings on pretrial motions before asserting arbitration, or (5) waits until the case is ready for trial before asserting arbitration.” Smay v. E.R. Stuebner Inc., 864 A.2d 1266, 1278 (Pa. Super. 2004) (citing St. Clair Area School District Board of Education v. E.I. Associates, 733 A.2d 677, 682 n.6 (Pa. Commw. 1999)).

In Smay, the appellant made an immediate written demand for arbitration after receiving the appellees’ respective joinder complaints and made a motion to compel arbitration in the absence of receiving one response and after receiving one negative response; thus, the court held the appellant avoided waiving the right to arbitration, even though the appellants participated in other court proceedings to protect themselves. Id., 864 A.2d at 1278.

Here, defendants did not assert their contractual right to arbitration in their initial preliminary objections to plaintiff’s complaint. Defendants provided no intermediate written notice nor other attempt to compel arbitration. Defendants asserted the existence of the arbitration clause after their original preliminary objections were granted in part and plaintiff filed an amended complaint. The existence of an agreement to arbitrate may be raised either by preliminary objection or by petition to compel arbitration. Either procedure is subject to the principles of waiver. Goral v. Fox Ridge, see supra.

Defendant cannot raise preliminary objections to an amended complaint if the amended complaint does not raise new issues to be decided. Wudkwych v. Borough of Canonsburg, 111 Pa. Commw. 322, 326, 533 A.2d 1104, 1106 (1987). In Wudkwych, the damages being challenged by the preliminary objections were not included in the original complaint; thus, preliminary objections to these damages in the amended complaint were proper. Id. As noted above, an agreement for alternative dispute resolution may be raised by preliminary objection pursuant to Pa.R.C.P. 1028(a)(6). It is mandatory that all preliminary objections be raised at one time. Pa.R.C.P. 1028(b). A party waives all defenses and objections which are not presented by preliminary objection, except as to certain defenses not here relevant. Pa.R.C.P. 1032(a). Here, defendants’ assertion of the arbitration clause could have been made in the first set of preliminary objections, yet defendants waited until plaintiff filed an amended complaint and then filed this objection. Defendants have failed to timely assert this defense in their initial preliminary objections as required by Pa.R.C.P. 1028(b). Defendants therefore have waived their right to raise the agreement to arbitrate by subsequent preliminary objection.

FAILURE TO PLEAD WITH SUFFICIENT SPECIFICITY

The Pennsylvania Rules of Civil Procedure require that “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). A complaint must give the defendant notice of what the plaintiff’s claim is and the grounds for that claim, the complaint must formulate the issues by summarizing the essential facts that support the claim, as well as adequately explain the nature of the claim to the opposing party to permit preparation of a defense. Youndt v. First National Bank of Port Allegany, 868 A.2d 539, 544 (Pa. Super. 2005) (citing Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992)). A complaint must contain averments of fact from which may be inferred all of the elements of the cause of action. Smith v. Wagner, 403 Pa. Super. 316, 321, 588 A.2d 1308, 1312 (1991).

It is clear that plaintiff has made reference to the agreements attached to the amended complaint as exhibits. The amended complaint states, “in consideration of his continued employment with Castle Cheese and a significant increase in wages and additional benefits, Sadler executed a ‘non-disclosure statement’ and an ‘employee confidentiality agreement,’ copies which are attached hereto, marked as exhibits ‘C’ and ‘D,’ respectively, and made a part hereof.” See plaintiff’s amended complaint «*¶14.

Plaintiff then incorporated by reference this paragraph into Count I of the amended complaint clearly making reference to the agreements marked as exhibits C and D. See id. at ¶32. Plaintiff’s breach of contract claim is unambiguously claiming that defendant Sadler violated the non-disclosure statement and employee confidentiality agreement because the amended complaint avers that Sadler continually shared trade secrets with Kanter Group. It is obvious that plaintiff is referring to exhibits C and D attached to the amended complaint because those are the only agreements concerning confidential information or protecting “trade secrets.” Therefore, defendants’ preliminary objection claiming insufficient specificity is denied.

FAILURE TO CONFORM TO RULE OF COURT

Pa.R.C.P. 1019(i) requires that when any claim is based on a writing, the pleader must attach a copy or the material part of the writing. Defendants cite to Feigley v. Department of Corrections, 872 A.2d 189 (Pa. Commw. 2005), as support for their claim that plaintiff failed to provide the material sections of a writing for which a claim was based. However, in Feigley, the plaintiff failed to attach any writing to the complaint; thus, there was no basis for their claim pursuant to 1019(i). Feigley, 872 A.2d at 195. In the case sub judice, it is clear that plaintiff has provided the material portions of the writing for which the complaint is based by attaching exhibits C and D to the complaint, which provide a basis for the breach of contract claim.

Also, defendants cite to Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003), which they argue provides that a fatal defect in the pleading exists if a specific portion of the contract that establishes plaintiff’s rights to a judgment is absent. However, the case sub judice differs from Atlantic Credit and Finance Inc. because in Atlantic Credit and Finance Inc. the appellants failed to provide a writing to establish that they were entitled to a certain amount of money, thus they could not prove damages in that case. Id., 829 A.2d at 345. However, plaintiff has provided writings that can prove that it is entitled to a judgment; the non-disclosure statement provides specifically, “you can be held liable if it is proven that our competition received information from you.” See plaintiff’s amended complaint exhibit C. Unlike Atlantic Credit and Finance Inc., where the appellee failed to provide the cardholder agreement and statement of account on which the claim was based, plaintiff in the case sub judice has provided the agreements necessary to maintain the amended complaint.

Therefore, defendants’ preliminary objections to plaintiff’s amended complaint shall be dismissed for the reasons set forth in this opinion.

ORDER

And now, March 19,2007, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that defendants’ preliminary objections to plaintiff’s first amended complaint are denied and plaintiff’s preliminary objections to defendants’ preliminary objections to plaintiff’s first amended complaint are dismissed. The defendants shall file an answer to the amended complaint within 20 days of the date this order is docketed.


author: FORADORA, P.J.,

text:
    Commonwealth v. Anderson

      C.P. of Jefferson County,
    no. CP-33-CR-438-2006.

