id
int64 1.5M
9.88M
| date_created
stringlengths 25
29
| author_str
stringlengths 3
14
⌀ | download_url
stringclasses 93
values | text
stringlengths 37
398k
|
|---|---|---|---|---|
9,645,426 | 2023-08-22 21:24:26.756856+00 | Greenhill | null | Mr. Justice Greenhill,
joined by Justices Walker and Norvell, concurring.
I concur with the result reached by the majority.
It seems to me that under the peculiar facts of this case, there are two issues of fact: (1) was a mistake in fact made; and (2) was the mistake, if any, a remediable one.
The majority holds that the first issue is raised. It also says, “Generally it is only when negligence amounts to such carelessness or lack of good faith in calculation which violates a positive duty in making a bid, taking into consideration the nature of the transaction and the position of the opposite party, that equitable relief be denied.” In accordance with that principle, the second issue should inquire whether such mistake was caused by the failure to exercise at least that minimum desree of care which a public authority, in the position of the district, may reasonably expect all of its bidders to exercise, in the light of the circumstances of the transaction and the practices of the trade. 3 Pomeroy’s Equity Jurisprudence (5th ed.) 340.
As I construe the opinion of the majority, it says the second issue might be raised upon the trial. Under the record as it reaches us, I think the issue was raised; and if like evidence be adduced on another trial, the issue should be submitted.
Opinion delivered April 27, 1960.
Rehearing overruled June 1, 1960. |
9,645,427 | 2023-08-22 21:24:28.405125+00 | Archer | null | ARCHER, Chief Justice.
This is an appeal from an order of the 98th District Court of Travis County, Texas, sustaining a plea of privilege filed by appellee, Employers Casualty Company, to be sued in Dallas County, Texas, the location of its principal place of business.
The appeal is based on two points:
“l. The error of the Court in sustaining, and not overruling, appellee’s plea of privilege.
“2. The error of the Court in holding that appellant failed to prove that the accidental injuries to Sam Steward Smith occurred during the unloading of the truck covered by appellee’s policy of insurance within the meaning of that policy.”
This suit was filed as a declaratory judgment action to determine which of the two insurance companies afforded primary coverage for the fatal injuries sustained by Sam Smith in Travis County allegedly as a proximate result of the negligence of Borders Steel Erection Company. Travelers had insured Borders under a general liability policy. Employers had issued a standard automobile liability policy for Capitol Aggregates, Inc., on its cement trucks and to any other person while using such trucks with consent of Capitol. The beneficiaries of Smith instituted suit against Borders and Travelers undertook the de-' fense, made a compromise of claims asserted against Borders, sought a court ruling that primary coverage was under Employers’ policy since Borders was using the truck of Capitol within the meaning of the policy, which provided that use of the truck should include “the loading and unloading thereof.”
Appellee filed its plea of privilege to be sued in Dallas County, the county of its residence. The controverting plea alleged that venue was properly in Travis County by virtue of Subdivision 23 of Art. 1995, Vernon’s Ann.Civ.St.
At the hearing before the court without a jury appellant introduced replies to requests for admissions, and the original petition, other pleadings and certain stipulations that *237Travelers was the insurer of Borders; that Employers issued to Capitol a standard Texas automobile policy containing provisions definding “use” as to the “loading and unloading thereof”; that the trucks would empty the concrete into a bucket attached to a crane belonging to Borders located at the construction site; that the crane buckled and inflicted the fatal injuries to Smith; that the crane was being used to transport the bucket to a portion of the construction work.
Appellant says that the narrow question on appeal is whether or not the alleged negligent acts of Borders, resulting in Smith’s death, occurred while the concrete truck was being-unloaded.
Appellee takes the position that the truck had been completely unloaded within the meaning of the policy prior to the time when the boom of the crane collapsed.
Capitol had an agreement to deliver the mix to the job site. Borders furnished certain buckets into which the mix was to be unloaded. The truck driver emptied the mix into the bucket, after which the bucket was moved by the crane owned and operated by Borders.
H. Q. Haile, Jr., called by defendant, appellee, testified:
“Q. Will you state your name, please? A. H. Q. Haile, Jr.
“Q. Where do. you live ? A. 4907 Beverly Hills Drive in Austin.
“Q. By whom are you employed? A. Capitol Aggregates, Inc.
“Q. In what capacity? A. As Vice President and Manager.
“Q. Were you so employed all during the month of February of this year? A. Yes, sir.
“Q. Did you have the matter called to your attention when the crane boom buckled and killed some men out on the high school job here in Austin? A. Yes, sir.
“Q. Who was the general contractor on that job? A. M. Z. Collins Construction Company.
“Q. Did you have a subcontract from Collins? A. A verbal subcontract, yes.
“Q. What did that contract embrace? A. To furnish ready-mix concrete to him for the construction of that project.
“Q. In reference to the delivery of the concrete or cement, or what do you call it? A. The concrete, yes, sir.
“Q. The concrete on the job, what did your contract embrace there? A. Our agreement was to bring ready-mix concrete of a certain specification to the job to be used by the general contractor in the construction.
“Q. Was there any agreement in reference to where delivery was to be made of the concrete? A. Our normal procedure there would govern. We did not have a contract with him, so far as to put it in one place.
“Q. What is your normal proce^ dure? A. Our normal procedure is in the event we can put our trucks to the form, is to dump into the forms. If we cannot, and the contractor chooses to use some conveying method to take the concrete from our trucks to its final resting place, then we put it in his bucket or in some events they even use a conveyor system, something like that.
“Q. After it is put into the bucket or conveyor, do your company or employees have any further control over the concrete? A. Absolutely none whatsoever.
“Q. How is it emptied into the buckets that are attached to the crane that lifts it up to the higher floors; how is it dumped into those buckets, Mr. Haile? A. We have a chute attached to the back of our truck that is *238used to convey the concrete from the rotating' drum to the bucket. It flows down this chute and drops into the bucket.
“Q. Then your testimony is that after it is so emptied into the bucket that neither your company nor any of your employees have any further control whatsoever over that concrete? A. That is absolutely right; no physical contact of any kind.
“Q. On this occasion when the boom buckled and fell on these men, did you or your company have any control whatsoever over that boom? A. Absolutely none.
“Q. Will you state whether or not, even after your trucks have driven off, that disposition is made of the buckets of concrete ? A. On some occasions I am sure that is true. We can empty our concrete into the bucket and drive our truck away from the jobsite, and then the concrete bucket can very conceivably be moved and dumped into the forms.
“Q. Tell the Court whether or not conveying this bucket that the concrete has been emptied into up to the place where the concrete is to be emptied from the bucket is part of your trans-foration ]o\>l A. No, sir; absolutely not.
“Q. That’s all.”
On cross-examination Mr. Haile testified that when possible the mix was delivered to the place it was to be used and that delivery of the mix was completed, as soon as it leaves the truck and Capitol was no longer responsible for. it; that when the mix is put .into the bucket attached to the crane there was no duty to take the mix to where it was to be used.
The Trial Court sustained the plea and ordered the transfer of the cause to Dallas County. •
No request for findings of fact and conclusions of law was made.
We believe the court was correct in entering the order transferring the cause and impliedly in finding that appellant failed to prove a cause of action against appellee, and that any negligence of Borders proximately causing the fatal injuries to Smith occurred after the completion of the unloading of the truck belonging to Capitol, and no coverage was afforded Borders under appellee’s policy.
In order to deprive appellee of its right to a trial in the county of its residence, the facts of the cause must be brought within one of the exceptions of the venue statute, and the burden was on appellant to plead and prove that its cause fell within one of the exceptions in Subdivision 23 of Art. 1995.
Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, Com.App., Sec. A, opinion adopted by Supreme Court; 1 McDonald, Texas Civil Practice, 394; R. B. Smith, Inc. v. W. E. Merritt & Sons, Tex.Civ.App., 277 S.W.2d 801, no writ history; 43-B Tex.Jur. 392.
Appellant cites American Employers’ Ins. Co. v. Brock, Tex.Civ.App., 215 S.W. 2d 370, writ ref., N.R.E., and Panhandle Gravel Co. v. Wilson, Tex.Civ.App., 248 S.W.2d 779, writ ref., N.R.E., as supporting its construction of the “Loading and Unloading” clause of the Standard Automobile Liability Policy. These cases are to be distinguished on the facts.
We do not believe the cases follow the “completed operations” theory, but rather the “coming to rest” theory.
There is at most a remote connection with Capitol’s truck and the fatal accident. If the crane and its boom had been structurally strong enough to do the work it was provided to perform, the accident in all probability would not have occurred.
The “loading” and “unloading” clause has not been extended to cover remote accidents in many cases such as Liberty Mutual Ins. Co. v. Hartford Accident & In*239demnity Co., 7 Cir., 251 F.2d 761, and cases therein cited.
The Trial Court having found by the judgment that the truck had been completely unloaded within the meaning of the policy and we believing that the evidence supports the action of the Trial Court, we should not set aside such implied finding but should sustain the judgment rendered.
Googins v. E. W. Hable & Sons, Tex.Civ.App., 237 S.W.2d 705, er. ref., N.R.E.
The judgment of the Trial Court is affirmed.
Affirmed. |
9,645,428 | 2023-08-22 21:24:28.40959+00 | Gray | null | GRAY, Justice
(dissenting).
I do not agree with the conclusion reached by Chief Justice ARCHER and without restating the facts I will briefly note my dissent.
Smith was injured in Travis County and appellant’s suit is to establish liability for that injury. This liability originated, if at all, in Travis County and not elsewhere and except for this injury the cause of action would never have arisen.
It is undisputed that appellee issued its policy of insurance covering Capitol Aggregates, Inc.’s trucks while loading and unloading, that it denies liability and that it is a corporation.
The only question presented on this venue hearing is: Did a part of appellant’s cause of action arise in Travis County? If it did then venue in Travis County is fixed by Exception 23 which in part provides: “Suits against a private corporation * * * may be brought * * * in the county in which the cause of action or part thereof arose * *
It is not disputed that appellee issued the •contract of insurance in question; that Smith was injured and that such injury occurred in Travis County where Capitol Aggregates, Inc.’s trucks were being operated. These are the facts that gave appellant the right to- bring the suit and are the facts from which appellant’s remedy originated. In Western Wool Commission Co. v. Hart, Tex.Sup., 20 S.W. 131, 132, the court said:
"Every cause of action, it is said by Mr. Pomeroy, consists, when subjected to analysis, of two separate and distinct elements, — the primary right and duty of the parties respectively, and the wrongful act or omission violating it. Our statute (section 21, art. 1198) seems to recognize the fact' that the cause of action consists of two distinct elements, .as it provides that the jurisdiction of the court shall attach where ‘a part thereof arose.’ The proof certainly shows that the transactions between appellant’s agent and appellee in Howard county, with reference to the shipment of the wool to appellant at St. Louis, formed a part of the cause of action, (without these facts, which the proof disclosed, plaintiff showed no right of recovery;) and it is difficult to understand the meaning of the language giving jurisdiction ‘where a part thereof arose’ if it was not intended to embrace a case like the present.”
The court said further:
“ * * * in the case under consideration the plaintiff seeks a recovery on the ground that ‘a part of the cause of action arose’ in Howard county, Tex. That a part of it arose in that county is manifest, because, if the facts (the dealings and transactions between plaintiff and Robinson, appellant’s agent in Howard county) be eliminated from this controversy, plaintiff could not recover. That part of the cause of action which arose in that county is so essential to the existence of the cause of action as a whole that there would be none without it.”
In Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S.W. 621, 624, the court quoted with approval from Western *240■Wool Commission Co. v. Hart, supra, as follows:
“The cause of action is that in which the plaintiff’s remedy has its origin— the fact or facts giving him the right to bring the suit. * * * Those facts which show the plaintiff’s primary right in the matter are as much a part of the cause of action, and are as necessary as a foundation for the suit, as are those facts showing a violation or invasion of his right, ordinarily termed a breach of the contract or covenant by the defendant.”
I would reverse the judgment of the trial court and here render judgment overruling appellee’s plea of privilege. |
1,516,028 | 2013-10-30 06:32:48.516773+00 | Murray | null | 335 S.W.2d 621 (1960)
CITY OF CORPUS CHRISTI, Appellant,
v.
LONE STAR FISH AND OYSTER COMPANY et al., Appellees.
No. 13656.
Court of Civil Appeals of Texas, San Antonio.
April 27, 1960.
Rehearing Denied May 25, 1960.
*622 I. M. Singer, City Atty., W. D. Pilcher, Asst. City Atty., Corpus Christi, for appellant.
William H. Bloch, Milton W. Walton, Corpus Christi, for appellees.
MURRAY, Chief Justice.
Appellees have filed a motion for leave to file a supplemental transcript containing, among other things, "Findings of Fact and Conclusions of Law," and an "Amended Order Granting a Temporary Injunction." The motion will be granted. We will not consider but will strike the "Amended Order Granting a Temporary Injunction," because it was made and entered after the City had perfected its appeal from the original order granting a temporary injunction.
When the appeal was perfected by the City, the trial court lost jurisdiction of the cause and such jurisdiction passed to the appellate court. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148; Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487; Hyatt v. Mercury Life & Health Co., Tex.Civ.App., 202 S.W.2d 325; Boynton v. Brown, Tex. Civ.App., 164 S.W. 897; Love v. Worsham, Tex.Civ.App., 101 S.W.2d 598; Duncan v. Boyd, Tex.Civ.App., 288 S.W. 281; Art. 4662, Vernon's Ann.Civ.Stats.
This Court will consider the findings of fact and conclusions of law filed after the perfecting of an appeal by City of Corpus Christi, because the City requested such findings and conclusions, and perfected its appeal before they were made. Appellees' motion to file supplemental transcript is granted as of March 30, 1960, the date it was tendered to the Clerk of this Court, and the Clerk will file the supplemental transcript as of that date.
This suit was instituted by City of Corpus Christi against Lone Star Fish & Oyster Company, a partnership composed of D. E. Wicker, Sr., and D. E. Wicker, Jr., and Dwight E. Walters, seeking a temporary restraining order, after hearing, a temporary injunction, and on final hearing a permanent injunction prohibiting the defendants from operating an oyster shucking plant at 5001 Timon Boulevard in the City of Corpus Christi, Texas. At a hearing, the District Court of Nueces County issued the temporary injunction as prayed for, but suspended its effectiveness until May 1, 1960, on which date the oyster shucking season would end for a time. The City has prosecuted this appeal.
The order granting the temporary injunction was signed on March 22, 1960, and on the same day the City gave notice of appeal, and as the City was not required to file an appeal bond, the appeal was thus perfected. The City requested findings of fact and conclusions of law, but later withdrew its request. The City appealed only from that part of the order which suspended the effectiveness of the temporary injunction until May 1, 1960.
Two days later, on March 24, 1960, the trial court attempted to enter an amended order, but, as above stated, this order came too late as the trial court had lost jurisdiction *623 on March 22, 1960. On the same day the trial court filed its findings of fact and conclusions of law. These were timely made and filed and will be considered by this Court.
When all the findings of fact are considered, which were made in the original order granting the temporary injunction and in the court's formal findings of fact, they amount to findings that the City of Corpus Christi has passed ordinances which make it unlawful to operate a food processing plant in the zone in which the premises known as 5001 Timon Boulevard is located. This is a B-3 Zone, which would permit a wholesale and retail fish market to operate but not a food processing plant.
The Oyster Company secured a permit to operate a wholesale and retail fish market, but was refused a permit to operate a food processing plant. The principal business carried on by the Oyster Company at 5001 Timon Boulevard is the shucking of oysters. The trial court expressed some doubt as to whether the shucking of oysters was food processing. Its findings show that from seventy-five to one hundred barrels of oysters are brought into the plant daily and placed in wooden bins, and thus made available to the oyster shuckers, who extract the oysters, place them in one gallon or twelve ounce containers and cover them with ice. When there is a sufficient amount of these oysters, they are shipped to another business located at 909 N. Staples Street, Corpus Christi, Texas, and from that location the oysters are shipped out to the market. We conclude from these facts that the appellees were carrying on a food processing business at 5001 Timon Boulevard in violation of valid City ordinances, and that the trial court properly ordered the temporary writ of injunction issued.
This brings us to a consideration of whether the trial court could properly suspend the effective date of this temporary injunction until May 1, 1960, upon the theory of a balancing of equities, or upon a hardship basis. It appears that the oyster shucking was being operated in daily violation of City ordinances, and under such circumstances the rule with reference to balancing of equities or hardship does not apply. Texas Practice by Lowe and Archer, p. 324, § 315; General Telephone Co. of the Southwest v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385; Rattikin Title Co. v. Grievance Committee, Tex.Civ. App., 272 S.W.2d 948; Gifford v. State, Tex.Civ.App., 229 S.W.2d 949; Red Lake Fishing & Hunting Club v. Burleson, Tex. Civ.App., 219 S.W.2d 115; Falls County v. Kluck, Tex.Civ.App., 199 S.W.2d 704; Alpha Petroleum Co. v. Railroad Commission, Tex.Civ.App., 59 S.W.2d 374; Lambert v. City of Port Arthur, Tex.Civ.App., 22 S.W.2d 320; Ford v. State, Tex.Civ. App., 209 S.W. 490.
The trial court found, in its findings Nos. 18, 19 and 20, as follows:
"18. That the Defendants applied for a special council permit to engage in the business of `Food Processing', at the time a building permit was issued on September 11, 1959, at the suggestion of the Plaintiff's Chief Zoning Enforcement Officer and another person on the staff of such enforcement office being assured that there was no reason to not proceed with the construction of his building but that such permit would cure any question of whether or not the shucking of oysters was food processing, and that Defendants were assured by said Zoning Enforcement Officer that there should be no difficulty in obtaining such a permit because the Mayor desired commercial development in the City of Corpus Christi and that such Council permit was primarily for clarification since oyster shucking was completely unclassified in the Zoning Ordinance of the City of Corpus Christi, and that, but for such representations Defendants would not have constructed improvements on its `B-3' zones premises.
*624 "19. That, after public hearing, the Zoning and Planning Board of the City of Corpus Christi recommended to the City Council that the application be denied.
"20. After public hearing, the City Council of the City of Corpus Christi denied the application."
Such representations made to appellees by the City's Chief Zoning Enforcement Officer and another person on his staff, do not estop or otherwise prevent the City from insisting upon the enforcement of its zoning ordinances and do not raise a question of balancing equities or of hardship. It is improper to suspend the effectiveness of a temporary injunction on the ground of balancing equities, or under the hardship rule, where a business is being daily operated in violation of a city ordinance.
Appellees have filed a cross-appeal in which they contend that the temporary injunction as granted disturbs the status quo. We overrule this contention, as the status quo to be protected is the status that existed before appellee began to operate the oyster shucking plant in a B-3 Zone in violation of a valid City ordinance.
Cross-appellants also contend that the oyster shucking was only incidental to their wholesale and retail fish market operated at 5001 Timon Boulevard. We overrule this contention, as the facts found by the trial court justify the conclusion that the principal business carried on at 5001 Timon Boulevard was the oyster shucking business.
Cross-appellants' remaining cross-points are without merit and are overruled.
That part of the order of the trial court which prevents the temporary writ of injunction from becoming effective until May 1, 1960, is reversed, set aside and held for naught. Otherwise the order granting the temporary injunction is affirmed at cost of appellees. |
1,516,030 | 2013-10-30 06:32:48.55192+00 | Pope | null | 335 S.W.2d 707 (1960)
GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant,
v.
Mrs. Mae Leola MITCHELL, Appellee.
No. 13619.
Court of Civil Appeals of Texas, San Antonio.
June 15, 1960.
Rehearing Denied July 13, 1960.
Brundidge, Fountain, Elliott & Bateman, Dallas, for appellant.
Jackson, Walker, Winsted, Cantwell & Miller, L. P. Bickel, Jack Pew, Jr., Dallas, for appellee.
POPE, Justice.
This is an action upon a group life insurance policy covering the employees of the City of Dallas. Mrs. Mae Leola Mitchell, a widow and the beneficiary of J. S. Mitchell, sued Great American Reserve Insurance Company and recovered $2,500, together with statutory penalty, attorney's fees and interest. The point in the case is whether an insurer, by waiver or estoppel, may alter the risks which the policy covers. Specifically, the policy insured employees only up to age 65. The trial court held that insurer accepted premiums and therefore waived or was estopped to defend under the policy provisions which insured Mr. Mitchell only up to the age of sixty-five. Plaintiff sued upon the insurance policy but claimed that the limitation of the risk to employees beneath the age of sixty-five was waived or the Company was estopped to claim that policy defense.
City of Dallas during 1954 applied to insurer for a group life insurance policy covering its employees. The application was for coverage of employees "in all occupational classes * * * except * * * employees age 65 and over, and those attaining age 65 at which time the insurance shall terminate." On October 1, 1954, insurer issued the policy sued upon and it provided that city's application, the application of the employees, and the policy itself constituted the entire contract. There is no dispute about this.
J. S. Mitchell was one of the employees covered by the policy at its inception. He was then 62 years of age. He filled in a form which showed that he was born January 24, 1892, and that form was delivered to insurer who retained it in its possession. City collected the premiums and sent them *708 to insurer with a list of employees on whose behalf they were paid. City mistakenly paid Mitchell's premium beyond the time he reached the age of 65 and insurer did not check the list against its own records. Mitchell was continuously employed by the city until November 2, 1957, when he died. Premiums were sent to insurer on Mitchell's behalf for eight months after he reached the termination age of 65. Mrs. Mitchell properly made proof of loss, and seventeen days after her husband's death insurer denied liability and tendered to her the eight months' premiums which she refused to accept.
Plaintiff's action is grounded upon the insurance policy issued on October 1, 1954. To recover on that policy, however, she must avoid in some manner the provision which expressly terminated her husband's rights eight months before his death. To recover under the contract, yet avoid that clause of the contract, plaintiff pleads that waiver and estoppel gave rise to a new affirmative claim against the defendant insurer by which insurer agreed also to insure beyond the age of 65.
Plaintiff's claim and recovery run directly contrary to the settled Texas law of waiver and estoppel with respect to risks designated in an insurance policy. Waiver and estoppel may operate to avoid a forfeiture of a policy, but they have consistently been denied operative force to change, re-write and enlarge the risks covered by a policy. In other words, waiver and estoppel can not create a new and different contract with respect to risks covered by the policy. This has been the settled law of Texas since the decision in Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854. See also, Vaught v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 257 S.W.2d 445; Powell v. American Casualty & Life Co., Tex.Civ.App., 250 S.W.2d 744; Massachusetts Bonding & Insurance Co. v. Dallas Steam Laundry and Dye Works, Tex.Civ. App., 85 S.W.2d 937; C. E. Carnes & Co. v. Employers' Liability Assur. Corporation, 5 Cir., 101 F.2d 739; 29A Am.Jur., Insurance, § 1135; 163 A.L.R. 691; 113 A.L.R. 857. In Hunter v. Jefferson Standard Life Insurance Co., 241 N.C. 593, 86 S.E.2d 78, the general rule is specifically applied to the continued acceptance of premiums after insured became overage under a policy risk. There was an acceptance of premiums for more than four years after the policy termination date, yet the Court adhered to the general rule, citing a multitude of precedents.
Not every jurisdiction adheres to the rule followed in Texas, though it is the rule of the majority. Many jurisdictions, in situations similar to the one here, have upheld the claim against an insurer upon grounds of waiver or estoppel. Bradford Funeral Service, Inc. v. Burks, 38 Ala. App. 111, 76 So. 2d 783; Washington Nat. Ins. Co. v. Scott, 231 Ala. 131, 164 So. 303; Western Casualty Co. v. Aarons, 85 Colo. 591, 277 P. 811; Peninsular Life Ins. Co., Fla., 72 So. 2d 389; National Life & Accident Ins. Co. v. Ransdell, 259 Ky. 559, 82 S.W.2d 820; Smith v. Liberty Life Ins. Co. of Topeka, Kan., 118 Neb. 557, 225 N.W. 688; Cook v. National Fidelity & Casualty Co., 100 Neb. 641, 160 N.W. 957; English v. National Casualty Co., 138 Ohio St. 166, 34 N.E.2d 31; Lipe v. World Ins. Co., 142 Neb. 22, 5 N.W.2d 95; Ivey v. United National Indemnity Co., 9 Cir., 259 F.2d 205; Boult v. Maryland Cas. Co., 5 Cir., 111 F.2d 257, certiorari denied 311 U.S. 672, 61 S. Ct. 35, 85 L. Ed. 432. The point, however, is not an open one in Texas. Plaintiff sued upon a policy and claimed that the age limit clause was deleted by reason of a waiver or estoppel. We regard the law settled against plaintiff.
The judgment is reversed and rendered that all relief be denied the plaintiff other than the recovery of premiums paid after the termination of the insurance. |
1,516,032 | 2013-10-30 06:32:48.579854+00 | Pope | null | 335 S.W.2d 288 (1960)
Floyd D. JAMES, Jr., Appellant,
v.
George R. SAM, Appellee.
No. 13626.
Court of Civil Appeals of Texas, San Antonio.
April 20, 1960.
Floyd D. James, San Antonio, for appellant.
Roger S. Lightsey, San Antonio, for appellee.
POPE, Justice.
Plaintiff, George R. Sam, sued Floyd James in Justice Court for $90.45 damages to his vehicle as a result of a rear-end collision. James cross-acted for exactly one hundred dollars. Sam recovered judgment for $90.45, and recovered the same amount on appeal to the County Court. James was denied recovery on his cross-action. James has appealed from the judgment of the County Court.
Neither the amount in controversy nor the judgment exceeds $100 exclusive of interest and costs. Art. 1819, Vernon's Ann. Tex.Stats. Since the amount in controversy is not in excess of $100, this Court does not have jurisdiction and the appeal is dismissed. Sovereign Camp, W. O. W. v. Douglas, Tex.Civ.App., 156 S.W.2d 576. |
1,516,033 | 2013-10-30 06:32:48.594111+00 | Vertefeuille | null | 913 A.2d 407 (2007)
281 Conn. 50
Donna WINN, Administratrix (Estate of Glenn Winn)
v.
David POSADES et al.
No. 17567.
Supreme Court of Connecticut.
Argued September 21, 2006.
Decided January 9, 2007.
*408 Norman A. Pattis, Bethany, with whom were Erin M. Kallaugher and Kimberly Coleman, for the appellant (plaintiff).
David S. Monastersky, Hartford, with whom was Claudia A. Baio, for the appellees (defendants).
BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.
VERTEFEUILLE, J.
This certified appeal arises from an action brought by the plaintiff, Donna Winn, the administratrix of the estate of her deceased son, Glenn Winn (decedent), against the defendants, David Posades and the town of Plainville, for the wrongful death of the decedent resulting from an automobile collision at an intersection. On appeal, the plaintiff claims that the Appellate Court improperly affirmed the judgment of the trial court, which had granted the defendants' motion for judgment of dismissal for failure to make out a prima facie case at the close of the plaintiff's case. Winn v. Posades, 91 Conn.App. 610, 881 A.2d 524 (2005). Specifically, the *409 plaintiff claims that the Appellate Court improperly concluded that the plaintiff had failed to present sufficient evidence of proximate cause as an element of her negligence and recklessness claims. We disagree, and, accordingly, we affirm the judgment of the Appellate Court.
The Appellate Court opinion sets forth the procedural history of this case and the following evidence that was presented by the plaintiff at trial. "On September 4, 1997, Posades, a member of the Plainville police department, was scheduled to work the midnight shift, from 11:45 p.m. until 7:45 a.m. He arrived at the police station at approximately 11:35 p.m. and, shortly thereafter, realized that he had left his handcuff keys at home. He set out for home in his police cruiser, traveling west on Route 372 toward the intersection with Route 177, an intersection controlled by a traffic light. As he entered that intersection, Posades, with a clear view to the south on Route 177, but an obstructed view to the north on Route 177, looked to the south. He was traveling at a speed of fifty-eight to seventy-five miles per hour in a twenty-five mile per hour zone. Meanwhile, the . . . decedent, who was traveling south on Route 177 at a speed of thirty-seven to forty-six miles per hour in a thirty-five mile per hour zone, proceeded into the intersection directly in the path of Posades' vehicle. Posades' vehicle struck the vehicle being driven by the . . . decedent, causing the decedent's vehicle to flip before it settled off the road. There were no skid marks in the area. The impact injured Posades and fatally injured the . . . decedent, who died nine days after the accident. The . . . decedent never regained consciousness to explain what had happened before his death. Posades, the sole [surviving] eyewitness to the accident, testified that he recalled nothing of the accident or how it had occurred. He last remembered traveling west on Route 372 toward the intersection with Route 177.
"The plaintiff subsequently filed this action against the defendants, alleging, inter alia, that the collision in which the . . . decedent was killed was caused by Posades' negligent and reckless operation of his vehicle. After presentation of the plaintiff's case-in-chief, the defendants filed a motion for a judgment of dismissal. The court heard arguments and granted the motion, stating: `I have read and reread most of the cases on the topic of speed and proximate cause, and, after viewing the evidence most favorabl[y] toward the plaintiff, I have reluctantly concluded that the plaintiff has not made out a prima facie case. The plaintiff has the duty of proving the elements of the case, that includes duty, negligence, proximate cause and damages. The evidence to me, clearly, there was a duty. These were operators on the highway. They had a duty to each other. Clearly, there was damage, and clearly, in my view, there was evidence of negligence. In fact, there was evidence of recklessness. The fact that this defendant was operating at a speed which charitably could be fifty-eight miles per hour and could have been as high as seventy-five miles per hour in an area, which based on photographs, appears to be an area of mixed commercial-residential use, an area that has a speed limit of twenty-five miles per hour. To me, there is no question that that is negligence and the jury could reasonably find that it's recklessness. And, personally, I find it reprehensible that a police officer on duty not responding to an emergency was traveling that fast. . . . However, on balance, I simply find that there is not such evidence on the issue of proximate cause.'" Id., at 611-13, 881 A.2d 524. The trial court therefore granted the defendants' motion for judgment of dismissal and rendered judgment in favor of the defendants.
*410 The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had granted the defendants' motion for judgment of dismissal. The Appellate Court affirmed the judgment of the trial court, concluding that the plaintiff had failed to present evidence of how the accident actually happened. Id., at 618-19, 881 A.2d 524. Thereafter, we granted the plaintiff's petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: "Did the Appellate Court properly affirm the directed judgment of the trial court?" Winn v. Posades, 276 Conn. 923, 888 A.2d 91 (2005).
The plaintiff claims that the Appellate Court improperly affirmed the trial court's judgment of dismissal. Specifically, the plaintiff asserts that the Appellate Court misapplied the law regarding proximate cause, and failed to recognize that she had produced sufficient evidence to establish an unbroken sequence of events that tied the decedent's death to Posades' conduct. In response, the defendants contend that the Appellate Court properly affirmed the trial court's judgment of dismissal. The defendants assert that evidence of Posades' improper or negligent conduct in traveling at an excessive speed was not sufficient to remove the issue of proximate cause from the realm of pure speculation or guesswork, and that, therefore, the plaintiff failed to introduce sufficient evidence to establish proximate cause. We agree with the defendants, and, accordingly, we affirm the judgment of the Appellate Court.
As an initial matter, we set forth the applicable standard of review. Practice Book § 15-8 provides in relevant part: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . ."[1] "A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact. . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . In evaluating [the denial of] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). "Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary." DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005).
We view in the light most favorable to the plaintiff the following additional evidence, which was presented to the trial court and is relevant to the determination of whether the plaintiff had established a prima facie case of negligence or recklessness. The police officer who had performed *411 an investigation of the accident testified that the front of the cruiser driven by Posades struck the driver's side of the vehicle driven by the decedent at the intersection of Route 372 and Route 177, causing the decedent's vehicle to roll over and the decedent to be ejected from his vehicle, resulting in the serious injuries that led to his death. The officer further testified that, at the time of the collision, Posades was traveling in a westerly direction on Route 372 at approximately fifty-eight to seventy-five miles per hour in a twenty-five mile per hour zone, and the decedent was traveling in a southerly direction on Route 177 at approximately thirty-seven to forty-six miles per hour in a thirty-five mile per hour zone. The evidence further indicated that Posades was looking to the left of the intersection at the time of the accident, not to the direction from which the decedent was approaching. The evidence also established that the traffic light at the intersection was controlled by an electronic trigger, which was activated when motor vehicles approached the intersection from the north or south on Route 177. Posades was unable to recall how the accident happened, the decedent never regained consciousness, and there were no witnesses to the accident.
In affirming the judgment of the trial court, the Appellate Court concluded that "the plaintiff presented no evidence as to how the accident actually had happened. Even if the plaintiff's evidence tended to show that Posades was negligent or reckless in driving his police cruiser through the intersection at a speed of fifty-eight to seventy-five miles per hour in a twenty-five mile per hour zone, there was no evidence that that conduct proximately caused the collision." Winn v. Posades, supra, 91 Conn.App. at 618, 881 A.2d 524. We agree.
We begin our analysis with a brief review of the law of negligence. "[E]ssential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004). "To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct. . . . The second component of legal cause is proximate cause. . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). "An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . The finding of actual cause is thus a requisite for any finding of proximate cause." (Citations omitted; internal quotation marks omitted.) Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986).
This court has recognized that in a case involving an automobile accident, "[a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant *412 operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part. Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision. A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation." (Internal quotation marks omitted.) O'Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976).
The plaintiff in the present case claims that the Appellate Court improperly applied Wallace v. Waterhouse, 86 Conn. 546, 86 A. 10 (1913), and Palmieri v. Macero, 146 Conn. 705, 155 A.2d 750 (1959), to the facts of this case. Specifically, the plaintiff asserts that, unlike the evidence in Wallace and Palmieri, the evidence presented in the present case established an unbroken sequence of events that tied the decedent's death to Posades' conduct. We disagree.
In Wallace v. Waterhouse, supra, 86 Conn. at 548, 86 A. 10, this court affirmed the judgment of the trial court granting the defendant's motion for judgment of nonsuit[2] in a negligence action brought by the plaintiffs against the driver of a motor vehicle that had run over and killed their dog. The evidence in Wallace demonstrated that the defendant, who had been driving his vehicle at a high rate of speed, hit the plaintiffs' dog while the dog was attempting to cross the street. Id., at 547, 86 A. 10. In determining whether the plaintiffs had introduced sufficient evidence to establish a prima facie case, this court concluded that the plaintiffs had not met their burden because it was easy to surmise factors other than the defendant's speed that might have caused the accident, and the plaintiffs had failed to introduce any evidence to demonstrate what the "real proximate cause of the killing of the animal was." Id., at 548, 86 A. 10. This court rejected the notion that the plaintiffs' proof of the defendant's excessive speed was sufficient to prove proximate cause, stating: "The improper speed of the automobile may have concurred in point of time with the dog's injury without being the cause of it. Excessive speed being proved, the cause of the accident would still be a matter of conjecture with the jury." (Internal quotation marks omitted.) Id.
This court addressed a similar issue forty-six years later in Palmieri v. Macero, supra, 146 Conn. at 705, 155 A.2d 750. Palmieri involved a negligence action brought by the passenger of a motor vehicle who was injured when the motor vehicle went over an embankment on the Pennsylvania Turnpike. Id., at 706, 155 A.2d 750. The plaintiff was unable to testify as to the cause of the accident because he had been asleep at the time of the accident. The driver of the vehicle, the defendant's decedent, did not survive the accident, and there were no other witnesses to the accident. Id. This court stated that, from the evidence presented at trial, "the jury could find that the car, westbound, ran for about thirty feet along the north shoulder of the road, crossed the two westbound lanes into the grassy center strip, where it left marks for eighty-seven feet, and then went diagonally across the westbound lanes for a distance of 294 feet, on through two sections of the guardrail on the northerly shoulder, and *413 down the embankment for a distance of 100 feet." Id. After the jury returned a verdict for the plaintiff, the trial court set aside the verdict and rendered judgment for the defendant, finding that "while the marks upon and about the highway indicated that the car was then traveling at a fast rate of speed and was out of control, there was no basis for finding what caused the vehicle to make these marks or to follow the course which it did." Id., at 707, 155 A.2d 750. In affirming the judgment of the trial court after the plaintiff appealed, this court concluded that "[t]he conclusion of the jury that negligence of the [defendant's decedent] was established was without evidential basis and could only have resulted from guesswork. . . . The existence of so many possibilities as to the proximate cause of this accident, together with the lack of facts pointing significantly to any one of them as due to the negligence of the [defendant's decedent], renders the question of his negligence too conjectural and uncertain to warrant a verdict against the defendant." (Citation omitted.) Id., at 708, 155 A.2d 750.
Similar to Wallace and Palmieri, the evidence presented by the plaintiff in the present case failed to establish that Posades' conduct in operating his vehicle at a high rate of speed was the legal cause of the decedent's injuries. It is well established that in order to demonstrate that the defendant's conduct legally caused the decedent's injuries, the plaintiff must prove both causation in fact and proximate cause. See Paige v. St. Andrew's Roman Catholic Church Corp., supra, 250 Conn. at 24-26, 734 A.2d 85. In the present case, the Appellate Court properly concluded that the plaintiff had presented insufficient evidence of the actual cause, or cause in fact, of the collision. Although the plaintiff's evidence showed that Posades had been negligent or reckless in operating his police cruiser through the intersection at a highly excessive rate of speed, there was no evidence that his speed actually had caused the collision.[3] There are a number of factual possibilities that could explain how the accident occurred. The decedent may have run a red light, improperly entering the intersection. Alternatively, the traffic light may have malfunctioned, permitting both Posades and the plaintiff's decedent to enter the intersection simultaneously.
Moreover, we must note that the record in the present case reveals that the plaintiff's counsel conceded, during her opening statement to the jury, that the decedent had consumed alcohol and smoked marijuana prior to operating his vehicle on the evening of the accident. This admission further supports the conclusion that factors other than Posades' excessive speed, including the possibility of the decedent's own impairment, might have caused the accident.
The plaintiff also contends that the Appellate Court improperly concluded that the present case is distinguishable from Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968). We disagree. The plaintiff taxicab driver in Terminal Taxi Co. brought an action to recover damages for injuries he had suffered when the motor vehicle that he was operating was struck in the rear by a motor vehicle operated by the defendant's decedent. Id., at 314-15, 240 A.2d 881. The evidence presented at trial consisted of testimony from the police officer who had performed *414 an investigation of the accident and testimony from the plaintiff, who was able to testify as to what he saw immediately prior to the accident. Id., at 317, 240 A.2d 881. The testimonial and physical evidence demonstrated that the plaintiff was traveling in a northerly direction on the right side of Long Wharf Drive in New Haven and that his vehicle was struck at the left rear by the right front of a vehicle operated by the defendant's decedent. Id., at 314-15, 240 A.2d 881. The evidence also indicated that the accident occurred on a portion of Long Wharf Drive that was designated one-way for northbound traffic. Id., at 315, 240 A.2d 881. The evidence further showed, and the defendant did not challenge, that the defendant's decedent was traveling at a fast rate of speed immediately prior to the collision with the plaintiff's vehicle. Id., at 317, 240 A.2d 881. At the conclusion of the evidence, the defendant moved for a directed verdict on the ground that the evidence was insufficient to find the defendant's decedent liable. Id., at 314, 240 A.2d 881. The trial court denied the motion, and the jury subsequently returned a verdict in favor of the plaintiff. Id. The defendant thereafter moved for judgment notwithstanding the verdict on the ground that there was no evidence as to what might have caused the defendant's vehicle to collide with the plaintiff's vehicle. Id., at 314-16, 240 A.2d 881. The trial court denied the motion and rendered judgment for the plaintiff, and the defendant appealed. Id., at 314, 240 A.2d 881.
On appeal, this court found the evidence sufficient, stating, "[h]ere, there was evidence as to how the accident happened: [the plaintiff] testified about what he saw, and evidence of physical facts was introduced through the investigating officer. . . . [T]here is little doubt about the manner in which the accident occurred. The facts were adequate to warrant the jury in drawing the inference that [the defendant's decedent] was the responsible agent in causing his car to take the course it did. The jury could have found from the nature and the extent of the damage to the vehicles that [the defendant's decedent] was operating his car at an excessive speed and that he was not driving at a reasonable distance apart from the [plaintiff's vehicle]. It was reasonable to infer that [the defendant's decedent] was attempting to pass [the vehicle driven by the plaintiff] and, because the one-way traffic pattern terminated at the intersection, he accelerated the speed of his vehicle in order to complete the passing prior to entering the section of Long Wharf Drive where he would be confronted with oncoming traffic in the westerly lane." Id., at 317-18, 240 A.2d 881. Because the plaintiff in Terminal Taxi Co. had adduced sufficient evidence to establish the actual and proximate cause of the accident, that case is readily distinguishable from the present case.
The plaintiff's reliance on Toomey v. Danaher, 161 Conn. 204, 286 A.2d 293 (1971), is equally unavailing. Toomey involved a negligence action brought by the plaintiff against the estate of his deceased wife for injuries he had suffered as a result of a motor vehicle accident, which he claimed had occurred while his wife was driving the vehicle. Id., at 205-206, 286 A.2d 293. The plaintiff's wife, who died as a result of the injuries she had sustained in the accident, never regained consciousness, the plaintiff was unable to recall anything about the accident due to amnesia, and there were no eyewitnesses to the accident. Id., at 207, 286 A.2d 293. This court reversed the judgment of the trial court in favor of the plaintiff, concluding that the trial court should have set aside the verdict and rendered judgment notwithstanding the verdict for the defendant *415 on the ground that no negligence had been proved. Id., at 211-12, 286 A.2d 293.
Despite the factual similarity in Toomey to the present case, the plaintiff relies, nevertheless, on the following dicta from Toomey: "An unreasonable rate of speed would be a speed which was not safe considering the type of road, the amount of traffic thereon, the condition of the road, and the weather conditions. It would also include the physical condition of the driver and the general condition of the vehicle. The posted speed limit is indicative of the maximum reasonable speed under optimum conditions. Exceeding the posted speed limit, if the proximate cause of the accident, would be actionable negligence." Id., at 208-209, 286 A.2d 293. The plaintiff asserts that the facts of the present case, namely, that Posades was traveling at an unreasonable speed established that his negligent and reckless conduct was the proximate cause of the accident. While we agree with the plaintiff that there was evidence that Posades was traveling at an unreasonable speed,[4] our inquiry does not end there. As this court recognized in Toomey, "[e]xceeding the posted speed limit, if the proximate cause of the accident, would be actionable negligence." (Emphasis added.) Id. Even with the existence of evidence of unreasonable speed, the plaintiff nevertheless must demonstrate that the unreasonable speed was the proximate cause of the accident. See Wallace v. Waterhouse, supra, 86 Conn. at 548, 86 A. 10; see also Hines v. Davis, 53 Conn.App. 836, 839, 731 A.2d 325 (1999) ("[s]peed alone, even rapid speed, does not suffice to establish proximate cause in a negligence action").
The plaintiff's final claim is that public policy favors finding liability on the part of a police officer who operated a vehicle at an excessive rate of speed by recognizing that evidence of excessive speed is sufficient evidence of proximate cause. We disagree. Nothing in our ruling today suggests that the operator of a motor vehicle, including a police officer, who travels at an excessive speed will not be liable in damages for negligence or recklessness. Our conclusion today is simply that we decline to vary from our previous case law that consistently has concluded that proof of excessive speed by the operator of a motor vehicle is insufficient, standing alone, to establish legal cause.[5]
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
NOTES
[1] Although a motion to dismiss pursuant to Practice Book § 15-8 is not properly made in a jury trial, like the present case, the trial court acknowledged that the issue of whether the defendants' motion properly should have been brought as a motion for a directed verdict was not dispositive because the standard for granting a motion for a directed verdict is the same as the standard for granting a motion for judgment of dismissal. We agree.
[2] "We note that [a] motion for judgment of dismissal has replaced the former motion for nonsuit [pursuant to General Statutes § 52-210] for failure to make out a prima facie case." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 700 n. 9, 900 A.2d 498 (2006).
[3] We note that the plaintiff failed to present any expert testimony regarding whether Posades' excessive rate of speed prevented him from avoiding the accident. Such evidence would have provided an evidentiary basis for a determination that the defendant's excessive rate of speed was the cause of the accident.
[4] In fact, as the trial court stated, Posades' conduct was not only negligent, but "reprehensible. . . ." (Internal quotation marks omitted.) Winn v. Posades, supra, 91 Conn.App. at 613, 881 A.2d 524.
[5] See footnote 3 of this opinion. |
1,516,034 | 2013-10-30 06:32:48.614823+00 | Maughmer | null | 335 S.W.2d 501 (1960)
Lucille SMITH, Employee, Appellant,
v.
CASCADE LAUNDRY COMPANY, Employer, and Liberty Mutual Insurance Company, Insurer, Respondents.
No. 23098.
Kansas City Court of Appeals, Missouri.
May 9, 1960.
*502 D. Robert Schollars, Dubiner & Gregg, Kansas City, for appellant.
A. Warren Francis, Lloyd A. Hamrick, Kansas City, for respondents.
MAUGHMER, Commissioner.
Appellant Lucille Smith's claim for benefits under the Missouri Workmen's Compensation Act was denied by the Referee, by the Industrial Commission and by the Circuit Court. She has properly perfected an appeal.
It was admitted that on May 8, 1957, the claimant was an employee of the respondent Cascade Laundry Company; that on said date the company was an employer, operating under the provisions of the Missouri Workmen's Compensation Law and was fully insured under said law by respondent Liberty Mutual Insurance Company.
Claimant stated that on May 6, 1957, when she started working for respondent company she was in good health and had full use of her right arm; that two days later on May 8, she was assigned to work on curtainsironing and pressing. She said that in the performance of this task it was required and necessary "to dampen the curtains and keep them damp at all times", by application of a "sour solution". Claimant's use of the solution necessitated the immersion of her hand in it from time to time. It was her testimony that after engaging in this work for an hour or more her handsespecially the right handbegan to burnthen the hand started to get red and became swollen up to the wrist. She continued to work until noon, then went to the rest room and ran cold water over her hand; later on that same day she went to an emergency hospital where a doctor put some ointment on the injured member and bandaged it. That evening her husband procured ointment at a drug store for her. She used this medicine, but the burning continued. Two days later Mrs. Smith went to a company physician, *503 Dr. James E. Ball, who, she said, gave her more ointment, an allergy pill and a nerve pill. She visited Dr. Ball occasionally over a two week period. She saw Dr. Harry R. Staley twice, has taken aspirin since the occurrence and at times uses a hot water bottle when the arm goes to sleep. She says the strength in her right hand and arm has lessened and at times she is unable to pick up articles.
Dr. Dewey K. Ziegler, who qualified as a specialist in neurology and psychiatry, testified on behalf of claimant. He examined her on February 11, 1958, and concluded, based upon both objective and subjective findings, that she had an "impaired function of the use of the right arm because of an anxiety-hysteria type of neurosis, a mixed psychoneurosis with anxiety-hysteria elements, which gives her a weakness of the arm, interferes with her full function of the arm to the degree of 20 per cent". He thought the disability was permanent and traced its origin to the incident at the laundry. He named the condition "shoulder-hand syndrome". He said it might arise from actual shoulder injury, after heart attacks or when the patient focuses attention on the arm. He diagnosed the case as "neurosis with anxiety and hysteria elements". He found no muscle atrophy.
Dr. Harry R. Staley, called by defendants, was qualified as a dermatologist. He examined claimant on May 28, 1957, and again on January 8, 1958, but found no evidence of present or past injury to the skin or to the right hand or arm. He found excessive sweating of the hand and arm, which he believed was of nervous origin. He gave it as his opinion that alkalines and fluorides, as used by the laundry industry, were not harmful to the hands. He declared further even if there was a first degree burn, manifested by redness, it could not in the absence of infection, involve either nerve or muscle because the portal of entry would not be opened up.
James L. Martin, president of the Cascade Laundry Company, said he was familiar with the solution called "sour"; that it is used to neutralize alkali and eliminate yellowness in the laundered cloths. He said that on May 8, 1957, the company was using a sour solution sold under the brand name "Erusto Salts". Mr. Martin stated that Mrs. Smith came to him on May 8; that she complained of and he saw a rash on her hand. He could not state the chemical analysis of Erusto Salts but said it was an acid, a neutralizerwas not injurious and the employees could use whatever amount was deemed advisable.
The evidence revealed that in 1942, Mrs. Smith had an infection on both her hands. She called it "Athletes' Hand" and received medical attention for the condition. As it was developed under the testimony, Mrs. Smith, during her lifetime, had three employment periodsthree days at Cascade an employment in Colorado, and one in Washington, each of less than one month's duration. The transcript does not reveal her exact age, but reference to the menopause in connection therewith indicates she is approaching fifty years.
At the hearing plaintiff's counsel asserted the claim for compensation was predicated upon an alleged accident and not upon occupational disease. The award of the referee denied compensation and found (a) claimant failed to establish that she sustained an accident arising out of and in the course of her employment within the meaning of the Act and (b) failed to establish that the solution used by her was harmful in and of itself so as to cause the injury complained of. Upon application for review the Industrial Commission of Missouri unanimously denied compensation and found (1) Claimant has failed to prove that she sustained an accident; (2) failed to prove the alleged accident was the producing cause of the condition complained of; (3) failed to prove that the "sour" solution used by her was harmful or deleterious in and of itself so as to *504 cause or contribute to the injury complained of. The Circuit Court found that the award of the Commission was "sustained by competent evidence" and affirmed it.
Upon appeal we must decide if the Circuit Court erred. In reviewing the award of the Industrial Commission an appellate court must view the evidence in a light most favorable to the prevailing party. We may not substitute our judgment on the evidence for the judgment of the Commission. On appeal the Circuit Court and this court are required to determine if the Commission could reasonably have made the findings and award it did make under the evidence adduced and ultimately if the final award is supported by competent and substantial evidence. Long v. Mississippi Lime Co. of Mo. et al., Mo.App., 257 S.W.2d 167, 170; Adams v. Koss Construction Co. et al., Mo.App., 311 S.W.2d 66, 67; Vollmar v. Board of Jewish Education, et al., Mo., 287 S.W.2d 868, 871; Daniels, et al. v. H. W. Kroeger, et al., Mo. App., 294 S.W.2d 562, 565.
On this appeal claimant contends the evidence shows the "sour" solution was harmful and deleterious; that the alleged injury was the result of an accident, and that her anxiety-hysteria type of neurosis was a direct result thereof. Are the opposite conclusions reached by the Commission supported by competent and substantial evidence?
There was competent, substantial and practically uncontradicted evidence that Erusto Salts, the brand name of the "sour" solution used is of a kind and type widely used by the laundry industry and in private homes as a neutralizer and is not harmful or deleterious in and of itself. It had been used for many years by respondent's other employees with no showing of injurious results. Although claimant does not urge that her disability resulted from an occupational disease, she does claim the "sour" solution was, in and of itself, harmful or deleterious, and the Commission found it was not. In Sanford v. Valier-Spies Milling Co. et al., Mo.App., 235 S.W.2d 92, 95, the employee was alleregic to wheat dust. He had an asthmatic condition of long standing. This pre-existing sensibility to dust superimposed for years upon his asthmatic condition, developed emphysema and worsened the asthma. One doctor expressed the opinion"It was him and not his occupation"that "Fifteen hundred men might work in the same place he was and nothing would happen". The opinion states:
"Our act neither defines an occupational disease, nor does it designate any specific diseases as being occupational in character. In this situation the term is to be regarded as having been employed in its ordinary and customary sense, that is, as referring to a disease which is the natural incident or result of a particular employment and is peculiar to it, usually developing gradually from the effects of long continued work at the employment, and serving, because of its known relation to the employment, to attach to the employment a risk or hazard which distinguishes it from the ordinary run of occupations and is in excess of that attending employments in general. * * *
"* * * For a condition to amount to an occupational disease, it must be due to causes and conditions inherent in and characteristic of the particular employment, and it is not enough to show a right to compensation where it appears that the disease would not have been contracted except for the peculiar susceptibility of the individual worker". These declarations of law were lately approved by the Supreme Court in Marie v. Standard Steel Works, et al., 319 S.W.2d 871, 875. Mrs. Smith's condition certainly did not result from "long continued work at the employment". Her total employment by respondent lasted three days. She had used this sour solution only one half day.
Neither, as we understand it, does appellant assert there is any apparent or lasting physical injury to her hand or arm. It is *505 her position rather that use of the sour solution reddened and caused pain to her hand and arm which, in turn, activated or brought into being the anxiety-neurosis, which Dr. Ziegler, her only medical witness, described and which apparently constitutes her present disability.
Claimant insists that the occurrence here is an "accident" under the Workmen's Compensation Act. Section 287.020, subd. 2 V.A.M.S. provides: "The word `accident' as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury".
On the accident feature our attention is invited, among others, to the following cases: Smith v. General Motors Corporation, et al., Mo., 189 S.W.2d 259, 263, 264. Therein the court said: "It is the view of this court that where injury (or death) is due to the necessary and customary physical exertion incident to the normal duties of the workman, such a cause of the injury is not an `accident' within the meaning of the Workmen's Compensation Law".
Thompson v. Railway Express Agency, Mo.App., 236 S.W.2d 36, in which case claimant's evidence showed a psychoneurosis following a series of what were concededly, accidents. An award of compensation was reversed and the cause remanded because the causal connection had not been firmly established.
Lastly, Crow v. Missouri Implement Tractor Co. et al., Mo., 307 S.W.2d 401, 405. The opinion in this case is by our Supreme Court en Banc. The employee there suffered an abnormal strain while supporting a corn picker elevator while fellow employees disconnected or disengaged its supporting mechanism. He did not slip or fall as some students had believed was essential to establish an accident under the compensation laws. However, he was not performing his usual duties in the usual way, but was engaged in a task which did not recur regularly. On this question the court said: "We ruled in De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834, and in State ex rel. Hussman-Ligonier Co. v. Hughes, supra, that where an injury is the result of natural causes and not the result of an accident while the employee is performing his usual duties, compensation may not be awarded. However, where an employee's injury is the result of an unusual or abnormal strain arising out of and in the course of his employment, the injury is compensable. An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a fall".
This reasoning and result is, we think, in accord with the opinion in State ex rel. United Transports, Inc. v. Blair, et al. en Banc., 352 Mo. 1091, 180 S.W.2d 737, where claimant was changing an automobile tire. A lug was obstinate and ordinary force did not remove it, so the employee exerted unusual force in an unusual way by putting his foot on the pipe and tugging, which he did not ordinarily do. It was ruled the resultant injury was an accident and the result of the abnormal way he was doing the work of removing the tire.
In the case before us the claimant was carrying on normal work in the usual way a performance strictly in accordance with the procedure followed by all other employees for years in doing the same task. It was not an unusual task and no abnormal method was involved. The occurrence or event was not an accident within reasonable purview of the Act.
We believe there was substantial and competent evidence to support the Commission's finding that claimant did not sustain an accident, that the sour solution was not in itself harmful or deleterious, and that it was not the producing cause of her neuropsychiatric disability. We think the Commission could reasonably reach the result it did reach.
*506 The judgment of the Circuit Court affirming the order and award of the Industrial Commission denying compensation is affirmed.
SPERRY, C., concurs.
PER CURIAM.
The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.
All concur. |
1,516,040 | 2013-10-30 06:32:48.701665+00 | Bullock | null | 955 F. Supp. 44 (1997)
Druscilla GWYN, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.
Civil No. 6:95CV667.
United States District Court, M.D. North Carolina, Winston-Salem Division.
January 30, 1997.
*45 Herman L. Stephens, Law Office of Herman L. Stephens, Winston-Salem, NC, for Druscilla Gwyn.
Scott C. Gayle, Fisher Fisher Gayle Clinard & Craig, High Point, NC, for Wal-Mart Stores, Inc.
MEMORANDUM OPINION
BULLOCK, Chief Judge.
In August 1995, Druscilla Gwyn sued Wal-Mart Stores, Inc., in the General Court of Justice, Superior Court Division, Forsyth County, North Carolina. Wal-Mart removed the action to federal court, alleging diversity jurisdiction. Now before this court is Plaintiff's motion to remand this action to state court. For the reasons given in this memorandum opinion, Plaintiff's motion will be granted.
BACKGROUND
This case arises out of a visit by Gwyn to the Wal-Mart in Winston-Salem, North Carolina. Gwyn says that Wal-Mart employees stopped her when she tried to leave the store, and that they insisted on inspecting Gwyn's shopping bag. She further says that although she was released and given an apology after she found the receipt for her purchases, she suffered severe psychological trauma during this episode. She seeks recovery under several legal theories.
Gwyn's complaint did not demand specific monetary relief, but, as required by the North Carolina Rules of Civil Procedure, requested damages "in excess of $10,000.00." N.C.R.Civ.P. 8(a)(2). Pursuant to 28 U.S.C. § 1441(a), Wal-Mart removed this case to the United States District Court for the Middle District of North Carolina, alleging diversity jurisdiction under 28 U.S.C. § 1332. The notice of removal alleges that the amount in controversy exceeds $50,000. Plaintiff says that the claim is actually less than the $50,000 jurisdictional amount and has moved to have this case remanded to state court.
ANALYSIS
Section 1441 of the Federal Civil Code allows a defendant to remove an action to federal court if the case could originally have been brought there. In this case, the basis for removal is diversity of citizenship. Section 1332 limits diversity jurisdiction to cases in which the amount in controversy exceeds $50,000.
The burden of establishing federal jurisdiction lies on the party seeking to litigate in federal court. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936). Here, the burden is on the defendant. In many cases, this burden will be either trivial or insurmountable. The reason is, if a plaintiff in good faith claims specific monetary damages in the complaint, the amount claimed binds the defendant. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938). In North Carolina, however, a plaintiff is forbidden in some cases to claim a specific amount greater *46 than $10,000 in damages. N.C.R.Civ.P. Rule 8(a)(2). Instead, a plaintiff must say simply that the relief demanded is "in excess of $10,000.00." Id.
The question for this court is determining the amount in controversy for jurisdictional purposes when it is not apparent from the complaint. The Fourth Circuit Court of Appeals has not adopted a specific rule. Other courts have adopted a variety of standards, and the trend seems to require a defendant to show by a preponderance of the evidence that the amount in controversy exceeds $50,000. See De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993); Gafford v. General Elec. Co., 997 F.2d 150, 158 (6th Cir.1993). But see also Atkins v. Harcros Chems., Inc., 761 F. Supp. 444, 446 (E.D.La. 1991) (holding defendant must prove amount in controversy exceeds $50,000 to a "legal certainty"); Partlow v. Jones Motor Co., 736 F. Supp. 744, 745-46 & n. 2 (E.D.Mich.1990) (holding plaintiff, to achieve remand, must show to a "legal certainty" that amount in controversy will not exceed $50,000).
This court need not choose between these theories because Defendant has not shown, by any standard, that the amount in controversy exceeds $50,000. The defendant has some evidentiary burden, see McNutt, 298 U.S. at 189, 56 S.Ct. at 785, but Wal-Mart's removal is based on speculation, not fact. Indeed, besides the conclusory statement in the notice of removal that "[t]he amount in controversy ... exceeds $50,000.00," the only support for Defendant's view of the amount in controversy is a written offer by Plaintiff to settle the case for $50,000. The letter adds: "We evaluate the damages sustained by Mrs. Gwyn to be in excess of $50,000.00." This offer does not adequately establish the amount in controversy, however. In trying to settle a claim, counsel naturally will try to inflate its value. Such "puffing" cannot be taken as evidence of the amount in controversy. See Navarro v. Subaru of America Operations Corp., 802 F. Supp. 191, 194 (N.D.Ill.1992) (holding assertion of value of claim made in settlement negotiations does not establish jurisdictional amount); Saunders v. Rider, 805 F. Supp. 17, 19 (E.D.La. 1992) (holding plaintiff's settlement demand of $63,000 does not establish that claim exceeds $50,000).
A further consideration is that Plaintiff has stipulated that her damages do not exceed $50,000. Ordinarily, whether a case is removable is determined by "the status of the case as disclosed by the plaintiff's complaint." St. Paul, 303 U.S. at 291, 58 S.Ct. at 591. A post-removal stipulation or amendment of the complaint to allege damages below the jurisdictional amount will not destroy federal jurisdiction once it has attached. Id. at 289-90, 58 S.Ct. at 590-91. However, when facing indeterminate claims, several courts have held that the court may consider a stipulation filed by the plaintiff that the claim does not exceed $50,000. E.g., Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir.1993), cert. denied, 510 U.S. 1041, 114 S. Ct. 685, 126 L. Ed. 2d 653 (1994); Griffin v. Holmes, 843 F. Supp. 81, 88 (E.D.N.C.1993); Cole v. Great Atlantic & Pacific Tea Co., 728 F. Supp. 1305, 1308-09 (E.D.Ky.1990).
The implicit premise is that until jurisdiction becomes determinate, the court may consider any evidence of the amount in controversy. If the complaint does not specify the money damages sought, jurisdiction remains indeterminate while the court considers any other information. On this view, plaintiff's stipulation is simply the first evidence of the value of the claim. See, e.g., Cole, 728 F.Supp. at 1309. However, if a court can find the amount in controversy from the face of the complaint, the normal rule still applies: a later stipulation by the plaintiff is irrelevant. De Aguilar, 11 F.3d at 57.
Gwyn's complaint does not claim more than $50,000. The stated demand is for damages in excess of $10,000; although Gwyn asks for both compensatory and punitive damages, the value of this claim is speculative. A finding of jurisdiction cannot be premised on such speculation. Hohn v. Volkswagen of America, Inc., 837 F. Supp. 943, 945 (C.D.Ill.1993); Robinson v. Quality Ins. Co., 633 F. Supp. 572, 577 (S.D.Ala.1986). But cf. Allen v. R & H Oil & Gas Co., 63 *47 F.3d 1326, 1337 (5th Cir.1995) (holding claim for punitive damages facially exceeds jurisdictional minimum where claim is based on explosion of oil well that caused evacuation of town and extensive damage). Because the court cannot determine the amount in controversy from the face of the complaint, it will consider Plaintiff's stipulation that the value of the claim does not exceed $50,000. Defendant's evidence is insufficient to show otherwise. The court thus finds that it lacks jurisdiction over this case and will remand the case to the General Court of Justice, Superior Court Division, Forsyth County, North Carolina.
In her reply brief, Gwyn asks this court to award her the actual costs, including attorney's fees, incurred as a result of Defendant's removal of this case, pursuant to 28 U.S.C. § 1447(a). Such an award is within the discretion of the court, but there is no evidence that removal was done in bad faith or without a reasonable basis. Accordingly, the court will not award costs or attorney's fees to Plaintiff.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.
ORDER
For the reasons set forth in the memorandum opinion filed contemporaneously herewith,
IT IS ORDERED that Plaintiff's motion for remand be, and the same hereby is, GRANTED, and this action is REMANDED to the General Court of Justice, Superior Court Division, Forsyth County, North Carolina. |
3,777,736 | 2016-07-06 07:27:43.178326+00 | Rice | null | {¶ 20} I disagree with the majority's interpretation of the plain language of R.C. 2506.01(C) and therefore dissent.
{¶ 21} R.C. 2506.01 allows for the administrative appeal of any "final order adjudication, or decision." Under subsection (C) of the statute, a final order, adjudication, or decision does not include any order, adjudication, or decision that is issued preliminary to or as a result of a criminal proceeding.
{¶ 22} According to the majority, however, R.C. 2506.01(C) precludes appeals from only those administrative decisions that result in criminal proceedings or thatare a consequence of criminal proceedings. In this case, the majority maintains that R.C. 2506.01(C) is not applicable, because the criminal proceedings were not predicated upon the BZA's decision. I cannot agree with the majority's unusual interpretation.
{¶ 23} The plain statutory language does not, without some interpretational gymnastics, imply that a decision of the BZA must result in a criminal prosecution to trigger its operation. Quite generally, R.C. 2506.01(C) merely requires that the decision be "preliminary to" a criminal proceeding. Using Occam's Razor, I would interpret this broad directive as a limitation on the appealability of any decision of the BZA addressing an issue that subsequently becomes the subject of a formal criminal complaint. Using this logic, any decision filed by the BZA relating to alleged violations that are the foundation for an eventual criminal prosecution is a decision "preliminary to" that prosecution.
{¶ 24} The majority worries that such an interpretation would be unfair because those whose rights have been affected by the BZA's decision would have no timely recourse to an appeal. This is a false alarm. Simply because the General Assembly has precluded pursuit of an administrative appeal under these circumstances does not imply that a criminal defendant has been stripped of his abilities to assert and/or defend his position. The criminal process entitles a criminal defendant to challenge the sufficiency and substance of the charges against him. Moreover, the criminal forum may give the defendant the procedural *Page 360 advantage of requiring the city to prove its allegations beyond a reasonable doubt. Thus, by prohibiting administrative appeals filed preliminary to criminal proceedings, R.C. 2506.01(C) neither unfairly limits nor compromises an individual's ability to fight an alleged violation.
{¶ 25} Given the generality of the statutory language, I would hold that the phrase "preliminary to" means "occurring before." Thus, pursuant to R.C. 2506.01(C), I would hold that the BZA's decision was not a final, appealable order and that the trial court properly dismissed the matter. *Page 361 |
1,516,042 | 2013-10-30 06:32:48.724179+00 | Sheedy | null | 913 A.2d 1160 (2006)
50 Conn. Super. Ct. 51
Michael PERUTA et al.
v.
OUTBACK STEAKHOUSE OF FLORIDA, INC.
No. X01-CV-04 4001683S.
Superior Court of Connecticut, Complex Litigation Docket at Waterbury.
August 24, 2006.
*1163 Madsen & Prestley & Parenteau, LLC, Hartford, and Hayber & Pantuso, LLC and Consumer Law Group, LLC, Rocky Hill, for the named plaintiff et al.
Jackson Lewis, LLP, Hartford, for the defendant.
SHEEDY, J.
FACTUAL BACKGROUND
Former employees of the defendant, Outback Steakhouse of Florida, Inc., bring this action on behalf of themselves and other current or former employees of the defendant's seven Outback Steakhouse restaurants in Connecticut who worked as food servers (servers) from June 2, 2002 to the present. They claim to have been underpaid in violation of the Connecticut Minimum Wage Act (the act) General Statutes § 31-58, et seq., and § 31-62 El et seq. of the Regulations of Connecticut State Agencies. The class is said to consist of "certainly well over 200 or 300 individuals." The defendant has objected; both parties have filed memoranda with extensive attachments and oral argument was heard on June 6, 2006.
The named plaintiff, Michael Peruta, and coplaintiffs Malia Fontaine and Caragh Silverio, all of whom were employed at the Newington Outback Steakhouse restaurant, bring individual claims in counts one through three of the first amended complaint (complaint). Count four asserts the class action claim and alleges three violations. First, the defendant took the tip credit of 29.3 percent of the state mandated minimum wage (presently $7.40/hr.) for all hours worked when it was not so entitled. Second, the defendant failed to segregate the servers' time spent on "non-service" duties from time spent performing "service" duties or to obtain from the servers signed tip statements as mandated by §§ 31-62-E2 (c) and 31-62-E3 (c) of the Regulations of Connecticut State Agencies. Third, and finally, because the defendant required the servers to "tip out,"[1] it exercised control over the servers' tips and deprived them of gratuities. As a result, the servers claim, they were not "service employees" under § 31-62-E2 (c) of the aforementioned regulations and the defendant was not, therefore, entitled to take the tip credit.
CERTIFICATION STANDARDS
The plaintiffs' burden is to demonstrate that the prospective class meets the requirements of both Practice Book § 9-7 (numerosity, commonality, typicality and adequacy of representation) and Practice *1164 Book § 9-8. Specifically, under Practice Book § 9-8, it must be demonstrated "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." In adjudicating this motion, the "court is bound to take the substantive allegations of the complaint as true." (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 743, 818 A.2d 731 (2003). Although the question for the court on a motion for class certification "is not whether the plaintiff or plaintiffs have [either] stated a cause of action or will prevail on the merits, but rather whether the [class action] requirements . . . are met"; (internal quotation marks omitted) Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974); that determination "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs' cause of action"; (internal quotation marks omitted) General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); and it may sometimes be necessary "to probe behind the pleadings before coming to rest on the certification question." Id. Doubts regarding the propriety of certifying a class should be resolved in favor of certification. Rivera v. Veterans Memorial Medical Center, supra, at 743, 818 A.2d 731. Because the requirements of our statutes are similar to those of rule 23 of the Federal Rules of Civil Procedure, we look to federal law in construing the prerequisites of Practice Book §§ 9-7 and 9-8. Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 322, 880 A.2d 106 (2005).
The plaintiff has the heavy burden of establishing that each requirement is satisfied. McKernan v. United Technologies Corp., 120 F.R.D. 452, 453 (D.Conn.1988). Once, however, there has been a preliminary legal showing such requirements have been met, it is the defendant's burden to demonstrate otherwise. See 2 H. Newberg, Class Actions (3d Ed. 1992) § 7.22, pp. X-XX-X-XX.
ADJUDICATION
A
Numerosity Requirement Under Practice Book § 9-7
Numerosity is established if the class is too large to make joinder of all members feasible. No "magic number" serves as a bright line guide to measure the fulfillment of this requirement because "numerosity is tied to the impracticality of joinder under the particular circumstances of the case." Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn.App. 585, 590, 583 A.2d 152 (1990). Though speculation about the size of the class will not suffice; id.; an estimate based on reasonable inferences drawn from available facts satisfies the requirementparticularly where, as here, more precise information is within the defendant's control. The record indicates that each of the seven Outback Steakhouse restaurants employed about forty servers at a time. Counsel's estimate of class size (200-300) suggests the impracticality of joinder and, thus, the existence of a class. See, e.g., Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D.N.Y. 2000) (numerosity established where plaintiffs estimated 150 to 170 class members). The numerosity requirement is satisfied here.
B
Commonality Requirement Under Practice Book § 9-7
"The threshold of commonality is not high." (Internal quotation marks omitted.) Flanigan v. General Electric, United States District Court, Docket No. *1165 3:93cv516 (JBA), 1998 U.S. Dist. Lexis 22873, *8 (D.Conn., September 28, 1998). It requires only "the same legal or remedial theory for the class claim." Walsh v. National Safety Associates, 44 Conn.Supp. 569, 584, 695 A.2d 1095 (1996), aff'd, 241 Conn. 278, 694 A.2d 795 (1997) (whether defendant's conduct violated state law presented common question of law). Although both rule 23(a)(2) and Practice Book § 9-7(2) reference "questions" (plural), our Supreme Court has said there "need only be one question common to the class." Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 323, 880 A.2d 106. The present case turns on the claimed existence of general practices by Outback Steakhouse in violation of Connecticut's wage laws; where, as here, it is asserted that the violations affected all servers, a claim the court is bound to accept as true for certification purposes, the commonality requirement is satisfied. See, e.g., Reep v. Barco Auto Leasing Corp., United States District Court, Docket No. 3:94cv798 (JBA), 1997 U.S. Dist. Lexis 22400, *5 (D.Conn., August 28, 1997). (if challenged practice is a practice of general applicability, then it necessarily affects the entire plaintiff class [internal quotation marks omitted]). "[T]he fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a class action [on commonality grounds]." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, at 326, 880 A.2d 106.
C
Typicality Requirement Under Practice Book § 9-7
Typicality requires that the claims of the representative parties arise out of the same event or practice as gives rise to the class members' claim and that they be based on the same legal or remedial theory (It is, therefore, in many respects similar to commonality.) "When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." (Internal quotation marks omitted.) Duprey v. Connecticut Dept. of Motor Vehicles, 191 F.R.D., 329, 337 (D.Conn.2000) citing Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir.1993).
The defendant asserts that this requirement cannot be met because, while the proposed class includes servers employed at all seven restaurants located throughout the state,[2] all three of the aforementioned plaintiffs have been employed only at the Newington restaurant. The evidence (provided in the form of exhibits to memoranda) is that each Connecticut restaurant is run by a managing partner who has the authority to hire, fire and assign work shifts and job duties. Scant information is provided with regard specifically as to how what may be "nonservice" duties are assigned or performed at each of the restaurant locations other than Newington, whether servers were required to "tip out" in each of the other locations and the like. None of the plaintiffs here have any personal knowledge regarding specifically how those other locations were in fact run by their respective general managers. The plaintiffs cannot sustain their burden of demonstrating the same event or practice occurred at all seven *1166 restaurants.[3] The typicality requirement is, however, satisfied if the "class" represented by the plaintiffs in the present case is limited only to former and current employees of the Newington location during the applicable period. If certification were to be granted here, the court would necessarily restrict the class to Newington servers during the identified time period. See Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 633, 894 A.2d 240 (2006) ("[w]ithout individual standing to raise a legal claim, a named representative does not have the requisite typicality to raise the same claim on behalf of a class").
D
Adequacy of Representation Under Practice Book § 9-7
This requirement is satisfied if "the representative parties will fairly and adequately protect the interests of the class." Practice Book § 9-7. This standard is met when the representatives: "(1) have common interests with the unnamed class members; and (2) will vigorously prosecute the class action through qualified counsel." Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 326, 880 A.2d 106. The inquiry's aim is to reveal conflicts of interest between the named plaintiffs and the class they seek to represent. Id., at 326-27, 880 A.2d 106.
There is an additional concern here in that two of the three aforemention plaintiffs presently reside[4] in Florida.[5] Curiously, the plaintiffs do not respond to this argument in their reply brief and, thus, the court is without any information with regard to how helpful the Florida residents will be in the prosecution of the case. If, at trial, the non-participation by Peruta and Fontaine is clear, Silverio, the sole remaining plaintiff, can prosecute the action on behalf of current and former Newington employees. At present, there are no attacks on the competency of plaintiffs' counsel to prosecute this matter and the court knows of no conflicts of interest between the three aforementioned plaintiffs and the class (which would be restricted to Newington Outback Steakhouse employees). There is adequacy of representation.
E
Predominance Requirement of Practice Book § 9-8
"[C]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." (Emphasis in original; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 329, 880 A.2d 106. That requires a consideration of "what value the resolution of [each] class-wide issue will have in each class member's underlying cause of action." (Emphasis added; internal quotation marks omitted.) Id., at 329-330, 880 A.2d 106. "Common issues of fact and law predominate if they ha[ve] a direct impact on every class member's effort to *1167 establish liability and on every class member's entitlement to . . . relief." (Internal quotation marks omitted.) Id., at 330, 880 A.2d 106. "[When], after adjudication of the class-wide issues, [the] plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual[ized] claims, such claims are not suitable for class certification." (Internal quotation marks omitted.) Id. Thus, although the trial court cannot conduct an inquiry into the merits of the case, the court must undergo a practical analysis of the kinds of proof required at trial if the class is certified. Collins makes clear that the court must undergo a three part analysis; it must: (a) review the elements of the causes of action asserted on behalf of the putative class; (b) determine whether generalized evidence can be offered to prove those elements on a class-wide basis or whether individualized proof is needed to establish each member's entitlement to relief; and (c) weigh the common issues subject to generalized proof against the issues requiring individualized proof to determine which predominate. Id., at 331-32, 880 A.2d 106. The predominance test is satisfied only if most of the litigants' and the court's efforts will be on common questions of law or fact. Id.
The plaintiffs state that their generalized proof with regard to the claim that the defendant failed to obtain and maintain weekly tip statements in violation of § 31-62-E2 (c) of the Regulations of Connecticut State Agencies consists of deposition excerpts claimed as "admissions." That portion of Tony Scacca's testimony to which the court is referred does not constitute an admission; it is evidence only that the servers daily declared their tips on a checkout form and, when they clocked out, they entered the same in a computer. That testimony is corroborated by Kyle Lancaster and Joseph Kadow.[6] What is relevant to this alleged violation is whether the defendant used the information the servers have provided in the computer and on a checkout form completed daily to keep and maintain weekly tip statements in violation of the applicable regulation. Regarding the defendant's alleged failure to record tip credit amounts claimed and to obtain and maintain signed statements as required under § 31-62-E3 (b) of the Regulations of Connecticut State Agencies,[7] the plaintiffs state only that such facts "will be easily demonstrated through generalized evidence in the form of admissions by Defendant's management, and an examination of the `wage record.'" No elucidation is provided. Generalized proof that the defendant exerts control over the servers' tips (and thereby prevents the servers from directly receiving their tips as required under § 31-62-E2 [e] of the Regulations of Connecticut State Agencies) by obligating them to share tips with support staff will consist, the plaintiffs claim, of a written policy statement by Outback Steakhouse of that requirement, the testimony of Outback Steakhouse managers and excerpted deposition testimony by individuals whose roles are not identified but are presumed to be managers assigned to various restaurant locations. Finally, the plaintiffs state that the generalized proof that the defendant failed to segregate "service" from "nonservice" duties of the servers in violation of § 31-62-E4 of the Regulations of Connecticut State Agencies will consist of a multiplicity of corporate documents (memoranda, policy statements, *1168 portions of a server training outline, and the like) and deposition excerpts.[8]
As to what constitutes "service" and "nonservice" duties, the plaintiffs agree that that will be a function of the court, presumably to be made following the admission of documents into evidence as exhibits most of which were created by individual Outback Steakhouse managers or corporate staff and which were provided in discovery. At trial, the plaintiffs plan to use such documents as a memo entitled "Sidework"; that memo includes activities such as "brew coffee and tea," "refill ice at soda machine," "stock rameikins," and the like. They urge the restriction of "service duties" to those activities "related to the guests seated at the tables in their (services') immediate service area, which is comprised of two or three tables."[9] (The deponent, Wayne Hull, is "presumed" to be an Outback Steakhouse employee at some level of management.)
The identification of "service" and "non-service" duties is critical to the resolution of many of the plaintiffs' claims. Neither our state's General Statutes nor the Regulations of Connecticut State Agencies define the terms and no decisional law defines those terms as applicable to servers. Section 31-62-E2 (e) of the Regulations of Connecticut State Agencies, however, defines "service employee" as one "whose duties relate solely to the serving of food and/or beverages to patrons seated at tables or booths and to the performance of duties incidental to such service and who customarily receive gratuities." (Emphasis added.). The defendant argues that the regulation requires an expansive interpretation such that "service" be read to include functions other than waiting on customers (as the plaintiffs state). If the evidence at trial prompts the court to adopt the definition of "service employee" stated in § 31-62-E2 (e) of the Regulations of Connecticut State Agencies, "non-service" duties are necessarily those that either: (a) do not "relate solely to the serving of food [and] beverages"; or (b) do not relate "to the performance of duties incidental to such service." Since it is apparently conceded that the defendant took the tip credit for all hours worked by a server, a class member suffers a loss only if he or she performed "nonservice" duties for any of the hours for which Out-back Steakhouse took the tip credit. Additionally, if a server performed both "service" and "nonservice" duties and the time spent on each is definitely segregated and recorded as such, "the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category." Regs., Conn. State Agencies § 31-62-E4. Conversely, if a server performs both "service" and "nonservice" duties and the time spent on each cannot be definitively segregated and recorded or is not so segregated and recorded, "no allowances for gratuities may be applied as part of the minimum fair wage." Id. The centerpiece of the plaintiffs' case is the claim that it was the uniform practice of the defendant to assign servers "running duties" and that that practice, coupled with its claimed failure to segregate time spent on those "nonservice" duties, precludes the defendant's taking of the tip credit.
*1169 The task in adjudicating this motion is to determine whether, in the trial of this matter, most of the litigants' and the court's efforts will be on common questions of law or fact subject to generalized evidence or whether the issues requiring individualized proof will predominate. Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 332, 880 A.2d 106. With that inquiry in mind, each claimed violation of the act needs to be analyzed.
The act (General Statutes § 31-60[b]) prohibits employers from paying employers less than the minimum fair wage. Section 31-60(b) further provides that employers in the hotel and restaurant industry may take the tip credit and pay an hourly wage 29.3 percent less than the currently mandated minimum "for persons, other than bartenders, who are employed in the hotel and restaurant industry . . . who customarily and regularly receive gratuities." The statute vests authority with the commission of the department of labor to adopt regulations as may be appropriate to effectuate the intent of the act. Pursuant to that authority, the regulations adopted are codified as § 31-62-E1 et seq. of the Regulations of Connecticut State Agencies. Under the regulations, several requirements must be met before an employer may take the "tip credit" as against the minimum wage paid "service employees."[10] Specifically, the employer must obtain and maintain a signed statement from the employee certifying that he or she has received gratuities of at least two dollars per day (for part-time employees) or ten dollars per week (for full-time employees). Regs., Conn. State Agencies § 31-62-E2 (c). The employer must weekly record the amount claimed as credit as a separate item in the wage record. Regs., Conn. State Agencies § 31-62-E3 (b). Section 31-62-E2 (e) of the Regulations of Connecticut State Agencies further provides that the tips must be "received by the employee directly from a guest, patron or customer for service rendered" before the employer can take the tip credit.[11] Finally, the employer must "segregate" time spent by the employee on "service" and "nonservice" duties as discussed previously. Regs., Conn. State Agencies §§ 31-62-E2 (c) and 31-62-E4.
The plaintiffs cite as authority for their argument Macarz v. Transworld Systems, Inc., 193 F.R.D. 46 (D.Conn.2000) in which the court noted the predominance requirement often focuses on the liability issue "and if the liability issue is common to the class, common questions are held to predominate over individual questions." (Internal quotation marks omitted.) Id., at 54. Macarz was brought under the Fair Debt Collection Practices Act; the plaintiffs there had received collection letters that the District Court had already found to be in violation of that act. The court granted the motion for certification, noting the predominance requirement was "a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws." (Internal quotation marks omitted.) Id. The court also noted that the defendant there did not seriously challenge the predominance element and, curiously, noted "damage amounts may vary. . . ." Id.[12] One paragraph in the thirteen *1170 page decision addressed predominance.