      LaVieta Lerch, for Commonwealth.

      Christopher E. Mohney, for defendant.
    February 7, 2007
   FORADORA, P.J.,

PROCEDURAL HISTORY

The defendant, Richard Lee Anderson, was arrested on May 6, 2006. By formal information filed August 1, 2006, he was charged with driving under the influence— 75 Pa.C.S. §3802(a)(l) — and three traffic-related summary offenses. Anderson waived his preliminary hearing, and on December 7, 2006, he filed an omnibus pretrial motion consisting of two motions to suppress and a motion to quash information. On January 26,2007, the comt held a hearing at which the Commonwealth offered as evidence the testimony of Patrolman Paul N. Brosky of the Brockway Borough Police Department. No other witnesses testified.

FACTUAL HISTORY

Brosky testified that while traveling north on SR 119 in Brockway, he noticed a vehicle coming toward him and straddled halfway between both drivers’ lanes. He watched as the vehicle moved back to the right, overshooting its own lane and nearly hitting a bridge with its front end. Brosky also observed that the vehicle was traveling at an excessive rate of speed. Brosky said that he turned around at that point and proceeded to pursue the vehicle. He said that he could still see the vehicle’s taillights in the distance and activated his emergency lights while both vehicles were still within the borough limits. According to Brosky, however, the driver, whom he later identified as Anderson, failed to notice them and pull over until they were 200 or 300 yards beyond the Borough line and into Snyder Township. Brosky averred that there were no other vehicles between his car and Anderson’s.

Brosky further testified that when he approached Anderson, he immediately smelled a strong odor of alcohol emanating from the vehicle. Brosky then requested Anderson’s driver’s license and returned to his vehicle where, for safety reasons, he called for backup while verifying Anderson’s identity. After backup arrived, continued Brosky, he asked Anderson whether he had been drinking, to which Anderson replied that he had consumed a couple of drinks. Brosky did not question him further but decided to conduct four field sobriety tests, which he concluded Anderson failed. Brosky subsequently arrested Anderson, read him his Miranda warnings, and transported him to DuBois Regional Medical Center.

After reaching the hospital, said Brosky, Anderson was asked to submit to a chemical blood test and told that he had the option of consenting or refusing. According to Brosky, Anderson refused the blood draw. Brosky testified that he had read the DL-26 form to Anderson word-for-word despite Anderson’s multiple assurances that the reading was unnecessary. Brosky said that he also explained the form in layman’s terms and informed Anderson that if he refused the blood test, he would be charged with DUI, anyway, and could receive the maximum penalties plus a one-year license suspension if found guilty. Anderson responded that he had refused a blood draw before without adverse consequence and would not give blood this time, either. Brosky then had Anderson sign the DL-26 form, transported him to his home, and filed charges.

DISCUSSION

Reasonable Suspicion To Stop

In his motion to suppress evidence, Anderson raises two issues, one of which is the reasonableness of the stop. He maintains that Brosky was without reasonable suspicion to believe that he had committed a traffic violation.

Under 75 Pa.C.S. §6308(b), an officer need only have reasonable suspicion to believe that the Vehicle Code has been violated in order to make a lawful stop. According to Commonwealth v. Hamilton, 543 Pa. 612, 673 A.2d 915 (1996), that means that a police officer may stop a vehicle if he has “articulable and reasonable grounds to suspect that a violation of the Vehicle Code ha[s] occurred.” Id. at 618, 673 A.2d at 918 (citing Commonwealth v. Whitmyer, 542 Pa. 545, 552, 668 A.2d 1113, 1116-17 (1995)). Under the Vehicle Code, that standard applies when the officer has articulable and reasonable grounds to suspect that a driver is operating his vehicle in the wrong lane of traffic.

According to section 3301(a), a driver having sufficient road width to do so must keep his vehicle within the right half of the roadway upon which he is traveling, id.; section 3307(b) specifies that no driver shall at any time drive on the left-hand side of the road where the markings thereon signify a no-passing zone, id.; and section 3309(1) directs that whenever a roadway has been divided into two or more lanes, a driver shall, as nearly as practicable, drive entirely within a single lane. Id.

Anderson failed to keep his vehicle within the confines of his own lane and offered no evidence tending to establish that he was unable to do so. Brosky watched him driving in the middle of two lanes divided by a centerline and one of which was designated for oncoming traffic. He also observed Anderson veering beyond his own lane while attempting to correct his position, nearly colliding with a bridge guiderail in the process. Brosky then confirmed that Anderson was speeding after he turned around and began his pursuit. These circumstances lead inexorably to the conclusion that Brosky did indeed possess reasonable suspicion to believe that Anderson had violated provisions of the Vehicle Code.

Jurisdiction to Stop

Also in his motion to suppress evidence, Anderson argues that Brosky conducted an improper, illegal, and unjustifiable stop because it was executed outside of his primary jurisdiction and without statutory authority.

The Municipal Police Jurisdiction Act (MPJA) — 42 Pa.C.S. §8951 et seq. — states in relevant part that any duly employed police officer within the Commonwealth has authority to perform police functions outside of his primary jurisdiction “[wjhere the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.” Section 8953(a)(2). (emphasis added)

Anderson focuses on the DUI and argues that Brosky did not have probable cause until after the stop to believe that a DUI or other misdemeanor or felony had been committed. Neither the MPJA nor interpreting case law requires that the offense be a felony or misdemeanor, however. The statute itself says that jurisdiction attaches when the officer is in fresh pursuit “for any offense” committed within his jurisdiction. Id. By definition, “any offense” includes summary offenses, and the MPJA makes no effort to foster a different understanding.

Commonwealth v. McGrady, 454 Pa. Super. 444, 685 A.2d 1008 (1996), confirms the scope of offenses covered by the MPJA. In circumstances similar to those present here, the officer in McGrady pursued and stopped the defendant outside of his primary jurisdiction for the purpose of issuing a traffic citation after witnessing the defendant cross the centerline. Id. at 446, 685 A.2d at 1008-1009. The officer could not stop him sooner due to unsafe road conditions. Id. at 446, 685 A.2d at 1009. The defendant was ultimately charged with a DUI as a result of the encounter. Id.

Reversing a suppression order granted by the trial court, McGrady affirmed the arrest under the MPJA, noting that the officer had observed the defendant committing a summary traffic violation and thus could have stopped him immediately to issue a citation. Id. at 450, 685 A.2d at 1010. The only reason the officer waited, said the court, was because of the unsafe road conditions. Id. at 450, 685 A.2d at 1010-11. The court concluded that because the officer had personally witnessed the offense, he was permitted by the MPJA to continue his “fresh pursuit” of the defendant to issue the citation. Id. at 450, 685 A.2d at 1011.

The immediate scenario is practically indistinguishable. Brosky personally observed Anderson committing two separate traffic violations — crossing the centerline and driving at a speed in excess of the posted speed limit. He immediately turned around to pursue the vehicle, and the only reason he did not detain Anderson within the borough limits was because Anderson’s speed prevented Brosky from catching up to his car until they were already in Snyder Township. Brosky’s was unquestionably a fresh pursuit, however. At no time did he discontinue the chase after making the prompt decision to pursue Anderson. See Commonwealth v. McPeak, 708 A.2d 1263, 1266 (Pa. Super. 1998) (articulating that the MPJA’s hot and fresh pursuit exception requires only that the chase be immediate, continuous, and uninterrupted).

Refusal of Blood Test

Anderson argues in his motion to suppress his refusal to submit to chemical testing that his refusal must be suppressed because the form that Brosky used — DL-26 —was misleading, unfair, and a deficient warning of the consequences of refusal. He relies on Commonwealth v. Jaggers, 903 A.2d 33 (Pa. Super. 2006), wherein the court determined that the DL-26 warnings were insufficient to apprise defendants of the actual consequences of declining chemical testing. Id. at 35-37. daggers concluded that motorists should be afforded a more comprehensive warning of the ramifications of refusal in the event of a conviction. Id. at 37.

Later that year, our Supreme Court reached the opposite conclusion in PennDOT v. Weaver, 590 Pa. 188, 912 A.2d 259 (2006). Though not explicitly doing so, Weaver effectively overruled Jaggers by eschewing the relevant premises upon which Jaggers relied.

License suspensions are often a civil consequence of criminal activity. Typically, the scope of review governing their appeal limits the reviewing court to determining whether the trial court’s findings of fact were supported by competent evidence and whether the trial court had committed an error of law or abuse of discretion in reaching its decision. Weaver, 912 A.2d at 261. And because the standard of evidence sufficient to decide a civil appeal differs from the “beyond a reasonable doubt” standard governing criminal matters, judging a criminal matter by a civil standard would generally be inadvisable at best.

Weaver, however, did not apply the typical civil standard. Rather, the question was one of statutory interpretation — a question of law requiring plenary review, id., and as interpreted by our Supreme Court, DL-26, which was the same version that Brosky employed in this case, satisfied the mandates of 75 Pa.C.S. §1547 and adequately notified motorists of the consequences of refusing to submit to chemical testing. Weaver, 912 A.2d at 264.

Quoting the relevant language of section 1547, the Weaver court determined that its plain language only required an officer to inform an arrestee that a refusal of chemical testing would result in additional penalties should he refuse to submit to chemical testing. Id. “[I]t does not require the officer to enumerate all of the possible penalties,” it said. Id. Directly contradicting Jaggers, moreover, Weaver rejected the contention that DL-26’s reference to section 3804(c) was meaningless to most people. Id. The court concluded instead that “[f] orm DL-26 gives an arrestee an easily understandable warning that if he refuses a chemical test and is convicted of DUI, he will be subject to severe penalties because of his refusal.” Id. The court further articulated that the language of DL-26, which was patterned after the legislative dictates of section 1547, was clear and did not include “the impractical complexity of explaining each of the three sections and 11 sub-subsections set forth in section 3804(c).” Id., 912 A.2d at 264-65. See daggers, 903 A.2d at 36-37 (reaching the opposite conclusion).

Additionally, Weaver said that DL-26’s clause, “which include a minimum of 72 hours in jail and a minimum fine of $1,000,” was an accurate statement of the applicable minimum penalties and, by its language, apprised motorists with the word “include” that they were merely exemplary, not an exhaustive list of possible penalties. Id., 912 A.2dat265. See daggers, 903 A.2dat37 (reaching the opposite conclusion). That interpretation, said the court, comported with the statute’s plain language and the legislative intent. Id., 912 A.2d at 264.

Under Weaver, then, Brosky’s reading of DL-26 sufficed to inform Anderson of the possible repercussions of his refusal. Brosky read the form line by line, verified that Anderson understood the contents of the form, and obtained Anderson’s signature at the bottom. According to Weaver, the form was legally sufficient, and because the issue in the decision surrounded interpretation of the statute, that Weaver was a license suspension appeal does not affect its applicability to the present case.

ORDER

And now, February 7, 2007 in accordance with the foregoing opinion, it is hereby ordered and decreed as follows:

(1) Defendant’s motion to suppress evidence is denied.

(2) Defendant’s motion to suppress refusal to submit to chemical testing is denied.

(3) Defendant’s motion to quash information is denied.

      . When asked to say his ABCs, said Brosky, Anderson proceeded in a sing-song and could not recite them accurately. Nor could he correctly count forward from one to four and backward from four to one while touching each of his fingers with his thumb. He was also unable to take seven steps, heel-to-toe, in a straight line. Finally, on a preliminary breath test, Anderson registered a .15, which is the highest reading the machine will give.