The present case is unlike Macarz in multiple ways. It is not a consumer or securities fraud case nor does it allege an antitrust violation. The centerpiece of this action is not a "common document"; id., at 54; such as the letter sent to all 15,000 proposed class members and consumers in Macarz but, as the plaintiffs concede, a variety of documents relative to the listing of side duties and the performance of that sidework, the alleged corporate policy regarding the taking of the tip credit, and Outback Steakhouse's alleged requirement that servers "tip out." Nor is there here, as there was in Macarz, a prior court finding of a prohibited practice which was subsequently repeated (15,000 times) and a ruling upon which the class was "entitled to rely" so as to preclude the defendant from relitigating liability. Id., at 49. Liability here is not only to be established but is aggressively contested by Outback Steakhouse. The plaintiffs have provided the court with approximately forty documents as exhibits to their memorandum, many of which, the defendant asserts, are either not relevant to practices at the Newington Outback Steakhouse or do not establish the violations of the act asserted. The case before this court is simply not "served up" in the same way as is Macarz absent the undisputed "standardized conduct" in the federal case. Id., at 50. Given the unusual circumstances of a prior finding of a statutory violation which precluded the defendant's contesting of liability in Macarz, the finding of predominance there followed naturally.
The plaintiffs here have asserted specific violations of the act regarding Outback Steakhouse's taking of the tip credit for each hour of each server's work. Before any violations can be established, the court must first grapple with the issue of "service" versus "nonservice" duties. (If, for example, all duties performed by the servers are "service" duties because they are "incidental" to the service of patrons, no violation of the act for failure to segregate under § 31-62-E4 of the Regulations of Connecticut State Agencies is established. If, however, "service" is limited to duties performed at tables "in the immediate service area" of the servers, the plaintiffs may be able to establish such violation.) The plaintiffs assert that this issue may be adjudicated by "generalized proof" to consist of such exhibits (offered through Newington managers presumably) as the earlier referenced lists of sidework duties and job descriptions without evidence of what work the servers performed daily at the Newington restaurant. The court is puzzled as to how a mere listing of "sidework" duties or the suggested "service" and "nonservice" jobs listing in a guide published by the state department of labor's wage and workplace standards division can be determinative of the issue as the plaintiffs suggest. It needs first to be said that the aforementioned guide is no more than a guidebook which, as the director of the standards division notes, "does not take the place of actual Connecticut General Statutes and regulations and/or court decisions." When an administrative "agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference" in its interpretation of legal terminology. (Internal quotation marks omitted.) Cendant Corp. v. Commissioner of Labor, 276 Conn. 16, 26, 883 A.2d 789 (2005). "[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Id. If, in *1171 the absence of any decisional or statutory law defining "service" and "nonservice," duties, this court chooses to rely on the guide's suggested listing, on what evidence would the court determine whether the Newington servers were required to perform the suggested "nonservice" duties[13] without testimony from class members? Further, if the court chooses to look to the federal tip credit law (in view of Connecticut's silence on the issue), the United States Department of Labor's Fact Sheet No. 15, a "guide" which addresses the treatment of tipped employees under the Fair Labor Standards Act, has this to say about servers performing nonservice duties: "When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The [Fair Labor Standards] Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties." United States Department of Labor, Employment Standards Administration Wage and Hour Division, "Fact Sheet No. 15: Tipped Employees Under the Fair Labor Standards Act (FLSA)," at http://www.dol.gov/esa/ regs/compliance/whd/whdfs15.htm.
In a trial of this matter, assuming the court were to conclude that the servers performed both "service" and "non-service" duties as the plaintiffs urge, how would it determine what percentage of the servers' tasks were "non-service" and consumed more than twenty percent of their time, thus prohibiting Outback Steakhouse's taking of the tip credit for those hours without hearing the testimony of class members? To conclude, as the plaintiffs do, that the situation before this court is like that in Scott v. Aetna Services, Inc., 210 F.R.D. 261 (D.Conn.2002) is to ignore that, in Scott, there was a working definition of "Systems Engineer"provided by the defendantand, once having concluded the job duties of the proposed class of Systems Engineers were "of the same type"; id., at 265;[14] it was a facile transition to adjudicate whether the claimed failure to pay each worker overtime compensation constituted a violation of the actand thus to find that predominance could be established by generalized proof. To suggest this court's interpretation of "service" versus "nonservice" duties can or should be premised solely on a guidebook's "sample" listings or on the defendant's description of "sidework" is impermissibly to restrict the court's analysis on an issue which goes to the very heart of this casethe defendant's entitlement to take the tip credit.
The court is persuaded that the claimed violation of failing to segregate *1172 service and nonservice duties cannot be established by generalized proof. The extensive individualized proof required to arrive at the meaning of those terms in the context of restaurant duties predominates over whatever generalized proof the plaintiffs might offer on this issue.
The plaintiffs assert in count four of their complaint that the defendant failed to obtain and to maintain weekly tip statements from servers and thus violated §§ 31-62-E2 (c) and 31-62-E3 (b) of the Regulations of Connecticut State Agencies because it did not record the amount of gratuities claimed as a tip credit against the minimum wage. Further, they also allege that the defendant violated § 31-62-E3 (c) of the Regulations of Connecticut State Agencies by not obtaining and maintaining signed statements from the servers certifying that they had in fact received at least two dollars per day (if part-time servers). The plaintiffs intend to demonstrate these claimed violations "through generalized evidence in the form of admissions by Defendant's management, and an examination of the `wage record.'" The plaintiffs specifically point to excerpted (and uncertified) deposition testimony by Lancaster, Scacca, and Kadow as proof of such admissions. Nothing in the plaintiffs' submission of these documents informs the court at what locations (or when) these individuals served as managing partners at any Connecticut Outback Steakhouse. For reasons stated earlier, only the Newington restaurant will be at issue at trial and the defendant has informed the court that the managing partner there was Manny Paolucci. No claimed statement by Scacca, Kadow or Lancaster constitutes an "admission" with regard to these violations.
During his testimony, Scacca was shown what was there described as a "Connecticut Department of Labor Wage and Workplace Standards Division Tip Statement." As the defendant points out, this sample form, which the plaintiffs claim Outback Steakhouse should have been using, misstates the law. Scacca's testimony was that he had not seen the form before, which is not an admission of a violation. He then went on to testify that employees declared their tips in the computer when they clocked out daily and filled out a "checkout form" not otherwise there identified. The defendant asserts that this process of logging in constitutes a "signed statement" under the Connecticut Uniform Electronic Transactions Act, General Statutes § 1-266 et seq. Whether such entries constitute a "signature"[15] under the Connecticut Uniform Electronic Transactions Act[16] is a question of law to be decided by the court at trial since statutory interpretation is a court function. Nor is the testimony of either Kadow or Lancaster helpful to the plaintiffs on this point. The excerpted testimony from Kadow establishes only that the state department of labor website form (the so-called "tip credit statement") was not one he had seen before.[17] That portion of Lancaster's testimony to which the plaintiffs direct the court establishes only that a "check-out form" was used by employees to acknowledge tips received. Thus, the court has *1173 not been provided with any "admission" which may be offered as generalized proof.
As to the "wage record" the plaintiffs plan to offer as generalized proof of these claimed violations, no clarification of what is meant by "wage record" is provided. Without such guidance, the court concludes that the term embraces the daily computerized record of each class member, since the plaintiffs' burden is to prove the defendant's violation of the act as to each named plaintiff and class member. It is unclear how many plaintiffs were employed in Newington, but it is likely that hundreds of records will need to be offered to cover the entire employment period of each class member. Such proof is "individualized" and, since the defendant has both a right and a desire to examine each class member, the result will likely be the conduct of as many minitrials as there are class members, a result which eliminates any advantage to the proposed class action.
Finally, the plaintiffs allege that the defendant exercised control over the plaintiffs' tips by maintaining a "policy and/or practice" of requiring the servers to share a portion of their tips with hostesses, bussers and bartenders. Thus, the plaintiffs assert, the servers did not customarily receive "gratuities," were not "service employees" as defined by § 31-62-E2 (e) of the Regulations of Connecticut State Agencies, and the defendant was not entitled to take the tip credit. The generalized proofs which will establish these factsand thereby the conclusion that the defendant violated the regulationare the "policies and testimony of managers." Specifically, the plaintiffs rely upon a document captioned "Outback Steakhouse Tip Policy Version 1," dated January, 2004. The opening paragraph of that document declares that the practice of sharing tips "is required" and that tips "will be used as a credit against the minimum wage as permitted by federal and/or state laws." Paolucci, the Newington manager, testified at his deposition that 3 percent of the servers' gross sales[18] is taken out of the tips received and put into a tip pool for that purpose and that, although the practice was a "requirement" and he had not known any instance where a server had "opted out" of the tip share pool, he believed they could. Paolucci testified that the Newington servers were not required to sign the aforementioned document. He stated that, if a server advised him that he or she did not wish to share tips, he would seek direction from a supervisor.
The initial difficulty for the court is the plaintiffs' failure to cite any statute or regulation which makes tip sharing a violation of Connecticut law. That practice is neither addressed by the act nor by any regulation. The plaintiffs build their claim on a two step construct: (1) § 31-62-E2 (e) of the Regulations of Connecticut State Agencies defines "gratuities" as a "voluntary monetary contribution received by the employee directly from a guest, patron or customer for service rendered"; and (2) a guide published by the state department of labor for Connecticut restaurant employers reads into that definition of gratuities a requirement that "the employer cannot exert any control over it." Connecticut Department of Labor, Automation Support Unit, "Gratuities in the Restaurant Industry," at http://www.ctdol.state.ct.us/ wgwkstnd/wage-hour/restaurant.htm. The guide goes on to state: "This means that if a restaurant employer chooses to require customers to pay an added `service charge' directly to the restaurant (not the employee), it is not a tip, even if the employer chooses to pass it along intact to the employee. *1174 Under this scenario, the employer could not take any tip credit." Id. Of interest is that the authors of this guide, which, as already discussed, does not have the effect of law, chose to expand upon the regulation's definition of "gratuities" and then to apply that definition to a practice other than tip pooling. The plaintiffs' construct leads to conclusions unwarranted by the language of either the regulation or the guide; specifically, that because Outback Steakhouse asserts control over the servers' tips by requiring them to share those tips with employees who do not receive tips, the tips received by the servers are, therefore, not "gratuities" (despite their being paid directly by the customers and the servers' receiving such tips "intact" and "whole") that the servers are not "service employees" (despite the definition of that term under § 31-62-E2 [c] of the Regulations of Connecticut State Agencies) and that Outback Steakhouse may not, therefore, take the tip credit. The logic is, at best, tenuous and returns the court to the "service" versus "nonservice" issue, an inquiry already determined to require predominantly individualized proof.[19]
CONCLUSION
The motion to certify the class is, therefore, denied for all of the foregoing reasons.
NOTES
[1] "Tipping out" is a practice whereby the servers pay a portion of their tips to other employees such as bartenders, hostesses, expediters and the like. The defendant argues that the practice was not mandatory, as the plaintiffs claim, but that it was voluntary.
[2] The other locations are Danbury, Manchester, New London, Orange, Southington and Wilton.
[3] Had there been, for example, a named plaintiff from each of the Outback Restaurant locations, it is likely the court would have found those plaintiffs had common interests with the unnamed class members.
[4] At his deposition in March, 2005, Peruta testified he had then been living in Florida for six months and did not plan to move back to Connecticut "anytime in the near future" but "quite possibly could do so in the future."
[5] Fontaine was not asked whether she planned on returning to Connecticut.
[6] In the plaintiffs' supporting memorandum, there are scattered references to suggest these individuals are managers at various locations.
[7] The defendant denies the allegation and points to the electronic signatureswhich does not address all aspects of the regulation.
[8] No transcript excerpts have been certified and the opening pages of the transcripts have not been provided, making identification of deponents difficult at best and sometimes impossible.
[9] The defendant has argued that this sidework assignment sheet is used exclusively at the Orange location (no longer relevant in the trial of the present case) and that four of the five managers deposed had never before seen the document before their depositions. Ditto the server training online, which three managers had not seen prior to their depositions.
[10] As just previously stated, § 31-62-E2 (c) of the Regulations of Connecticut State Agencies defines a "Service employee" as one "whose duties relate solely to the serving of food and/or beverages to patrons seated at tables or booths and to the performance of duties incidental to such service, and who customarily receive gratuities."
[11] A department of labor guide provides that, for tips to be received directly, they must be "paid directly" to the employee and the employer may not exert any control over them.
[12] What is "curious" is that all the plaintiffs received the same letter, thus, it would appear that variation in damages would likely be attributed to some plaintiffs having retained counsel prior to the class action having been brought.
[13] Those "suggestions" consist of cleaning the restrooms, preparing food, washing dishes, showing all patrons to their seats (as opposed to showing only patrons within a server's service area), doing general set up work before the restaurant opens, general cleaning work, kitchen clean up, and waiting on takeout customers. Deposition testimony from the plaintiffs suggest that there were other staff members to perform those duties at the Newington location.
[14] It is this difference between Scott v. Aetna Services, Inc., 210 F.R.D. 261 (D.Conn.2002) and the present case which distinguishes the two cases and both counsels' argument with regard to whether this is a misclassification case does not, under these circumstances, further the predominance analysis.
[15] General Statutes § 1-267 defines an "`electronic signature'" as any "electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."
[16] General Statutes § 1-272 further provides in pertinent part that "[i]f a law requires a signature, an electronic signature satisfies the law."
[17] Further confusing matters is that this website form, which was marked as exhibit 7 at the Scacca deposition, is what is apparently identified in Kadow's deposition as "Exhibit 2 during Mr. Scacca's testimony."
[18] Other deposition testimony has referenced 3 percent of "net sales"; the Outback Steakhouse Tip Policy Version 1 document is silent on that point.
[19] While it is so that the plaintiffs must establish that the defendant violated the act as to each of the class members in one or more of the ways asserted in count four of their complaint, it is not so, as the defendant frequently misstates, that the plaintiffs must also show the harm to each such member was causally related to the violation or violations. Unlike in Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 880 A.2d 106 (2005), damages here are statutorily imposed once liability is proven. See General Statutes § 31-68. |
1,516,043 | 2013-10-30 06:32:48.741257+00 | Boyd | null | 335 S.W.2d 247 (1960)
BRAZOS RIVER AUTHORITY, Appellant,
v.
CITY OF GRAHAM, Appellee.
No. 16082.
Court of Civil Appeals of Texas, Fort Worth.
April 8, 1960.
Rehearing Denied May 13, 1960.
*249 Roger Tyler and J. R. Creighton, Mineral Wells, Brown, Herman, Scott & Young, John M. Scott and William M. Brown, Fort Worth, for appellant.
Jennings & Montgomery, and Frank Jennings, Graham, for appellee.
BOYD, Justice.
The City of Graham recovered judgment against Brazos River Authority for $430,750 as damages for the claimed flooding and destruction of its water treatment plant, its sewage disposal plant, and its channel dam and reservoir as a result of the construction, maintenance and operation of Possum Kingdom Dam and Lake, which judgment subjects the tracts of land on which the named facilities are situated to an easement or servitude in favor of Brazos River Authority for future flooding of said facilities. From this judgment Brazos River Authority appeals.
Possum Kingdom Dam was constructed across the Brazos River some 55 miles downstream from the confluence of said River and Salt Creek. The dam was constructed in 1941. Its spillway is at elevation 1000 feet. The sewage disposal plant is on the west side of Salt Creek, about three miles upstream from its mouth. It was constructed in 1923 and was expanded and modernized in 1951. Its critical elevation is 1003.94. The channel dam is across Salt Creek about 1¼ miles above to disposal plant. It was built in 1908, and was raised and lengthened in 1923. The top of the dam is at elevation 1009.97. The water treatment plant is on the east side of Salt Creek, some 1,200 feet upstream from the channel dam. It was built in 1908. Its critical elevation is 1019.09.
Appellee alleged, there was evidence to show, and the jury found that the flow in the River and in Salt Creek has been so retarded by the static body of water in Possum Kingdom Lake and in the beds of the river and Salt Creek as to increase the deposit of silt in the lake and in the stream beds and cause the waters to attain increasingly higher elevations in times of flood, as a consequence of which appellee's facilities were many times flooded and their value for the purposes for which they were constructed was destroyed.
Appellee's water supply is from Lake Graham and Lake Eddleman, the former being on Salt Creek above the installations here involved, and the latter being on a tributary of Salt Creek upstream from the water treatment plant. The lakes are connected by a canal, and the water is brought from Lake Eddleman to the treatment plant through a 16-inch pipeline. The water impounded by the channel dam is used in emergencies caused by pipeline breaks, extreme periods of drought, or other catastrophies. Appellee is a growing city, and these facilities have been used to, and sometimes above, normal capacity. There was evidence showing that when backwater from Possum Kingdom Lake goes over the channel dam the water in the channel reservoir becomes unusable because it is contaminated by untreated sewage when the disposal plant is put out of operation because of its being flooded.
The jury found that the intrinsic value of the disposal plant at time of trial would be $140,000 had Possum Kingdom Dam not been constructed, maintained and operated, but now had a value of $750; that the water treatment plant would be worth $250,000 without Possum Kingdom Dam and is now worth only $1,500; and that the channel dam and reservoir would be worth $43,000 without Possum Kingdom Dam and is worth nothing now.
Article 8280-101, Sec. 2, Vernon's Ann. Civ.St., reads as follows:
"The Brazos River Conservation and Reclamation District (now Brazos River *250 Authority) is created as a governmental agency, a municipality, body politic and corporate, vested with all the authority as such under the Constitution and Laws of the State; and shall have and be recognized to exercise all of the powers of such governmental agency and body politic and corporate as are expressly authorized in the provisions of the Constitution, Section 59 of Article 16, for Districts created to conserve, control, and utilize to beneficial service the storm and flood waters of the rivers and streams of the State, or such powers as may be contemplated and implied by the purposes of this provision of the Constitution, and as may be conferred by General Law, and in the provisions of this Act; and shall have and be recognized to exercise all the rights and powers of an independent governmental agency, municipality, body politic and corporate to formulate any and all plans deemed essential to the operation of the District and for its administration in the control, storing, preservation and distribution to all useful purposes of the storm and flood waters of the Brazos River and its tributary streams; as such District, shall have and be recognized to exercise such authority and power of control and regulation over such storm and flood waters of the Brazos River and its tributaries as may be exercised by the State of Texas, subject to the provisions of the Constitution and the Acts of the Legislature."
Appellant's first point for reversal is that appellee's damages were caused by appellant's lawful use of Brazos River, for which appellant is not answerable in damages. Appellant says that "it has a public right to store waters in the channel of the stream for the purposes of flood control and other beneficial uses of the Brazos River and that it is under no liability for the inevitable natural consequences of the exercise of its legal right." If that proposition be correct, it would seem that no entity which undertakes by authority of law to appropriate, damage, or destroy for or apply to public use any property, would be liable for the "inevitable natural consequences" of its undertaking, because every such exertion is the exercise of a legal right.
Article 1, Section 17, of the Texas Constitution, Vernon's Ann.St. provides that "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; * * *." Since there are no exceptions or limitations attached to the constitutional provision, the State itself is not exempt from its requirements. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; State v. Hale, 136 Tex. 29, 146 S.W.2d 731. Agencies created by the State are not exempt. Ft. Worth Improvement Dist. No. 1 v. City of Ft. Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994.
It is settled that one who obstructs the flow of a stream so as to make the waters flow onto and injure the lands of another is liable. City of Austin v. Howard, Tex.Civ.App., 158 S.W.2d 556. The damage may result from the operation of public works as well as from their construction. Gainesville, H. & W. Ry. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298. So, even if, when first constructed, a dam does not injure lands some distance away, when the pond, made by the dam, fills with mud, sand, or other things, causes overflows which injure lands, the owner has a cause of action. Hidalgo County Water Improvement Dist. No. 2 v. Holderbaum, Tex.Com.App., 11 S.W.2d 506; McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980, 6 A.L.R. 1321; Hand v. Catawba Power Co., 90 S.C. 267, 73 S.E. 187; Cline v. Baker, 118 N.C. 780, 24 S.E. 516; Kennedy v. Union Electric Co., 358 Mo. 504, 216 S.W.2d 756; Milhous v. State Highway Department, 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186; Pumpelly v. Green Bay & Mississippi Canal Company, 13 Wall. 166, 80 U.S. 166, 20 L. Ed. 557; United States v. Chicago, *251 B. & Q. R. Co., 7 Cir., 90 F.2d 161. The first point is overruled.
Appellant's second point is that it acted under the police power in storing water in Possum Kingdom Lake and the channel of the Brazos River and its tributaries, and is not liable for indirect and consequential damages incident to such exercise of the police power.
The shadowy boundary of the police power is the great "Serbonian bog, * * *. Where armies whole have sunk." But it is not necessary for us to become submerged in that bog. It is sufficient to show that even though the purpose for which public works are constructed and operated be to promote public welfare, health, morals, or safety, and therefore an exercise of the police power, property taken from the owner and put to such public use must be paid for. Generally, the police power regulates the use of or destroys private property because it is detrimental to the public. In such case it does not render compensation. But when private property is "taken, damaged or destroyed for or applied to public use," not because it has been used to the public's detriment, but because the new use will be beneficial to the public, compensation must be made. We have seen no authority which holds that where power is exerted to consummate an enterprise in the public interest which requires the taking or damaging of private property, there may be no compensation. Whether the power so exercised is called the police power or the power of eminent domain, it nevertheless results in a taking or damaging in the purview of the constitutional provision. 16 Tex.Jur., p. 448, sec. 159; 29 C.J.S. Eminent Domain § 6, p. 784; Nichols on Eminent Domain, vol. 1, p. 66, sec. 1.42, p. 68, sec. 1.42(1). Compensation must be made in all cases where property is "taken, damaged or destroyed for or applied to public use," the police power not being above, but being subordinate to, the Constitution. Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 12 A. L.R. 1116.
In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 160, 67 L. Ed. 322, 28 A.L.R. 1321, the court said:
"The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation * * * When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."
In Mugler v. State of Kansas, 123 U.S. 623, 8 S. Ct. 273, 301, 31 L. Ed. 205, we find this expression: "The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner."
Appellant's next two points are that appellee's cause of action is barred by the two-year statute of limitation if the suit is for damages, and by the ten-year statute if it is a suit for compensation for a taking.
Title 91 contains the invoked limitation statutes. Article 5517 in that Title provides that "The right of the State, all counties, incorporated cities and all school districts shall not be barred by any of the provisions of this Title, * * *." Appellee being an incorporated city, it would seem that the statutes of limitation relied upon are not applicable.
*252 But even if the limitation statutes are operative against appellee, and if this be a suit for "damages" rather than for a "taking", the plea of the two-year statute cannot be sustained because we think it was not shown that the cause of action accrued more than two years before the filing of the suit. We do not understand that the cause of action accrued the moment the operation of the dam and lake caused an overflow of appellee's premises. This suit was filed on September 19, 1957. The first overflow caused by silt deposits was on July 1, 1953, and affected only the disposal plant, causing it to be closed about three days. The next overflow was on July 20, 1953, causing the disposal plant to be closed, and entering the channel reservoir. Beginning on October 27, 1953, another overflow closed the disposal plant for about five days. Beginning on May 15, 1954, there was an overflow which closed the disposal plant for eight days. No overflow entered or reached the water treatment plant until September 25, 1955. By far the most extensive flooding of appellee's facilities occurred between April 26, 1957, and "the first week or so of June." Appellee's city manager testified: "Q Now, was that constant flooding or periodic flooding of the facilities? AWell, it was almost constant. There were times when it would get down and we would attempt to get the plant back in operation and then it would come back again." The witness said that water got in the water treatment plant and in its engine room; that they could not operate the disposal plant; the sewage was not receiving any treatment; the City would not use the water from the channel reservoir because it was contaminated.
The first injurious overflow would not necessarily furnish a safe basis from which future damages could be calculated, and the cause of action would not be barred because not brought within two years from that time, when the extent and permanency of the damage could not be proved. Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564, 5 A.L.R. 2d 297; Hunt v. Iowa Cent. Ry. Co., 86 Iowa 15, 52 N.W. 668, 41 Am. St. Rep. 473; City of Tulsa v. Grier, 114 Okl. 93, 243 P. 753; Ellerson Floral Co. v. Chesapeake & O. Ry. Co., 149 Va. 809, 141 S.E. 834.
In Hilton v. Duke Power Company, 4 Cir., 254 F.2d 118, 126, the court said: "It would impose an obligation too stern for the practicalities of justice to declare as a matter of law that, regardless of extent, range, topography, and other characteristics of his land, a plaintiff is always charged at the first appearance of damage with a foresight of its ultimate spread."
No issue was submitted or requested touching the defense of limitations. We cannot say that as a matter of law appellant established its allegation that appellee's cause of action was barred by the two-year statute.
Appellant says that if this is a suit for compensation for a "taking" it was barred in ten years from the completion of the dam in 1941. Had there then been a physical invasion of appellee's land, the proposition might be correct. But there was none. It is our view that no cause of action for a taking of appellee's property arose until it was flooded as a consequence of the maintenance and operation of the dam and lake. Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484; Powers v. City of Council Bluffs, 45 Iowa 652; McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980, 6 A.L.R. 1321; Hilton v. Duke Power Company, 4 Cir., 254 F.2d 118.
In United States v. Dickinson, 331 U.S. 745, 67 S. Ct. 1382, 1385, 91 L. Ed. 1789, it was said:
"Property is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time. The Fifth Amendment expresses a *253 principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding `causes of action'when they are born, whether they proliferate, and when they die. * * * If suit must be brought, lest he (the owner) jeopardize his rights, as soon as his land is invaded, other contingencies would be running against himfor instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. * * * And as there is nothing in reason, so there is nothing in legal doctrine, to preclude the law from meeting such a process by postponing suit until the situation becomes stabilized. An owner of land flooded by the Government would not unnaturally postpone bringing a suit against the Government for the flooding until the consequences of inundation have so manifested themselves that a final account may be struck."
In McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980, 981, 6 A. L.R. 1321, the court said:
"When the dam in question was erected, the waters from the pond in no manner affected appellant's land. She * * * could not foresee that later she would suffer damage, and for that reason could not demand compensation for she then suffered no injury, and any claim made would have been conjectural and speculative on her part; * * *. Any action brought by her until her rights were injuriously affected, or her rights invaded, would have been premature, * * *."
Another point is that the judgment is excessive because appellee was allowed to recover the value of the sewage disposal plant on the theory that it must be abandoned and rebuilt at another location, and was then awarded the "full value" of the water treatment plant and the channel reservoir "as if the sewage disposal plant were still in existence at the same location and would continue in time of flood to pollute the City's auxiliary water supply." We do not think the judgment is susceptible to that construction.
Appellee is a growing city and needs additional water treatment facilities; the plant has been flooded as a consequence of the maintenance and operation of the dam and lake; according to expert testimony the flood hazard will increase with the years; in order to meet the growing needs of the city, appellee must either expand the present plant or abandon it and build a new one; because of the probability of recurring floods from the backwaters of Possum Kingdom Lake, three engineers testified that it was not advisable to expand and modernize the plant at its present location. Besides, appellant did not except to the pleading of damages by appellee and its objections to the charge did not embrace the present complaint.
Since it is impracticable to keep the disposal plant and the water treatment plant at their present locations, it seems that the channel reservoir is useless. There was evidence that after the disposal plant is rebuilt of higher ground, ponding of the affluent would present a sanitary and health problem equal to that created by the periodical flooding of the present plant and channel reservoir. To eliminate this hazard it would be necessary to construct a pipe line several miles in length to carry the affluent to the Brazos River portion of the lake. It being obvious that the new water treatment plant will be rebuilt on higher ground, it does not appear that it would be practicable hereafter to use the channel reservoir as an emergency water supply.
Error is assigned to the exclusion from evidence of a deed from appellee to appellant conveying a 3.94 acre tract of land, which deed contained a covenant purporting to release appellant from liability for damages which might result from flooding other lands of appellee. The tract conveyed by the deed did not include the lands on which the installations involved in this suit are situated. The only materiality *254 we perceive in the proffered evidence is the purported release. The resolution of the City Council authorizing the execution of the deed did not authorize any release from liability for damaging any property not thereby conveyed. Indeed, a resolution was prepared and presented to the City Council, which, if adopted, might have amounted to such a release, but it was rejected. We cannot agree that the action of the Mayor in signing the deed containing the unauthorized release was binding or admissible in evidence. 4 McQuillin, Municipal Corporations (3rd Ed.), p. 447, sec. 13.07; 30-A Tex.Jur., p. 150, sec. 138; Arts. 1112, 1118a, Vernon's Ann. Civ.St.; City of Tyler v. Adams, Tex.Civ. App., 62 S.W. 119; Phillips v. City of Abilene, Tex.Civ.App., 195 S.W.2d 147, error refused; Penn v. City of Laredo, Tex.Civ.App., 26 S.W. 636.
The last point is that it was error to instruct the jury that in determining values they should not consider the possibility of constructing dykes or levees around the disposal and water treatment plants, it being urged that the instruction took from the consideration of the jury one of the important factors affecting the intrinsic value of the plants, and was a comment on the weight of the evidence. Appellant did not plead that the City could or should construct such levees in order to mitigate damages.
"When the defendant wishes to contend that the damage for which recovery is sought might have been prevented or minimized by the plaintiff, he must set up the defense by special averments. Accordingly, this matter must be pleaded by the defendant in confession and avoidance, and evidence of any such fact is inadmissible under a general denial." 13 Tex.Jur., p. 414, sec. 241. Moreover, it seems that a landowner is not required, at considerable expense, to protect his property from damage by another. 16 Tex.Jur., p. 549, sec. 227; City of Ft. Worth v. Howard, 3 Tex.Civ.App., 537, 22 S.W. 1059; Texas & P. Ry. Co. v. Maddox, 26 Tex. Civ. App. 297, 63 S.W. 134, error refused. This point is likewise overruled.
Finding no error, the judgment is affirmed. |
3,777,739 | 2016-07-06 07:27:43.263127+00 | Per Curiam | null | Appellant, Mary Jane Gradwell, appeals from the order of the trial court dismissing appellees, W.G. Lockhart Construction Co. and W.E. Plechaty Co. from the action. We reverse and remand.
This case began as a claim for death benefits filed by appellant with the Ohio Bureau of Workers' Compensation on June 11, 1985, following the death of her husband, James Gradwell. James, who had been diagnosed as suffering from malignant mesothelioma as a result of having been exposed to asbestos, died on December 31, 1984.
Appellant's application for death benefits named A.S. Helbig Construction Co. as James' last employer. The application also listed W.G. Lockhart Construction Co. as one of James' employers during the five years preceding his death.
The district hearing officer found that James' death was the result of an occupational disease and determined that appellant was entitled to participate in the state fund. The Canton Regional Board of Review affirmed the district hearing officer's decision. A.S. Helbig's appeal from this order was refused by the Industrial Commission.
A.S. Helbig appealed the board of review's decision to the trial court. Appellant, as required by R.C. 4123.519, timely filed a petition showing a cause of action to continue participating in the Workers' Compensation Fund and named A.S. Helbig as James' employer. On October 5, 1987, appellant filed a motion to join W.E. Lockhart and W.E. Plechaty as necessary parties. The motion was granted. *Page 199
On November 16, 1988, W.G. Lockhart filed a motion to dismiss, which was subsequently joined by W.E. Plechaty, for the reason that W.G. Lockhart had not been a party to the administrative proceedings. The trial court granted the motion to dismiss, ruling that appellants' claims against W.G. Lockhart and W.E. Plechaty were barred by the two-year statute of limitations prescribed in R.C. 4123.85.
Assignment of Error
"The trial court erred in granting defendants' motion to dismiss based on the running of the statute of limitations where claimant-appellant timely filed an application to participate in the Workers' Compensation fund with the Ohio Industrial Commission."
It is undisputed that appellant attempted to join W.G. Lockhart and W.E. Plechaty as necessary parties more than two years after James' death. The Ohio Supreme Court, however, has recognized that a claimant may add additional employers for the first time at the trial court level, even after the limitations period has expired. State, ex rel. Burnett, v. Indus. Comm. (1983), 6 Ohio St. 3d 266, 268, 6 OBR 332, 334, 452 N.E.2d 1341,1343.
Burnett, a per curiam decision, involved a petition for writ of mandamus to compel the Industrial Commission to conduct an investigation to determine whether Burnett had been exposed to asbestos during any employment prior to his death. The Supreme Court held that a writ of mandamus would not issue becauseBurnett had an adequate remedy at law through appeal.
The Burnett court also stated:
"* * * The right at issue in the appeal is the right to participate in the state fund and not a claim directed against a particular employer. The appeal proceeding is a trial de novo and the Civil Rules apply. By discovery and joinder, the proper employers can be ascertained and made parties, if necessary."6 Ohio St. 3d at 268, 6 OBR at 334, 452 N.E.2d at 1343.
Presumably the newly named employers would also have the right of discovery and the opportunity to contest in the trialde novo the claimant's right to participate in the fund.
Although we recognize the procedural anomalies created byBurnett, we must apply the law as pronounced by the Supreme Court. Accordingly, we hold that appellant may join W.G. Lockhart and W.E. Plechaty as parties.
The judgment of the trial court is reversed.
Judgment reversed.
MAHONEY, P.J., QUILLIN and REECE, JJ., concur. *Page 200 |
1,516,045 | 2013-10-30 06:32:48.766224+00 | Dalianis | null | 913 A.2d 697 (2006)
John BOYNTON and another.
v.
Dennis FIGUEROA and another.
No. 2005-652.
Supreme Court of New Hampshire.
Argued: October 3, 2006.
Opinion Issued: December 21, 2006.
*700 Bernstein, Shur, Sawyer & Nelson, of Manchester (Andru H. Volinsky on the brief and orally), for the plaintiffs.
Edward D. Philpot, Jr., PLLC, of Laconia (Edward D. Philpot, Jr. on the brief and orally), for defendant Signature Building Systems, Inc.
DALIANIS, J.
Defendant Signature Building Systems, Inc. (Signature) appeals the jury verdict entered in Superior Court (McGuire, J.) awarding the plaintiffs, John and Alicia Boynton, $250,000 in damages and assigning Signature 90% of the fault for the negligent construction and installation of their home. We affirm.
The jury could have found the following facts. Signature is a manufacturer of factory-built modular homes. Rather than sell its homes directly to consumers, Signature maintains a network of approved builders from whom its homes may be purchased. Upon receiving an order from one of its builders, Signature builds the home in its Pennsylvania plant and delivers it to the building site; one of its approved builders then erects the home on the site and finishes it there.
The plaintiffs learned about Signature's modular homes through an acquaintance, defendant Dennis Figueroa. Figueroa was one of Signature's approved builders. He worked with his father, who was the exclusive dealer for Signature homes in New Hampshire.
Figueroa provided the plaintiffs with brochures about Signature homes, which stated that: the plaintiffs could expect to move into a new modular home in "3 to 4 weeks after delivery"; Signature homes are "top-quality" and "custom built"; Signature uses "only the best quality products" in constructing its homes; "[q]uality will be consistent throughout the home"; *701 Signature "goes to extraordinary lengths to provide top quality construction"; the "customized styling, affordable pricing and structural integrity" of a Signature home is "unmatched in a `site-built' home"; Signature "sell[s] our homes through a trusted team of building professionals trained in the intricacies of construction and detailed finish work"; and, "[i]f problems should arise, we have a fully trained staff of field professionals capable of performing any task quickly and efficiently."
Before buying a Signature home, the plaintiffs investigated other modular home manufacturers. They eventually chose Signature because of the representations made in its marketing materials with respect to the quality of its homes and the builders with whom it works. As Alicia Boynton testified, "One of the things that helped us decide was all the literature that we were handed and all the information I could find on the internet."
The plaintiffs purchased their Signature home on June 12, 2003. The total price for the home, a two-car garage, deck and pool, was $214,400. Of this amount, $69,000 was paid directly to Signature for the modular home itself. The remainder, $145,000, was for the two-car garage, deck and pool and the services of Figueroa and his subcontractors.
Under the purchase and sale agreement, the plaintiffs were responsible for the "proper setting of the modular units on to the foundation," as well as "the proper installation of doors, siding, trim, and the tightening or adjustment of plumbing fitting that may loosen during shipment, as well as other items that must be shipped loose." The plaintiffs entered into a separate agreement with Figueroa to complete this work. Figueroa agreed to "furnish all of the materials and perform all of the work utilizing appropriate Signature Building Systems Modular construction and other sub-contractors as needed." The contract originally specified that the work would be substantially completed by September 1, 2003. This date was later changed to October 15, 2003.
Anticipating that they would move into their new modular home soon after purchasing it, the plaintiffs sold their former home in August 2003. Until their modular home was ready, they lived with their two teenage children and two dogs in a small camper. The plaintiffs were unable to move into their new home until January 2004.
The plaintiffs noticed problems with the foundation before the modular home was set on it. They noted, for instance, that Figueroa had not sited their home where they had directed him to site it. When they confronted him about this, he told them not to worry and that their home would be sited where they wanted it. Figueroa's assurance notwithstanding, the home was not sited where they wanted it to be, so the plaintiffs were unable to have a pool in their backyard and to have their two-car garage, as planned.
Shortly after the foundation was poured, the plaintiffs also noticed that one of its walls was cracked and "had to be removed and a section of [it] re-poured." The plaintiffs also observed that when Figueroa re-poured the new section of concrete, he created a patch that did not continue below the grade, even though the foundation continued below the grade.
The plaintiffs further observed that a bulldozer blade had hit the foundation, leaving a "big chunk" of it missing. When John Boynton asked Figueroa about how this would be fixed, Figueroa responded: "[W]e're just going to stuff it full of insulation and then re-Tyvac it and put siding over it." Mr. Boynton told Figueroa that he needed to "fix it the right way and cut *702 out the bad plywood, put some more insulation in and then . . . put in a patch of plywood and . . . Tyvac it and side it." Because Figueroa never fixed this problem, Mr. Boynton did it himself.
The modular home was set on its foundation at the end of September 2003. After it was set, the plaintiffs noticed that the aluminum fascia boards, underneath the shingles, were "dinged-up." They also noticed that the closet walls sagged. When the plaintiffs asked Figueroa about the sagging closet walls, he told them that it was "just an optical illusion." The plaintiffs believed that the sagging walls indicated that the roof was pushing down on them.
Because of the problems the plaintiffs observed, and Figueroa's inadequate responses when confronted about them, the plaintiffs fired him on November 17, 2003. The "last straw" for the plaintiffs concerned the setting of their gravity-fed septic tank. Figueroa set the septic tank higher than the opening coming from the house, which meant that the effluent would not go into the tank, but would stay in the house. As of the date they fired him, the plaintiffs had paid approximately $129,000 for their new home and for the services of Figueroa and his subcontractors.
A few days after the plaintiffs fired Figueroa, Jay Bradley, an area sales manager for Signature, came to their property to drop off some materials. Ms. Boynton took Bradley through the home and explained "all the things that we, as homeowners, thought were wrong, the issues that we had brought forward to our contractor that were never resolved." At the same time, she asked him what she and her husband could do to "fix things or if the things that we had done were fixed right and, if not, how to remedy what we did."
Ms. Boynton showed Bradley problems with the roof, vent pipes, siding, dormers, weather-proofing and windows. Specifically, she showed him that: (1) the roof lacked shingles in places and did not "line up properly"; (2) she and her husband had replaced sagging beams in the closets because they were concerned the roof was caving in; (3) the vent pipes were too small; (4) the entrance to the basement did not have siding on it; (5) one of the dormers was not properly connected to the roof; (6) there was damaged "step flashing" between another dormer and the roof; (7) there was no tar over certain exposed nails and screws; (8) one of the home's windows was missing a piece that made the window "weather-tight"; and (9) some of the windows were incorrectly installed and, thus, also were not "weather-tight."
Ms. Boynton also informed Bradley that the foundation was not level, which he confirmed. While touring the home, Bradley determined that the "sill plate," pressure-treated wood that is bolted or strapped to the foundation upon which the home is then set, was not level.
Because Ms. Boynton had been told that Signature only worked through authorized dealers and did not service customers directly, she asked Bradley to put her in contact with another Signature dealer. He did not do so.
Ms. Boynton also requested that Bradley send her a copy of the "set manual" for the home. The set manual "tells you everything you need to know, how [the home] was constructed, how the roof system works[,] . . . what your lot should be like, what your foundation should be like." Although she requested the manual in November 2003, she did not receive it until January 2004.
From the set manual, the plaintiffs learned that the "lally columns" in the basement were supposed to be secured to *703 the beams and to the floor. The lally columns in the plaintiffs' home were not secured. To fix this problem, Mr. Boynton "took a jack and we jacked the house up so [that all of the floor joists] had the same measurement, and then we. . . . added steel plates until I made it level."
The plaintiffs also learned that the "mating walls" of the house were supposed to be tied together with factory-supplied square galvanized plates. Ms. Boynton testified that "[t]here [were] gaps in all of the mating walls within [the] house." In trying to fix this problem, the plaintiffs discovered that "the walls were too far apart because of the gaps." Therefore, they "had to suck the walls in with [C] clamps" and lag bolts.
After the plaintiffs moved into the house, they discovered that it "would only get up to 55 degrees, no matter what you put the thermostat on, and [that] . . . the windows [were] drafty." To remedy this problem, the plaintiffs insulated the second floor and, for the winter of 2005, had the windows shrink-wrapped.
The plaintiffs also noticed problems with their driveway. As Ms. Boynton testified, "It was a mud bog. You would sink in the mud up over your ankles if you walked up through." As a result of this problem, the plaintiffs "hired someone to . . . take out the first few layers of top soil . . . and . . . put in hard pack and stone." Additionally, to fix other problems, the plaintiffs had: (1) a new septic system designed and installed; (2) a foundation drain installed; and (3) the well excavated and rocks and debris removed from it.
The plaintiffs also attempted to make the house level. Mr. Boynton explained that they "jacked the backside of the house[,] . . . where the cracked foundation was." Using six-by-six pressure treated beams, the plaintiffs "tried to work the jacks as even as we could and a little bit at a time, . . . going from one jack to the other." Mr. Boynton then put a shim in between the mudsill and home to make the home level.
The plaintiffs spent $53,000 to remedy the problems they observed. They were anxious to get the house completed because they were "homeless, living in a trailer." Additionally, Ms. Boynton testified that her lost wages for the time spent fixing the home were approximately $2,700. She testified that Mr. Boynton's lost wages were approximately $380. Ms. Boynton also testified that, because their garage was never built, they had paid $85 per month for two storage units, for a total of $1,785.
The plaintiffs' expert testified that the quality of the work done in installing their modular home was "very poor." The standard of care by which the plaintiffs' expert measured Signature was the standard of a custom home, because of Signature's representations in its marketing materials. In his opinion, the plaintiffs' home did not "even meet the minimum building code standards in a number of respects."
The plaintiffs' expert opined that, in his professional judgment, there was no way to remedy the home's problems completely. He testified that "if the home is going to meet the standard of habitability, thermal integrity, structural firmness that was intended and promised," then it was necessary to remove the house "down to the foundation to get the custom home" the plaintiffs wanted and had been promised. As he testified: "If [the home] were to be brought to the standard that was represented at this point, I believe you should take it down and crush it like my 17-year-old's old car and put new boxes on a very carefully leveled, shimmed, anchored mudsill as meets . . . the code."
*704 In April 2004, the plaintiffs sued Signature for, among other things, negligence, negligent and intentional misrepresentation, and for a violation of the New Hampshire Consumer Protection Act (CPA), see RSA ch. 358-A (1995 & Supp. 2006). Following a four-day trial, which included a view, the jury returned a verdict in favor of the plaintiffs. Signature moved for judgment notwithstanding the verdict (JNOV), to set aside the verdict, and for remittitur; the trial court denied all three motions. Over Signature's objection, the trial court doubled the jury verdict of $250,000 based upon the jury's finding that Signature acted willfully when it violated the CPA.
The plaintiffs requested that the court either attach property belonging to Signature or require it to post a bond sufficient to cover the damages award. The trial court granted this request, ruling that a bond was warranted because Signature had "not demonstrated or even represented[ ] that it will be able to satisfy the judgment."
On appeal, Signature argues that the trial court erred when it: (1) denied Signature's motions in limine to prohibit the plaintiffs from testifying about their remediation efforts and the costs thereof; (2) permitted the plaintiffs to offer their lay opinions about the alleged defects in the home and the means necessary to repair those defects; (3) denied Signature's motions for JNOV and for remittitur; and (4) ordered Signature to post a bond.
I
Signature argues that the trial court erred when it permitted the plaintiffs to testify about the existence of the alleged defects in the home, efforts they undertook to remedy those defects, the need for those efforts, the cost of their remedial efforts and the reasonableness of those costs. Signature asserts that these subjects required "specialized expertise and thus expert testimony." Signature also contends that the plaintiffs' testimony was not based upon their own observations, but rather upon information they received from "undisclosed third[-]party experts."
We first address whether the trial court erred when it permitted the plaintiffs to testify about the home's defects, their remedial efforts and the costs of those efforts. We review a trial court's decisions on the admissibility of evidence under an unsustainable exercise of discretion standard. Desclos v. S.N.H. Med. Ctr., 153 N.H. 607, 610, 903 A.2d 952 (2006). We will not disturb the trial court's decision absent an unsustainable exercise of discretion. Id.
New Hampshire Rule of Evidence 701 permits a lay witness to give an opinion provided that it is rationally based upon the witness's perception and is helpful to a determination of a fact issue. Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 460, 821 A.2d 983 (2003). Signature contends that the plaintiffs' testimony was impermissible lay opinion testimony because it was not rationally based upon their perceptions.
The record reveals that, contrary to Signature's assertions, the plaintiffs merely testified about their observations and their personal actions. Ms. Boynton testified, for instance, that she could see daylight coming through a crack between one of the home's dormers and the roof. Where there was supposed to be flashing, she saw roof paper. She testified that she could see that there was a gap between the two halves of the home's roof, and that she knew that there were problems with the driveway because her "shoes stuck in [the mud] several times." She testified that she knew that she and her husband spent *705 $53,000 on their remediation efforts because she "ha[s] the receipts and [the] cancelled checks that [she] paid the money out of"; she personally wrote the checks.
Similarly, Mr. Boynton testified that he saw that the top of the septic tank "was at the same height as the sill of the house." He testified that the aluminum fascia boards were "dinged up." Mr. Boynton also testified that he and his wife saw that the top part of a closet wall when first installed "was straight" and after a week they "saw sags." He testified that he concluded that this meant that the roof was pushing down on the wall based upon his observation of the wall. He also saw "with [his] own eyes" that factory-installed kneewalls had begun "bowing out."
Mr. Boynton testified about the remediation efforts that he personally took. For instance, to remedy the problem with the closet wall, he used "a couple of 20-ton bottle jacks, which [are] hydraulic jack[s]" and his own "screw jacks." He described the process as follows:
With the jacks, everything in place, ready to go. We would undo the collar tie. We had a string across. We took 1½ block and went from one end of the house to the other along this rafter line, and we took a measure from that string to the rafter to make sure they were all the same all the way across as we were jacking. . . . Once, like I said, we removed the collar tie, we would get it to where the measurement was, re-nail the collar tie, and then we would reconstruct the tops of the closet walls with that solid header, which is one of the pictures. Well, as you seen when you were at the site, it's solid now, there's not openings with 2 by 4's, and then we would make sure that wall is secure, and then we worked our way down.
Similarly, to make the lally columns fit better, Mr. Boynton testified:
There again, we ran a string across. We took measurements from the floor joists down to the string. I think it was floor joists. I can't remember exactly where I measured it to, but we took a jack and we jacked the house up so they all had the same measurement, and then we filled in. I had to end up cutting. That's why those big, thicker plates are there. I just used what I had. I went to my family's house . . . and got the heavy steel, and I took my torch and cut them into pieces, and then I added the steel plates until I made it level.
The crux of Signature's objection to the plaintiffs' testimony goes to its weight, not its admissibility. It was the jury's function to weigh the evidence. See id. at 461, 821 A.2d 983. As the plaintiffs' testimony was rationally based upon their own perceptions, we hold that the trial court did not err by admitting it.
We next address Signature's contention that expert testimony was required. Expert testimony is required where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson. Carbone v. Tierney, 151 N.H. 521, 527, 864 A.2d 308 (2004). Expert testimony is not required where the subject presented is within the realm of common knowledge and everyday experience. Id.
We disagree with Signature that the plaintiffs were required to provide expert testimony to prove the existence of the alleged defects in the home and the reasonableness of costs to repair them. The types of defects at issue were not so far beyond the ken of the average layperson as to require expert testimony; they were defects that the plaintiffs observed themselves and, to the extent that they were not remedied, could be observed by *706 the jury when it took its view. Moreover, the plaintiffs testified as to the expenses they have already incurred to remedy the defects they observed. As they note in their brief, "the remedial work in question here has already been completed, obviating the need for detailed expert projections of what damage award would be necessary to cover prospective construction costs."
II
Signature next asserts that the trial court erred when it failed to grant Signature's motion for JNOV upon the plaintiffs' negligence claims. The plaintiffs alleged two negligence claims against Signature. The first concerned Signature's allegedly negligent construction of their modular home. The second concerned Signature's alleged negligence in selecting, training and/or supervising Figueroa. The plaintiffs also alleged that Signature was responsible, as the principal, for the negligence of its apparent agent, Figueroa. Signature contends that it was entitled to JNOV upon these claims because the plaintiffs' attempted remediation was either a superseding cause that terminated Signature's liability or was evidence of their contributory negligence. Signature also implies that because Figueroa was an independent builder, Signature was not responsible for his negligence.
Signature argues that it was also entitled to JNOV upon the plaintiffs' negligent misrepresentation and CPA claims because they failed to prove that they relied upon Signature's statements about the qualifications of its builders. Signature further contends that it was entitled to JNOV upon the plaintiffs' CPA claim because the plaintiffs failed to establish that Signature's ads were deceptive.
A party is entitled to JNOV only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand. Id. at 529, 864 A.2d 308 In deciding whether to grant the motion, the trial court cannot weigh the evidence or inquire into the credibility of witnesses. Id. If the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the court must deny the motion. Id. Our standard of review of a trial court's denial of a motion for JNOV is extremely narrow. Id. We will not overturn the trial court's decision absent an unsustainable exercise of discretion. Id.
A
We first examine whether the trial court erred when it ruled that the jury reasonably could have found, viewing the evidence in the light most favorable to the plaintiffs, that the plaintiffs' efforts to remedy the problems with their home were neither a superseding cause nor evidence of contributory negligence.
Generally, an independent intervening cause will not interfere with the connection between the original act and the injury if the intervention was probable or foreseeable. Marcotte v. Timberlane/Hampstead School Dist., 143 N.H. 331, 348, 733 A.2d 394 (1999). Here, there was evidence from which the jury reasonably could have found that the plaintiffs' remediation efforts were probable or foreseeable. The plaintiffs testified that they asked Figueroa to fix various problems with the home and that he never did so. They also testified that they asked Signature to refer them to another approved builder, and that Signature did not do so. They further testified that until they were able to move into their home, they lived *707 with their teenage children and dogs in a small camper. From this testimony, viewed in the light most favorable to the plaintiffs, the jury could have reasonably found that it was foreseeable that the plaintiffs would attempt to remedy the home's problems to make it habitable, rather than continue to live in a camper.
There was also evidence from which a reasonable jury could have found that the plaintiffs were not contributorily negligent. The plaintiffs' expert testified, for instance, that the home was improperly set on its foundation in the first instance. He testified that "once you've lost the opportunity to get it right, it's very hard to turn the clock back, and I think more so with a modular home than with a conventional-type construction." He testified that because the home was improperly set, it was "racked," which he explained as follows: "When a cube, a cube shape is placed on a foundation that's not level from one corner to another, the floor takes the form of a hyperbolic parabola, a warped plane. It takes the walls and it racks them into parallelograms, to the extent that it's out of level." Accordingly, he testified that for the home to meet the standards promised, it would have to be removed down to its foundation. Signature's president testified as well that "[t]here is no question" that a "modular home is really only as good as the foundation it's set on." If the foundation is out of level, "[i]t magnifies or amplifies right up straight through" the home.
From this testimony, viewed in the light most favorable to the plaintiffs, the jury reasonably could have found that any harm to the plaintiffs was complete before they undertook any remedial actions and that any of their remedial actions did not exacerbate their harm. We therefore conclude that the trial court did not err when it denied Signature's motion for JNOV on this ground.
We next examine whether the trial court erred when it ruled that the jury reasonably could have found, viewing the evidence in the light most favorable to the plaintiffs, that Signature was responsible for Figueroa's negligence. With respect to the plaintiffs' negligence claims, the jury was instructed, without objection by Signature, that the plaintiffs had alleged that Figueroa had apparent authority to act on Signature's behalf and that Signature was therefore bound by Figueroa's acts. We interpret this as an instruction that the jury could find Signature to be vicariously liable for Figueroa's negligence if it found that Figueroa had apparent authority to act on Signature's behalf and was, thus, Signature's agent. See VanDeMark v. McDonald's Corp., 153 N.H. 753, 761, 904 A.2d 627, 634 (2006).
To the extent that Signature now argues that the jury could not have reasonably found that Figueroa had apparent authority to act on its behalf, we disagree. Whether an agency relationship has been established is a question of fact. Id. The necessary factual elements to establish agency involve: (1) authorization from the principal that the agent shall act for him or her; (2) the agent's consent to so act; and (3) the understanding that the principal is to exert some control over the agent's actions. Id. Authority to act can be actual or apparent. See State v. Zeta Chi Fraternity, 142 N.H. 16, 22, 696 A.2d 530, cert. denied, 522 U.S. 995, 118 S. Ct. 558, 139 L. Ed. 2d 400 (1997). "Apparent authority . . . exists where the principal so conducts itself as to cause a third party to reasonably believe that the agent is authorized to act." Id. (quotation and brackets omitted).
There was evidence in the record from which a reasonable jury could have found that Figueroa had apparent authority to act on Signature's behalf. For instance, *708 Signature's brochures stated that Signature homes are sold "through a trusted team of building professionals." There was also testimony that Signature has a "co-op advertising" program through which it pays its builders to place approved ads containing Signature's logo and the builder's own logo. Figueroa's father testified that he was part of this advertising program, which permitted him to use Signature's logo and name in any of his promotions, advertising and distribution of marketing materials.
Moreover, Figueroa and the plaintiffs signed various agreements that described his relationship with Signature. For instance, Figueroa and the plaintiffs signed an order form, on Signature letterhead, in which he agreed to sell a Signature home to the plaintiffs. Further, an exhibit entitled, "PURCHASE OF YOUR FACTORY DIRECT MODULAR HOME," signed by Figueroa and the plaintiffs, stated that: (1) the signatories to the agreement acknowledged that the plaintiffs were purchasing a Signature modular home through a Signature dealer (Figueroa's father's company); (2) all orders for a Signature home "shall be in writing and processed through the Dealer and shall be subject to acceptance by the Manufacturer"; (3) all deposits and payments must be in cash or in a check issued to the Signature dealer; (4) delivery of the home is to be completed within sixty days, but may be extended "through the Dealer by mutual agreement of Manufacturer and Buyer"; (5) "[t]he Dealer is responsible for handling the administrative functions required for the Buyer and for coordinating and servicing the house with the Manufacturer in a satisfactory manner." In the separate contractor agreement between Figueroa and the plaintiffs, Figueroa agreed to "perform all of the work utilizing appropriate Signature Building Systems Modular construction." Further, although the agreement between Signature and the company owned by Figueroa's father stated that there was no agency relationship between the two, this language did not appear in any of the agreements the plaintiffs signed.
Viewing all of the above evidence in the light most favorable to the plaintiffs, we hold that a reasonable jury could have concluded that Figueroa had apparent authority to act on Signature's behalf. Accordingly, the trial court did not err when it denied Signature's motion for JNOV on this basis.
B
We next address whether the trial court erred when it ruled that the jury reasonably could have found, viewing the evidence in the light most favorable to the plaintiffs, that they relied upon Signature's statements about the qualifications of their builders. As there was evidence in the record from which a reasonable juror could have found that the plaintiffs relied upon Signature's statements, we conclude that the trial court did not err when it denied Signature's motion for JNOV on this basis. Mr. Boynton specifically testified that he and his wife "rel[ied] on [Signature's] representations about . . . the quality of the product in deciding to go with the Signature home" and "about [the] quality of [its] builders in deciding to go with Signature and . . . Figueroa." In addition, Ms. Boynton testified that the company's literature and the information it provided on its website helped the plaintiffs decide to purchase a Signature home.
We next examine whether the jury reasonably could have found that Signature's statements about its builders were deceptive. Signature's marketing materials referred to its builders as "a trusted team of building professionals trained in the intricacies *709 of construction and detailed finish work." There was evidence, however, that a builder need not have had any prior modular home construction experience to become part of Signature's "trusted team of building professionals." Nor did a builder need any "minimum building experience" to become a Signature builder. Indeed, at trial, Bradley testified that although he was the sales manager responsible for Figueroa's area at the time, he did not take any steps to determine whether Figueroa was a competent builder. Figueroa's father confirmed that when he became a Signature builder, he had never built modular homes before. He became an approved Signature builder based upon a "casual conversation" with Bradley. Signature approved Figueroa's father without asking him for bank or trade references and without knowing that his prior business ended in bankruptcy. And, Signature did not revoke its approval of Figueroa's father as a builder even after the buyers of the first Signature modular home he built sued him because of construction problems.
There was also evidence that while Signature gives its builders tours of its plants as training, there is "no kind of standardization or quality control practice for what actually is said during these plant tours." As Bradley testified, "It depends on which sales rep takes them through." Further, Figueroa's father testified that before becoming a Signature dealer, he did not receive any formal instruction on how to build a Signature modular home. He did not take a training course; nor was he provided a book or given a test on how to build such a home.
From this evidence, viewed in the light most favorable to the plaintiffs, the jury could reasonably have found that Signature's statements about its builders were deceptive. Thus, we hold that the trial court did not err when it denied Signature's motion for JNOV on this ground.
III
Signature next contends that the trial court erred when it failed to grant Signature's motion for remittitur. Signature asserts that remittitur was required because the plaintiffs offered "little or no evidence to support their damages claims."
New Hampshire law does not require that damages be calculated with mathematical certainty, and the method used to compute them need not be more than an approximation. Transmedia Restaurant Co., 149 N.H. at 461, 821 A.2d 983 (quotation omitted). Whether remittitur is appropriate rests with the trial court's sound discretion. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 838, 891 A.2d 477 (2005). Direct review of a damages award "is the responsibility of the trial judge, who may disturb a verdict as excessive (or inadequate) if its amount is conclusively against the weight of the evidence." Daigle v. City of Portsmouth, 129 N.H. 561, 588, 534 A.2d 689 (1987) (quotation omitted). The court may also order remittitur if the verdict is "manifestly exorbitant." Id. (quotation omitted). The amount of a verdict is conclusively against the weight of the evidence only if no reasonable jury could have reached it. Mullin v. Joy, 145 N.H. 96, 96, 749 A.2d 826 (2000).
Once the trial court has reviewed the amount of the verdict under this standard, we will not disturb the judge's finding unless no reasonable person could make it. Daigle, 129 N.H. at 588, 534 A.2d 689. "Our task on review is not to attempt to ascertain or divine the one and only correct verdict." Transmedia Restaurant Co., 149 N.H. at 463, 821 A.2d 983 (quotation omitted). Absent an *710 unsustainable exercise of discretion, we will not reverse the trial court's decision. Kelleher, 152 N.H. at 838, 891 A.2d 477. The party seeking to modify the verdict's amount bears a heavy burden. Id. Based upon our review of the record, we conclude that the trial court did not unsustainably exercise its discretion by denying Signature's motion for remittitur. There is evidence in the record to support the damage award.
The jury was instructed, without objection, that it could award damages "[f]or each item of loss or harm that the plaintiffs claim," provided that the plaintiffs proved the loss and that it was caused or substantially caused by the defendants' negligence. The plaintiffs testified that their out-of-pocket costs were approximately $182,000. Additionally, there was evidence that they lost wages of approximately $3,000, and, because their garage was never built, had paid $85 per month for two storage units, for a total of $1,785. Moreover, the plaintiff's expert testified that they could not have been fully compensated for their injuries without demolishing their current home and building a new one. Further, the plaintiffs testified that they expected to move into their home in October 2003 and did not move into it until January 2004. In the meantime, they and their two teenage children and two dogs lived in a small camper on the property. Given this evidence and the court's broad instruction to the jury, we cannot conclude that the trial court unsustainably exercised its discretion when it ruled that the jury's award of $250,000 was not exorbitant or conclusively against the manifest weight of the evidence.
To the extent that Signature asserts on appeal that the trial court erred when it doubled the damages because the evidence did not support a finding that Signature acted knowingly or willfully, see RSA 358-A:10 (1995), we observe that Signature has failed to demonstrate that it preserved this claim for appellate review and has failed to develop its argument sufficiently for our review. See State v. Blackmer, 149 N.H. 47, 48-49, 816 A.2d 1014 (2003).
IV
Finally, Signature asserts that the trial court erred when it required Signature to post a bond sufficient to cover the damages award.
We first address the plaintiffs' assertion that Signature's argument is moot because it submitted cash in lieu of the required bond. Whether the trial court had the authority to require an appeal bond may be moot, but as the plaintiffs conceded at oral argument, the trial court's authority to require security of any kind is not a moot issue.
Signature first argues that the trial court had no authority to require it to post security. We disagree.
Before trial, the plaintiffs sought to attach "any modular homes, cash and/or checks belonging to Signature in the State of New Hampshire." The trial court denied the plaintiffs' motion to attach after finding that "Signature has sufficient assets to satisfy a judgment in this case and because the assets sought to be attached, modular homes purchased by others and transported into New Hampshire, are not appropriate for such."
After the jury returned its verdict, the plaintiffs renewed their petition to attach. The plaintiffs alleged that attachment was warranted because "Signature's assets are located primarily outside of the State" and the plaintiffs "have suffered great economic loss and . . . seek to protect their ability to recover the judgment to which they are entitled." Alternatively, the plaintiffs asked the court to order Signature to post *711 a bond sufficient to satisfy the damage award. They asserted that such a bond was necessary "to prevent injustice."
Signature objected to the motion to renew the petition to attach on the ground that its property "mov[ ]es within interstate commerce and is beyond the attachment power of the Court for that reason." Signature further asserted that either requiring it to post a bond or attaching its property would cause it to suffer undue prejudice.
Following a hearing, the trial court granted the plaintiffs' motion. Because it was concerned about the impact that an attachment would have upon the conduct of Signature's business in the state and its customers, the court granted the plaintiffs' request for alternative relief and ordered Signature to post a bond sufficient to cover the damage award. The court found that Signature failed to "demonstrate[ ] or even represent[ ] that it will be able to satisfy the judgment."
Under the circumstances of this case, we hold that this was not error. Contrary to Signature's assertions, the trial court had the inherent equitable authority to require Signature to post security. See RSA 498:1 (Supp. 2006).
"The trial court has broad and flexible equitable powers which allow it to shape and adjust the precise relief to the requirements of the particular situation." Dunlop v. Daigle, 122 N.H. 295, 300, 444 A.2d 519 (1982) (quotation omitted); see also N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774, 783, 533 A.2d 351 (1987) (it is historic purpose of equity to secure complete justice and courts may adjust remedies to grant necessary relief).
Further, "[i]t is settled law that an appeal to this Court from a nisi prius court does not necessarily stay all further proceedings in the trial court, nor does it strip said court of all power over the proceeding in which the appeal has been taken." In the Matter of Nyhan & Nyhan, 151 N.H. 739, 745, 867 A.2d 470 (2005) (quotation and brackets omitted). In addition to other things, the trial court "may make such orders and decrees as may be necessary for the protection and preservation of the subject matter of the appeal." Id. (quotation omitted). Even after an appeal has been perfected, the trial court "has adequate authority and jurisdiction to preserve the status quo." Id. (quotation omitted).
Thus, in Nyhan, we upheld a trial court's order requiring the respondent in that divorce case to pay the petitioner $2,600,000 within ten days of the clerk's notice of the trial court's order following remand. Id. at 745-46, 867 A.2d 470. In that case, the court ordered the respondent to make this payment to prevent him from further dissipating assets. Id. at 746, 867 A.2d 470. Here, we conclude that the trial court had the inherent authority to protect the subject matter of the appeal the jury's damage award. See In the Matter of Hampers & Hampers, 154 N.H. ___, 911 A.2d 14 (2006) (upholding trial court's order requiring petitioner to pay respondent $500,000 in the event of an appeal to permit her to secure suitable housing for her and the parties' child).
To the extent that Signature asserts that the trial court's determination that it had failed to demonstrate or represent its ability to satisfy the judgment was in error, we observe that because Signature has failed to provide a transcript of the hearing in question, we must assume that the evidence supports the trial court's finding. See Tiberghein v. B.R. Jones Roofing Co., 151 N.H. 391, 394, 856 A.2d 21 (2004).
Finally, Signature contends that the requirement that it post security violated *712 its state constitutional right to access to courts. Part I, Article 14 of the State Constitution states:
Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
"The purpose of this provision is to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to the courts." Town of Nottingham v. Newman, 147 N.H. 131, 134-35, 785 A.2d 891 (2001) (quotation omitted).
Signature has not been denied access to the court. See id. at 135, 856 A.2d 21. The injury of which it now complains, having to post security, came as a result of a hearing in superior court regarding its ability to pay the damages award. See id. Signature has contested this requirement in superior court and this court. See id. Accordingly, we cannot say that the trial court's order was an arbitrary or discriminatory infringement upon Signature's access to the court, in violation of Part I, Article 14 of the State Constitution. See id.
Affirmed.
BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. |
3,777,740 | 2016-07-06 07:27:43.299285+00 | Wolff | null | OPINION
{¶ 1} Daryl Crusoe pleaded no contest to possession of cocaine, a second degree felony. He was found guilty and sentenced to three years imprisonment.
{¶ 2} On appeal, Crusoe advances the following assignment of error and issue for review:
{¶ 3} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE RECOVERED BY THE ILLEGAL SEARCH AND SEIZURE OF HIS PERSON.
{¶ 4} "DID THE DAYTON POLICE OFFICERS VIOLATE MR. CRUSOE'S FOURTH AMENDMENT RIGHTS BY SEARCHING HIM DURING THE EXECUTION OF A SEARCH WARRANT WHEN HE WAS NOT IDENTIFIED IN THE WARRANT AND THE WARRANT DID NOT GIVE AUTHORITY TO SEARCH ALL PEOPLE FOUND AT THAT LOCATION?"
{¶ 5} In its appellate brief, the State has not responded to Crusoe's assignment of error on the merits. Rather, it contends that the issue has been waived because it was not raised in the trial court.
{¶ 6} The State stood by its waiver argument when this case was orally argued, but also presented brief argument on the merits. Prior to the evidentiary hearing, counsel for Crusoe stated that the issue was "how the execution of the warrant is an infringement of my client's rights." In our judgment, this statement put the State and trial court on notice of the issue presented here. Indeed, the trial court stated in its decision and order denying the motion to suppress:
{¶ 7} ". . . the police procedures followed in carrying out the search warrant were warranted under these circumstances and consistent with necessary safety precautions taken by police in the execution of their duties." We conclude that Crusoe has not waived the issue he presents here.
A.
{¶ 8} Essentially, Crusoe argues that the seizure of cocaine from his pocket was accomplished only because the police exceeded their prerogative to pat him down for their personal safety. See Terry v. Ohio (1968), 392 U.S. 1.
{¶ 9} The facts are not in dispute. The police secured a search warrant to search 1101 Riverside Dr. Apt. C and "`Spanky' W/M 47-50 yrs." The warrant authorized the police to search for crack cocaine, other controlled substances, and other items related to the drug trade. Crusoe was not named in the warrant. *Page 210
{¶ 10} In executing a search warrant, it is standard procedure for the police to order all occupants of the premises to the floor, handcuff them, and pat them down for officer safety purposes. The occupants are then placed in a room, "field interrogated," and "(run) for any wants or warrants."
{¶ 11} When the police entered the apartment, Crusoe and one Wooliver were in the kitchen. Officer Braun dealt with Wooliver, who had a gun in his pocket, and Officer Kowalski dealt with Crusoe.
{¶ 12} Officer Kowalski testified as follows:
{¶ 13} "I patted him down, felt him for any objects which I recognized to be weapons, or any objects which I recognized to potentially to be in the form of containers which may contain drugs or anything such as that.
{¶ 14} "* * *
{¶ 15} "Trying to recognize any indication of weapons or anything, containers, or items which I recognized to contain drugs because that is what we were there for in the search warrant.
{¶ 16} "* * *
{¶ 17} "When I did reach his right front sweat pant pocket, I felt an object, a chunky object that I did hear rustling of a plastic bag, which after more than a year of working drugs, and I also worked the street for another seven, and I recognized that to be similar to packaging which is used to package crack cocaine. I asked Mr. Crusoe what he had in his pocket. And I received no answer.
{¶ 18} "* * *
{¶ 19} "Okay. Did you do the whole body before you put your hand in his right pocket?
{¶ 20} "A. Yes.
{¶ 21} "Q. Why? Why was that?
{¶ 22} "A. Well, my main concern, since we already found one loaded weapon, was to first obtain, or see if I could locate another loaded weapon on Mr. Crusoe. Since that seemed to be the pattern there in that house and also knowing that we were there for drugs, for the purpose of drugs, and drug sales coming from the house, the pat down was to recognize any, any contraband.
{¶ 23} "Q. Did you feel anything on Mr. Crusoe that indicated that anything was a weapon?
{¶ 24} "A. No.
{¶ 25} "Q. And is the right front pocket the only pocket you went in?
{¶ 26} "A. No. *Page 211
{¶ 27} "Q. What other pockets did you go inside?
{¶ 28} "A. His left front pant pocket. We do his pockets that the money that was on him.
{¶ 29} "Q. Okay. How many bills were there?
{¶ 30} "A. I have no idea how many bills there were.
{¶ 31} "Q. I mean, was it like, was it kept as a money roll? Or was it just a few loose bills?
{¶ 32} "A. I believe in his left pocket he had the larger bills neatly folded, twenty's, ten's. In his right pocket, which is where his crack was, it was like crumpled up one dollar bills.
{¶ 33} "Q. How thick were they? In the left pocket how thick were the bills? You said they were folded up. Were they folded up like in a big large stack? Or were they more or less loose?
{¶ 34} "A. They were folded dollar bills.
{¶ 35} "Q. How many?
{¶ 36} "A. I would have to check the inventory. I don't know for sure. I can't remember.
{¶ 37} "Q. Could you tell that it wasn't a weapon from patting the left pocket?
{¶ 38} "A. Sure.
{¶ 39} "Q. Could you tell from feeling the right pocket it wasn't a weapon?
{¶ 40} "A. I didn't know.
{¶ 41} "Q. You didn't know, or no, you couldn't tell?
{¶ 42} "A. Well —
{¶ 43} "Q. Which is your answer?
{¶ 44} "A. Well, could you repeat the question.
{¶ 45} "Q. Did you know from the right pocket, from the touching of the clothes, did you — did you know that there was a weapon in there or that there was not a weapon in there? Could you tell?
{¶ 46} "A. I did not know there was a weapon in there, no. But whatever item that was, I recognized to be similar to the packaging of crack cocaine. But until that item was revealed to me, I wasn't sure what it was.
{¶ 47} "Q. Okay. So what indicates to you that a person may have crack cocaine in their pockets? What do you have to observe or feel?
*Page 212
{¶ 48} "A. Well, number one, when we go into a crack house, or where crack is being sold from, I know that any items which is a chunky rock type substance similar to soap, I can feel that item through a thin plastic bag through sweat pants.
{¶ 49} "* * *
{¶ 50} "What — how do you feel a plastic bag through the sweat pants?
{¶ 51} "A. You can hear a plastic bag through sweat pants. When you roll your fingers over it, plastic just slides.
{¶ 52} "Q. Okay. Did you hear it slide that day?
{¶ 53} "A. I could hear the plastic crinkling, yes.
{¶ 54} "Q. What — the point here is what could a person have in their pockets when you are feeling on the outside that it would indicate to you that it night (sic) not be crack cocaine? I mean, coins, a piece of paper with a telephone number on it? What could be on the person that would indicate to you that it is not crack cocaine and you would just keep going?
{¶ 55} "A. I don't think I can really answer that fairly to — it's a judgment that I make in an instant second. I don't have a plan on that as far as knowing what item would indicate to me what is not crack cocaine.
{¶ 56} "Q. Obviously, an empty pocket, nothing there would indicate that there is no crack cocaine there?
{¶ 57} "A. Correct. If there's an empty pocket, I would assume an empty pocket.
{¶ 58} "Q. That is, nothing there would cause you not to search any further, correct?
{¶ 59} "A. (No verbal response.)
{¶ 60} "Q. My question is what is empty — what is a person allowed to have for you to feel in their pockets before you're going to look in the pockets?
{¶ 61} "A. I use my own discretion at the time. There's no situation — I don't have a set pattern or plan. It's a discretionary decision that I make at the moment.
{¶ 62} "Q. Let me ask you, how many search warrants have you executed in your career?
{¶ 63} "A. Probably right around a hundred.
{¶ 64} "Q. Has there been a time when you're patting someone down and you have not gone inside their pockets?
{¶ 65} "A. Yes. *Page 213
{¶ 66} "Q. What was different about that case than Mr. Crusoe's case?
{¶ 67} "A. One, when there's nothing in the pockets, I don't go in the pockets.
{¶ 68} "Q. So, that is the empty pockets. Then what else is different?
{¶ 69} "A. I use my discretion at that moment if something is found in the pocket, discretion based on what the item feels like and what I recognize it to be. I can't answer your question any other way.
{¶ 70} "Q. When you are — I understand.
{¶ 71} "When you are doing these pat downs, and you're saying you have done a hundred, has there ever been a time when you have felt something that in your discretion has not felt to you like crack cocaine?
{¶ 72} "A. Yes.
{¶ 73} "Q. Okay. What did that feel like?
{¶ 74} "A. Paper, just an empty piece of paper."
{¶ 75} At some point after the crack cocaine was removed from Crusoe's pocket, it was learned that there was an active warrant for Crusoe's arrest.
B.
{¶ 76} The trial court provided no explanation, other than as quoted above, for implicitly determining that the crack cocaine was lawfully seized. The State has not asserted in its brief a theory upon which the seizure can be justified. At oral argument, the State offered the "plain feel" exception to the warrant requirements as justification.
{¶ 77} We believe that Crusoe is correct that the police exceeded the bounds of a lawful Terry search in order to seize the crack cocaine. In Minnesota v. Dickerson (1993), 508 U.S. 366, the case that recognized the plain feel exception to the warrant requirement, the court stated in part:
{¶ 78} "Terry further held that `[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' the officer may conduct a patdown search `to determine whether the person is in fact carrying a weapon.' 392 U.S., at 24, 88 S.Ct., at 1881. `The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .' Adams, supra, at 146, 92 S.Ct., at 1923. Rather, a protective search — permitted without a warrant and on the basis of reasonable *Page 214 suspicion less than probable cause — must be strictly `limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.' Terry, supra, at 26, 88 S.Ct., at 1882; see also Michigan v. Long, 463 U.S. 1032, 1049, and 1052, n. 16, 103 S. Ct. 3469, 3480-3481, and 3482, n. 16, 77 L. Ed. 2d 1201 (1983); Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 343-344, 62 L. Ed. 2d 238 (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U.S. 40, 65-66, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968).
{¶ 79} "These principles were settled 25 years ago when, on the same day, the Court announced its decisions in Terry and Sibron. The question presented today is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officers' search stays within the bounds marked byTerry.
{¶ 80} "* * *
{¶ 81} "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." Pp. 373, 375-6.
{¶ 82} We find no fault with the police practice of ordering the occupants of a drug house to the floor, handcuffing them, and patting them down for weapons. By his own testimony, however, the pat-down Officer Kowalski did upon Crusoe exceeded what was necessary to assure Officer Kowalski that Crusoe was not armed. Indeed, by his own testimony, Officer Kowalski was looking for drugs as well as weapons. Furthermore, it is not demonstrated by Officer Kowalski's testimony that the identity of the object in Crusoe's pocket as crack cocaine was immediately apparent to Officer Kowalski upon his touching Crusoe's pocket. Thus, the seizure of the cocaine cannot be justified on the authority of Minnesota v. Dickerson.
C.
{¶ 83} Nor on this record can the seizure be justified on the strength of the inevitable discovery doctrine. In Nix v. Williams (1984), 467 U.S. 431, the court held: *Page 215
{¶ 84} "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means — here the volunteers' search — then the deterrence rationale has so little basis that the evidence should be received." P. 444.
{¶ 85} Here, there was an outstanding warrant for Crusoe's arrest which would have justified a search incident to arrest pursuant to that arrest warrant.
{¶ 86} The State did not attempt to establish that the police would have ultimately or inevitably discovered the cocaine had Crusoe been searched incident to an arrest pursuant to the arrest warrant. Nor does the State argue inevitable discovery on appeal.
{¶ 87} On similar facts, the trial court in State v. Lynch (June 6, 1998), Montgomery App. No. 17028 determined that "there (was) insufficient evidence that (drugs — described as `small and easily moveable') would have been ultimately and inevitably discovered in the absence of police misconduct, as Defendant could have relocated them or otherwise disposed of them." We deferred to the trial court's discretion in making that finding and affirmed the order of suppression. In the absence of any evidence that the police would have ultimately or inevitably discovered the crack cocaine through a search incident to Crusoe's arrest on the arrest warrant, the seizure cannot be justified on the authority of Nix v. Williams.
D.
{¶ 88} The assignment of error is sustained.
{¶ 89} The judgment will be reversed, and this matter will be remanded for further proceedings consistent with this opinion.
FAIN, J. and GRADY, J., concur. *Page 216 |
3,777,746 | 2016-07-06 07:27:43.569108+00 | Baird | null | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 396 This cause came before the court upon the appeal of Michael Allen Esber of the trial court's increase of his child support payments. We affirm in part and reverse in part.
In 1981, Michael Esber and Carol Elaine Esber were divorced. At the time of the divorce, Carol was granted custody of their two minor children. Michael was ordered to pay child support in the amount of thirty-five dollars per week per child.
In July 1988, Carol filed a motion with the trial court for an increase in child support. Michael subsequently filed a motion for expanded visitation rights and for the dependency deduction for tax purposes.
A hearing was held before the referee. An in camera interview was held with the children, and both parties presented testimony. Following this hearing, the referee prepared a written recommendation. In this recommendation, the referee found that Michael had shown little interest in his children and that no restructuring of visitation was necessary. The referee further determined that the tax deduction issue should be decided pursuant to the prevailing regulations, and that since it constituted a division of property, the court lacked jurisdiction.
The referee also determined that Michael should pay an increased amount of child support. He considered the respective incomes of the parties, and the income of Michael's new wife. He also considered the numerous assets owned by Michael.
Additionally, the referee performed the calculations set forth in C.P.Sup.R. 75. He then concluded that Michael's child support payments should be raised to seventy-nine dollars per week per child.
Michael objected to the referee's findings, and a hearing was held before the trial court. The trial court concurred with the findings of the referee. It agreed that any problems regarding visitation were due to Michael's lack of interest in his children. It further agreed that the dependency deduction was *Page 397 to be determined by Internal Revenue Service regulations, and was not within the jurisdiction of the court.
The trial court also analyzed the increased child support award. The court found that the referee properly considered the income of Michael's new spouse. Furthermore, the court noted that this was not the referee's sole reason for raising the amount of the child support. The trial court observed that it was apparent Michael was trying to hide his true financial status, and concluded the amount of the child support award was proper. Michael appeals.
Assignments of Error I and II
"I. It is error for a Court of Common Pleas, Division of Domestic Relations to sustain a referee's Recommendation to increase a non-custodial parent's weekly child support payments when such increase is based upon the inclusion of a nonparty's gross income to compute `gross income' pursuant to C.P.Sup.R. 75 III(A)(2); when such nonparty was not made a party to the modification hearing and no notice was provided to the nonparty and to the noncustodial parent that such nonparty's income would be subject to such inclusion.
"II. It is error for a Court of Common Pleas, Division of Domestic Relations to sustain a referee's Recommendation to increase a non-custodial parent's weekly child support payments, when such increase is based upon the inclusion of a nonparty's gross income to compute `gross income' pursuant to C.P.Sup.R. 75 III(A)(2) and without a specific finding that the nonparty's gross income was `actually received' by the noncustodial parent." (Emphasis sic.)
Since the above-listed assignments of error both deal with the trial court's consideration of the income of Michael's new wife, we will address them together.
Michael's first claim of error is that the income of his new wife should not have been considered since she was not made a party or provided notice. Alternatively, he claims that if his wife's income is considered, it should be limited to the amount which he actually receives.