      . Five exceptions apply to this general rule, but none is applicable in this case.


author: FORNELLI, P.J.,

text:
    Mercer County Citizens for Responsible Development v. Springfield Township Zoning Hearing Board

      C.P. of Mercer County,
    nos. 3721 Civil 2005, 374 Civil 2006, 2350 Civil 2006, 2902 Civil 2006.

      Daniel F. Gramc and Andrew F Szefi, for appellants.

      Douglas C. Straub, for appellee Springfield Twp. Zoning Hearing Board.

      RaymondH. Bogaty, for intervenor Springfield Township.

      William R. SittigJr, for intervenor Grove City Properties L.P.

      January 17, 2007
   FORNELLI, P.J.,

HISTORY

On February 7,2005, A.S.C. Corporation filed a zoning change application requesting certain property in Springfield Township, Mercer County, Pennsylvania be rezoned from Commercial 2 (C-2) to Commercial 1 (C-l). A public hearing on the application was held on February 28, 2005 before the township planning commission, which voted to recommend its approval. The township board of supervisors granted the zoning change by ordinance number 04-2005 on June 6, 2005.

This action spawned a number of appeals, some to the Springfield Township Zoning Hearing Board and others directly to this court. Those appeals are as the following:

2005-3721 Procedural Errors

This is an appeal from the ZHB’s decision of June 29, 2005 denying Mercer County Citizens for Responsible Development, John Woods, Geri Woods, Robert Moors and Marian Moors’ (appellants) challenge to the zoning amendment on the basis of alleged procedural errors in its enactment. The errors alleged included:

“(1) failing to conspicuously post the property as required under title 53 P.S. §10609 (the Municipalities Planning Code);

“(2) providing an inaccurate and/or incomplete description of the subject property under sections 609-610 in the requisite advertising notices published;

“(3) having someone other than the municipal solicitor prepare the notices for the public hearing in violation of section 10610; and

“(4) publishing the June 6, 2005 supervisors meeting as a public hearing rather than a public meeting.”

Appellants filed their appeal with this court on November 21, 2005.

2006-374 Preliminary Approval

After approval of the zoning amendment, on October 17, 2005, Grove City Properties L.P., the proposed developers of the property, filed with Springfield Township an application for approval of a plan for preliminary land development on the property affected by the amendment. Despite a substantive challenge to the zoning amendment pending before the ZHB, the township board of supervisors on January 3,2006 granted preliminary approval of the land development. Appellants filed an appeal from this approval directly to this court on February 1, 2006.

Appellants argue that a stay was imposed by law under the Municipalities Planning Act, section 10915.1, once they had filed a substantive appeal with the ZHB on December 16,2005, which prevented the township board of supervisors from ruling upon the preliminary land development plan while that challenge was pending before the ZHB.

2006-2350 Substantive Challenge

Appellants filed with the ZHB on December 16,2005, a substantive challenge to the zoning amendment that included a claim that it constituted spot zoning. A public hearing by the ZHB was held February 1, 2006. At the hearing, two Springfield Township residents, who are also appellants, and a township landowner testified on behalf of appellants: Mr. Bucha, who lives four-tenths of a mile from the development area; Mrs. Marian Moors, who lives four miles away; and Mr. Woods, who owns property approximately five to six minutes away from the subject area. These individuals cited increased traffic and/or crime in the area as their concerns with the development. On June 15, 2006, the ZHB denied the substantive challenges, which was appealed to this court on July 13, 2006.

2006-2902 Final Approval

Despite the pending appeal to this court from the township’s approval of the developer’s preliminary land development plan, the township granted Grove City Properties L.P. final approval on their development plan on August 15, 2006. Appellants filed a direct appeal from that final approval to this court on August 31, 2006.

Each of the above four appeals also involve other issues including the standing of the appellants to raise their procedural and substantive challenges.

OPINION AND ORDER

Most of the issues raised by these appeals will be rendered moot by the decision herein. Additionally, some of the issues should be further mooted if the township pursues reenactment of the zoning amendment and follows the proper statutory procedure thereafter.

Appellants have claimed a number of procedural errors in the township’s enactment of the zoning amendment ordinance. If the zoning amendment was not properly enacted by the township, all other actions taken pursuant to that amendment fall, including any approval of development plans thereunder.

The court will first address the issue of whether the statutorily mandated notice of zoning amendment was given. If the notice given was improper, the amendment is void, all approvals under the amendment are void, and any other challenges to the amendment are moot.

But in order to consider this notice challenge, the court must first resolve the issue of the standing of appellants to raise such a procedural challenge.

A. Standing

The township, the ZHB and the developer have all asserted that appellants lack standing to raise their challenges. In deciding whether appellants have standing to raise their challenges, each appeal must be viewed separately because the requirements for standing to challenge a zoning amendment differ for procedural zoning challenges and for substantive zoning challenges.

In general, any resident of a township has standing, as an aggrieved person, to challenge whether changes in its zoning ordinance are passed in accordance with proper procedure. Ardmore Manor Civic Association v. Haverford Township, 51 D.&C.2d 417 (1970). Citizens have a right to ensure that they receive notice of all proposed changes to the zoning ordinance, i.e., that such notices will be posted properly and will adequately describe the proposed changes so they may meaningfully participate in the amendment process. Tinicum Township v. Tinicum Township Zoning Hearing Board, 154 Pa. Commw. 476, 624 A.2d 232 (1993).

Further, citizens have such standing because changes to the zoning ordinance of a municipality potentially affect everyone. In Tinicum Township, the court stated, “publication requirements protect public interests, not private ones, hence a challenger need not allege or prove prejudice.” Tinicum Township, 154 Pa. Commw. at 485, 624 A.2d at 237.

Likewise, courts have held:

“[Rjesidents of a municipality have a sufficient legal interest in preserving the integrity of the local zoning ordinance to give them the status of ‘persons aggrieved’ enabling them to challenge amendments to the ordinance: [citing] Roeder v. Hatfield Borough Council, 439 Pa. 241, 266 A.2d 691 (1970); Raum v. Tredyffrin Twp. Board of Supervisors, 20 Pa. Commw. 426, 342 A.2d 450 (1975).” Leech v. Cater, 2 D.&C.3d 470, 472 (1977).