First of all, we note the Rules of Superintendence are merely internal housekeeping rules. See Krupansky v. Pascual (1985),27 Ohio App. 3d 90, 92, 27 OBR 110, 112, 499 N.E.2d 899, 901. The rules do not give any rights to individual defendants. State v.Gettys (1976), 49 Ohio App. 2d 241, 243, 3 O.O.3d 286, 287,360 N.E.2d 735, 737. However, to the extent that the rules are applied, they should be applied correctly and not be used as a *Page 398 substitute for the judicial discretion mandated by R.C. 3109.05. See Oyer v. Oyer (Sept. 19, 1988), Madison App. No. CA88-03-007, unreported, 1988 WL 96624.
"It has been held that an increase in income brought about by the remarriage of the non-custodial parent is a factor to be considered in assessing the ability to pay child support."Snyder v. Snyder (1985), 27 Ohio App. 3d 1, 3, 27 OBR 1, 3,499 N.E.2d 320, 323. See Martin v. Martin (1980), 69 Ohio App. 2d 78,81, 23 O.O.3d 102, 104, 430 N.E.2d 962, 964. Michael argues that this income consideration denied his wife due process by taking her income without affording her notice or an opportunity to be heard. We disagree.
Michael's new wife has not sought to intervene in this action, and it is questionable whether Michael has standing to raise this issue. However, we need not reach this issue because it is apparent that Michael's new wife has not suffered any loss of property. The trial court considered the income of Michael's wife for the purpose of determining the amount of income Michael could pay. Michael's wife is not required to make his child support payments, either directly or indirectly. The trial court's decision was obviously based on the rational conclusion that Michael's marriage to a wage-earning spouse will provide him with additional money for child support that might otherwise be required for his personal household expenses.
Michael's second argument is that the trial court should have considered only the amount of his new wife's income which he actually received. It appears that the referee included all of Michael's wife's income on the worksheet. Additionally, the sum of the worksheet calculation was the amount which Michael was ordered to pay. However, the trial court found that the income of Michael's wife was not the sole consideration. The trial court noted that Michael was trying to hide his true financial status, and that the support figure was reasonable.
We find no reason to disturb this determination of the trial court. The Rules of Superintendence are merely guidelines to facilitate the administration of justice. They are not intended to usurp the sound discretion of the trial court. In this case, the court had the opportunity to view the parties and the evidence and determined that Michael's financial status was better than he represented. Nothing in the record disputes this finding. Accordingly, Michael's first and second assignments of error are not well taken.
Assignment of Error III
"A Court of Common Pleas, Division of Domestic Relations errors [sic] when it sustains a Recommendation of a Referee that the court does not *Page 399 retain jurisdiction to allocate the child dependency tax exemption; when the original divorce decree was silent as to whom would be allowed said deductions for the minor children." (Emphasis sic.)
The trial court held that the dependency tax exemption is governed by Internal Revenue Service regulation, and that as a property division it is not subject to the continuing jurisdiction of the court. As set forth below, we do not fully agree.
According to federal law, the custodial parent is entitled to the dependency exemption. Hughes v. Hughes (1988), 35 Ohio St. 3d 165,167, 518 N.E.2d 1213, 1215. See, also, Section 152(e), Title 26, U.S. Code. However, the custodial parent may waive this exemption in favor of the non-custodial parent. Id. Furthermore, at the time of divorce the trial court may award the exemption to either parent as part of the property division.Hughes, supra, at 168, 518 N.E.2d at 1216.
In certain circumstances, the court can award the dependency exemption to the non-custodial parent even though the parents were never married. See Bobo v. Jewell (1988), 38 Ohio St. 3d 330,332, 528 N.E.2d 180, 182. The primary consideration is the best interest of the child. Id. The Supreme Court of Ohio has noted the high costs of child care and suggested that the dependency exemption be given to the parent who could most benefit from it. Id. This would provide more money overall with which to support the child. Even though they are not married, a child's parents have a joint interest and duty to make maximum use of their tax deductions for the benefit of their child. Justice would not be served by the parents' spiteful failure to minimize their tax burdens at their child's expense.
There is no division of property in an action for child support between parents who were never married. The Supreme Court of Ohio has said that in this situation, the trial court may properly award the dependency exemption to either parent in the best interest of the child. Therefore, we conclude that the dependency exemption is a matter concerning the duty of support pursuant to R.C. 3109.05, and not the division of property. See, generally, Bobo, 38 Ohio St.3d at 332, 528 N.E.2d at 182. Accordingly, the trial court retains jurisdiction over the award of this exemption during the minority of the child.1 *Page 400
However, our analysis would not be complete without some consideration of the application of this rule. The interplay between state law and federal tax law creates constitutional questions which limit the remedies available to a state court to enforce an award of a dependency exemption. In Hughes, supra, the Supreme Court of Ohio noted there might be some difficulty in forcing an unwilling parent to part with his tax exemption. The court suggested that a contempt of court action in state court could be an available remedy.
While contempt is a possible remedy, another alternative is available and possibly preferable in some cases such as this. As an alternative solution, the court may consider the tax exemption when considering the financial resources of the parents pursuant to R.C. 3109.05(A)(2). Where the non-custodial parent would experience the greater tax benefit from the exemption, he should generally receive the exemption. The additional disposable income generated can be considered for additional child support. When the custodial parent refuses to surrender the exemption at the order of the court, the court may reduce the non-custodial parent's support obligation accordingly. See, generally, Mettler v. Mettler, supra.
We realize that under this alternate approach the child will still suffer when the custodial parent ignores a court order to relinquish the exemption. It is an unfortunate fact that in support situations the wrongs of the parents often result in suffering to their innocent children. However, reducing the amount of child support paid by the non-custodial parent may, in some cases, be less deleterious to the child than citing the custodial parent for contempt. Therefore, this alternative should be considered when attempting to enforce a court order that the custodial parent relinquish the tax exemption.
On remand, the trial court must consider the issue of the tax exemption. It should determine whether the exemption benefits the children best in the hands of Carol or Michael. The trial court can then determine whether any increase or decrease in support is necessary. Any enforcement problems could be handled as discussed above. We reiterate that these decisions are best left to the sound discretion of the trial court.
Accordingly, Michael's third assignment of error is well taken.
Assignment of Error IV
"A Court of Common Pleas, Division of Domestic Relations errors [sic] when it sustains a Recommendation by its referee to increase child support pursuant to C.P.Sup.R. 75 and fails to terminate the noncustodial parent's obligation to `* * * pay for all necessary, medical, hospital, prescription, *Page 401 dental (including orthodontic) and optical expenses by the minor children.'" (Emphasis sic.)
There is nothing in the record which reflects that this issue was ever presented to the trial court. Generally speaking, "* * * [a]n issue which is not raised in the trial court is not proper on appeal." American Vineyard Co. v. Wine Group (1984),20 Ohio App. 3d 366, 369, 20 OBR 471, 474, 486 N.E.2d 854, 857. Accordingly, Michael's fourth assignment of error is not well taken.
Michael's first, second and fourth assignments of error are not well taken. His third assignment of error is well taken and on this error we reverse and remand the case to the trial court for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
REECE, J., concurs.
EDWARD J. MAHONEY, P.J., concurs in judgment only.
1 We have considered the case of Mettler v. Mettler (1988),61 Ohio App. 3d 14, 572 N.E.2d 127, which was cited by appellant. This case appears to hold that the trial court's jurisdiction over the dependency exemption ends with the termination of the divorce proceeding. The Mettler opinion did not mention the decision of Bobo, supra, which establishes that the tax deduction is in the nature of child support and not property division. |
1,516,054 | 2013-10-30 06:32:48.894516+00 | Robertson | null | 955 F. Supp. 128 (1997)
MOVA PHARMACEUTICAL CORP., Plaintiff,
v.
Donna SHALALA, Secretary, U.S. Department of Health and Human Services, et al., Defendants,
Mylan Pharmaceuticals Inc., Intervenor.
Civil Action No. 96-2861 (JR).
United States District Court, District of Columbia.
January 23, 1997.
*129 Ronald L. Grudziecki, Burns, Doane, Swecker & Mathis, Alexandria, VA, and James S. Rubin, West New York, NJ, for Plaintiff.
Drake Cutini, Office of Consumer Litigation, U.S. Department of Justice, Washington, DC, for Defendants.
E. Anthony Figg, Steven Lieberman, and Michael G. Sullivan, Rothwell, Figg, Ernst & Kurz, Washington, DC, for Intervenor.
MEMORANDUM
ROBERTSON, District Judge.
Mova Pharmaceutical Corp. sues to compel the Food and Drug Administration ("FDA") to withdraw or change the effective date of its December 19, 1996 approval of an Abbreviated New Drug Application ("ANDA") submitted by Mylan Pharmaceuticals Inc. Mova's motion for preliminary injunction was heard on an expedited basis after its application for a temporary restraining order was denied on December 26, 1996.[1] Mylan has intervened to protect its interests.
Background
In December 1994, Mova submitted to FDA an ANDA for pharmaceutical compositions that included micronized glyburide. Pursuant to 21 U.S.C. § 355(j)(2)(A)(vii), Mova certified that its formulations do not infringe on a patent owned by Upjohn Company (United States Letters Patent No. 4,916,163), and it notified Upjohn of the filing. On March 27, 1995, Upjohn brought suit in the United States District Court for the District of Puerto Rico alleging that Mova's ANDA constituted an act of patent infringement. That patent litigation is still pending. The filing of Upjohn's infringement suit operated, under applicable provisions of the Drug Price Competition and Patent Term Restoration Act of 1984, Pub.L. No. 98-417, 98 Stat. 1585 (1984) ("Hatch-Waxman Amendments"), as an automatic stay of the effectiveness of any FDA approval of Mova's ANDA.[2]
On November 22, 1995, eight months after Upjohn's infringement case brought Mova's application to a standstill, Mylan filed another ANDA for a generic micronized glyburide product. Mylan initially certified its product under a provision of the statute permitting FDA approval of a generic drug only upon expiration of the NDA-holder's patent in the case of the Upjohn patent, in the year 2007. 21 U.S.C. § 355(j)(2)(A)(vii)(III). In August 1996, Mylan amended its certification to challenge Upjohn's patents, just as Mova had done, by invoking paragraph IV of 21 U.S.C. § 355(j)(2)(A)(vii). A paragraph IV *130 certification asserts that a drug patent is invalid, or that it will not be infringed by the manufacture, use or sale of the generic drug that is the subject of the ANDA. Mylan gave notice of its paragraph IV certification to Upjohn, just as Mova had done. In Mylan's case, however, Upjohn did not sue for infringement. On December 19, 1996, FDA approved Mylan's ANDA.
Analysis
Mova argues that FDA violated 21 U.S.C. § 355(j)(4)(B)(iv) by approving the Mylan ANDA. That provision reads as follows:
"If the application contains a certification described in subclause (IV) of paragraph (2)(A)(vii) and is for a drug for which a previous application has been submitted under this subsection continuing such a certification, the application shall be made effective not earlier than one hundred and eighty days after
(I) the date the Secretary receives notice from the applicant under the previous application of the first commercial marketing of the drug under the previous application, or
(II) the date of a decision of a court in an action described in clause (iii) holding the patent which is the subject of the certification to be invalid or not infringed, whichever is earlier."[3]
Mova contends that this provision is applicable foursquare to the facts of this case: Mylan's application contained a certification under paragraph IV and is for a micronized glyburide drug. Mova has submitted a previous application under the same subsection for the same type of drug. It is accordingly unlawful for FDA to approve Mylan's ANDA until a date 180 days after (i) Mova begins commercially marketing its drug (which has not happened yet), or (ii) the court in Puerto Rico holds the Upjohn patent invalid or not infringed (which also has not happened), whichever is earlier.
FDA and Mylan respond that the Mylan ANDA was approved pursuant to a regulation issued by FDA after enactment of the Hatch-Waxman Amendments. The particular regulation in question, 21 C.F.R. § 314.107(c)(1), conditions the 180-day market exclusivity period on the requirement that "the applicant submitting the first application [here, Mova] has successfully defended against a suit for patent infringement brought within 45 days of the patent owner's receipt of notice...." (emphasis added). Because Mova's defense of the infringement action has not yet succeeded, FDA asserts that Mova is not entitled to the 180-day market exclusivity. According to FDA, the "successful defense" requirement is an agency interpretation made necessary by statutory ambiguity. The suggested ambiguity is that the statute does not make provision for the circumstance presented by this case: the first ANDA applicant has been sued for patent infringement, but the second has not.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984) requires deference to an agency interpretation if Congress has not "directly spoken to the precise question at issue" and if the agency interpretation is reasonable. This case, however, does not require Chevron deference, for the statute is neither "silent [n]or ambiguous." FDA's approval of Mylan's ANDA cannot be effective, under 21 U.S.C. § 355(j)(4)(B), until the last applicable date determined under its four subsections. The language of the statute may be complex, and even cumbersome, but it is plain and unambiguous. It does not include a "successful defense" requirement, and indeed it does not even require the institution of patent litigation. It was Mova's first filing of an ANDA for micronized glyburide under paragraph IV, and not Upjohn's infringement suit, that required FDA to withhold approval from subsequent paragraph IV filers. Inwood Laboratories, Inc. v. Young, 723 F. Supp. 1523, 1526 (D.D.C.1989), vacated as moot, 43 F.3d 712 (D.C.Cir.1989).
In their oral arguments opposing the motion for preliminary injunction, counsel for FDA and Mylan laid out scenarios of what could happen if the statute were applied as *131 written, without the "successful defense" requirement. They argued that the statute as written encourages frivolous ANDA filings and that without the successful defense requirement the entry of generic drugs into the market could be delayed or even manipulated, thereby undermining the larger purpose of the Hatch-Waxman Amendments to make available more low-cost generic drugs. Mylan predicted that if Mova loses the Upjohn patent infringement case, or if the patent litigation is not concluded at the end of the 30-month automatic stay (see footnote 2, supra), Mova will not dare to market its product. And Mylan submitted that without the "successful defense" requirement the entire generic market for micronized glyburides will be hostage to Mova's patent litigation and ANDA.
Those defense arguments are supported only by speculation. The operation of the statute on the facts of this case may appear to FDA to be unwise, and may appear to Mylan to be an invitation for abuse, but their remedy lies with Congress, not this Court.
Because the statutory language clearly dictates the outcome of this case, plaintiff's likelihood of success on the merits must be reckoned as very high.
The second element of the four-part test prescribed by Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C.Cir.1977), is irreparable injury. While it is undisputed that Mova has neither prevailed in its patent litigation with Upjohn nor obtained final approval of its ANDA for micronized glyburide from the FDA, the record establishes that depriving Mova of a 180-day statutory grant of exclusivity and giving Mylan an officially sanctioned head start in the market for generic micronized glyburide products will cause injury to Mova. All parties recognize that the earliest generic drug manufacturer in a specific market has a distinct advantage over later entrants. In particular, Mova, a small company, will have difficulty competing against the much larger Mylan if Mylan is allowed to enter the generic micronized glyburide market and capture market share while Mova remains entangled with patent litigation. Mylan argues that both it and Mova will be competing only for the crumbs left from the competition between Upjohn, the patent holder, and Copley, which already has authority to market generic micronized glyburide.[4] That argument addresses only the quantum of Mova's irreparable injury, however. Where, as here, the likelihood of success on the merits is very high, a much smaller quantum of injury will sustain an application for preliminary injunction. Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir.1985) (per curiam).
As for the third and fourth prongs of the balancing test: the public interest in faithful application of the statutes outweighs the public interest in what Mylan concedes (considering the already-established market position of the Copley product) would be a marginal increase in the availability of low-cost generic drug products to American consumers, particularly where, as here, the very statute that was designed with consumers' interests in mind is the statute which so clearly entitles Mova to relief; and, although obviously an injunction requiring the FDA to withdraw the approval of Mylan's ANDA will not be without cost to Mylan, the high likelihood of Mova's eventual success on the merits suggests that the cost to Mylan would be even greater if relief were not granted until some later date, when Mylan's marketing plans are even farther along.
PRELIMINARY INJUNCTION
Upon consideration of plaintiff's motion for a preliminary injunction, defendant's and intervenor's opposition, plaintiff's reply, and the oral arguments of counsel, it appears that plaintiff is likely to prevail on the merits of its claim that the Food and Drug Administration improperly granted approval of Mylan Pharmaceuticals Inc.'s Abbreviated New Drug Application ("ANDA") for a formulation including micronized glyburide on December 19, 1996 in contravention of 21 U.S.C. § 355(j)(4)(B)(iv); that, unless the approval is *132 withdrawn or suspended the plaintiff, Mova Pharmaceutical Corporation, will suffer irreparable harm; and that public interest considerations weigh more heavily in favor of granting preliminary injunctive relief than against it. It is accordingly this 23rd day of January, 1997,
ORDERED that plaintiff's motion for a preliminary injunction [# 2] is granted. It is
FURTHER ORDERED that the Food and Drug Administration suspend its approval of Mylan's ANDA for micronized glyburide until a date that is not earlier than one hundred and eighty days after (i) the date Mova gives notice to the Secretary of HHS that it has undertaken the first marketing of micronized glyburide under its ANDA or (ii) the date of a decision in the U.S. District Court for the District of Puerto Rico holding that U.S. Patent No. 4,916,163 is invalid or not infringed by Mova's ANDA, or until further order of this Court. It is
FURTHER ORDERED that this preliminary injunction is immediately effective and shall remain in effect according to its terms unless plaintiff fails by 12:00 noon on January 27, 1997, to file a bond or give other security in the amount of $10,000 for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. See Local Rule 116.
NOTES
[1] Mova's suggestion that its application for preliminary injunctive relief be treated as a motion for summary judgment will not be accepted. While there appear to be no genuine issues of material fact, and there is authority for advancing the trial of the merits during the hearing of a motion for preliminary injunction, see Fed. R.Civ.P. 65(a)(2), neither FDA nor Mylan has had the opportunity to respond to the pending motion as if it were one for summary judgment.
[2] 21 U.S.C. § 355(j)(4)(B)(iii). Once a patent infringement suit is filed against the first ANDA applicant "the [FDA] approval [of the generic drug] shall be made effective upon the expiration of the 30-month period beginning on the date of the receipt [of the required notice to patent owners] or such shorter or longer period as the court may order because either party to the action failed to reasonably cooperate in expediting the action [with certain enumerated exceptions]...."
[3] The word "continuing" in the first clause looks like a typographical error that should have been printed "containing." No party focused on the word in any case.
[4] Copley received FDA approval for its generic product after filing a full New Drug Application and is not subject to the statutory restrictions upon ANDAs. |
1,516,059 | 2013-10-30 06:32:49.013931+00 | Pellegrino | null | 913 A.2d 1103 (2007)
99 Conn.App. 407
STATE of Connecticut
v.
Darel EDWARDS.
No. 26222.
Appellate Court of Connecticut.
Argued November 27, 2006.
Decided January 30, 2007.
*1104 Daniel J. Krisch, special public defender, with whom were Brendon P. Levesque, special public defender, and, on the brief, Ronald Crawley, legal intern, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellee (state).
GRUENDEL, HARPER and PELLEGRINO, Js.
*1105 PELLEGRINO, J.
The defendant, Darel Edwards, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a)(5), carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a)(1). On appeal, the defendant claims that the trial court improperly failed to grant his motion in limine to preclude the state from questioning a defense witness about that witness' prior criminal conduct. We affirm the judgment of the trial court.
At approximately 9 p.m. on July 27, 2003, the defendant and three other men drove to an apartment building at 316 Blatchley Avenue in New Haven. A group of people were standing outside that building, including the defendant's girlfriend, Janine Bordeaux, and DeJuano Wells. Bordeaux and Wells appeared to be arguing with each other. The defendant then confronted Wells. After arguing with Wells briefly, the defendant retrieved a gun from the car in which he had arrived. He shot Wells several times, wounding him in the buttocks and legs, and then fled the scene. Approximately two months later, the defendant was arrested.
After a trial, the jury returned a verdict of guilty of assault in the first degree and carrying a pistol or revolver without a permit. The defendant subsequently pleaded guilty to criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a)(1), and to the part B information, which charged him with commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and with being a persistent serious felony offender pursuant to General Statutes § 53a-40 (c). The court sentenced him to a total effective term of twenty years incarceration. This appeal followed.
The defendant's sole claim on appeal is that the court should have granted his motion in limine to preclude the state from questioning a defense witness, Carolyn Woodard, about her criminal conduct in Florida. In 1983, when Woodard was eighteen years old, she was convicted of theft and giving false information to a law enforcement officer. Those crimes were both misdemeanors under Florida law. The issue of Woodard's credibility was important to the defendant because Woodard was to testify at trial that Veronica Holmes, a witness to the shooting, was inside Woodard's apartment at the time and could not have seen the defendant shoot Wells.
The court did not issue a ruling on the defendant's motion in limine. Although the court discussed the issue of Woodard's credibility with the prosecutor and defense counsel in chambers, that discussion is not part of the record. Furthermore, defense counsel failed to object at trial when the prosecutor cross-examined Woodard regarding her Florida convictions. The defendant nonetheless argues that he preserved his claim for our review because he filed his motion in limine. The defendant contends that the absence of a ruling on that motion gives rise to a presumption that the court denied it. We disagree.
The defendant fails to cite, and we are unaware of, any Connecticut authority that would support his argument.[1] The absence of such authority is unsurprising *1106 because it is trial counsel's responsibility to ensure that the issues he raises in pretrial motions are addressed before the trial begins. If the court has not acted on a pretrial motion, nothing prevents counsel from requesting a ruling on that motion on the record prior to the start of trial. Similarly, if the court has not acted on a pretrial motion and counsel proceeds with trial instead of seeking a ruling on that motion, nothing prevents him from objecting when the issue presented in that motion arises during trial. By alerting the court that it has not acted on a pretrial motion, or by objecting at trial, counsel provides the court with the opportunity to rule on the record, thereby preserving the issue for appellate review. Counsel may decide as a matter of strategy, however, to abandon an issue by not requesting a ruling on an overlooked pretrial motion or by not objecting at trial. The manner in which trial counsel acts, or fails to act, is of great significance in determining the availability of appellate review. See, e.g., State v. Holbrook, 97 Conn.App. 490, 497 n. 1, 906 A.2d 4 (noting that defense counsel in that case failed to move for mistrial, and therefore no review available with respect to defendant's claim that court should have granted his motion for mistrial), cert. denied, 280 Conn. 935, 909 A.2d 962 (2006); State v. Hedge, 93 Conn.App. 693, 700, 890 A.2d 612 (explaining that review of an issue in that case pertaining to cross-examination of seven prosecution witnesses was restricted to only one of those witnesses because defense counsel failed to raise issue when cross-examining other six witnesses), cert. denied, 277 Conn. 930, 896 A.2d 102 (2006).
In the present case, defense counsel did not seek a ruling on the defendant's motion in limine on the record. When the issue presented in that motion arose during trial, defense counsel did not object. The court did not rule on that issue, and it is therefore not properly before us. We decline the defendant's invitation to presume that the court denied his motion to preclude the state from questioning Woodard about her criminal conduct.[2]
Perhaps anticipating our conclusion, the defendant also requests review of his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).[3] The defendant's request is unavailing because *1107 the absence of a ruling by the court renders the record inadequate. Finally, the defendant asks us to invoke the plain error doctrine, codified in Practice Book § 60-5. The purpose of the plain error doctrine is "to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy." (Emphasis added; internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 507 n. 14, 857 A.2d 908 (2004). Because the court did not rule on the defendant's motion in limine, it would be inappropriate for us to invoke the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] The defendant directs us, however, to a decision of the Ohio Supreme Court stating that "when a trial court fails to rule on a pretrial motion, it may ordinarily be presumed that the court overruled it." State ex rel. The v. Cos. v. Marshall, 81 Ohio St. 3d 467, 469, 692 N.E.2d 198 (1998). Clearly, we are not bound by Ohio case law. Furthermore, it appears that the defendant's reliance on Marshall is misplaced. That case and other similar Ohio cases "involve situations where the trial court . . . failed to rule on a single pretrial motion related to discovery matters. . . . Generally, a reviewing court will presume that a lower court overruled a motion on which it did not expressly rule, in instances where it is clear from the circumstances that that is what the lower court actually intended to do." State v. Ryerson, Docket No. CA2003-06-153, 2004 WL 1433672, **4-5, 2004 Ohio App. Lexis 2985, **11-12 (Ohio App. June 28, 2004). The present case does not involve discovery matters, and it is not clear from the circumstances that the court actually intended to deny the defendant's motion in limine.
[2] Furthermore, we are entirely unpersuaded by the defendant's suggestion in his reply brief that such a presumption is necessary in general because the court may be "recalcitrant" to rule on a motion. There is absolutely no evidence that the court in the present case resisted ruling on the defendant's motion in limine.
[3] "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. |
1,516,060 | 2013-10-30 06:32:49.024043+00 | Moran | null | 955 F. Supp. 869 (1996)
Leo I. REESE, Plaintiff,
v.
Officer Charles MAY, Star No. 354, the Village of Glendale Heights, Illinois Police Department, sued in his individual capacity, and as an agent, servant and/or employee of the Village of Glendale Heights, Illinois, a municipal corporation, and Detective J. Eageny, Star No. 348, of the Village of Glendale Heights, Illinois Police Department, sued in his individual capacity, and as an agent, servant and/or employee of the Village of Glendale Heights, Illinois, a municipal corporation, and the Village of Glendale Heights, Illinois, a municipal corporation, Defendants.
No. 96 C 2683.
United States District Court, N.D. Illinois, Eastern Division.
November 20, 1996.
*870 *871 Mark W. Solock, Chicago, IL, for Leo I. Reese.
James L. DeAno, Norton, Mancini, Argentati, Weiler & DeAno, Wheaton, IL, Jennifer H. Lee, Norton, Mancini, Argentati, Weiler & DeAno, Chicago, IL, for Charles May, J. Eageny and Village of Glendale Heights, IL.
MEMORANDUM AND ORDER
MORAN, Senior District Judge.
Plaintiff Leo Reese (Reese) brought this action against defendants Officer Charles May (May), Detective J. Eageny (Eageny), and the Village of Glendale Heights, Illinois (Village), claiming that he was arrested and detained for the unlawful possession of an altered driver's license in violation of his rights under federal and state law. Count I of the complaint seeks compensatory and punitive damages for the defendants' actions, which allegedly violated the plaintiff's rights under the Fourth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983. Counts II and III seek compensatory and punitive damages for the defendants' actions, which allegedly constituted the torts of false arrest, false imprisonment, and malicious prosecution under Illinois state law. The defendants now move to strike plaintiff's prayer for punitive damages from Counts II and III of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, defendants claim that they are immune from liability for punitive damages under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-102 and 10/2-213. For the reasons stated herein, defendants' motion is granted.
FACTS
In considering a motion to dismiss under Fed. R.Civ. P. 12(b)(6) for failure to state a claim, we accept all well pled factual allegations in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff. Travel All Over the World, Inc. v. The Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir.1996). Read in this light, the facts are as follows.
On February 16, 1995, Reese was driving his car in the Village of Glendale Heights, Illinois. He was stopped by Officer May at the intersection of Glen Ellyn Road and Gregory Avenue and charged with the improper display of registration and the operation of an uninsured motor vehicle. In response to May's request, Reese produced his Illinois driver's license (No. R200-5295-6190), upon which appeared Reese's full name and photograph. May then seized Reese's driver's license, claiming that he suspected it had been altered. On March 14, 1995, May went to Reese's place of employment at the Carol Stream Postal Facility and confirmed that the seized license contained no false information concerning Reese's identity.
Nevertheless, on March 16, 1995, Detective Eageny was assigned by the Village of Glendale Heights Police Department to conduct a followup investigation of Reese's allegedly altered driver's license. On May 5, 1995, Eageny appeared before the Honorable Cary B. Pierce of the Circuit Court of the 18th Judicial Circuit, Dupage County, Illinois, and under oath signed a written complaint (No. 95 TR 60314) alleging that Reese had committed the offense of unlawful possession of an altered driver's license in violation of the Illinois Vehicle Code, 625 ILCS 5/6-301.1(b)(1).[1]*872 Eageny did not inform the judge that May's investigation had revealed no indication that the license was "fictitious" or "unlawfully altered," as those terms are defined under the statute.[2] Judge Pierce, on the basis of the information provided by Eageny, issued an arrest warrant for Reese.
On May 6, 1995, officer Kedzie of the Broadview, Illinois Police Department arrested Reese pursuant to the warrant. Reese initially spent time in the custody of the Broadview Police Department and was then transported to the Village of Glendale Heights Police Department, where he was further detained. Reese was released on bond the same day he was arrested.
On December 8, 1995, Reese's criminal case was dismissed by the State's Attorney of DuPage County, Illinois, after Reese filed a motion to dismiss the complaint for failure to state an offense. Reese then brought the instant action alleging that the acts of the defendants were done in violation of his rights under the United States Constitution and the common law of the State of Illinois. The defendants now move to dismiss the punitive damage claims from plaintiff's state law counts.[3]
DISCUSSION
I. Standard of Review
A motion to dismiss tests the sufficiency of a complaint, not it merits. Triad Associates, Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S. Ct. 129, 112 L. Ed. 2d 97 (1990). The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). A complaint need not set out any legal theory; an incorrect legal theory is not *873 fatal. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992).
II. Punitive Damages Claims under the Tort Immunity Act
In their motion to dismiss defendants argue that plaintiff's punitive damage claims in Counts II and III of the complaint must be stricken since they are barred by the Illinois Tort Immunity Act.
As defendants correctly point out, because May and Eageny are both local government employees their tort liability is governed by the Act. West v. Kirkham, 147 Ill. 2d 1, 167 Ill. Dec. 974, 976, 588 N.E.2d 1104, 1106 (1992).[4] The purpose of the Act "is to protect local public entities and public employees from liability arising from the operation of government." 745 ILCS 10/1-101.1. However, the Act does not confer blanket immunity from all tort claims against local government entities. Under the Act, local government entities and their employees are liable in tort unless immunized based on specific governmental functions enumerated in the Act. Eck v. McHenry County Public Building Comm'n, 237 Ill.App.3d 755, 178 Ill. Dec. 586, 591, 604 N.E.2d 1109, 1114 (1992). The Illinois Supreme Court has noted that the Act "is an attempt to create certain uniform rules of immunity as exceptions to the general rule of municipal liability." Aikens v. Morris, 145 Ill. 2d 273, 164 Ill. Dec. 571, 574, 583 N.E.2d 487, 490 (1991). Because the Act is in derogation of the common law, it must be strictly construed against local government entities. Curatola v. Village of Niles, 154 Ill. 2d 201, 181 Ill. Dec. 631, 634, 608 N.E.2d 882, 885 (1993).
Defendants cite two provisions of the Act in support of their argument that they are immune from punitive damages claims. First, they assert that they are not liable for punitive damages under § 2-102 of the Act, which states in relevant part as follows:
[N]o public official is liable to pay punitive or exemplary damages in any action arising out of an act or omission made by the public official while serving in an official executive, legislative, quasi-legislative or quasi-judicial capacity, brought directly or indirectly against him by the injured party or a third party.
745 ILCS 10/2-102. This section establishes two criteria that must be satisfied in order to confer immunity upon local government actors against punitive damage claims: (1) the defendants must be "public officials" within the meaning of the statute, and (2) they must have been serving in an "official executive, legislative, quasi-legislative or quasi-judicial capacity" when they engaged in the actions that allegedly resulted in the plaintiff's injury.
The Illinois Tort Immunity Act does not provide a definition of "public official" for the purposes of determining immunity under § 2-102. Furthermore, courts have offered scant interpretive guidance on this issue. This is unfortunate since § 2-102 is not a model of clarity as it contains both intricate common law concepts and language which overlaps substantially with other sections of the Act. See, 745 ILCS §§ 2-201 and 2-213. In light of this ambiguity, we find it necessary to look to the statutory history of § 2-102 and to the relationship between that section and related provisions of the Act in analyzing whether the defendants are entitled to immunity from punitive damages.
The Tort Immunity Act was passed in 1965, in response to the Illinois Supreme Court's decision in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959), which abrogated tort immunity for school districts. The 1965 Act contained the original version of § 2-102, which did not include the "public official" language at issue in this case. Instead, the 1965 version of § 2-102 simply provided that "[a] local public entity is not liable to pay punitive or exemplary damages." Ill.Rev. Stat.1965, ch. 85, § 2-102. It is significant that the original act also contained ¶ 2-201, which conferred blanket immunity against *874 any form of liability upon public employees engaged in discretionary duties. Specifically, § 2-201 provided that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." Ill.Rev.Stat., Ch. 85, ¶ 2-201. This section has been held to incorporate the common law of public official immunity. Horton v. City of Ottawa, 40 Ill.App.3d 544, 352 N.E.2d 23, 24 (1976). Therefore, for purposes of our analysis it is relevant to note that the Illinois legislature in 1965 enacted a Tort Immunity Act which simultaneously provided two distinct forms of immunity: (1) local public entities were immunized from punitive damages liability under § 2-102, and (2) public employees who qualified as public officials under the common law rules were entitled to complete immunity against both compensatory and punitive damages pursuant to § 2-201.
In 1976, the court in Newell v. City of Elgin, 34 Ill.App.3d 719, 340 N.E.2d 344, 349 (1976), held that the original version of § 2-102 did not immunize individual police officers against punitive damages liability for allegedly abusive behavior, although it did immunize the municipality that employed the officers. Plaintiff relies on this case in support of the proposition that § 2-102 only provides immunity to local public entities and public officials, and therefore does not provide immunity to May and Eageny, since they are merely public employees. Specifically, plaintiff argues that Newell demonstrates that individual police officers, such as defendants in this case, are liable for punitive damages under the act as "public employees." However, we find this reading of Newell and § 2-102 erroneous. As noted above, Newell was decided based on the application of the original version of § 2-102, which did not include immunity for "public officials." Following the Newell decision, § 2-102 was amended in 1986 to its current form, which explicitly immunizes "public officials" against punitive damages claims. Based on this sequence of events, one court has stated that the "amended language was intended to prohibit punitive damage claims against municipal officers in both their official and individual capacities.... Had the legislature intended to permit punitive damages based on state law claims against public officers in their individual capacities, it would have done so." Holmes v. Village of Hazel Crest, No. 92-C-5979, 1993 WL 155500, at *3 (N.D.Ill. May 10, 1993). We agree that the amended version of § 2-102 broadens the scope of municipal immunity to encompass individual officers and effectively nullifies the Newell decision insofar as it held that former § 2-102 did not immunize police officers from punitive damages liability. Plaintiff's use of Newell to argue against § 2-102 immunity here is therefore unavailing.
However, while this historical analysis supports an expansive reading of § 2-102 protection, it does not aid us in precisely delimiting the parameters of "public official" status. In order to determine whether defendants in this case qualify as "public officials," we need to read the amended version of § 2-102 in the context of § 2-201, which codifies the common law of public official immunity. According to the common law, a public official is entitled to immunity where his conduct is a good faith exercise of discretionary, rather than ministerial, duties, Mora v. State of Illinois, 68 Ill. 2d 223, 12 Ill. Dec. 161, 166, 369 N.E.2d 868, 873 (1977); Thiele v. Kennedy, 18 Ill.App.3d 465, 309 N.E.2d 394, 396 (1974), and where the discretionary duties in question are uniquely related to the official's particular public office. Currie v. Lao, 148 Ill. 2d 151, 170 Ill. Dec. 297, 303-04, 592 N.E.2d 977, 983-84 (1992). However, the common law rule of public official immunity does not extend to a public employee's acts based on corrupt or malicious motives, or a public employee's wilful and wanton conduct. Barth ex rel. Barth v. Board of Educ., 141 Ill.App.3d 266, 95 Ill. Dec. 604, 608, 490 N.E.2d 77, 81 (1986).
The question we must answer, then, is whether § 2-102's reference to "pubic official" incorporates the common law of public official immunity. We find that it does not. As we discussed above, § 2-201 was enacted in 1965 concurrently with the original version of § 2-102. When the Illinois legislature *875 amended § 2-102 in 1986 to include immunity for public officials against punitive damages, it could not have meant to replicate the broad public official immunity against compensatory and punitive damages already provided for in § 2-201. To construe the public official language in § 2-102 as conferring immunity identical to the common law doctrine would render that section redundant and superfluous within the context of the Tort Immunity Act, in violation of fundamental rules of statutory construction. Kraft v. Edgar, 138 Ill. 2d 178, 149 Ill. Dec. 286, 291, 561 N.E.2d 656, 661 (1990).
Therefore, § 2-102 must be construed in a way that invests it with a significance that is independent of § 2-201. We interpret "public official" in § 2-102 to mean a public employee who exercises discretion in the performance of uniquely governmental functions. We decline to interpolate a "willful and wanton" exception into this definition, as that would make § 2-102 superfluous in light of the broader immunity provided for public officials under § 2-201. In doing so we are mindful that the 1986 amendment was but one provision of Public Act 84-1431, "An Act in relation to the insurance crisis," which was in large part directed toward reducing the tort vulnerability of public entities and public employees.
In determining whether defendants are "public officials" under § 2-102, our inquiry, then, is whether defendants May and Eageny were engaged in the performance of uniquely governmental functions which involved discretionary duties, during their investigation and prosecution of Reese. Defendants argue that Officer May's decision to provide information to Detective Eageny regarding plaintiff's allegedly altered driver's license, and Eageny's decision to use that information as the basis for signing a written complaint charging plaintiff with the crime, were discretionary acts which place defendants squarely within the scope of public official immunity. Illinois courts have attempted to distinguish discretionary duties that involve the exercise of judgment as to the propriety of the acts, from ministerial duties, which are performed in a prescribed manner and in obedience to the mandate of legal authority. Long v. Friesland, 178 Ill. App. 3d 42, 127 Ill. Dec. 85, 92, 532 N.E.2d 914, 921 (1988), appeal denied, 125 Ill. 2d 566, 130 Ill. Dec. 482, 537 N.E.2d 811 (1989). However, the definition of what constitutes a discretionary duty "has been stretched and pulled to fit individual cases to the point that the [public official] immunity applies to the exercise of any governmental function, rather than a discretionary, nongovernmental function. ..." Oppe v. State of Missouri, 171 Ill.App.3d 491, 121 Ill. Dec. 882, 885, 525 N.E.2d 1189, 1192 (1988), appeal denied, 176 Ill.App.3d 153, 125 Ill. Dec. 718, 530 N.E.2d 1127 (1993). Consistent with this expansive definition, the defendants in this case were clearly engaged in discretionary acts uniquely related to their particular government offices. Officer May's decisions to seize Reese's driver's license and investigate its authenticity required an exercise of judgment regarding the veracity of the information contained in the license. Detective May's decision to sign a criminal complaint charging Reese with the unlawful possession of an altered driver's license required a discretionary determination that the information he received regarding the license was sufficient to constitute probable cause to arrest Reese.
Further, we find that defendants' conduct in investigating the crime and attesting to probable cause involved a greater degree of discretion than other police activities held to be cloaked with public official immunity. See Holmes, 1993 WL 155500, at *3 (holding that municipal police officers charged with various state law torts for allegedly battering a woman were immune from punitive damages as public officials under § 2-102); Magnuson v. Cassarella, 813 F. Supp. 1321, 1324 (N.D.Ill.1992) (holding that public official immunity under Illinois law applies to police officer accused of assaulting plaintiff in the course of a domestic disturbance investigation); Oppe, 121 Ill.Dec. at 885, 525 N.E.2d at 1192 (holding that public official immunity applies to police officers who caused a collision during a high-speed chase); but see Currie, 144 Ill.Dec. at 856, 556 N.E.2d at 323 (holding that police officers engaged in a vehicular chase were *876 not entitled to public official immunity).[5] Both May and Eageny were clearly exercising discretion in performing the uniquely governmental functions associated with their police duties. Therefore, both were acting as "public officials" for the purposes of § 2-102.
Having concluded that May and Eageny are "public officials" under § 2-102, it remains for us to determine whether they were also serving in an "official executive, legislative, quasi-legislative or quasi-judicial capacity" when they investigated and prosecuted Reese. The defendants argue that their actions were "quasi-judicial" in nature since they involved the exercise of discretion. However, we cannot facilely equate quasi-judicial functions with discretionary actions for the purposes of construing § 2-213. To do so would render the phrase "quasi-judicial function" superfluous, in violation of established rules of statutory construction. Kraft, 149 Ill.Dec. at 291, 561 N.E.2d at 661. It is true under Illinois common law that a judicial officer who exercises powers that are "so far discretionary that he can exercise or withhold them according to his own judgment as to what is necessary and proper," is immunized from liability under the doctrine of quasi-judicial immunity. People ex rel. Munson v. Bartels, 138 Ill. 322, 27 N.E. 1091, 1092 (1891). However, in this case neither defendant is a judicial officer. Therefore, we find that defendants did not engage in "quasi-judicial" functions simply by virtue of the fact that their police duties involved an exercise of discretion. Instead, in order to determine whether May and Eageny performed quasi-judicial functions, we must ask whether their activities were functionally analogous to activities regularly performed by judicial officers.
Although not controlling in this case, the federal law of quasi-judicial immunity sets forth a useful standard for determining the scope of a public employee's quasi-judicial function. The Supreme Court has granted absolute immunity to officials, such as administrative law judges and federal and state prosecutors, in the performance of functions that are "closely associated with the judicial process." Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 500, 88 L. Ed. 2d 507 (1985). In each case, the analysis has proceeded not from the official's rank or title but from the nature of his responsibilities. "Thus, where the official's responsibilities are closely analogous to the adjudicative functions of a judge, or are `intimately associated' with the judicial process itself, that official has been granted absolute immunity from suit for actions taken to fulfill those particular responsibilities." Walrath v. United States, 35 F.3d 277, 281 (7th Cir.1994) (internal citations omitted). Quasi-judicial functions are distinguished from investigative or administrative actions such as those normally performed by police officers for which only qualified immunity applies. Hampton v. City of Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S. Ct. 1413, 1414, 39 L. Ed. 2d 471 (1974); see also Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2615-16, 125 L. Ed. 2d 209 (1993) (finding that prosecutor is not absolutely immune from suit when he performs administrative or investigative functions, but only when he acts as an advocate of the state); Burns v. Reed, 500 U.S. 478, 491-93, 111 S. Ct. 1934, 1941-43, 114 L. Ed. 2d 547 (1991) (finding that a prosecutor is entitled to judicial immunity only for actions connected *877 to judicial proceedings, not for his role in investigation).
It is clear that May and Eageny were engaged in investigative and administrative actions, not quasi-judicial functions. Officer May's only involvement in Reese's arrest was his initial stop of Reese and his subsequent investigation of the authenticity of Reese's driver's license. These activities fall squarely within the scope of a police officer's daily enforcement and investigative duties and lack the close connection to the judicial process to constitute quasi-judicial functions. Further, Detective Eageny's appearance before the court to sign the criminal complaint, while more closely tied to the judicial process, was not a quasi-judicial activity. "There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other." Buckley, 509 U.S. at 273, 113 S. Ct. at 2616. By attesting to the existence of probable cause to issue an arrest warrant, Eageny was performing a routine administrative function that lacked sufficient indicia of prosecutorial conduct to warrant our finding that he was engaged in a quasi-judicial function.
However, § 2-102 also immunizes public officials serving in an "executive" capacity. A police officer who is endowed by executive authority with the power to effectuate and enforce the law, clearly acts in an "executive" capacity. Officer May acted in an executive capacity when he pulled Reese over for violating Illinois law requiring the display of effective registration, and when he seized Reese's license under the suspicion that it was unlawfully altered. He further acted in his executive capacity when he investigated the validity of Reese's license, thereby facilitating the administration of the law. Similarly, Detective Eageny's investigative and prosecutorial activities were within the scope of his executive functions.
Therefore, because both May and Eageny acted as "public officials" serving in "executive" capacities during the investigation and arrest of Reese, we grant defendants' motion to dismiss the punitive damages claims in Counts II and III on the basis of § 2-102 of the Tort Immunity Act.
As a second basis for their immunity claim, defendants rely on § 2-213 of the Tort Immunity Act, which provides as follows:
Notwithstanding any other provision of law, a public employee is not liable to pay punitive or exemplary damages in actions brought against the employee based on an injury allegedly arising out of an act or omission occurring within the scope of employment of such an employee serving in a position involving the determination of policy or the exercise of discretion when the injury is the result of an act or omission occurring in the performance of any legislative, quasi-legislative or quasi-judicial function, even though abused.
745 ILCS 10/2-213. As we find that defendants are immune from plaintiff's punitive damages claims under § 2-102, there is no need to determine the applicability of § 2-213. However, we do note that our reading of § 2-102 does not render it wholly duplicative of § 2-213. Section 2-213 confers immunity upon public employees exercising discretion or determining policy during the "performance of any legislative, quasi-legislative or quasi-judicial function, even though abused" (emphasis added). We read § 2-102 as conferring immunity upon public employees who exercise discretion in the performance of uniquely governmental functions while serving in an "official executive, legislative, quasi-legislative or quasi-judicial capacity ..." (emphasis added). While there is obvious and unnecessary redundancy, the two sections can be construed as applying to slightly different categories of public actors. For instance, § 2-102 applies to public employees acting in an "executive" capacity, whereas § 2-213 does not. Also, § 2-213 confers immunity on two distinct classes of public employees: those who exercise discretion or those who determine policy, while § 2-102's coverage is simply confined to actors who exercise discretion. See In re Chicago Flood Litigation, N. 93-C-1214, 1993 WL 278553, at *5 (N.D.Ill. July 20, 1993) (finding that § 2-213 immunizes government *878 employees for injuries resulting from acts in determining policy or when acting in the exercise of discretion).
Moreover, both sections were enacted pursuant to a 1986 omnibus public act designed to reduce the financial liability and insurance costs of municipal entities. Ill.P.A. 84-1431 (Approved 1986). It is clear that the Illinois legislature intended to protect municipal coffers from depletion due to lawsuits aimed directly at the municipality itself and at municipal employees. Because our reading of § 2-102 as providing immunity to defendants May and Eageny is consistent with this clear policy goal, we find that our interpretation of § 2-102 is most plausible within the context of the overall tort immunity scheme, despite the substantial overlap with § 2-213.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss the punitive damages claims is granted.
NOTES
[1] 625 ILCS 5/6-301.1(b)(1) reads as follows:
(b) It is a violation of this Section for any person:
1. To knowingly possess, display or cause to be displayed any fictitious or unlawfully altered driver's license or permit.
Reese alleges that the complaint charged him with the unlawful possession of an altered driver's license, while the statute explicitly criminalizes only the knowing possession of an unlawfully altered license.
[2] A "fictitious driver's license or permit" means "any issued license or permit ... which contains false information concerning the identity of the individual issued the license or permit." 65 ILCS 5/6-301.1(a)(1). An "unlawfully altered driver's license or permit" means "any issued license or permit ... which has been physically altered or changed in such a manner that false information appears upon the license or permit." 65 ILCS 5/6-301.1(a)(3). "False information" means "any information concerning the name, sex, date of birth, social security number or any photograph that falsifies ah or in part the actual identity of the individual issued the license or permit." 65 ILCS 5/6-301.1(a)(2).
[3] Defendants assert a second basis for dismissal of the state law claims in their memorandum in reply to plaintiff's response to motion to strike. First, they argue that plaintiff's false imprisonment claim should be dismissed since the restraint on Reese's liberty was the result of a formal legal process (def. reply, at 3). However, as plaintiff has properly alleged that the restraint was without probable cause, we find that he has sufficiently stated a cause of action for the purposes of this motion to dismiss. Martel Enterprises v. City of Chicago, 223 Ill.App.3d 1028, 164 Ill. Dec. 945, 949, 584 N.E.2d 157, 161 (1991). Second, defendants argue that the false arrest portion of Count II should be dismissed as duplicative of the malicious prosecution claim of Count III. This argument is flatly rejected. To state a claim for malicious prosecution under Illinois law, it must be alleged that (1) the plaintiff was subjected to a judicial proceeding for which there was no probable cause, (2) the defendants instituted the proceedings maliciously, (3) the proceedings were terminated in plaintiff's favor, and (4) there was injury. Treece v. Village of Naperville, 903 F. Supp. 1251, 1257 (N.D.Ill. 1995). The essential elements of a cause of action for false arrest are that plaintiff was arrested by defendants and that defendants acted without having reasonable grounds to believe that an offense was committed by plaintiff. Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 151 Ill. Dec. 560, 569, 564 N.E.2d 1222, 1231 (1990). Clearly, these two causes of action require different showings. Therefore, because plaintiff has alleged sufficient facts in support of both the false arrest and malicious prosecution claims, we decline to dismiss either as unnecessarily duplicative.
[4] In his complaint Reese seeks punitive damages from defendants May and Eageny under Count II (false arrest and imprisonment) and Count III (malicious prosecution). Reese does not seek punitive damages for the actions attributable to the Village and therefore defendants' motion to strike on behalf of the Village is moot.
[5] Reese contends that defendants acted "maliciously, willfully wantonly" (compl. ¶ 22) by proceeding with their investigation and prosecution of Reese, when they knew that there was no evidence substantiating the charge. Because the allegations contained in Counts II and III, along with the reasonable inferences they support, suggest that defendants acted in bad faith in pursuing the prosecution and arrest of Reese, they suffice to preclude a finding of public official immunity from compensatory damage. See Reiter v. Sears Roebuck & Co., 1996 WL 459852, *12 (N.D.Ill. Aug. 13, 1996) (holding that plaintiff's allegation that police officer acted with a willful and wanton disregard of his rights, precluded dismissal of the claim on the basis of public official immunity); Archilla v. Manley, 1994 WL 163854, *1 (N.D.Ill. April 29, 1994) (holding that defendant police officers charged with assault and battery were not entitled to public official immunity where plaintiff alleged that the officers' conduct was wilful, wanton, and malicious). We note that this allegation is sufficient to state a claim for compensatory damages under § 2-201, as public official immunity under that provision is subject to the common law rule that the government employee must exercise his discretion in good faith. |
1,516,101 | 2013-10-30 06:32:49.630225+00 | Morrison | null | 335 S.W.2d 766 (1960)
Ex parte Maggie MORGAN.
No. 32076.
Court of Criminal Appeals of Texas.
May 25, 1960.
Joe J. Newman, Houston, for appellant.
Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Presiding Judge.
This is an appeal from an order of the District Court of Harris County denying bail to appellant who was charged by indictment with the offenses of murder and conspiracy to commit murder.
Since the order, appellant has been tried, convicted, and assessed the death penalty; hence this appeal has become moot. Ex parte Bowles, Tex.Cr.App., 314 S.W.2d 108, and cases there cited.
The appeal is dismissed. |
1,516,061 | 2013-10-30 06:32:49.030068+00 | Dice | null | 335 S.W.2d 610 (1960)
Pete Gonzales DAVILA, Appellant,
v.
STATE of Texas, Appellee.
No. 31819.
Court of Criminal Appeals of Texas.
April 13, 1960.
*611 T. M. Reid, Abilene, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for the unlawful possession of a narcotic drug; the punishment, 2 years.
The sufficiency of the evidence is challenged.
The State's evidence shows that on the day in question two highway patrolmen, while on patrol duty, observed a pick-up parked on the wrong side of a county road. As they approached, the pick-up started up and drove past the patrol car proceeding in the opposite direction. Patrolman Joy motioned for the pick-up to stop. At such time appellant was driving the pick-up and one Rudy Flores was riding with him as a passenger. After the pick-up passed the patrol car, Patrolman Joy observed the appellant swerve the pick-up over in the ditch at which time Flores threw some white objects from the vehicle. The pick-up then traveled a short distance and stopped, whereupon the patrolmen backed up to where appellant and Flores were seated in the vehicle. After appellant and his companion Flores had denied throwing anything from the pick-up, Patrolman Joy, in company with Flores, went to the vicinity where the objects were seen thrown from the pick-up and there found 19 cigarettes on the ground just across the fence from the road.
An examination of the cigarettes by the chemist of the State Department of Public Safety showed that they contained marijuana.
Testifying as a witness in his own behalf, appellant denied that he possessed the marijuana cigarettes and stated that he did not see or know anything about Flores throwing any cigarettes from the pick-up. Appellant stated that the reason he had stopped the pick-up was to permit Flores to get out and answer a call of nature.
In submitting the issue of appellant's guilt to the jury the court charged the jury on the law of principals and circumstantial evidence and instructed the jury to acquit the appellant even though they believed the marijuana was thrown from the pickup if they had a reasonable doubt that appellant had personal knowledge of the presence of the marijuana at the time and place in question.
We have concluded that the evidence is sufficient to sustain the conviction.
A narcotic drug may be jointly possessed by two or more persons. Perry v. State, 164 Tex. Crim. 122, 297 S.W.2d 187. The evidence is sufficient to show that the marijuana cigarettes in question were thrown from the pick-up by the appellant's companion, Rudy Flores. At such time appellant was present and driving the pick-up. Appellant's actions in driving the pick-up some sixty feet past the patrol car after being signaled to stop and in swerving the pick-up over in the ditch when Flores threw the cigarettes out of the vehicle with the other facts and circumstances was sufficient to show that he and Flores were acting together in possessing the marijuana cigarettes in question.
The judgment is affirmed.
Opinion approved by the Court. |
1,516,062 | 2013-10-30 06:32:49.057907+00 | Per Curiam | null | 913 A.2d 1008 (2006)
John Anthony GRUFF, Petitioner
v.
DEPARTMENT OF STATE, Respondent
John Anthony Gruff, Petitioner
v.
Department of State, Respondent
John Anthony Gruff, Petitioner
v.
Department of State, Respondent
Commonwealth Court of Pennsylvania.
Submitted on Briefs September 1, 2006.
Decided December 29, 2006.
*1009 John Anthony Gruff, pro se, for himself.
Martha H. Brown, Asst. Counsel, Harisburg, for respondent.
OPINION
PER CURIAM.
John Anthony Gruff (Gruff) petitions, pro se, nunc pro tunc for review of three decisions of the Department of State (Department), Secretary of the Commonwealth (Secretary) dated November 9, 2005, which found in all three decisions that Gruff's financing statements were fraudulently filed, in that no rational basis existed under 13 Pa.C.S. § 9509 of the Uniform Commercial Code (UCC) which would entitle him to file the financing statements.[1] The cases were consolidated on March 16, 2006. We affirm the decisions of the Secretary.
On June 22, 2005, the Honorable C. Joseph Rehkamp, President Judge of the Court of Common Pleas of Perry County (Judge Rehkamp) petitioned the Secretary for expungement of improvidently recorded security interest. On July 6, 2005, Jeffrey A. Beard, Ph.D., Secretary of Corrections (Secretary Beard) petitioned the Secretary for expungement of improvidently recorded security interest. On *1010 July 8, 2005, Harry Wilson, Superintendent of the State Correctional Institution at Fayette (Superintendent Wilson) petitioned the Secretary for expungement of improvidently recorded security interest. (Collectively, Respondents)
Respondents sought to have a correction statement filed pursuant to the UCC, 13 Pa.C.S. § 9518, in order to render ineffective the three financing statements filed by Gruff naming each of them as a debtor.[2] Respondents alleged that Gruff filed a fraudulent security interest against them and listed as collateral "[a]ll of debtor's assets, land, and personal property, and all of debtor's interest in said assets, land, and personal property, now owned and hereafter acquired, now existing and hereafter arising, and wherever located, described fully in security agreement" entitled "NOTICE BY WRITTEN COMMUNICATION/ security agreement" dated the "Fifteenth Day of the Second Month in the Year of our Lord Two Thousand Five By and between debtor and secured party. . . ." Certified Record, Judge Rehkamp's Petition for Expungement of Improvidently Recorded Security Interest, Exhibit A1 at 1.
Judge Rehkamp alleged that his only association with Gruff was due to his presiding over Gruffs criminal proceedings in the Perry County Court of Common Pleas (trial court) when Gruff was convicted of aggravated assault, terroristic threats and recklessly endangering another person. Secretary Beard alleged that his only association with Gruff was due to Gruff's present incarceration at SCI-Fayette, one of twenty-seven state correctional institutions under Secretary Beard's control. Superintendent Wilson alleged that his only association with Gruff was due to Gruffs present incarceration at SCI-Fayette, where Wilson is the superintendent.
Judge Rehkamp No. 62 C.D.2006
On June 22, 2005, along with the petition for expungement, Judge Rehkamp filed a *1011 motion to request a decision on the papers or for an expedited hearing. The petition and motion both indicate that on June 16, 2005, Judge Rehkamp served Gruff via first class mail, postage pre-paid at the address which was indicated in the financing statement, 245 Spruce Street, Middletown, Pennsylvania. On June 22, 2005, Judge Rehkamp also served Gruff a copy of the petition with a notice to plead via certified mail, return receipt requested at his actual address at SCI-Fayette. The notice to plead informed Gruff that he had 15 days to respond to the petition and to request a hearing.
On August 17, 2005, Gruff wrote to counsel for the Department, acknowledging receipt of the petition and asking whether a lawyer would be available to represent him in the proceedings. On August 23, 2005, the Department advised Gruff of his option of filing an answer, requesting a hearing and retaining counsel. The Department further advised Gruff that the sole issue in the case was whether the financing statement filed against Judge Rehkamp was valid and effective.
On September 2, 2005, the Department received an answer in the form of "Rebuttal" to the petition from Gruff. In the answer Gruff acknowledged receipt of the expungement petition and stated that he had filed an earlier "Rebuttal" to Judge Rehkamp's petition but that the Department of Corrections (DOC) tampered with his mail.
Gruff argued in his answer that he had copyrighted his name and that any use of his name "contractually binds the user, and then the user consents [and] agrees to the filing of a financing statement for unauthorized use of copyrighted property." Gruff Rebuttal, August 31, 2005, at 1. Gruff further argued that he was authorized to file a financing statement under 13 Pa.C.S. § 9509(b) and that Judge Rehkamp contractually bound himself by using Gruff's name and by failing to respond to Gruff's "written communication/security agreement." Gruff Rebuttal at 2. Gruff requested an expedited hearing and judgment against Judge Rehkamp in the amount of $803,000,000.00.
Gruff also filed letters dated August 29, 30, and 31 of 2005. The letters alleged that Gruff's UCC paperwork was in order, that everything he had done was legal and not fraudulent, that his copyright was valid, and that his mail was being tampered with. Gruff further requested transportation to a hearing from SCI-Fayette.
On September 16, 2005, Judge Rehkamp filed amendments to his petition for expungement, adding as exhibits two letters from Gruff that were dated August 8, and August 12, 2005, respectfully. On September 22, 2005, Judge Rehkamp filed another amendment to his petition for expungement, adding as an exhibit, a letter from Gruff dated September 20, 2005. On September 28, 2005, Gruff responded to the amended petition.
Secretary Beard No. 524 C.D.2006
On June 24, 2005, Secretary Beard served Gruff with a petition for expungement via first class mail, postage pre-paid at the address listed in the financing statement and at his actual address at SCI-Fayette. On July 7, 2005, a copy of the petition and a notice to plead were served upon Gruff via certified mail, return receipt requested at SCI-Fayette.
On July 29, 2005, Gruff responded to the petition, setting forth his defense in support of the financing statement in lieu of a hearing. Gruff stated that he would like to request a hearing but would not be able to attend the hearing unless the Department was responsible for his transportation or a videoconference could be arranged. *1012 In an August 17, 2005 letter to the Department, Gruff acknowledged receipt of the petition and asked whether counsel could be appointed to represent him. On August 23, 2005, the Department advised Gruff of his option of filing an answer, requesting a hearing and retaining counsel. The Department further advised Gruff that the sole issue in the case was whether the financing statement filed against Secretary Beard was valid and effective.
On August 30 and September 14, 2005, Gruff filed letters in which he requested transportation to a hearing and alleged that the DOC was seizing all UCC paperwork and tampering with his mail. Gruff alleged that he was owed $232,000,000.00 for the use of his name by the DOC staff.
On August 23, 2005, Secretary Beard moved for judgment on the pleadings or an expedited hearing. Gruff was served via first class mail, postage prepaid, at SCI-Fayette. Gruff did not respond to this motion.
Superintendent Wilson No. 525 C.D.2006
On July 7, 2005, Superintendent Wilson served Gruff a petition for expungement via first class mail, postage pre-paid, at the address listed in the financing statement and at his actual address at SCI-Fayette. On July 18, 2005, a copy of the petition and a notice to plead were served upon Gruff via certified mail, return receipt requested at his actual address at SCI-Fayette. On July 25, 2005, Gruff filed an answer/rebuttal to the petition arguing that he held a legitimate copyright, that his security agreement was a valid contract and that Superintendent Wilson had violated his copyright by using his name.
Gruff did not request a hearing in this matter. Thereafter, Gruff filed an entry of appearance on September 14, 2005, which stated that he had not received a petition concerning Superintendent Wilson. On August 23, 2005, Superintendent Wilson filed a motion for judgment on the pleadings or for an expedited hearing, which was served on Gruff via first class mail, postage prepaid. Gruff did not reply to the motion.
On November 9, 2005, the Secretary issued an adjudication and order in each of the three cases. The Secretary found that there were no issues of material fact to be determined at a hearing on the petitions and that the findings hinged solely on legal arguments as presented. The Secretary further found that there was no security agreement between Gruff and the Respondents, nor was there an agricultural lien entitling Gruff to file financing statements against them. The Secretary concluded that Gruff's financing statements were fraudulently filed, in that no rational basis existed under 13 Pa.C.S. § 9509 of the UCC which would entitle him to file the financing statements. The Secretary further stated that Gruff filed the financing statements with the intent of annoying, harassing or harming the Respondents. Thus, the Secretary ordered the Department to file a correction statement in conformity with the UCC at 13 Pa.C.S. § 9518(d)(1), and refer the matter to the Office of the Attorney General for criminal prosecution.
On December 7, 2005, Gruff filed a brief on exceptions in each case. On December 13, 2005, the Secretary issued an order in each case stating that Gruff was not entitled to file exceptions to the adjudications of an agency head. On January 10, 2006, Gruff petitioned our Court for review nunc pro tunc. On February 7, 2006, our Court granted Gruff permission to proceed nunc pro tunc. On March 13, 2006, Gruff filed another petition for review before our Court. On March 16, 2006, our Court consolidated the cases and ordered that *1013 the matters be treated as petitions for review addressed to this Court's appellate jurisdiction.[3]
Before our Court, Gruff contends that as a secured party he is entitled to seek reimbursement for copyright infringement by filing a financing statement, that his copyright is viable and legal, that the security agreement he sent to Respondents is a legal contract that binds debtors without their signature, that he is permitted to file a financing statement against anyone as it is a commercial document and has nothing to do with the judiciary, that he is not committing extortion, that the Respondents claiming a defense to the filing of the financing statement is illegal, that the filing of objections to the financing statement is unlawful, and that the Respondents cannot show or state a claim of superiority to use Gruff's name as they wish. Gruff asks for a hearing under 2 Pa.C.S. §§ 504 and 505.[4]
Gruff alleges a common law copyright in his name and that Respondents have consented to a contract that provides for payment of $500,000.00 for each unauthorized use of his name. The alleged security agreement entered into by Respondents is entitled "Notice By Written Communication/Security Agreement." Gruff alleges that he mailed this agreement to each of the Respondents and claims that their failure to reply or object to the agreement's terms constituted an acceptance of those terms.[5]
Respondents allege that they, as debtors, did not authorize the filing of the initial financing statement. Pursuant to 13 Pa.C.S. § 9509, a person is entitled to file an initial financing statement only if "the debtor authorizes the filing in an authenticated record. . . ." See supra note 1. The authorization provision requires a signed or executed security agreement between the debtor and the person filing the financing statement.[6]
In accordance with 13 Pa.C.S. § 9102, a security agreement is defined as "an agreement which creates or provides for a security interest." A security interest is defined as "an interest in personal property or fixtures which secures payment or performance of an obligation." 13 Pa.C.S. § 1201. To authenticate the agreement, the Respondents needed to "sign" it or to "execute or otherwise adopt a symbol, or encrypt or similarly process a record in whole or in part, with the present intent of the authenticating person to identify the person and adopt or accept the record." 13 Pa.C.S. § 9102.
*1014 In the present controversy, the Respondents did not sign the agreement. Thus, there was no underlying security agreement. Gruff's contention that Respondents accepted the agreement by merely receiving it, is in error. The Secretary was correct in finding that Gruff's financing statements were fraudulent.
Gruff further alleges that he was denied due process, in that he was not permitted to attend a hearing on this matter. Due process requires a person be given notice and an opportunity to be heard. 2 Pa.C.S. § 504. However, a hearing is not required in every case in order to be provided "an opportunity to be heard." Our Court has previously held that:
[W]here no factual issues are in dispute, no evidentiary hearing is required under 2 Pa.C.S. § 504 . . . [and][w]here there are no disputed facts, the motion proceedings, including briefs and arguments by both parties, provide ample opportunity for the parties to be heard and the Administrative Agency Law requires no more. (Citations omitted).
Independence Blue Cross v. Pennsylvania Insurance Department, 802 A.2d 715, 720 (Pa.Cmwlth.2002).
In the present controversy, there were no factual issues in dispute. Therefore, an evidentiary hearing was not required. As no hearing was required, Gruff was not denied due process and the Secretary did not err.
Accordingly, we affirm the decisions of the Secretary.
ORDER
AND NOW, this 29th day of December, 2006 the orders of the Department of State, Secretary of the Commonwealth in the above-captioned matters are affirmed.
NOTES
[1] Pursuant to 13 Pa.C.S. § 9509, a person is entitled to file a record in accordance with the following:
(a) Person entitled to file record.A person may file an initial financing statement . . . only if:
(1) the debtor authorizes the filing in an authenticated record or pursuant to subsection (b) or (c); or
(2) the person holds an agricultural lien which has become effective at the time of filing and the financing statement covers only collateral in which the person holds an agricultural lien.
[2] 13 Pa.C.S. § 9518 relates to inaccurate or wrongfully filed claims and provides in pertinent part as follows:
(d) Fraudulent financing statements.
(1) The Department of State may conduct an administrative hearing to determine if an initial financing statement was fraudulently filed in accordance with the following:
(i) The hearing shall be conducted in accordance with 2 Pa.C.S. (relating to Administrative Law and Procedure). The department shall determine the initial financing statement to be fraudulently filed for purposes of this subsection if it determines that no rational basis exists under section 9509 (relating to persons entitled to file a record) entitling the person to file the initial financing statement and it appears that the person filed the initial financing statement with intent to annoy, harass or harm the debtor.
(ii) If the department determines that the initial financing statement was fraudulently filed and no timely appeal of the determination was filed, the department shall file a correction statement with respect to the initial financing statement indexed there. . . .
* * *
(iv) A person adversely affected by a determination of the department under paragraph (i) may appeal the determination in accordance with 2 Pa.C.S. § 702 (relating to appeals).
(v) If the department determines that the initial financing statement was fraudulently filed and the determination is appealed to Commonwealth Court, the department shall file a correction statement with respect to the initial financing statement indexed there only upon affirmation by the court of its determination. . . .
* * *
(vi) If the department files a correction statement with respect to the initial financing statement indexed there under this subsection, it shall refer the matter for criminal prosecution to the Office of Attorney General pursuant to 18 Pa.C.S. § 4911 (relating to tampering with public records or information).
[3] Our review is limited to a determination of whether constitutional rights were violated, errors of law committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704.
[4] Section 504 of the Administrative Agency Law provides in pertinent part as follows:
No adjudication of a Commonwealth Agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings.
2 Pa.C.S. § 504. Section 505 further provides that:
Commonwealth agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received. Reasonable examination and cross-examination shall be permitted.
2 Pa.C.S. § 505.
[5] The agreement provides for the filing of a UCC financing statement naming Gruff as the secured party and holding a security interest in all the Respondents' property.
[6] Gruff does not argue that he holds an agricultural lien or that he acquired collateral as authorization. Thus, these issues are not before our Court and will not be addressed. |
1,516,063 | 2013-10-30 06:32:49.060071+00 | Wexler | null | 955 F. Supp. 175 (1997)
John TURNER, Plaintiff,
v.
COUNTY OF SUFFOLK, et al., Defendants.
No. CV 95-1592.
United States District Court, E.D. New York.
February 20, 1997.
Conway & Ceriello, by Darrell J. Conway, Melville, NY, for Plaintiff.
Robert J. Cimino, Suffolk County Attorney, by Robert H. Cabble, Assistant County Attorney, Hauppauge, NY, for Defendant Gaffney.
Pachman, Pachman, Brown & Farneti, by Howard Pachman, Commack, NY, for Defendants Caracciolo, Davis, Caracappa, D'Andre, Finlay, Lazio, Binder, Jones, O'Donohue, Rizzo and Blydenburgh.
MEMORANDUM AND ORDER
WEXLER, District Judge.
Plaintiff, John Turner brought the instant action pursuant to 42 U.S.C. § 1983 (the "§ 1983 claim") and § 107 of the New York Civil Service Law (the "§ 107 claim") against the County of Suffolk. Plaintiffs complaint alleges that the Legislators and County Executive of the defendant conspired to act and acted wrongfully to discharge or adversely affect Plaintiff's employment with Suffolk County on the basis of his political beliefs in violation of the First and Fourteenth Amendments. The complaint alleges that the same acts violated § 107 of the New York State Civil Service Law. Now before the Court is defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff fails to state a claim upon which relief can be granted.
I. BACKGROUND
In January 1992, the controlling party of the Suffolk County Legislature and County Executive's office shifted from Democratic to Republican. Several days after this shift in power, the County Legislature introduced Resolution No. 1218-92 (the "Resolution") by which plaintiff's position was eliminated. Plaintiff was a Suffolk County Civil Service Competitive Class Employee since 1986 working in the Parks department. Plaintiff's claim is based upon an alleged conspiracy among the County Legislature and the County Executive "to appoint their political co-patriots to various positions in the County public service, and [engage] in the patronage practice of firing or demoting public employees *176 who had no affiliation with the Republican party." Plaintiff asserts that the Resolution was purportedly introduced as a cost saving major, but had a negligible effect upon cost savings, and was in reality a subterfuge to take adverse actions against non-Republican civil service employees in the Parks department. Although plaintiff had originally named the individual legislators and the executive in the complaint, the claims against the individuals have been discontinued through a stipulation between the parties.
II. DISCUSSION
Dismissal of a complaint under Fed. R.Civ.P. 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957)). In considering a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, the complaint will be construed in the light most favorable to the plaintiffs, and the court accepts as true all facts alleged in the complaint. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974).
Relying on this Court's earlier ruling in Orange v. County of Suffolk, defendant asserts that the complaint is subject to a heightened pleading requirement because plaintiff has alleged a conspiracy to violate plaintiff's civil rights. 830 F. Supp. 701, 707 (E.D.N.Y.1993). However, plaintiff is no longer asserting a conspiracy among defendants, since plaintiff is only seeking to recover from the County. Therefore, the heightened pleading requirement upon which defendant relies does not apply. Rule 8 of the Federal Rules of Civil Procedure merely requires that any complaint be simple, direct and concise. A pleading must give the Court and defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957), so as to enable the adverse party to answer and prepare for trial. Plaintiff's complaint alleges that the County Legislators and the County Executive conspired to pass a resolution that denied plaintiff his job due to his political affiliations. The Court finds that plaintiff's complaint sufficiently pleads his § 1983 claim.
Defendant also argues that the § 107 claim must be dismissed because plaintiff never filed a notice of claim. New York County Law § 52 states that "[any] claim or notice of claim against a county for damage ... alleged to have been caused ... by ... any misfeasance, omission of duty, negligence or wrongful act on part of the county ... must be made and served in compliance with section 50-e of the general municipal law. Every action upon such claim shall be commenced pursuant to the provisions of 50-i of the general municipal law." § 50-e requires the filing of a notice of claim within 90 days of when the claim arises. New York General Municipal Law § 50-e. § 50-i prevents any action from being commenced against a municipality unless the plaintiff has complied with the notice of claim requirement of § 50-e. New York General Municipal Law § 50-i. In this case, plaintiff concedes that he has failed to file such a notice of claim. Relying upon Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983) plaintiff argues that the notice of claim requirement should not apply, because his claim is brought to vindicate a public interest.
The New York Court of Appeals has recognized an exception to the notice of claim requirement when an action is not brought merely to enforce a private right, but rather, to vindicate a public interest. See Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859 (1974). In that case, the Division of Human Rights was asserting a claim on behalf of a class of women plaintiffs alleging that the school board's policy with respect to maternity leave was discriminatory. In the Mills case, plaintiff was a county employee who brought a § 1983 claim seeking damages because she had been terminated from her employment on the basis *177 of her race and national origin. The Court of Appeals, in Mills, distinguished the facts of that case from the Towns of Islip & Smithtown case by stating
[i]t is clear that plaintiff's action was not brought to vindicate a public interest, insofar as that principle would entitle her to a complete waiver of the notice requirement. Her allegations of actionable conduct on the part of the county refers only to conduct that relates to her.
. . . . .
The relief she seeks is money damages for her loss of wages and damages to her reputation. Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, her action is properly characterized as one seeking the enforcement of private rights.
Mills, 464 N.Y.S.2d at 711-12, 451 N.E.2d at 458-59. The facts in this case are governed by the rule in Mills. By its terms, plaintiff's complaint is limited to redressing plaintiff's individual injury. The prayer for relief requests money damages and reinstatement for the benefit of plaintiff and only plaintiff. The Court finds that plaintiff's § 107 claim is brought merely to enforce a private right and not to vindicate a public interest. Accordingly the § 107 claim must be dismissed.
III. CONCLUSION
Defendant's motion to dismiss is denied in part and granted in part. The motion is denied as to the § 1983 claim because no heightened pleading requirement applies to the plaintiff's claim, and granted as to the § 107 claim due to plaintiff's failure to file a notice of claim.
SO ORDERED. |
9,645,433 | 2023-08-22 21:24:41.954715+00 | Flaherty | null | OPINION
Justice FLAHERTY,
for the Court.
The desire of New England Development, LLC (plaintiff or NED), to build a substantial shopping center in Tiverton (Tiverton Commons) and an allegation that the Tiverton Planning Board (planning board) failed to approve NED’s master plan in a timely fashion brings this dispute before the Court. The planning board voted to reject NED’s master plan application, but NED contends that the planning board’s failure to file a written decision in accordance with a statutory deadline triggered its entitlement to a certificate of the planning board’s failure to act and the resulting approval of its master-plan application. When the administrative officer for the Tiverton Planning Board, Noel Berg (Berg), refused to issue that certificate, NED petitioned the Superior Court for a writ of mandamus to compel Berg to issue it, contending that, in view of the board’s failure to act, Berg’s duty to issue the certificate was ministerial in nature. The trial justice denied that petition, and NED timely appealed. For the reasons discussed in this opinion, we affirm the judgment of the Superior Court.
*365I
Statutory Scheme
In 1992, the General Assembly enacted G.L. 1956 chapter 23 of title 45 known as the “Rhode Island Land Development and Subdivision Review Enabling Act of 1992,” (P.L. 1992, ch. 385, § 1). The purpose of the act was expressed by the Legislature in § 45-23-29(c). The text of that statute, entitled Legislative Findings and Intent, says, in pertinent part:
“(c) * * * [I]t is the intent of the general assembly:
“(1) That the land development and subdivision enabling authority contained in this chapter provide all cities and towns with the ability to adequately address the present and future needs of the communities;
“(2) That the land development and subdivision enabling authority contained in this chapter require each city and town to develop land development and subdivision regulations in accordance with the community comprehensive plan, capital improvement plan, and zoning ordinance and to ensure the consistency of all local development regulations;
“(3) That certain local procedures for review and approval of land development and subdivision are the same in every city and town;
“(4) That the local procedure for integrating the approvals of state regulatory agencies into the local review and approval process for land development and subdivision is the same in every city and town; and
“(5) That all proposed land developments and subdivisions are reviewed by local officials, following a standard process, prior to recording in local land evidence records.”
NED filed what is described in the act as a major land development master plan application for Tiverton Commons. Section 45-23-40(b) requires that such applications be certified complete or incomplete within 60 days of submission, and subsection (e) requires that the planning board approve, approve with modifications, or deny the application within 120 days of the issuance of a certificate of completion1 according to the requirements of § 45-23-63. Subsection (f) of § 45-23-40 further provides that, if the planning board does not take action within the 120-day period to either approve or deny the master plan, the applicant shall receive, upon request, a certificate of the planning board’s failure to act from the administrative officer of the planning board.2 This certificate results in the approval of the master plan.
*366Section 45-23-63 sets out the procedure planning boards must follow with regard to meetings, votes, decisions, and records. The pertinent part of § 45-23-63 is subsection (a), which requires that “[a]ll records of the planning board proceedings and decisions shall be written and kept permanently available for public review.” Moreover, the act provides that an appeal may be taken only from a decision on file with the town clerk, and that the appeal period runs for twenty days from the filing of that decision. Section 45-23-67(a). In accord with the mandate of § 45-23-26, the Town of Tiverton enacted ordinances that essentially mirror the requirements of the general laws.3
Having set out the pertinent statutory framework for planning board consideration of major land developments, we now undertake a brief review of the facts that gave rise to the appeal currently before us.
II
Facts and Procedural History
NED began its quest to build Tiverton Commons on a forty-acre site on the south side of Souza Road4 in Tiverton on September 3, 2004 by submitting a major land development/master plan application to the Tiverton Planning Board. On October 27, 2004, the board issued a “Certificate of Completeness” for the application, setting in motion the 120-day clock, by the end of which the board was required to “approve of the master plan as submitted, approve with changes and/or conditions, or deny the application.” Section 45-23-40(e).
In an effort to address local concerns, NED subsequently consented to eight different extensions of the statutory decision deadline.5 During the time that NED’s application was pending, the planning board discussed the application at regularly held meetings, and it also held workshops at which NED and the planning board worked jointly on the plan in an effort to make it mutually acceptable. At the September 29, 2005, board meeting, the parties agreed to an ultimate deadline extension, establishing December 30, 2005, as the final date for the planning board to take action on the application. At this same meeting, the board and NED agreed that NED would withdraw the original master plan that called for a 335,000-square-foot complex, and replace it with *367an alternate design that called for a 275,-000-square-foot complex. There was no indication at the meeting that this plan substitution was to be treated as a new application.6 Additionally, five dates were set for future meetings to consider the application before the December 30, 2005 deadline.7
NED’s efforts did not bear fruit, however, and when the planning board met on November 21, 2005, its members voted unanimously to deny the master plan application for Tiverton Commons. But, no written decision of the planning board was filed with the town clerk before December 30, 2005. Consequently, on January 3, 2006, NED requested that Berg issue it a certificate of the planning board’s failure to act by January 9, 2006. Issuance of that certificate would have resulted in the approval of the master plan by the terms of § 45-23-40(f). When it received no response from Berg, NED filed a verified petition for writ of mandamus in the Superior Court for Newport County on January 10, 2006.
After the mandamus petition was filed, Berg, in a letter dated January 11, 2006, informed NED that the November 21, 2005 vote to deny the master plan application was all (in the opinion of the planning board) that was required to be done to satisfy the statutory requirements, and, therefore, he could not issue NED the certificate it had requested. Shortly thereafter, on January 13, 2006, Berg completed a written decision denying the master plan application, and he filed it with the town clerk. That decision was never presented to or voted on by the planning board. It is also noteworthy that NED filed a timely appeal of that decision to the Tiverton Board of Appeals on February 1, 2006.8 That appeal has been stayed pending the outcome of this appeal.
A trial was held in Superior Court on the petition for writ of mandamus on February 28, 2006. At that trial, NED asserted that § 45-23-40(e) & (f) required the *368planning board to issue a written decision and file it with the town clerk with respect to its vote on the master plan application by the conclusion of the statutory time period — in this case December 30, 2005. NED further maintained that the planning board’s failure to file a written decision by that date triggered a ministerial duty on the part of the administrative officer for the planning board, Berg, to issue the certificate of the planning board’s failure to act, and resulted in the approval of the master plan.
In response, Berg interposed several arguments. First, he argued that NED lacked standing because it did not own the land it sought to develop.9 Second, Berg maintained that the requirement that the board make a decision on the master plan within the statutory time period did not include a requirement that a written decision be issued within that period, and, therefore, the November 21, 2005 vote satisfied the planning board’s statutory duty. Third, he took the position that mandamus was unavailable to NED because an administrative remedy had not been exhausted — namely, an appeal of the denial by the planning board to the Tiverton Board of Appeals.10
In his decision, the trial justice summarily dismissed the standing argument and proceeded to address the substantive argument on the statutory requirements and the question of exhaustion of administrative remedies. He found that, read together, § 45-23-40(e), which requires the planning board to “approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of § 45-23-63” within 120 days of issuing the certificate of completeness of the master plan application, or such later time to which the applicant consents, and § 45-23-63(a), which mandates that “[a]ll records of the planning board proceedings and decisions shall be written,” clearly and unambiguously require the planning board to issue a written decision within the statutory time frame. He further found that because the planning board failed to issue a written decision by the deadline, the statute imposed a mandatory duty on the administrative officer, at the request of the applicant, to issue the certificate of the planning board’s failure to act.
Despite these findings, the trial justice nevertheless denied NED’s mandamus petition because he concluded that, proeedurally, NED was required to pursue an administrative appeal of the planning board’s denial of its application to the Tiverton Board of Appeals before seeking relief in the Superior Court.