The United States Supreme Court has established a test for when a plaintiff has standing to challenge a statute. To have standing, one must determine whether “the interest the plaintiff seeks to protect is arguably within the zone of interests sought to be protected by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829 (1970).

In the case at bar, the procedural issues raised by appellants deal with the adequacy of the notice which the township gave regarding the proposed zoning change. The interest to be protected by the notice statutes, 53 P.S. §§10609 and 10610, is the right of the citizens of the municipality to be given notice of the proposed changes. The statutes’ drafters clearly were concerned with a municipality giving adequate notice to its citizens prior to zoning changes being enacted.

Accordingly, failure to give proper notice invades an interest that residents, such as appellants, have standing to protect. Therefore, appellants do have standing to assert the procedural errors alleged to have occurred in the township’s enactment of the zoning amendment. We will therefore turn to the first of the appellant’s procedural challenges.

B. Notice

Appellants appeal at 2005-3721 from the ZHB’s opinion that there were no procedural errors in the amendment’s enactment that caused harm to appellants. Appellants have cited several errors. However, this court need only decide the challenge to the posted notice given because all other challenges are mooted by its determination.

Appellants assert that the only posted public notice of the proposed amendment was one sign being a white 8 x 11 1/2 sheet of paper posted between 35 to 60 feet off of the public roadway on private land, and that this was not sufficient to satisfy 53 P.S. §10609(b). Section 10609(b) provides that notice of a public hearing on a zoning amendment shall be “conspicuously posted . . . at points deemed sufficient. . . along the tract to notify potentially interested citizens.” (emphasis added)

In Rickertv. Latimore Township Board of Supervisors, 869 A.2d 1086, (Pa. Commw. 2005), the supervisors posted the signs but failed to post them in all areas being re-zoned. The court ruled that “[t]his posting requirement serves to inform not only the landowners directly affected by the map changes but also the public generally.” Id. at 1094.

An inadequacy in notice posting is a fatal flaw that renders a subsequent zoning ordinance void. Rickert v. Latimore Township Board of Supervisors, 869 A.2d 1086, 1094 (Pa. Commw. 2005). See also, Johnson v. Zoning Hearing Board, Stroud Township, 144 Pa. Commw. 479, 484, 601 A.2d 927, 929 (1992).

In the case at bar, the only notice posted was in one location on a white 8x11 1/2 sheet of paper 35 to 60 feet off of the road with no distinguishing features on that sign as to size, font, color or type. The purpose behind posting the notice is to ensure any interested person has at least the opportunity to be advised of the pending zoning hearing. If the sign is not designed to give notice, it has not served its purpose.

The sign and its contents were barely visible to the public let alone “conspicuous” as required by the statute. A white sheet of paper with one size font 35 to 60 feet away is hardly sufficient to attract a pedestrian’s attention let alone the motoring traffic. The subject property is bounded by a four-lane highway (Interstate 79) on the west and on the south is a heavily traveled two-lane highway (Route 208) that widens into a three-lane road. There are no roadways on the eastern and northern borders. Clearly, the target audience in this area is the motoring public. Thus, the sign and the fact it is a notice sign should be visible from the roadways. Here, in order to read this sign, a motorist would have to stop his vehicle, exit it, and trespass upon the land to get close enough to read it. Clearly, these things make the notice anything but conspicuous.

Additionally, the statute requires the notice to be posted at “points.” Obviously, the legislature felt that to adequately notify the public there needs to be more than one sign “at points.” With over 828 square feet of frontage that the supervisors could have posted upon, failure to post more than one sign, and failure to post it alongside the roadways, also makes this posting inadequate. Since notice of the proposed zoning amendment was inadequate, its enactment was faulty and the amendment is void.

As stated above, appellants raised several other procedural issues including:

“(a) The announcement of the proposed amendment included more land in the description of property than was to be re-zoned;

“(b) Someone other than the township solicitor prepared the notice contrary to section 10610 of the Municipalities Planning Code; and

“(c) The public meeting was listed as a public hearing.”

While these errors alone appear to be de minimis, we need not consider them since they are mooted by the holding that the failure to properly post the subj ect property was fatal to valid enactment.

Accordingly, the appeal at 2005-3721 from the zoning hearing board’s ruling on procedural error is sustained. The appeal from the ZHB on substantive grounds and the direct appeals from the township’s preliminary and final approvals of the land development plans will be dismissed as moot since the zoning amendment, which is the basis of these challenges, was improperly enacted. Hence this order.

ORDER

And now, January 17, 2007, the appeal at 2005-3721 is sustained and ordinance no. 04-2005 is held to be invalidly enacted without proper notice in accordance with 53 Pa.C.S. § 10609(b). The appeals at 2006-374 (preliminary approval), 2006-2350 (substantive challenge) and 2006-2902 (final approval) are dismissed as moot.

      . See 2006-2350 substantive challenge on p. 179, infra.

      . Obviously, if the preliminary approval was stayed, as argued at 2006-374, supra, there could be no valid final approval of the development plan without a prior valid preliminary approval.

      . E.g., MPC is clear that if a substantive appeal is taken to the ZHB, during its pendency before the ZHB all land development under the challenged ordinance is stayed. It is assumed that if such an appeal is taken from any future township zoning amendment, no action will be taken by the township on requests for preliminary approval of land development under the challenged amendment during its pendency before the ZHB. See 53 P.S. §10915.1.

      . While the court may be tempted to rule on these other appeals, to do so would be to render advisory opinions on issues not ripe for determination. However, the court is constrained to note that a close reading of this opinion and its footnotes points to resolution of the direct appeals on grounds of stay from the preliminary and final land development approvals by the township. Moreover, the substantive challenge to the ordinance on the basis of spot zoning is controlled by well settled and uncomplicated decisional law.


author: HODGE, J,

text:
    Union Township v. Union Township Police Association

      C.P. of Lawrence County,
    no. 70002 of 2006, M.D.

      Gabriel P. Cilli, for plaintiff.

      Eric C. Stoltenberg, for defendant.
    January 30, 2007
   HODGE, J,

This case was before the court on October 31, 2006, for a non-jury trial, on a complaint for declaratory judgment filed by the plaintiff, Union Township, against the Union Township Police Association, pursuant to the Declaratory Judgment Act, 42 Pa.C.S. §7531 etseq.

The Township is requesting in its prayer for relief of its complaint an adjudication that the November 14,2005 collective bargaining agreement extension (C.B.A. extension) and the December 20,2005 addendum to the C.B.A. extension are null, void, and unenforceable by the Police against the Township. In addition, the prayer for relief requests an adjudication that the 2004-2006 C.B.A. is the only valid and enforceable C.B.A.

The Township is also requesting in its prayer for relief the assessment of counsel fees and other relief against the police.

The Police have filed an answer to the complaint, admitting paragraphs 1 through 10 of the plaintiff’s complaint, and averring that the C.B.A. extension of November 14, 2005 and the addendum to the C.B.A. extension of December 20, 2005 are valid agreements of the Township. In addition, the Police answer alleges that neither the C.B.A. nor Act 111 require a vote of the municipality in order to reopen negotiations between the Police and the Township.

At the non-jury trial, the court received the testimony of witnesses for the Township, Clair Damon, Kevin Guinaugh, and Sally Byler. In addition, the Township’s exhibits numbers 1 through 33 were marked, admitted, and received by the court.

Testifying on behalf of the Police were Steven Galizia, Patrick Angiolelli, and David Edward Kingston. In addition, defendant’s exhibits A through G were marked and received by the court into evidence.

By way of factual background, it is undisputed that on May 18,2004, the Township and the Police entered into a collective bargaining agreement at a special meeting of the Union Township Board of Supervisors, pursuant to Act 111 of June 24,1968, P.L. 237, number 11,43 P.S. §217.1 et seq. See plaintiff’s exhibit no. 5, the minutes of the special meeting of May 18, 2004.

Admitted into evidence as plaintiff’s exhibit no. 1 was the collective bargaining agreement for the time period of January 1,2004 through December 31,2006. Pursuant to article 2, section 2 of the 2004-2006 C.B.A., prior to January 1,2006, the C.B.A. may be reopened and negotiations/arbitrations may be engaged in the manner directed by Act 111.

In calendar year 2005, the Union Township Supervisors were Steven Galizia, Patrick Angiolelli, and Kevin Guinaugh. Supervisor Galizia’s term of office as a township supervisor expired on January 3,2006. On January 3,2006, Clair Damon assumed the office of Union Township Supervisor, following his election to that position on November 8, 2005.

The Township asserts that the Police did not begin negotiations for an extension of the collective bargaining agreement at least six months prior to the start of the fiscal year, in that the Township had no record of any dealings or notice of any dealings between the police and the Township until October of 2005, at which time the Township received a notice of intent to bargain. See plaintiff’s exhibit no. 33, being a letter from Mark Julian of the Police Department dated October 14, 2005. This notice, however, was one year and two and one-half months prior to the expiration date of the original C.B. A., being December 31, 2006.

For calendar year 2005, Supervisor Galizia acted not only as chairman of the Board of Supervisors, but had been appointed at the 2005 reorganizational meeting of the Board of Supervisors as the liaison person by and between the Township and the Police Department. The Township argues in its brief that there was no action of the municipality authorizing Supervisor Galizia to reopen negotiations with the Police. However, the Township points to no statute or case law to support its proposition that action of the municipality is required in order to reopen a collective bargaining agreement containing a re-opener clause.

The legal advertisement for the November 14, 2005 special meeting was published in the New Castle News on November 11, 2005. The legal notice advertised a special meeting for the purpose of “personnel matters,” but did not refer to the adoption of a collective bargaining agreement.

The Township takes the position that the notice was insufficient for the Township to vote on the collective bargaining agreement pursuant to section 65504 of the Township Code. As a result, the Township is alleging that the original extension agreement is void and unenforceable.

The minutes of the November 14, 2005 special meeting, plaintiff’s exhibit no.7, indicate that the C.B.A. extension agreement was approved by a vote of two to one, with Supervisor Kevin Guinaugh voting no.

Plaintiff’s exhibit no. 14, being the December 20,2005 regular meeting agenda, approved the minutes of the November 14, 2005 special meeting.

The Township also seeks to void the addendum to the C.B.A. extension agreement dated December 20, 2005, arguing that the addendum was not on the agenda on the December 20, 2005 regular meeting, plaintiff’s exhibit no. 14, and that the minutes of the December 20, 2005, meeting make no mention of a vote on the addendum to the C.B.A. extension agreement. See plaintiff’s exhibit no. 13. On December 27,2005, the Township supervisors held a special meeting, and the minutes reflect that the Board of Supervisors approved the minutes of December 20, 2005, in which there is no mention of a vote on the C.B.A. extension addendum. See plaintiff’s exhibit no. 15. The Township argues that since there were neither minutes nor a resolution produced authorizing the addendum to the C.B.A. extension agreement, the addendum is void and unenforceable against the Township pursuant to the provisions of the Second Class Township Code.

In addition, the Township argues that the provisions of the Second Class Township Code require that the addendum, being an official action of the Board of Supervisors and being required to be done at a public meeting, must be signed by more than one supervisor, as there is no resolution authorizing one supervisor to sign the addendum agreement on behalf of the Township.

In addition, the Township argued by virtue of its testimony and in its brief that the original C.B.A. extension agreement is null and void as a “lame duck or midnight contract” pursuant to the line of appellate court cases that have held that in the performance of governmental functions, discretionary public commitments cannot be made by officials in office where those commitments will unduly bind their successors in office and where such commitments are made “ultra vires.”