Ill
Standard of Review
A writ of mandamus is an extreme remedy that will be issued only when: (1) the petitioner has a clear legal right to the relief sought, (2) the respondent has a ministerial duty to perform the requested act without discretion to refuse, and (3) the petitioner has no adequate remedy at law. Union Station Associates v. Rossi, 862 A.2d 185, 193 (R.I.2004). “A ministerial function is one that is to be *369performed by an official in a prescribed manner based on a particular set of facts ‘without regard to or the exercise of his own judgment upon the propriety of the act being done.’ ” Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 167 (R.I.2003) (quoting Beacon Restaurant v. Adamo, 103 R.I. 698, 703, 241 A.2d 291, 294 (1968)). “Once these prerequisites have been shown, it is within the sound discretion of the Superior Court justice to ultimately issue the writ.” Martone v. Johnston School Committee, 824 A.2d 426, 429 (R.I.2003). The existence of unexhausted administrative remedies may serve to prevent the issuance of a writ of mandamus. See Krivitsky v. Town of Westerly, 849 A.2d 359, 363 (R.I.2004) (availability of de novo hearing before town council of town manager’s refusal to issue a license rendered mandamus remedy unavailable). Furthermore, when discerning the meaning of a statute, we consistently have stated that we give the words of the statute their plain and ordinary meaning. Pastore v. Samson, 900 A.2d 1067, 1078 (R.I.2006). However, when the language of a statute is not susceptible to literal interpretation, it is ambiguous, and we must look to give meaning to the intent of the General Assembly. Retirement Board of Employees’ Retirement System of State v. DiPrete, 845 A.2d 270, 279 (R.I.2004). “[I]t is * * * well established that, when confronted with statutory provisions that are unclear or ambiguous, this Court, * * * will examine statutes in their entirety, and will ‘glean the intent and purpose of the Legislature “from a consideration of the entire statute, keeping in mind [the] nature, object, language and arrangement” of the provisions to be construed.’ ” State v. DiCicco, 707 A.2d 251, 253 n. 1 (R.I.1998) (quoting In re Advisory to the Governor, 668 A.2d 1246, 1248 (R.I.1996) and Algiers v. Fox, 122 R.I. 55, 58, 404 A.2d 72, 74 (1979)). Significantly, we are free to affirm judgments of the Superior Court on grounds other than those relied on by that court, as long as the factual findings of the Superior Court support those grounds. DeSimone Electric, Inc. v. CMG, Inc., 901 A.2d 613, 620-21 (R.I.2006).
IV
Analysis
On appeal, NED maintains that the trial justice erred when he denied the writ of mandamus, because the statutory scheme provided it a clear legal right to a certificate of the planning board’s failure to act, that a mere ministerial duty was imposed on Berg to issue that certificate without any exercise of discretion, and that it had no adequate remedy at law to obtain the relief it sought. Berg, on the other hand, asserts that NED did not have a clear legal right to the issuance of the certificate because the planning board denied the application within the statutory time limit by voting to do so at its meeting on November 21, 2005.11
*370NED argues that it is entitled to the issuance of a writ of mandamus because § 45-23-40(e) requires that the planning board take action on the master plan application “according to the requirements of § 45-23-63” by December 30, 2005; that the phrase “according to the requirements of § 45-23-63” means that the action required was the filing of a written decision with the town clerk; and that, § 45-23-40(f) obliges Berg to issue to NED a certificate of the planning board’s failure to act because the written decision was not filed by December 30, 2005. NED also maintains that no adequate remedy at law exists for the relief it seeks because it has no means other than a mandamus action to compel a public official to perform a ministerial duty that he is refusing to do.
Berg, on the other hand, posits that the statutory scheme does not require a written decision be filed by the statutory deadline, but that only an action on the part of the board — in this case a vote denying the application — 'was necessary by that time. Additionally, Berg asks this Court to agree with the trial justice that NED has not yet exhausted its administrative remedies — via an appeal of the denial of the application— and that, therefore the petition for mandamus is improper.
For mandamus to lie, NED must show that all three conditions required for the writ to issue are met: (1) that NED has a clear legal right to the relief sought — the issuance of the certificate of the planning board’s failure to act by the administrative officer, Berg; (2) that the action requested of the government official was ministerial in nature — that Berg had no discretion to withhold the certificate; and (3) that mandamus is the only means for NED to obtain the relief sought. Because we hold NED does not have a clear legal right to the issuance of the certificate, we address only that issue here.
The trial justice found that §§ 45-23-40(e), (f) and 45-23-63 clearly and unambiguously require that planning boards issue a written decision by the statutory deadline or the master plan application was approved and the certificate of the planning board’s failure to act must be issued by the administrative officer. Nevertheless, he denied the writ of mandamus because he determined that NED had not exhausted its administrative remedies. Although we agree with the trial justice’s conclusion that mandamus should not lie, we respectfully disagree with his interpretation of the relevant statutory provisions. Because we hold that the statutory requirements do not furnish NED with a “clear legal right” to the relief it seeks, we affirm the decision of the trial justice on grounds other than those upon which he relied.
Section 45-23-40(e) sets out the requirements for a decision of the planning board:
“Decision. The planning board shall, within one hundred and twenty (120) days of certification of completeness, or within a further amount of time that may be consented to by the applicant, *371approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of § 45-23-63.”
Section 45-23-40© sets out the circumstances under which the master plan application is approved, in essence by default, and a certificate of the planning board’s failure to act must be issued:
“Failure to act. Failure of the planning board to act within the prescribed period constitutes approval of the master plan, and a certificate of the administrative officer as to the failure of the planning board to act within the required time and the resulting approval will be issued on request of the applicant.”
Conversely, § 45-23-63 is a procedural statute entitled, “Procedure — Meetings— Votes — Decisions and records.” It states, in subsection (a): “All records of the planning board proceedings and decisions shall be written and kept permanently available for public review.”
When discerning the meaning of a statute, we consistently have stated that we give the words of the statute their plain and ordinary meaning. Pastore, 900 A.2d at 1078. However, as in this case, when the language of a statute is not susceptible to literal interpretation, it is ambiguous, and we must look to give meaning to the intent of the General Assembly. DiPrete, 845 A.2d at 279. Therefore, we will look at the entire statute, including the “ ‘nature, object, language and arrangement’ ” of the provisions to construe their meaning. DiCicco, 707 A.2d at 253 n. 1.
We agree with the trial justice that § 45-23-40(e) calls for a written decision approving or denying the master plan application within 120 days. We are also of the opinion that § 45-23-40© imposes a ministerial duty on the administrative officer, if the planning board fails to take action within 120 days, to issue a certificate of that failure to act to the applicant, and that, consequently, the master plan would be approved. We do not, however, conclude that it is clear that the “[f]ailure * * * to act within the prescribed period” described in § 45-23-40© incorporates the requirement that the written decision be issued within 120 days under penalty of default approval.
NED argues that the language of § 45-23^0(e) is mandatory, and therefore, because it is followed by § 45-23-40©, the sanction of default approval found in © adheres to a failure to follow the mandate of (e). We previously have held, however, that statutes imposing apparently mandatory time restrictions on public officials are often directory in nature. See Washington Highway Development, Inc. v. Bendick, 576 A.2d 115, 117 (R.I.1990) (statute requiring DEM to issue decision within six weeks was directory and not mandatory); Beauehesne v. David London & Co., 118 R.I. 651, 660, 375 A.2d 920, 924-25 (1977) (requirement that Workers’ Compensation Court issue a decision within ten days was directory and not mandatory); Providence Teachers Union v. McGovern, 113 R.I. 169, 177, 319 A.2d 358, 363-64 (1974) (requirement that arbitration hearing begin within ten days of the appointment of the arbitration panel was directory and not mandatory). Therefore, while such statutes direct public officials to perform a duty, they often provide no sanction for failing to perform that duty,
In Bendick, 576 A.2d at 115, the applicable statute said that “‘the director shall make his decision on the application * * * within a period of six weeks,’ ” yet the decision was not issued in that time frame. Like NED in this case, the applicant in that action sought a writ of mandamus, contending that a failure to act within the statutory time frame estopped the DEM director from denying his application. Id. *372However, we rejected that contention, holding that because the statute did not say that the failure to comply with the time constraints removed the director’s jurisdiction to decide the matter, and because the statute contained no negative language in the event the director failed to act within the statutorily described period, we were constrained to find the statute directory as opposed to mandatory. Id. at 117. Therefore, we ordered the DEM director to issue his decision forthwith, but held that no consequence flowed from his failure to comply with the statutory timetable. Id.
In the case now before us, we are presented with a very similar situation. NED filed an application for master plan approval, and § 45-2S-40(e) says that the planning board “shall within one hundred and twenty (120) days approve, approve with changes and/or conditions, or deny the application, according to the requirements of § 45-23-63.” Section 45-23-63(a) requires that “all records of proceedings and decisions of the planning board shall be in writing.” Thus, we are faced with two statutes, both couched in mandatory language, that, when read together, arguably seem to require a written decision within 120 days. But, significantly, § 45-23-40(e) does not sanction the failure to file a written decision.
A sanction is found, however, in the language of § 45-23-40(f). That statute says that if the planning board fails to act within the statutory time frame, the administrative officer "will issue a certificate of the failure to act, which results in the approval of the master plan. NED contends that “act,” as it is used in (f) can only mean “file a written decision” as required by (e). We are not persuaded by that argument.
“Act,” in its plain and ordinary meaning, means “to do something.” Random House Unabridged Dictionary 19 (2d ed. 1993). That definition clearly encompasses a broader scope of behavior than merely filing a written decision. In fact, in this case, the planning board clearly did do “something.” On November 21, 2005, the planning board voted to deny the master plan application.
NED directs our attention to Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 202 N.E.2d 409, 414 (1964), a Massachusetts case in which a similarly worded statute directed the constructive approval of a development plan because the planning board failed to file a written decision by the statutory deadline. However, there is a very significant difference between the wording of the Massachusetts statute, and the wording of the statute currently before us. The Massachusetts statute attaches a sanction to the failure of the planning board to take a “final action.” Id. at 410. Furthermore, the sanction is found in the same section of the statute as the requirement that the decision be written. Id. Here, on the other hand, the mandatory section of the statute requires “action” as opposed to “final action,” and the sanction is in a separate section of the statute than the requirement that a written decision be filed.
We therefore hold that § 45-23-40(e) does include a requirement that the planning board file a written decision within 120 days, and the absence of a sanction in that section renders this requirement directory as opposed to mandatory. We also hold that § 45-23-40(f) contains a mandatory requirement that the planning board act on the application within the statutory timetable, and that failure to abide by that requirement will result in the constructive approval of the master plan, and require the administrative officer to issue the certificate of the planning board’s failure to act. That requirement, *373however, does not encompass the requirement that a written decision be filed. In oui’ opinion, the fact that the planning board voted to deny the application by the deadline satisfies the “action” requirement of § 45 — 23—40(f). Thus, because the Tiver-ton Planning Board fulfilled the requirements imposed on it by § 45 — 28—40(f), NED does not have a clear legal right to the issuance of the certificate of the planning board’s failure to act, and mandamus cannot lie.
We do not believe that the Legislature intended to tacitly remove the authority of municipalities to control development within their borders when they have timely voted to deny a master plan application but failed to file a written decision within the prescribed period. Section 45-23-60 sets out the required findings that planning boards must make when reaching decisions on land development applications. Adherence to this statute constitutes drafting a substantial written decision. While § 45-23-40(e) does direct a decision to be written and filed within 120 days, imposing the sanction of approval by default for failure to meet the deadline would be overly burdensome. Ftmthermore, the intent of the chapter, as expressed in § 45-23-29(c)(1), (2), is to “provide all cities and towns with the ability to adequately address the present and future needs of the communities * * * and to ensure the consistency of all local development regulations * * Imposing the drastic sanction of the approval of an application for failing to meet the deadline for filing such a substantial written decision does not further this goal, but instead selves to remove review from the hands of local officials by approving development projects simply because the planning board was unable to meet procedural strictures.
We are cognizant of the fact that developers who are faced with a planning board decision denying them applications cannot appeal those decisions until a written decision has been filed with the town clerk. Section 45-23-67. In this case, the board’s decision was filed on January 13, 2006, within a reasonable time after the statutory time clock had expired.12 Therefore, the acts of the planning board did not interfere with NED’s right to pursue an appeal.
V
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior Court, to which we remand the papers in this case.
Justice ROBINSON did not participate.
. The act further provides that the 120-day period can be extended to such later time as is agreed to by the applicant. G.L. 1956 § 45-23-40(e).
. The pertinent subsections of § 45-23-40 are as follows:
"(b) Certification. The application must be certified complete or incomplete by the administrative officer within sixty (60) days, according to the provisions of § 45-23-36(b). The running of the time period set forth herein will be deemed stopped upon the issuance of a certificate of incompleteness of the application by the administrative officer and will recommence upon the resubmission of a corrected application by the applicant. However, in no event will the administrative officer be required to certify a corrected submission as complete or incomplete less than fourteen (14) days after its resubmission.
"(e) Decision. The planning board shall, within one hundred and twenty (120) days of certification of completeness, or within a further amount of time that may be consented to by the applicant, approve of the master plan as submitted, approve with changes and/or conditions, or deny the application, according to the requirements of § 45-23-63.
*366"(f) Failure to act. Failure of the planning board to act within the prescribed period constitutes approval of the master plan, and a certificate of the administrative officer as to the failure of the planning board to act within the required time and the resulting approval will be issued on request of the applicant.”
.The corresponding Tiverton ordinances are: Tiverton Mun. Code app. B, sec. 23-28 (time frame for certificate of completeness of the application); id. at sec. 23-29 (time frame for the planning board’s decision on the application, and the requirement that the administrative officer issue the certificate of failure to act if no action is taken); id. at sec. 23-46 (requirement that records of proceedings and decisions be in writing); id. at sec. 23-79(a) (appeals procedure).
. The owner of the land that NED hopes to develop is James J. Mclnnis as trustee of the Tiverton Associates Trust. In January 2002, Mclnnis brought suit against the Town of Tiverton challenging an amendment to the zoning ordinance that made construction of the type NED seeks subject to a “Special Use Permit” requirement, although such use previously was permitted by right. No issues related to that suit currently are before this Court.
. The record indicates that on January 4, 2005, January 27, 2005, March 1, 2005, March 29, 2005, May 2, 2005, May 25, 2005, August 25, 2005, and September 29, 2005 NED and the board agreed to extend the deadline for the board to make a decision on the application.
.The record indicates that the 275,000-square-foot plan was the product of the workshops the planning board held with NED. The minutes of the meeting reveal that NED requested that the planning board consider the 275,000-square-foot plan along with the 335,-000-square-foot plan because it appeared that the planning board was more amenable to the smaller plan. Members of the planning board, as well as members of the public, expressed trepidation about that request because they had arrived at the meeting under the impression that the purpose of the meeting was to consider the 335,000-square-foot-plan only. After discussion, ultimately a motion was presented that said:
"Motion to accept the offer of New England Development to permanently withdraw the 335,000 SF Master Plan Proposal currently being considered by the Planning Board and accept a revised single-phase plan not to exceed 275,000 SF to be submitted as a substitute Master Plan for consideration by the Planning Board, which revised plan shall include an additional site of up to 15,000 SF for a municipal use and that the Planning Board shall have up to and including December 30, 2005 to approve, approve with changes and/or conditions or deny the Master Plan."
After the addition of one cosmetic amendment, this motion passed, with one vote against it.
. October 20, 2005, November 7, 2005, November 21, 2005, November 29, 2005, and December 5, 2005 were the dates set for meetings to consider the proposal.
. Although NED has appealed that decision, it maintains that, because the decision never was approved by the planning board, it is not a valid action of the planning board because the planning board cannot act unless it does so in an open meeting. We express no opinion with regard to this argument. The proper forum for this challenge is the Tiverton Board of Appeals, where a record can be developed as to the past practices of the town in issuing decisions memorializing the votes of the board.
. The owner of the land, James J. Mclnnis, filed a motion to intervene in an effort to alleviate any standing issue. The trial justice denied that motion, and that ruling is not currently before this Court.
. Berg also argued that the remedy NED sought was unavailable because it was not a corporation registered to do business in the state of Rhode Island. Prior to the trial on the mandamus petition, NED obtained the proper certificate of registration, and this argument was rendered moot.
. Additionally, Berg advances two alternate reasons that mandamus cannot lie. First, he contends that the statutory time clock started anew on September 29, 2005, when NED and the planning board agreed to consider a substituted plan. Second, he maintains that the doctrine of election of remedies precludes NED from seeking relief in a mandamus action because NED has filed an appeal with the Tiverton Board of Appeals to challenge the planning board's denial of the master plan application.
The election-of-remedies argument was not raised before the trial justice, and therefore it is not properly before us, and we will not address it. Richard v. Richard, 900 A.2d 1170, 1178 (R.I.2006) (“Our well settled raise-or-waive rule prevents us from addressing arguments not raised before the trial justice.”) (quoting State v. Mohapatra, 880 A.2d 802, 810 (R.I.2005)).
*370With regard to Berg’s contention that the statutory time clock restarted when the substitute master plan application was submitted on September 29, 2005, we note that the minutes from that planning board meeting reveal that the planning board approved a motion that firmly established December 30, 2005, as the final date for the board to take action on the application; that Berg, in his answer to the petition, admitted that December 30, 2005, was the deadline; that no new filing fee was required for the substituted application, nor was a new number assigned to it; and finally, no new certificate of completeness ever was issued for the substituted application, which, according to §§ 45-23-40(b) & (e), is required to set the statutory time clock in motion. Accordingly, this argument is somewhat disingenuous, and we reject it.
. We note that, because § 45~23-40(e) does require a written decision to be filed, and because a written decision is required to facilitate an appeal, nothing in this opinion should be construed to bar an applicant from seeking a writ of mandamus to compel a petulant planning board to file a written decision if one is not filed in a timely fashion. See Washington Highway Development, Inc. v. Bendick, 576 A.2d 115, 117 n. 1 (R.I.1990) ("Nothing in this opinion should be construed to deny the right of an applicant to seek mandamus relief ordering the director to decide a case within a reasonable time after the six-week period has passed.”). |
9,645,434 | 2023-08-22 21:24:41.961082+00 | Goldberg | null | Justice GOLDBERG,
concurring in part and dissenting in part.
Although I concur in the result in this case, the majority and I part company in two respects. The trial justice decided this case on the basis of New England Development, LLC’s (NED) failure to exhaust its administrative and legal remedies. I agree with this holding and am of the opinion that the exhaustion doctrine serves as a bar to any relief. Thus, I *374would not address the merits of this case and would affirm the trial justice’s finding that the applicant failed to exhaust its administrative remedies.
I write separately because I do not agree that in the context of a major land development plan, a planning board is required to issue a written decision within 120 days of the certification that the application is complete; nor am I of the opinion that this provision is directory.
Exhaustion of Remedies
The trial justice found that “[although NED’s arguments on the merits may be valid, this justice finds that the developer is, at present, procedurally barred from the remedy it now seeks in Superior Court.” Citing our decision in Krivitsky v. Town of Westerly, 849 A.2d 359, 362 (R.I.2004) (Krivitsky II), the trial justice found that “the exhaustion [of remedies] doctrine is applicable in the context those who might otherwise seek a writ of mandamus.” Significantly, the trial justice noted that NED had perfected its appeal to the Tiverton Board of Appeals, thereby invoking the administrative process. He also rejected NED’s argument that our holding in Krivitsky II was inapplicable to the facts in this case.
In Krivitsky II, 849 A.2d at 363, we vacated an order of mandamus upon our determination that the plaintiff failed to exhaust its administrative appeals to various town officials. We also noted that if the license ultimately was denied by the town, the plaintiff could seek review in this Court by way of writ of certiorari. Id. I am of the opinion that when faced with an application for writ of mandamus, the trial justice’s first order of business should be an exhaustion analysis.
Although G.L. 1956 § 45 — 23—40(f) provides that the “[failure of the planning board to act [within 120 days] constitutes approval of the master plan” and that “the resulting approval will be issued on request of the applicant,” I am not convinced that this provision gives rise to the extraordinary remedy of mandamus; nor does it excuse the requirement that an applicant exhaust its administrative remedies. Section 45-23-67 provides for a right of appeal to the Tiverton Board of Appeals, a remedy that NED has chosen to pursue. Accordingly, I would decide this case on exhaustion grounds.
I also respectfully dissent from the majority’s conclusion “that § 45-23-40(e) calls for a written decision approving or denying the master plan application within 120 days” of the certification that the application is complete.
Statutory Construction
To reach the conclusion that § 45-23-40(e) requires a written decision within 120 days, three separate sections of chapter 23 of title 45 must be examined.13 I am of the opinion that this statutory scheme is unclear and ambiguous, necessitating an application of the usual rules of statutory construction.
When the language of a statute is free from ambiguity and capable of only one interpretation, there is no room for statutory construction and “this Court must interpret the statute literally and must give the words of the statute them plain and ordinary meanings.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). ‘When a statute is ambiguous, however, we must apply the rules of statutory construction and examine the statute in its entirety to determine the intent and purpose of the Legislature.” Harvard Pilgrim Health Care of New England, Inc. v. Rossi, 847 A.2d 286, 290 (R.I.2004) (citing Direct Action for *375Rights and Equality v. Gannon, 819 A.2d 651, 659 (R.I.2003)). This Court will not construe a statute that contains ambiguous language to reach a result “that is contradictory to or inconsistent with the evident purposes of the [enactment].” Carrillo v. Rohrer, 448 A.2d 1282, 1284 (R.I.1982).
When it enacted the Rhode Island Land Development and Subdivision Review Enabling Act of 1992, the Legislature directed that all municipalities adopt procedures “intended to provide thorough, orderly, and expeditious processing of development project applications.” Section 45-23-26(b). The General Assembly also recognized that a municipality’s responsibility to regulate land development has “increased in complexity, and expanded to include additional areas of concern” § 45 — 23—29(b)(3); and that not all proposals “are sufficiently reviewed prior to recording or construction, resulting in unwarranted” impacts upon the municipality and private individuals. Section 45 — 23—29(b)(5). A major land development project is a complex proposal that consists of a pre-application meeting, § 45-23-35; followed by “three stages of review, master plan, preliminary plan and final plan * * *. Also required is a public informational meeting and a public meeting” (upon seven days public notice). Section 45-23-39(b). In addition, input must be solicited from numerous agencies, ranging from the police and fire departments to adjacent communities and environmental stakeholders. See § 45 — 23—40(a)(3).
Notably, from the time the application is certified as complete, § 45-23-40(e) affords the planning board 120 days to “approve * * * approve with changes and/or conditions, or deny the application.” The requirement that this decision must be embodied in a separate writing, (a point about which I am not convinced),14 means that the planning board, consistent with its operating procedures and state law regulating open meetings,15 has significantly less than 120 days to review and pass upon this major development project. I do not believe that the General Assembly intended to provide for less than 120 days for the planning board to decide these applications.
Because § 45 — 23—40(f) provides that the planning board’s failure to act within 120 days amounts to a default, I am of the opinion that the board must, within 120 days, vote the application up or down and that a written decision, consistent with the planning board’s operating procedures, must be provided within a reasonable time. Any other reading of these subsections, in my opinion, results in a markedly abbreviated period of review for these complex development proposals.
Finally, I cannot agree with the majority’s conclusion that the 120-day period for a written decision is directory, because the statute sets forth mandatory compliance parameters and has heavy consequences for the board’s failure to comply with its provisions. See § 45-23-40(e). This language convinces me that the decisional time constraints are mandatory, but that they do not require a written decision. Consequently, I cannot agree with the majority’s conclusions.
. See G.L. 1956 § 45-23-40(e), (f), and § 45-23-63.
. I am of the opinion that the minutes of the planning board that are "written and kept permanently available for public review" satisfies the writing requirement set forth in § 45-23-63(a).
. General Laws 1956 chapter 46 of title 42, "Open Meetings” requires that any discussions of the business of the Tiverton Planning Board occur at a regular or special meeting of the planning board, for which proper notice has been given and that is open to the public. |
1,516,067 | 2013-10-30 06:32:49.110277+00 | Westhues | null | 335 S.W.2d 192 (1960)
Donald Melvin POTTER, a Minor, and Robert Preston Potter, a Minor, by Their Next Friend, Mildred Potter, Plaintiffs-Respondents,
v.
SAC-OSAGE ELECTRIC COOPERATIVE, INC., Defendant-Appellant.
No. 47547.
Supreme Court of Missouri, Division No. 1.
April 11, 1960.
Motion for Rehearing or to Transfer Denied May 9, 1960.
*193 Lynn M. Ewing, Jr., Ewing, Ewing, Ewing, Carter & Wight, Nevada, Mo., for appellant.
Foust & Lyons, and Walter A. Raymond, Kansas City, for respondents.
Motion for Rehearing or to Transfer to Court en Banc Denied May 9, 1960.
WESTHUES, Judge.
Plaintiffs Donald Melvin Potter and Robert Preston Potter, minors, by their next friend, Mildred Potter, filed this suit to recover damages for the death of their father, Melvin Potter. In the petition, it was alleged that the death was caused by the negligence of the defendant Sac-Osage Electric Cooperative, Inc. A trial resulted in a verdict for plaintiffs in the sum of $25,000. From the judgment entered, the defendant appealed.
Defendant, in the brief, contends that the deceased Melvin Potter was guilty of contributory negligence as a matter of law. Other points briefed have to do with instructions given by the court.
The evidence introduced at the trial justifies the following statement of facts: Preston Potter, brother of the deceased, lived on a farm in Cedar County, Missouri. The defendant had constructed a line to Preston's home and was furnishing electric current for general use at the farm. A neighbor of Preston desired to be served with electricity by the defendant company and made application therefor. To accommodate the neighbor and the defendant, Preston gave permission for an extension line to be built from his home to the home of the neighbor. To reach the neighbor's home with electric service, it was necessary to construct a line from Preston's home to the neighbor's across Preston's farm. This line was constructed about April, 1956.
*194 Preston testified that a representative of the defendant came to his place to determine where the poles should be set and the line constructed; that he showed defendant's agent the spot where he intended to construct a Butler grain storage bin; that this bin was to be within a few feet of and similar to a bin that had been previously constructed. He further testified that the proposed line was to be above this new bin; that defendant's representative, Evan Neely, and he (Preston) talked about that. Note Preston's evidence:
"Q. Go ahead and tell the rest of the conversation you had with Evan Neely? A. We went back up by the old oak tree and I had some gravel and rock piled there, a load of gravel, and Evan wanted to know if I was going to build something and I said: `Yes, I want to build another steel bin.' He said it would be all right to go ahead because they would have to put taller poles on each side from where we was standing by the steel bin, because it was across my driveway and around where my machinery was stored; that they would have to be taller poles so it would be safe enough.
"Q. You mentioned a pile of rock and a pile of gravelexactly where was the pile of rock? A. The pile of rock was right in the center of where I built this second bin, grain bin."
The new bin was constructed in early June, 1956. On the tenth day of June, Preston and his father, Ray Potter, moved an elevator to the new bin intending to use it to convey barley into the bin for storage. On the following day, the barley was to be harvested. This bin, called a Butler bin, constructed of metal, was round, about 14 feet in diameter, and 8 feet in height to the eaves. Above the eaves there was a dome-like top. At the top of this dome, cone, or slope, was a flange around an opening or hole 18 inches in diameter. Around this opening was a circular body about 4 to 6 inches high, having the appearance of a stove pipe. Witnesses in their evidence often referred to this stove-pipe like extension as a cone. The grain to be stored therein was to be conducted to the top of this cone by an elevator where it would be dropped into the bin through the opening of this cone. The Potters' elevator had no down spout so, to keep the grain from going over the opening and "to bump the grain down in the bin" through the cone as it left the elevator, the Potters attempted to place a piece of tin, about 5 feet in length and about 2 feet wide, partially in the cone so as to make a backstop to force the grain into the bin. Preston, using a ladder, climbed upon the bin with a piece of tin and a wire to fasten the tin to the cone. While he was standing on the flange at the top of the bin, he crimped the tin to place it in the cone and then in some way he flipped the wire around the cone and as he did so, it came in contact with the "hot" wire of the defendant company, causing Preston to be thrown from the bin. He was taken to a hospital where he recovered. Evidently he was not seriously injured. Defendant's wire which carried over 7,000 volts was about 6 feet above the bin. The lower wire was about 3 feet above the bin. The wires, one above the other, were only 6 inches from a line flush with the edge of the hole at the top of the bin.
The next morning, Melvin Potter, the deceased, who lived in the neighborhood went to Preston's (his brother's) place where he, Melvin, and his father attempted to arrange matters so the barley could be harvested and the grain stored in the bin. Melvin's father, who had helped Preston the day before and had witnessed what happened to Preston, informed Melvin what had occurred. No one in the Potter family seemed to have known much about electricity. Melvin and his father, so the evidence showed, conceived the idea of placing some rubber around the lower wire and tying it back away from the bin. They did not know that this wire was harmless. After the lower wire was tied *195 back, Melvin, with the same piece of tin that Preston had had the day before, climbed on top of the bin, stood on the flange next to the cone or opening, crimped the tin so it would fit in the round opening of the cone, lifted it above the cone, and, as he was about to place it therein, he evidently received a shock of electric curent and he fell from the bin. Members of the family who were present went to him and found that he was dead.
Looking on and watching Melvin while he stood on the bin were his father, his wife, and Preston's wife. Melvin had been told by his father that Preston had been knocked from the bin the day before because the piece of wire he had in his hand had touched one of the electric wires. That was the reason Ray Potter and Melvin decided to pull the lower wire away from the bin and to tie it back out of the way. The father testified as follows:
"Q. Which wire was it that you were going to tie back? A. Well we didn't know which was the hot wire but we tied the bottom wire back.
* * * * * *
"Q. Did you do anything else besides put the rubber over the line and then tie something on the end of the rubber to pull the bottom line back? A. Well we cut a few limbs off of the tree there so we could get it back out of the way.
* * * * * *
"Q. Then after you had tied this bottom wire back then what did you do? A. Well, Melvin got the tin and ladder up and went up on the top there to put the tin in the place.
* * * * * *
"Q. As he went up the ladder and up toward the top of the bin what were you doing? A. I was just watching him, telling him to be careful and be sure and not touch that wire.
* * * * * *
"Q. Will you describe Melvin's movements from the time he got to the top of the ladder up to the cone? A. Well he went right on up to the cone and got his tin straightened out and just dropped it in the cone there and about that time there was something that clicked and he turned and just fell off of there.
* * * * * *
"Q. Will you just tell this jury what you did with respect to watching Melvin and the tin as he walked up to this cone and as he started to put the tin in the hole? A. I just watched the top of the tin as he went up to be sure that he didn't get noways near that wire with it.
"Q. Did you watch the top of the tin continuously? A. Yes, sir.
"Q. Did you ever at any time from the time that Melvin started up toward the cone until the time you heard the click and saw him fall off, see the tin touch any line? A. No, no, it never did touch.
"Q. What is the closest, based upon your observation, that that tin ever came to that power line, the one that hadn't been moved? A. I'd say a foot anyway."
On cross-examination, he testified:
"Q. You decided that the way to do this was to tie the bottom wire back? A. We didn't know which was the hot wire so we just tied the bottom wire back, we could get to it easiest and that would give us roomthe other wire was above where we wanted to put the tin anyway.
"Q. You didn't know which wire was hot? A. No.
"Q. You didn't know which of these lines had caused the injury? A. No."
Maxine Potter, wife of Preston, testified as follows concerning what she witnessed:
*196 "Q. As he went up that ladder and up that roof exactly what were you doing? A. I was watching the piece of metal he had in his hand to see that it didn't touch the wire.
"Q. Did you watch it constantly from the time he started up the ladder until he got up to the cone? A. Yes, sir.
"Q. Did you ever at any time take your eyes off of him? A. No, sir, I did not.
"Q. Now, will you tell the jury in your best judgment how far the top of the piece of tin was from this highline wire that had not been moved when you heard the crackle and saw the light? A. Oh, it must of been 8 to 12 incheseight inches to a foot I'd say.
"Q. Is that your best judgment? A. It would be my best judgment.
"Q. At no time did you take your eyes off of that piece of metal from the time he started up the building? A. No, sir.
"Q. What were you out there for? A. To watch to see that he didn't get into that wire.
"Q. After you saw the flash and heard the crackle what happened to Melvin? A. He just straightened up, looked down at his wife, stepped backwards and fell off of the building."
Mildred Potter, wife of the deceased, told what she saw as follows:
"Q. Mildred, try to go ahead and tell the jury exactly what you saw him do with the tin? A. I remember he crimped the tin with the end toward him with the outside edges out and he set it on the edge of the bin or the top of the hole and I was standing there looking all the time and I saw that flash of fire come down from the upper line.
"Q. Did you watch that piece of tin continuously from the time he went up on the roof until he got up to the top? A. Yes. That's what I went out there for.
"Q. You say that's what you went out there for? A. Yes.
"Q. Did the piece of metal or tin Melvin was holding ever touch this top power line? A. It did not."
Plaintiffs introduced evidence that an electric current may jump or "arc" from 8 to 12 inches depending upon conditions; that under the conditions present at the time Melvin Potter was killed, an electric current could well have passed between the power line and the piece of tin held by Melvin without actual contact.
The defendant introduced evidence that, absent actual contact, electric current will not pass from a high voltage line to a metal object more than ¼ or ½ inch to 1 inch away; that if contact is made and the metal is drawn away a flash may be visible for a space of 2 or 3 feet.
Witnesses for plaintiffs and witnesses for defendant who were acquainted with safety rules governing construction of high voltage lines agreed that the lines should be at least 20 feet above driveways and the lowest line should be 8 feet above any building such as the bin in question; further, that a "hot" wire should be 12 feet above a building. In this case, the line charged with electricity was only 18 feet above the driveway. The lower line was only 3 feet above the bin and the upper, or charged, wire was only 6 feet above the bin.
In the circumstances, as shown by the facts in this case, we are of the opinion that the question of whether Melvin was guilty of contributory negligence was a question of fact for a jury to decide. See Green River Rural Electric Co-op. Corporation v. Blandford, 306 Ky. 125, 206 S.W.2d 475, loc. cit. 478-480(5) (6) (7), and cases there reviewed.
*197 The Potters certainly had the right to assume that the defendant's agents, being acquainted with the dangers of electricity, would construct the power line so as not to endanger human life. 29 C.J.S. Electricity § 54, p. 609. The defendant had knowledge of the fact that the line constructed would be over a grain bin where men were required to be at work. Furthermore, defendant should have known that men unacquainted with electricity and its dangers would be required to work in dangerous proximity to the wire charged with current.
In the reply brief, defendant says that plaintiffs, in the argument of their brief, made no reference to the injury Preston sustained on the day before Melvin was killed. We shall not overlook this fact. Preston evidently was injured when a wire he was holding came in contact with the upper live wire. His father testified that as Preston flipped the wire to get it around the cone there was a flash and Preston fell from the bin. It was in evidence that the wire Preston had was burned, indicating contact. The Potters, Melvin and his father, in view of that experience concluded, so the evidence shows, that it would be safe if no contact was made with the power line wires. The lower line was tied back. Melvin did not carry a wire in his hands when he was on the bin. The witnesses testified that the tin Melvin was preparing to place in the cone of the bin at no time came in contact with the upper line. There was evidence that an electric current could arc or jump from the charged line to a metal object even if no contact was made. There was a dispute as to the distance an arc could be formed. It is evident that the occurrence of the day before caused the Potters, including Melvin, to be very cautious while attempting to place the tin in the cone of the bin.
Defendant also says, in the reply brief, that the Potters could have, after Preston was injured, called the defendant at Eldorado Springs for help; that not having done so, they were negligent. Ray Potter, the father, when asked why he did not call the defendant, answered: "We figured they put it where they wanted it and we didn't have nothing to say about it." In the circumstances, that was not an unreasonable conclusion. The defendant knew at the time the line was constructed that a bin was to be built at the place where it was later constructed. A portion of the foundation, that is loose rock, was there at the time defendant's agents built the line. Nothing had occurred since the line was built that the defendant did not know. The conditions were not changed. So, the conclusion of the Potters that it would be useless to call the defendant was not unreasonable. Had the Potters telephoned defendant, they could not have told the company anything the company did not know about the construction of the power lines.
Defendant has cited a number of cases where courts have held parties injured by electricity guilty of contributory negligence as a matter of law, such as State ex rel. Kansas City Light & Power Co. v. Trimble, 315 Mo. 32, 285 S.W. 455, 49 A.L.R. 1047; Hamilton v. Laclede Elec. Co-op., Mo., 294 S.W.2d 11; Coleman v. North Kansas City Elec. Co., Mo., 298 S.W.2d 362; Gladden v. Missouri Public Service Company, Mo., 277 S.W.2d 510, and others. In State ex rel. Kansas City Light & Power Co. v. Trimble, supra, a 14-year old boy was killed when he climbed a pole and grasped a live wire. This court en banc held the boy was guilty of contributory negligence.
In the Hamilton case, supra, high voltage wires were located over a pump house. The wires were at a height required by safety rules. Plaintiff and her husband drew a 31-foot-long pipe, a part of the pump equipment, from the ground and it came in contact with a high voltage wire, causing injury to plaintiff. At the time plaintiff was injured, about 25 feet of pipe was above the top of the pump house. The pipe, to make contact with the wire, had to lean to the south about 12 feet. There *198 the court held plaintiff had been guilty of negligence on the ground that no precaution was taken to avoid contact with electric wires. The pipe was jointed at 12-foot intervals and could have been disjointed.
In the Coleman case, supra, an experienced electrician was injured while working atop a transformer. This court held that he was guilty of contributory negligence because he unnecessarily took a position that was obviously dangerous. In the Gladden case, supra, the plaintiff, an adult, was injured when he climbed a tree to retrieve a parakeet and while attempting to capture the bird, he came in contact with a high voltage wire. In that case, this court held plaintiff's contributory negligence was rightly submitted to a jury. A jury found for the defendant. The above cases may be distinguished from the case before us for the reason that the facts and circumstances were not similar.
In the case before us, it was necessary for Melvin Potter to work with caution to place the tin in the cone of the bin. The high voltage wire was only 6 feet above the bin. The piece of tin was 5 feet long. To place it in the cone, he had to lift it above the cone. The electric wires were only 6 inches from a line flush with the edge of the cone. We are of the opinion that the facts of this case are such that the ruling made in the case of Lebow v. Missouri Public Service Company, Mo., 270 S.W.2d 713, loc. cit. 716, 717(5), is applicable. In that case, high voltage wires were so located in an apple orchard that at some points the wires were only a few feet from trees. Lebow was injured when a metal ladder he was using in picking apples came in contact with an electric wire. We quote from the Lebow case since what the court there said may well be applied to the case before us: "The evidence was such that a jury reasonably could have found that decedent was guilty of negligence which barred plaintiff's recovery. The jury reasonably could have found that Gerald failed to exercise ordinary care for his own safety commensurate with all the facts and circumstances in evidence. We may not say, however, that reasonable men might not fairly reach different conclusions on the evidence viewed most favorably from plaintiff's standpoint. We therefore, may not declare as a matter of law that plaintiff's decedent was guilty of contributory negligence. We are of the opinion that the trial court properly left that question to the jury. Thompson v. City of Lamar, 322 Mo. 514, 534, 17 S.W.2d 960, 968(4)." See also Davis v. Missouri Electric Power Co., Mo.App., 88 S.W.2d 217, loc. cit. 221(4) (5); 29 C.J.S. Electricity § 53, p. 605. We rule that the trial court was right in submitting the question of contributory negligence to the jury.
Defendant contends that instruction No. 1, authorizing a verdict for plaintiff, "assumed negligence under the above circumstances; and that the jury was thereby left to speculate and conjecture on the question of negligence." Under this same point, defendant says instruction No. 5 did not require a finding of proximate cause. We cannot agree. Instruction No. 1, in submitting the case to the jury, hypothesized certain facts which the jury was required to find in order to return a verdict for plaintiffs. A portion of the instruction (omitting hypothesized facts) reads as follows: "And the Court further instructs you that if you believe and find from the evidence in this case * * * and that in erecting said uninsulated electric service wire in such proximity to the top of said grain bin as to endanger persons lawfully thereon defendant was negligent, if you so find, and that as the direct and proximate result of such negligence said Melvin Potter was electrocuted and killed; * * *." It is apparent that the jury was required to find negligence and proximate cause before a verdict for plaintiffs was authorized. Defendant cites Donnelly v. Goforth, Mo., 284 S.W.2d 462; Banta v. Union Pac. R. Co., 362 Mo. 421, 242 S.W.2d 34, and other cases. We find no ruling in the cases contrary to our conclusion in this case. *199 Defendant admits the evidence showed negligence on part of the defendant. In fact, defendant's evidence established negligence in the manner the electric line was constructed. However, the jury was required to find both negligence and proximate cause. The point is ruled against the defendant.
Under three points, defendant complains of instruction No. 5, which reads as follows: "You are further instructed that the court does not mean to assume as true or established any of the matters mentioned or referred to in the instructions, but leaves you to determine from the evidence whether or not such matters have been established as facts by the evidence." In the case of Greenwood v. Wiseman, Mo., 305 S.W.2d 474, loc. cit. 476, 477(1), this court considered an instruction which was identical with the one now before us. The instruction in the Greenwood case had been given at defendant's request and the plaintiff contended it was erroneous. This court there approved the instruction. It is unnecessary to belabor the point. What was there said applies to this case.