The Police, pursuant to their testimony and the arguments contained in the brief, assert that the parties engaged in lawful, voluntary mid-term bargaining, which is permitted in the C.B.A. as a re-opener, and that mandatory bargaining would not have to begin until June 30, 2006, which would be six months prior to the start of the fiscal year of the Township for the last year of the C.B.A. The Police assert that there is no statutory nor contractual bar to public bargaining of the collective bargaining extension prior to that time.

The Police assert that the Township had the authority to vote on the five-year extension agreement at the November 14,2005 special meeting, in that the advertisement of November 11, 2005 complied with the requirements of the Second Class Township Code for Special Meetings, set forth at 53 PS. §65604, which only requires that the nature of the business to be conducted be stated in the notice. The Police go onto assert that the Sunshine Act, 65 Pa.C.S. §701 et seq., specifically section 708(a), does not contain any requirement for the purpose of the meeting.

The Police assert that the Township has admitted the validity of the C.B.A. as enacted on May 18, 2004 for the time period January 1, 2004 through December 31, 2006. The advertisement and the minutes for the May 18,2004 meeting, plaintiff’s exhibits nos. 6 and 5, indicate that there was a special meeting for general purposes, which the Police assert is less specific than the November 14, 2005 special meeting. The police go on to assert that there is no basis for the conclusion that the November 11, 2005 notice of the special meeting of November 14,2005 failed to comply with notice requirements of the Second Class Township Code.

As to the addendum adopted on December 20, 2005, the Police assert that the addendum has no issue similar to those of the extension agreement, in that the December 20,2005 meeting was a regular meeting of the Union Township Board of Supervisors.

The Police go on to assert that the December 20,2005 addendum is valid and legally enforceable, in that it was adopted at a regular meeting of the Board of Supervisors. Supervisors Galizia and Angiolelli testified to its adoption, and the Police assert that while the minutes of the meeting are sparse, there being no specific mention of the presentation nor adoption of the addendum, the Township did take official action hiring Officer Mrozek under the addendum containing separate and newly negotiated pension provisions. The Township secretary was absent at the December 20, 2005 meeting, and Supervisor Galizia testified that the minutes of the meeting were prepared from his notes.

The Police go on to assert that there is no requirement as to any specific number of signatures on a collective bargaining agreement, only that the collective bargaining agreement be voted on and approved.

The record did not include any resolutions specifically authorizing Supervisor Galizia to sign the collective bargaining agreement extension or addendum. However, the extension agreement was signed by both Supervisor Galizia and Angiolelli, plaintiff’s exhibit no. 1, while the addendum agreement dated December 20, 2005 was signed only by Supervisor Galizia. See plaintiff’s exhibit no. 7.

The Police go on to assert that, pursuant to the Declaratory Judgment Act, 42 Pa.C.S. §7531 et seq., the challenge to the Township Code is barred by the statute of limitations. Police argue that section 65604 of the Township Code incorporates section 713 of the Sunshine Act, and that all legal challenges to the action of the Board of Supervisors must be done within 30 days. The Police assert that the Township knew at the latest, on January 5, 2006, that the mandated notices were not present in the legal advertisements, but that the Township did not file its declaratory judgment action until February 15,2006.

Counsel for the Police have forwarded to the court a copy of the Pennsylvania Labor Relations Board order dated November 30,2006, case number PF-C-06-18-W. In that the record in the case was closed at the conclusion of the testimony on October 31, 2006, except for the filing of briefs and legal memorandum on behalf of both parties, this court has not considered in any manner the order of the P.L.R.B. dated November 30, 2006.

Fundamental to the court’s decision in this case are the issues of whether or not the collective bargaining extension agreement was validly enacted by the prior Board of Supervisors of Union Township, and whether or not the collective bargaining extension addendum was properly enacted by the prior Board of Supervisors of Union Township.

Section 65604 of the Second Class Township Code, 53 P.S. §65604, “special meetings,” provides as follows:

“Upon call of the chairman or by agreement of a majority of its members, the board of supervisors may schedule special meetings of the board of supervisors after notice required under the Act of July 3,1986, known as the ‘Sunshine Act.’ Notice of a special meeting shall state the nature of the business to be conducted at the meeting.”

Pursuant to the Sunshine Act, 65 Pa.C.S. §701 et seq., specifically section 709, special meetings may be called by an agency of the Commonwealth, such as a township, which provides as follows:

“709(a) meetings ... an agency shall give public notice of each special meeting or each rescheduled regular or special meeting at least 24 hours in advance of the time of the convening of the meeting specified in the notice.”

The record in this case establishes that on November 11, 2005, the Township published notice of the special meeting of November 14,2005, in the New Castle News. That notice indicated that the purpose of the meeting was to consider personnel matters.

The record establishes that one purpose of the November 14, 2005 meeting of the Union Township Board of Supervisors was to hire a new township solicitor, in that the prior solicitor, Attorney Joseph J. Kearney, had resigned, and the Township was in need of a solicitor to proceed with the adoption of the Code Enforcement Ordinance.

The Township asserts that the legal notice of the meeting was insufficient, in that it did not specifically refer to the consideration of the collective bargaining agreement. The union’s response is that the collective bargaining agreement extension obviously involves matters of personnel issues, i.e., wages, pensions, hours, and terms of employment. The court has reviewed the provisions of section 708 of the Sunshine Act, 75 Pa.C.S. §708, wherein the legislature has provided that an agency may hold an executive session for one or more of the following reasons:

“(a) purpose:

“(1) to discuss any matter involving the employment, appointment, or termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific perspective public officer or employee, or current public officer or employee employed or appointed by the agency ...

The court finds that the adoption of a collective bargaining agreement is encompassed within the general purview of the term personnel issue, and as a result, the court will not enter an order voiding the adoption of the collective bargaining agreement extension on November 14, 2005. The court, in doing so, is not expressing an opinion one way or another relative to the prudence of the extension agreement and the terms set forth therein.

As to the adoption of the collective bargaining agreement extension addendum on December 20, 2005, that issue was allegedly adopted by the Township at the regular monthly meeting of the Board of Supervisors. As a result, the issue as to the sufficiency of the legal notice of the advertisement of the meeting is not before this court.

The agenda for the December 20,2005 meeting of the Union Township Board of Supervisors contains no mention whatsoever of adoption of an addendum to the collective bargaining extension agreement. See defendant’s exhibit E. The minutes of the regular meeting of the Union Township Board of Supervisors of December 20, 2005, contain no mention whatsoever of the alleged adoption of the collective bargaining agreement extension by the Township Supervisors. It is interesting to note that the minutes of the regular meeting of December 20, 2005, as presented to the court, are very specific, and contain 11 separate items of which there were motions made by the Board of Supervisors, including, under sub-paragraph 9(g), new business — personnel matters, a motion by Mr. Galizia to hire Mike Mrozek as a full-time officer, and seconded by Mr. Angiolelli, with the votes being yes from Mr. Galizia and Mr. Angiolelli, and no from Mr. Guinaugh.

The following week at the December 27,2005 special meeting of the Board of Supervisors, the board entered a motion approving the minutes of the meeting of December 20, 2005.

Nowhere in the minutes of the December 20, 2005 meeting is any mention made of the adoption of the addendum to the collective bargaining extension agreement of November 14,2005. The Police would have the court believe that this was an oversight, in that the Township’s secretary, Kathy Schmidt, was absent, and that the minutes were prepared by Mr. Galizia from his notes.

While Supervisor Galizia and Supervisor Angiolelli testified that the collective bargaining extension addendum was voted on at the meeting, the Township’s witnesses, Clair Damon and Sally Byler, testified that it was not.

Pursuant to the provisions of the Second Class Township Code, section 65603, 53 P.S. §65603, “an affirmative vote of a majority of the entire board of supervisors at a public meeting is necessary in order to transact any business.”

Section 65606 of the Second Class Township Code, 53 P.S. §65606, also requires that the board of supervisors provide for the recording of minutes in its proceedings, as evidence of the proceedings of the board.

Under the Sunshine Act, 65 Pa.C.S. §703, agency business is defined as follows: “agency business — the framing, preparation, making or enactment of laws, policy, or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties, and responsibilities, but not including administrative action.”

Clearly, the adoption of a collective agreement extension is creation of liability to the Township by contract, and, as such, needs to be adopted by the Board of Supervisors at a public meeting.

Official action is likewise defined in the Sunshine Act, 65 Pa.C.S. §703 to be as follows:

“(1) recommendations made by an agency pursuant to statute, ordinance or executive order.

“(2) the establishment of policy by an agency.

“(3) the decisions on agency business made by an agency.

“(4) the vote taken by any agency on any motion, proposal, resolution, rale, regulation, ordinance, report or order.”

Clearly the records of Union Township are deficient in this matter as to the adoption of the collective bargaining agreement addendum, and, as such, the court will enter the attached order striking the alleged adoption of the collective bargaining agreement extension addendum by the Board of Supervisors of Union Township.

The Township’s position is that the adoption of the November 14, 2005 collective bargaining agreement extension is a “lame duck” or “midnight contract,” which cannot be binding upon the Board of Supervisors of Union Township.

The Commonwealth Court has held that in the performance of governmental functions, discretionary public commitments cannot be made by officials in office where those commitments will unduly bind their successors in office or if such commitments are made “ultra vires.” See Lobolito Inc. v. North Pocono School District, 722 A.2d 249 (Pa. Commw. 1998); State Street Bank & Trust Company v. Treasury Department, 712 A.2d 811 (Pa. Commw. 1998).

However, the Supreme Court of Pennsylvania, in the case of Horvat v. Jenkins Township School District, 337 Pa. 193, 10 A.2d 390 (1940), held that subsequent boards are bound by contracts validly made by former board members and cannot undo what the former board had legally done.

Sections 701 through 904 of the Public Employee Relations Act, Act of July 23,1970, P.L. 563, as amended, 43 P.S. §§1101.701-1101.904, provides the statutory authority for the Board of Supervisors of the Township to engage in negotiations and execute collective bargaining contracts with employee organizations. However, the execution of a collective bargaining agreement is not an impermissible attempt to unduly bind the successor board of supervisors. See Chichester School District v. Chichester Education Association, 750 A.2d 400 (Pa. Commw. 2000); see also, Borough of Pitcairn v. Westwood, 848 A.2d 158 (Pa. Commw. 2004).

In addition, the Police presented evidence that the Board of Supervisors of Union Township was in the process of negotiating a four-year extension agreement for its municipal employees with the AFSME Union, which would be in effect past the expiration date of the term of office of at least one, if not two, members of the current Board of Supervisors. See defendant’s exhibit no. A.

As a result, the court will not void the collective bargaining agreement extension as a “lame duck” or “midnight” contract.

Based upon the foregoing, the court will enter the attached order.

ORDER

And now, January 30,2007, after consideration of the evidence presented at the October 31, 2006 non-jury trial, and based upon the arguments of counsel both at the time of trial and as expressed in their legal memorandums, the court enters the following order:

(1) The collective bargaining agreement extension, dated November 14,2005, shall remain in full force and effect as a validly adopted collective bargaining agreement of the Board of Supervisors of Union Township.

(2) The collective bargaining agreement extension addendum, dated December 20,2005, is hereby declared to be null and void, as the alleged collecting bargaining agreement extension addendum was not properly adopted by the Board of Supervisors of Union Township.

(3) The court dismisses the Township’s argument that the adoption of the collective bargaining agreement addendum was a “lame duck” or “midnight” contract, for the reasons set forth in the attached opinion.

(4) The court denies the Township’s request for counsel fees in this matter.

(5) The court dismisses the Police argument that the litigation was not timely filed pursuant to the Sunshine Act and Second Class Township Code.

(6) The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record.