Defendant complains of instruction No. 4 wherein the court informed the jury that it was defendant's duty "to exercise the highest degree of care usually exercised by careful and prudent persons engaged in the same or similar business * * *." It is claimed that this instruction "is misleading, confusing, and injects collateral matters not in evidence into the jury's deliberations." It is said that no evidence was introduced to show in what manner electric lines were usually constructed. We find that defendant's witnesses testified as to the safety rules applicable to all persons engaged in constructing and maintaining electric power lines. The point is therefore without merit. It is also said that the instruction "was only an abstract statement of defendant's duty which prejudiced defendant in that it misled and confused the jury." We cannot see how an instruction defining the highest degree of care and informing a jury that it was defendant's duty to exercise such care tends to confuse or mislead a jury. This court en banc ruled in State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667, that such an instruction was "a fair statement of the law and is not a mere abstraction." See 64 S.W.2d loc. cit. 669, 670 (9-11).
We have considered all of the points briefed and find that we are not justified in setting aside the verdict and judgment in this case.
The judgment is hereby affirmed.
All concur. |
9,645,435 | 2023-08-22 21:24:44.544131+00 | Cappy | null | *435 OPINION
Chief Justice CAPPY.2
The issue presented in this matter is whether the Pittsburgh Urban Redevelopment Authority (“the URA”) violated the free expression guarantees of the United States or Pennsylvania Constitutions when, as a part of a comprehensive redevelopment plan involving dozens of properties, it exercised eminent domain to take a theater showing adult-content movies. For the reasons that follow, we conclude that the URA’s action did not run afoul of either free expression clauses and thus affirm the order of the Commonwealth Court.
The property at issue in this litigation (“the Property”) is located at 12 West North Avenue in the City of Pittsburgh in the Federal North area of Pittsburgh (“the Federal North area”). The Property is owned by the New Garden Realty Corporation (“Appellant”). The New Garden Theatre, Inc. (“Garden Theatre”), which is the tenant of Appellant, operates an adult-content movie theater on the Property.3
In January of 1989, the Pittsburgh Department of City Planning issued a Basic Conditions Report (“Report”)4 recommending certification of the Federal North area as “blighted” and thus eligible for redevelopment per the Urban Redevelopment Law, 35 P.S. §§ 1701-1719.2. The Report noted that the Federal North area was decaying: its business community was dying; the crime rate was rising; and population was declining. The Report stated negative aspects of the Federal North area included, inter alia, problem bars and an adult-content movie theater (i.e., the Garden Theatre).
*436A hearing was held before the City Planning Commission (“Commission”). Subsequently, in February of 1989, the Commission unanimously voted to certify the Federal North area (“the Redevelopment Area”) as blighted. The Commission then convened the Federal North Task Force (“Task Force”). The Task Force included representatives from the community, the URA, and the Pittsburgh Department of City Planning. Over six years, the Task Force worked to create a redevelopment plan for the area. In 1992, the Task Force presented a Redevelopment Area Plan (“the Redevelopment Plan”) and a supporting “Redevelopment Proposal for the Federal North Redevelopment Area” (“the Redevelopment Proposal”). The Redevelopment Plan and the Redevelopment Proposal recommended, inter alia, that the URA acquire all property located within three contiguous blocks. Multiple uses were proposed for the redevelopment of these three blocks. An office/research facility as well as a parking garage were to be constructed. On one block, all eleven existing buildings were to be reused and converted into performing arts, cultural and community activities venues as well as commercial space; the Property is located on this block.
Subsequently, the Pittsburgh City Council approved the Redevelopment Proposal. The URA then began acquiring the forty-seven properties encompassed within the redevelopment area. Between 1995 and May of 1997, the URA acquired forty-six of the properties via amicable agreements with the owners of those properties. Appellant was the lone holdout.
On May 9, 1997, the URA filed a declaration of taking to acquire title to the Property. Appellant promptly filed preliminary objections to the declaration of taking. Appellant alleged, inter alia, that the proposed condemnation violated Appellant’s free expression rights as guaranteed by the First Amendment of the U.S. Constitution and by Article I, Section 7 of the Pennsylvania Constitution.5 In October of 1997, the *437trial court granted in part and denied in part the URA’s preliminary objections.6
Several years passed. During this time, extensive discovery ensued, hearings were held and lengthy briefs were filed.7 On April 18, 2002, the trial court entered an order overruling the remaining objections to the declaration of taking filed by Appellant. In pertinent part, the trial court rejected Appellant’s claim that the taking violated its free expression rights. First, the trial court found that the URA’s proposed taking of the Property was for a content-neutral reason unrelated to the expression of free speech. Tr. ct. slip op. at 14. It thus rejected Appellant’s argument that the proposed taking must be examined pursuant to the onerous strict scrutiny test.
The trial court determined that as strict scrutiny did not apply in the matter sub judice, then Appellant’s free expression claim must be analyzed pursuant to the four-pronged intermediate scrutiny test first announced in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). *438The trial court found that the intermediate scrutiny test was satisfied. It therefore concluded that the taking passed constitutional muster.8
Appellant appealed to the Commonwealth Court, which affirmed. In the Matter of Condemnation by Urban Redevelopment Auth. of Pittsburgh, 823 A.2d 1086 (Pa.Cmwlth.Ct. 2003). The Commonwealth Court noted that the trial court had found that the URA’s action was not content-based; thus, the Commonwealth Court agreed with the trial court’s determination that strict scrutiny was inapplicable to this matter. 823 A.2d at 1095.
Instead, the Commonwealth Court found that no constitutional scrutiny was applicable with regard to the federal claim. The Commonwealth Court arrived at this conclusion via application of the U.S. Supreme Court’s decision in Arcara v. Cloud Books, 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). In brief, Arcara states that in some instances when a law of general applicability incidentally infringes on free expression, no First Amendment scrutiny is required. The court found that Arcara was applicable to this matter, and thus Appellant’s federal free expression claim failed. In the alternative, the court also found that the URA’s action was permissible when analyzed pursuant to the O’Brien intermediate scrutiny test.
Finally, the Commonwealth Court examined Appellant’s claim that Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002) (“Pap’s II ”)9 mandates a finding that the URA’s proposed taking violated Article I, § 7 of the Pennsylvania Constitution. In Pap’s II, an Erie ordinance worked a complete ban on nude dancing. The Pap’s II court found that since the content-neutral reason for this ordinance was bound *439up with a content-based reason, strict scrutiny was to be applied. The Commonwealth Court rejected this argument. First, it reasoned that Pop’s II does not apply to an Arcaratype situation such as the one sub judice when the complained of governmental action was one of general applicability. Furthermore, the Commonwealth Court declared that even if it were assumed arguendo that Pap’s II was applicable, its strict scrutiny test would be satisfied here.
Judge Friedman filed a concurring and dissenting opinion. She agreed with the majority that Appellant was not entitled to relief on its federal free expression claim. Her reasoning in support of this conclusion, however, was not in lockstep with that offered by the majority. She concurred that the condemnation was not a content-based act such that the federal strict scrutiny test applied, and that the O’Brien test was satisfied; she disagreed with the majority’s assessment that Arcara immunized the URA’s action from First Amendment scrutiny. Judge Friedman interpreted Arcara as exempting government action from First Amendment scrutiny only when the government was moving against unlawful activity. Judge Friedman suggested that Arcara was inapplicable to the instant matter because the URA filed the declaration of taking “only because the [Garden Theatre’s] lawful showing of ‘adult’ movies added to the negative image of the Redevelopment Area.” Urban Redevelopment Authority of Pittsburgh, 823 A.2d at 1099 (emphasis in the original).
Where Judge Friedman disagreed with the majority’s conclusion was with regard to Appellant’s state constitutional law claim. Relying on this court’s decision in Pap’s II, Judge Friedman stated that it was the duty of the court to speculate as to any unmentioned purposes of a governmental action and determine whether the goal of such a hidden agenda was the suppression of free speech. In the matter sub judice, Judge Friedman believed that the “unmentioned purpose of the taking was to eliminate the showing of ‘adult’ movies in the Redevelopment Area” and thus strict scrutiny should be applied. Urban Redevelopment Authority of Pittsburgh, 823 A.2d at 1099. Judge Friedman concluded that strict scrutiny *440could not be met and thus Appellant was entitled to relief on its state constitutional law claim.
Appellant filed a PAA with this court, limited to the federal and state free expression constitutional law issues. We granted allocatur.
We must first set forth our scope and standard of review. We note that the United States Supreme Court has stated that in reviewing First Amendment cases, appellate court must conduct a review of the entire record. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1038, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). This dovetails with the plenary scope of review and the de novo standard of review which will be applied to the pure questions of law raised in this matter. See First Citizens Nat’l Bank v. Sherwood, 583 Pa. 466, 879 A.2d 178, 180 (2005). To the extent that a question is a mixed one' of law and fact, our standard and scope of review are not quite so clear. See Warehime v. Warehime, 563 Pa. 400, 761 A.2d 1138, 1146 n. 4 (2000). (Saylor, J. concurring) (noting that “this Court has not articulated a universal standard of review applicable to mixed questions of law and fact”). Commonwealth v. Gorby, 587 Pa. 417, 900 A.2d 346, 364 (Cappy, C.J., concurring) (accord). With regard to such mixed questions, we announce that we will follow Gentile’s directive to review the whole record. Furthermore, to the extent that factual findings and credibility determinations are at issue, we will accept the trial court’s conclusions insofar as they are supported by the record. To the extent that that a legal question is at issue, a determination by the trial court will be given no deference and will instead be reviewed de novo. See Gorby, 900 A.2d at 364 (Cappy, C.J., concurring).
We now turn to addressing Appellant’s claim that the URA’s proposed taking violates the free expression clause of the First Amendment of the United States Constitution. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” 10 U.S. Const. *441amend. I. The First Amendment’s ambit of protection extends not just to the spoken or printed word but also to expressive actions. The high Court has made it plain that expressive acts are not placed outside of the First Amendment’s protection simply because the nude human form is displayed. Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981).
When the government restricts expression due to the content of the message being conveyed, such restrictions are allowable only if they pass the strict scrutiny test. That test is an onerous one, and demands that the government show that the restrictions are “(1) narrowly tailored to serve (2) a compelling state interest.” Republican Party of Minnesota v. White, 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).
Yet, strict scrutiny is not applied simply because a plaintiff raises a claim that its freedom of expression has been curtailed. The High Court has recognized that where the governmental regulation applies a content-neutral regulation to expressive conduct, strict scrutiny is an inappropriate test to apply. Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). The test which is applied to such content-neutral regulations was first enunciated in the seminal case of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O’Brien, the defendant was convicted of violating a statute which criminalized the act of destroying or mutilating a draft card. The defendant had burned his Selective Service registration certifícate in order to convince people to adopt his anti-war beliefs. The defendant argued that the conviction could not stand as the statute criminalizing the destruction of draft cards ran afoul of the First Amendment.
In analyzing this claim, the O’Brien Court stated that where expressive and nonexpressive conduct are combined in the same activity, “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. at 376, 88 *442S.Ct. 1673. The O’Brien Court decreed that such “government regulation is sufficiently justified” if:
1) Promulgation of the regulation is within the constitutional power of the government;
2) The regulation furthers an important or substantial governmental interest;
3) The governmental interest is unrelated to the suppression of free expression; and
4) The incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest.
Id. at 377, 88 S.Ct. 1673. The O’Brien Court found that all four prongs were met and thus denied the defendant relief.
In addition to the strict scrutiny and the O’Brien test, there is a third test, one which can fairly be denoted as the “no scrutiny” test. The High Court has decreed that in some instances a governmental action will not be subject to any First Amendment scrutiny even where a plaintiff asserts that the governmental action impacts on the plaintiffs freedom of expression. This principle of constitutional law was announced in Arcara, supra. In Arcara, the respondents were the owners of an establishment which peddled sexually explicit books and movies. Local authorities discovered that various illegal activities were occurring in the store, including prostitution and public lewdness. The district attorney then filed a complaint seeking a closure order to shut down the store. The respondents answered the complaint claiming, inter alia, that the closure order would violate their First Amendment rights to sell sexually explicit materials. The trial court and the intermediate appellate court denied the respondents relief. New York State’s highest court, however, reversed; the court reasoned that O’Brien applied and that the closure order could not meet that four prong test.
The United States Supreme Court granted certiorari and reversed. The Court acknowledged that the closure order would impact on the respondents’ sale of erotic material. Arcara, 478 U.S. at 706, 106 S.Ct. 3172. Yet, the Court did *443not find that this effect alone brought the First Amendment into play. The Court reasoned that when the government enforces a regulation of general applicability, First Amendment scrutiny is not implicated even when the enforcement of such a regulation would have some effect on First Amendment-protected activities.
The Arcara Court carefully distinguished O’Brien. The Court noted that in O’Brien, “it was conduct with a significant expressive element [i.e., the burning of a draft card to convey disagreement with the war] that drew the legal remedy in the first place.... ” Arcara, 478 U.S. at 706, 106 S.Ct. 3172. Such was not the situation in Arcara. The closure order was sought not because of the respondents’ sale of erotic materials but rather because illegal activity was occurring on the premises. As the activity which drew the legal remedy had no expressive content, the Arcara Court reasoned that the O’Brien test did not apply.
In sum, we must determine which of three alternative tests should be applied to this matter: strict scrutiny, intermediate scrutiny, or the no scrutiny standard enunciated by Arcara. Appellant argues that the URA’s action was content-based and the trial court’s conclusion to the contrary is in error.11 It thus asserts that the strict scrutiny test is applicable. It contends that the proposed condemnation of the Property is driven by the URA’s desire to rid the Federal North neighborhood of adult entertainment. Appellant presents several different arguments in support of this claim. First, it asserts that the content-based purpose of the URA’s action is conclusively established by the fact that following redevelopment, the Property will be used as an entertainment venue. Appellant states that the only thing which will change following the proposed redevelopment is that the nature of the expression will no longer be erotic in nature. Appellant declares that the inescapable conclusion is that the URA seeks *444the Property only because it seeks to suppress the erotic message presently being conveyed there.
The URA counters that this conclusion is not so inescapable as Appellant would have us believe, and instead asserts that the trial court’s conclusion that the URA’s action was content-neutral was a sound one. In support of this argument, the URA notes that it introduced evidence before the trial court that there were excellent, content-neutral reasons to take the Property and yet utilize it post-redevelopment for entertainment other than the showing of adult movies; namely, such a proposed use for the Property would reinvigorate the economy of the Federal North area in a fashion that would not occur if the Garden Theatre continued its operation. Pursuant to the Redevelopment Plan, the Property would be the venue for a variety of cultural events which would be much broader in scope and appeal than the entertainment presently offered by the Garden Theatre. It reasons that employing the Property in such a fashion would significantly increase the number of people who frequent the Federal North area which in turn would improve the economic condition of the neighborhood. The URA’s argument is sound and effectively guts Appellant’s claim that the Redevelopment Plan’s proposed reuse for the Property ineluctably leads to the conclusion that the proposed taking is content-based.
Appellant also claims that the content-based nature of the URA’s action is proven by the URA’s acknowledgement of the general perception that the Garden Theatre’s showing of adult movies added to the overall negative image of the Federal North area. This argument fails. The URA was simply acknowledging that the public perceived the Garden Theatre as adding to the general negative image of the Federal North area; this acknowledgement did not negate the fact that the URA acted, for content-neutral reasons.
Finally, Appellant asserts that various groups have long expressed disgust with regard to the Garden Theatre and have made several attempts to shut down the Garden Theatre. Appellant suggests that these other efforts to harry or eliminate the Garden Theatre establish that the Redevelopment *445Plan was pretextual, and that the true goal was not urban redevelopment but suppression of commercial erotic expression. This argument is unpersuasive. The actions of which Appellant complains were committed by entities other than the URA. The fact that some segments of the public dislike erotic expression does not mean that all individuals and entities are united in an attempt to stymie this type of communication. Furthermore, we note that Appellant had the opportunity to present this argument to the trial court, and the trial court, after holding hearings and sifting through this staggeringly large record, clearly rejected Appellant’s viewpoint as it explicitly found that the URA’s proposed taking was content-neutral. Tr. ct. slip op. at 14. There is more than ample record support for the trial court’s conclusion; thus, we see no reason to alter the trial court’s finding on this point.
In the alternative, Appellant argues that even if we were to find that the taking was for a content-neutral reason, we should still apply strict scrutiny because the URA’s taking effects a complete suppression on a certain type of expression. Appellant states that the Garden Theatre is the last adult movie theater in Pittsburgh and that if it is shuttered, it may not, due to zoning restrictions, reopen at another location as a matter of right. Appellant submits that if this were the case, the public’s right of access to adult films will be denied.
Appellant is correct in stating that the First Amendment ensures not just that an individual may enjoy the satisfaction of being able to express himself; it also safeguard’s “the public[’s] access to discussion, debate, and the dissemination of information and ideas.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (footnote and citations omitted). A governmental action which would wholly foreclose the public’s access to a certain form of expression would be most troubling — indeed, would arguably call for the application of the strict scrutiny test. Yet, this is not the type of situation with which we are confronted in the instant matter. In making its argument, Appellant myopically focuses on the possibility that closure of the Garden Theatre might effectively preclude Appellant from *446operating an adult movie theatre in Pittsburgh. Yet, contrary to Appellant’s supposition, closure of the Garden Theatre is not synonymous with a total denial of access to adult movies in Pittsburgh. There is no indication that without the existence of the Garden Theatre, the citizenry of Pittsburgh would be unable to access adult movies via other fora. Accordingly, we find no reason to apply the strict scrutiny test with regard to Appellant’s federal free expression claim.
Having concluded that strict scrutiny should not be employed in resolving Appellant’s federal free expression claim, we now must decide whether this claim should be resolved via application of the Arcara or O’Brien test. We turn first to an examination of Arcara for if we determine that Arcara applies, then no First Amendment scrutiny will be brought to bear on the URA’s action and Appellant’s federal free expression claim necessarily fails. If, however, Arcara is inapplicable, then the URA’s action will instead be subject to O’Brien’s intermediate scrutiny test.
We agree with the Commonwealth Court that Arcara controls this matter. The Urban Redevelopment Law, under which the Redevelopment Plan was crafted, is a law of general applicability. The Urban Redevelopment Law allows for the revitalization of blighted neighborhoods; a finding of blight is separate and apart from whether the properties in the blighted areas are used for free speech purposes. Also, the Redevelopment Plan did not single out the Property; rather, the Redevelopment Plan has a wide sweep, seeking the acquisition of every single property in a three square block area.
Furthermore, as was the situation in Arcara, the matter sub judice is distinguishable from O’Brien. In Arcara, the Court found it critical that government action was not in response to expressive conduct; this distinguished it from O’Brien where the government’s act of prosecuting the defendant was sparked by the defendant’s expressive act of burning a draft card. In the matter sub judice, the government acted not because of “conduct with a significant expressive element”. See Arcara, 478 U.S. at 706, 106 S.Ct. 3172. Rather, it was to remedy the sapping effects of entrenched blight in the Federal *447North area. Thus, we conclude that Arcara applies and, pursuant to Arcara, the O’Brien test is not implicated. As Arcara applies, no federal constitutional scrutiny will be brought to bear and Appellant’s First Amendment challenge necessarily fails.
Appellant, however, rails against the application of Arcara. Appellant asserts that its challenge is not focused on a law of general applicability. Rather, it is opposing a proposed taking directed solely at the Property. Thus, Appellant asserts, the object of Appellant’s contest is not of general application as the condemnation affects only the Property.
Appellant proposes an artificially blinkered analysis. The URA did not move against only the Property. Rather, the URA sought the Property via condemnation as part of the Redevelopment Plan in accordance with the Urban Redevelopment Law. The fact that the Property was the only parcel subject to condemnation proceedings does not go to show that the URA has an animus against businesses selling erotic products. Rather, it shows that Appellant, unlike the 46 other property owners, was unable to come to an amicable understanding with the URA. To put it bluntly, Appellant was the sole target of condemnation proceedings not because the URA singled out Appellant; rather, Appellant singled itself out. Furthermore, we note that adoption of Appellant’s reasoning would have the ironic effect of rendering the Arcara rule internally inconsistent. In Arcara, the government sought to close a single adult bookshop; it did not seek the closure of multiple businesses simultaneously. Pursuant to Appellant’s reasoning, the Arcara rule should not have been applied even in the Arcara matter itself. Obviously, such a line of reasoning is inherently flawed.
Another argument against application of Arcara to this matter was presented in the concurring and dissenting opinion in the Commonwealth Court below. The concurring and dissenting opinion declared that O’Brien, and not Arcara, should be applied in resolution of the federal constitutional law issue. It posited that Arcara is limited in scope, and applies only in those matters in which the government has acted in *448response to illegal activity. As the URA’s proposed taking was not motivated by any illegal activity occurring on the Property, the concurring and dissenting opinion stated that Arcara does not apply.
This is a strained reading of Arcara. While Arcara did deal with a situation in which the local government acted in response to illegal activity, this illegality was not the linchpin of the Court’s decision. The crucial point in Arcara was that the actions which prompted the government to seek closure of the adult bookstore were nonexpressive in nature; this was the point on which the Court pivoted Arcara away from O’Brien.
Furthermore, it would be illogical to read into Arcara the requirement that the government must be acting against illegal activity in order for the government’s action to escape O’Brien scrutiny. This is because on this point O’Brien and Arcara are not distinguishable but rather are in concert: in both matters, the governmental action was prompted by illegal conduct (in O’Brien, it was the destruction of a draft card while in Arcara, it was illegal sexual conduct). Thus, in attempting to determine whether O’Brien or Arcara applied, it would aid a court naught to examine whether the government’s action was prompted in response to illegal action. The true distinguishing point was that in O’Brien, the act which invited the government to act was expressive in nature while in Arcara, the actions at issue were nonexpressive.12
Appellant contends that even if the URA’s proposed taking does not run afoul of the federal Constitution, our Commonwealth’s Constitution would forbid it. In support of *449this argument, Appellant relies heavily on this court’s decision in Pap’s II, supra.
The Pap’s matter was twice before this court. That dispute involved a City of Erie ordinance which stated that females over the age of ten must, when appearing in public, wear at least pasties and a G-string. Pap’s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998) (“Pap’s I”). An owner of an erotic nude dancing establishment challenged the ordinance on state and federal free expression grounds. In Pap’s I, this court limited its analysis to the federal free expression claim. We determined that even though Erie had provided the content-neutral reason that the ordinance was to combat the negative secondary effects associated with nude dancing, that content-neutral reason was “inextricably linked to the erotic message of the dance”. Pap’s I, 719 A.2d at 278. Thus, we concluded that the ordinance’s stated content-neutral reason necessarily subsumed an unstated content-based reason. Id. at 279. The Pap’s I court proceeded to apply strict scrutiny to the ordinance, and found that the ordinance did not pass that stringent test.
The U.S. Supreme Court granted certiorari and reversed. 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). While the High Court splintered on many issues with regard to that matter, a majority did agree that the Erie ordinance did not violate the federal Constitution. The Court remanded the matter to this court for consideration of the preserved state constitutional law claim.
On remand, this court determined that the Erie ordinance ran afoul of our Commonwealth’s constitutional free expression provision. Pap’s II, supra. The Pap’s II court stated that for purposes of examining the state constitutional law claim, it was adopting the analysis of Pap’s I with regard to whether the ordinance was content-based. Thus, the Pap’s II court held that as one “obvious purpose” for the ordinance was suppressing the erotic message of nude dancing, the ordinance was content-based. Pap’s II, 812 A.2d at 612. It thus applied the strict scrutiny test, which it also denominated the “least *450intrusive means analysis”, id., and found that the ordinance did not pass constitutional muster.
The Pap’s II court offered an additional rationale for its holding. It noted that Erie’s ordinance worked a complete bar against nude, erotic dancing. The Pap’s II court decreed that whenever the government acts to effect such a complete ban on a certain type of expression, strict scrutiny must be applied regardless of whether the government’s action was content-based.
Contrary to Appellant’s belief, Pap’s II does not entitle Appellant to relief. In Pap’s II, the ordinance at issue was content-based, designed to suppress expression. We have the opposite situation here. As noted by the trial court, the URA’s action in seeking condemnation was content-neutral and unrelated to the suppression of freedom of expression. Furthermore, unlike the Pap’s matter, there is no silent, content-based reason that is “inextricably linked” to the content-neutral reason of urban redevelopment. In the Pap’s matter, the government viewed the negative secondary effects as being caused by the erotic message of nude dancing; thus, it could not logically be stated that an ordinance designed to combat negative secondary effects was distinct from suppressing the erotic message of the dance. Here, we have no such link. Similarly, Pap’s II alternative “complete ban” analysis is not implicated in this case because the URA’s taking of Appellant’s property does not resemble the regulation in Pap’s II, which effectuated a categorical ban on public nudity and thus the expressive act of nude dancing. Thus, Appellant’s claim that Pap’s II entitles it to relief on its state constitutional law claim fails.13
*451For the foregoing reasons, we affirm the order of the Commonwealth Court.
Justice NEWMAN and Justice EAKIN and BAER join the opinion. Justice NIGRO did not participate in the decision of this matter. Justice SAYLOR files a dissenting opinion in which Justice CASTILLE joins.
. This matter was reassigned to this author.
. While Appellant and the Garden Theatre are separate entities, they are both 100 percent owned by the same individual.
. This Court has explained that a Basic Conditions Report contains three components: (1) a description of the overall basic conditions of the area as they fit within general guidelines; (2) a description of the area and the stated conditions analyzed "in relation to the seven conditions of blight as defined in the redevelopment law”; and (3) a recommendation based on the overall condition of the area in light of the redevelopment law. In re Condemnation of Certain Being Prop. of E-V Co., 527 Pa. 550, 594 A.2d 1375, 1377 n. 1 (1991).
. Appellant raised other objections; none of these other objections is at issue in the present appeal.
. In May of 1998, the Garden Theatre filed its own preliminary objections. The trial court dismissed the Garden Theatre's preliminary objections; on appeal, the Commonwealth Court affirmed. As noted in footnote 1, supra, the PAA filed with this court presented no issues with regard to the Commonwealth Court’s decision that the Garden Theatre's preliminary objections were properly dismissed. Thus, the Garden Theatre is not a party in the appeal before this court.
We realize that our recognition that the Garden Theatre is not a party to this appeal could raise questions with regard to standing. Appellant does not run the adult movie theater and does not have an ownership interest in the Garden Theatre. It is merely the landlord. Thus, it is questionable whether Appellant has any standing with regard to a free expression claim when it is not engaged in the expression at issue. Yet, it is unnecessary for us to resolve this dilemma. Unlike the federal courts, where standing is a nonwaivable jurisdictional issue, the courts of this Commonwealth view the issue of standing as nonjurisdictional and waivable. See Housing Authority of County of Chester v. Pennsylvania State Civil Service Comm’n, 556 Pa. 621, 730 A.2d 935, 941 (1999). As the parties have not presented us with an argument with regard to Appellant’s possible lack of standing, we need not consider this issue any further.
. The trial court undertook a Herculean task with regard to this matter. As noted by the trial court, "[t]he filings in this case stand over three feet tall, in addition to some 500 exhibits. Counsel also submitted 450 pages of final briefs.” Tr. ct. slip op. at 2.
. While Appellant had raised a Pennsylvania Constitutional free expression claim, the trial court did not provide a separate analysis of this issue.
. Pap’s II marked the second time the Pap’s matter appeared before this court. The first decision was issued by this court in Pap’s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998); that decision was overturned by the U.S. Supreme Court. 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). The Pap's matter will be discussed at length infra.
. The First Amendment's protection of freedom of expression is made applicable to the states through the Fourteenth Amendment. See Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927).
. When a factfinder determines whether a government's action is content-based, it necessarily must make factual findings, credibility determinations, and apply legal principles. Thus, we find that such an issue raises a mixed question of law and fact.
. We recognize that the Commonwealth Court, after finding that Arcara applied to this matter, also examined whether the URA's action met the O'Brien test. To the extent this case can be seen as more analogous to the secondary effects cases than to Arcara, see City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 440, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002); City of Erie v. Pap's A.M., 529 U.S. 277, 299, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); City of Renton v. Playtime Theatres, 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); we would agree with the Commonwealth Court that the intermediate scrutiny test set forth in O'Brien would be met here.
. While we have concluded that Pap's II does not compel the application of the strict scrutiny test to the URA's action, we would be remiss if we did not respond to a point of reasoning offered by the responsive opinion in the court below. That responsive opinion posited that combating urban blight was not a ‘‘compelling” interest because the Federal North area had been blighted for decades prior to the URA’s proposed taking of the Property. Essentially, the responsive opinion below expressed the belief that the URA's interest could not have been a compelling one otherwise it would have acted earlier.
*451This reasoning is flawed. Urban blight is a serious problem which unfortunately affects many of this Commonwealth's cities. It saps our once-vibrant neighborhoods. The government unquestionably has a compelling interest in combating this problem. This interest is not diminished simply because a plan was not omnisciently put into action at the very onset of a neighborhood's slide into decay. |
9,645,436 | 2023-08-22 21:24:44.550126+00 | Saylor | null | Justice SAYLOR,
dissenting.
I believe that the Pittsburgh Urban Redevelopment Authority’s taking of the subject property, in order to alter the type of entertainment provided there, burdened protected expression, thus triggering strict scrutiny under Article I, Section 7 of the Pennsylvania Constitution. Thus, 1 would remand the matter to the trial court for a determination of whether the government’s actions constitute the least restrictive means to accomplish its objectives. My reasoning follows.
The majority finds that the decision of the Urban Redevelopment Authority (“URA”) to condemn the New Garden Theatre (the “Theatre”) was unrelated to the content of the speech occurring on its premises, and therefore, that no constitutional scrutiny is necessary pursuant to Arcara v. Cloud Books, 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). The majority also determines that the protections embodied in Article I, Section 7 of the Pennsylvania Constitution, as interpreted by this Court in Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002) (“Pap’s II”), are inapplicable to the present matter. I respectfully differ with the majority on both of these points.
*452First, as to federal law, it is noteworthy that, to support its position that First Amendment protections are irrelevant to the present controversy, the majority states that the URA adduced evidence that its proposed use — namely, providing entertainment of a different variety from “adult” films — would “reinvigorate the economy of the Federal North area in a fashion that would not occur if’ the Theatre continues to offer its present fare, and that these new forms of entertainment would be “broader in scope and appeal” than the old films, thus increasing the economic vitality of the neighborhood. Majority Opinion at 444, 913 A.2d at 185. While these effects may be socially beneficial, they depend entirely upon changing the type of speech taking place at the Theatre. Under the Supreme Court’s prevailing precedent, therefore, even if one accepts that the URA’s actions and motivations were unrelated to the suppression of free expression — i.e., that the taking pertains exclusively to the perceived secondary effects of the speech at issue — the First Amendment requires judicial scrutiny, including an inquiry into whether the challenged governmental action allows for reasonable alternative avenues for the communication of the affected speech. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct. 925, 930, 89 L.Ed.2d 29 (1986); see also City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 440, 122 S.Ct. 1728, 1738, 152 L.Ed.2d 670 (2002) (observing that Renton requires that municipal ordinances restricting speech be subject to intermediate scrutiny if they are content neutral); City of Erie v. Pap’s A.M., 529 U.S. 277, 299, 120 S.Ct. 1382, 1396, 146 L.Ed.2d 265 (2000) (recognizing that Erie’s facially content-neutral restriction on public nudity, which had the effect of banning the expressive conduct of nude dancing, could be justified based upon the “secondary effects” of the speech so long as the ordinance satisfied the intermediate-scrutiny standard set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) (observing that content-neutral restrictions on speech are only valid if they are justified without reference to the content of the regulated speech, are narrowly tailored to serve a signifi*453cant governmental interest, and leave open ample alternative channels for communication of the information); Turner Broadcasting Sys. v. FCC, 520 U.S. 180, 185, 117 S.Ct. 1174, 1184, 137 L.Ed.2d 369 (1997) (explaining that content-neutral speech restrictions are evaluated under intermediate scrutiny).1
Moreover, Arcara is inapposite to the present case, as Judge Friedman recognized in her responsive opinion on appeal. See URA, 823 A.2d at 1098-99 (Friedman, J., concurring and dissenting). The Arcara Court determined that the First Amendment does not protect parties from criminal and civil sanctions imposed as the result of unlawful activity occurring on a property simply because some protected speech also happens to occur there. See Arcara, 478 U.S. at 705 n. 2, 106 S.Ct. at 3177 n. 2 (observing that the closure of the book store based on health code violations “ha[d] nothing to do with any expressive conduct at all”). Indeed, a careful reading of that decision reveals that its holding was motivated by the Court’s concern that the First Amendment not be used as a “cloak for obviously unlawful public conduct.” Arcara, 478 U.S. at 705, 106 S.Ct. at 3176.2
*454In the present dispute, by contrast, the URA does not contend that the Theatre is engaged in any unlawful conduct or that the activities occurring on the premises otherwise make it a threat to public safety or subject it to civil liability. Additionally, whereas in Arcara the activities that formed the basis of the governmental action (prostitution, lewdness, etc.) were unrelated to any expressive conduct, here, the basis for the government’s action relative to the Theatre is centered on controlling the speech itself. Thus, while the URA may legitimately desire to enhance the economic and social conditions extant in the neighborhood, it is the content of the speech that concerns the URA in light of its judgment that, unless such speech is altered in conformance with its overall plan, the economic goals in question will not come to fruition. In short, unlike the bookstore in Arcara, the Theatre is not attempting to use First-Amendment guarantees as a pretext to avoid sanctions for non-expressive conduct.
Apart from any First Amendment concerns, moreover, the majority determines that the protections embodied in Article I, Section 7 of the Pennsylvania Constitution, as interpreted by this Court in Pap’s II, do not apply to the present matter. While the majority states, in this regard, that the situation under review is the “opposite” of that involved in Pap’s II, Majority Opinion at 450, 913 A.2d at 189, in my view Pap’s II is directly on point. In particular, I would find that the Commonwealth Court erred in failing to consider the “unmentioned purposes” of the taking as required by Pap’s II, and would further conclude that the unmentioned purposes apparent on the existing record require a conclusion that the taking was content-based for purposes of our state Constitution.
As the majority explains, Pap’s II involved the question of whether Article I, Section 7 was violated by Erie’s public *455indecency ordinance, which was enacted to ban nude live entertainment by making it a summary offense to appear in public in a state of nudity. In resolving this question, the Pap’s II court acknowledged the established principle that Section 7 “provides greater protection of expression than its federal counterpart.” Id. at 392, 399, 812 A.2d at 601, 605; see Norton v. Glenn, 580 Pa. 212, 228, 860 A.2d 48, 57 (2004); Commonwealth, Bureau of Prof'l & Occupational Affairs v. State Bd. of Physical Therapy, 556 Pa. 268, 275, 728 A.2d 340, 343-44 (1999). It also acknowledged — as it had to do in light of the Supreme Court’s decision remanding the matter to this Court — that the city’s stated content-neutral purpose of combating the socially undesirable activity that it believed was aggravated by the existence of nude dancing establishments subjected the ordinance only to intermediate scrutiny under the United States Constitution. Critically, however, the Pap’s II court explained that the primary difference between this Court’s approach under Article I, Section 7, and judicial review pursuant to the First Amendment, is that, when a claim is raised under the state charter, the reviewing court must consider whether there is an “unmentioned purpose” of burdening protected expression that is “inextricably bound up vrith” the government’s valid, content-neutral objective. See Pap’s II, 571 Pa. at 405, 812 A.2d at 609.3 If so, then the broader protections of Article I are implicated and the governmental action is subjected to strict scrutiny.4
*456The majority presently states that the Pap’s II construct is inapplicable for the same reason that it believes Arcara applies, namely, that the URA’s decision to condemn the Theatre was content neutral. See Majority Opinion at 450, 913 A.2d at 189. What this analysis overlooks is that, even if the taking could be considered content neutral for federal purposes, it may still be content based for purposes of the state Constitution. Indeed, this was the very point of Pap’s II, in which this Court explained at length that solely relying upon the government’s content-neutral “stated purpose” for its actions — and ascertaining the level of scrutiny accordingly (as would be appropriate under the First Amendment) — could not fully effectuate the protections contained in the state charter. See, e.g., Pap’s II, 571 Pa. at 408, 812 A.2d at 611.
Here, the URA’s “stated purpose” for condemning the Theater (namely, to carry through with its plan to revitalize the neighborhood) is undoubtedly content neutral and valid, but it is equally obvious that its action was also grounded upon an “unmentioned purpose” of altering the content of the speech that occurs on that property. This is particularly apparent because the URA did not intend to demolish or otherwise change the function of the Theatre, but planned only to replace the current “adult”-content motion pictures with alternate events and performances that would conform to the URA’s overall plans for the neighborhood. See, e.g., In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, No. GD 97-7170, slip op. at 7 (CCP Allegheny County, April 18, 2002) (reciting the plan to “reuse” the Theatre “as a performing arts, cultural and community activities venue with live performance, music, dance and theater .... ”); id. at 8 (observing that these same proposed new uses were included in the redevelopment master plan).
The majority avoids this critical point by focusing instead on the broader propositions that the URA’s enabling legislation is a content-neutral law of general applicability, that urban revitalization efforts are not inherently speech burdening, and *457that the present effort has “wide sweep” in seeking the acquisition of all properties in the targeted area. Majority Opinion at 446, 913 A.2d at 187. This position is not entirely persuasive in the context of the present case, however, as the only property at issue is the Theatre, and the only governmental action at issue is the taking of it, since all other properties have been acquired amicably, see Majority Opinion at 436, 913 A.2d at 181; moreover, it is evident that if the URA were assured that the Theatre would be used for the cultural and educational events envisioned by the URA under present ownership, the URA would have no need to take it, as the URA’s goals could be achieved without doing so. Thus, the URA’s decision to take the Theatre is inescapably bound up with its perceived need to alter the type of speech that would otherwise occur there if it did not take the property.5 In this sense, I find a direct analogy between the present dispute and Pap’s II, where the City of Erie’s content-neutral end of reducing the negative secondary effects associated with nude live entertainment was valid and content neutral, but such purpose was “inextricably bound up with” the content-based objective of suppressing “the erotic message of the dance.” Pap’s II, 571 Pa. at 405, 812 A.2d at 609. Under Pap’s II, then, I would uphold the taking only if it satisfies strict scrutiny, that is, if it constitutes the least intrusive means of furthering a compelling state interest.
Applying the standard presently, I would conclude that the URA has a compelling interest in redeveloping blighted urban areas, and thus, that the taking can be upheld if it is “narrow*458ly tailored to meet that compelling interest,” that is, that there are no “less intrusive, practicable methods available” of doing so. Pap’s II, 571 Pa. at 410, 812 A.2d at 612 (internal quotation marks omitted). The trial court did not make any findings on this latter question, as it concluded that the taking was not content based in the first instance.6 The Commonwealth Court, which issued its decision after Pap’s II, noted the issue, but supplied a less-than-convincing analysis. In particular, the court suggested that the URA’s expertise in such matters is beyond question, and that because the URA had stated that it could not fully effectuate its plan without taking the Theatre, there must have been no other means available to it that were less restrictive of free speech. See URA, 823 A.2d at 1097-98. Notably, the court’s statement in this regard was brief and conclusory, and it failed to reference the record or any authority for support.7
In view of the above, and considering the size of the record and the sheer volume of testimony, I would refrain from making a judgment at the appellate level on whether the least-restrictive-means prong of strict scrutiny has been satisfied. Instead, I would remand the matter to the trial court so that it can make the necessary factual findings to resolve whether there are less intrusive, practical measures available to accomplish the URA’s redevelopment goals, and instruct it to take into consideration whether any alternative avenues for the type of expression targeted for elimination from the Federal *459North neighborhood would remain within the city if the Theatre were taken by the URA.
Justice CASTILLE joins this dissenting opinion.
. As to reasonable alternative avenues of communication, neither the trial court nor the Commonwealth Court resolved whether Appellant could relocate the Theatre. The trial court likewise did not determine whether the type of speech at issue would be entirely eliminated in the City of Pittsburgh, while the Commonwealth Court stated that “reasonable alternatives of communication” would not be eliminated because the city has video booths for individual movie viewing as well as adult movie rental outlets. See In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 823 A.2d 1086, 1096 (Pa.Cmwlth.2003) (“URA ”). This statement, however, appears to reflect speculation on the part of the Commonwealth Court; moreover, it is not readily apparent that such modes of communication are qualitatively identical to the display or viewing of large-screen motion pictures.
. See, e.g., Arcara, 478 U.S. at 707, 106 S.Ct. at 3178 (“Bookselling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises.”); see also id. at 705, 106 S.Ct. at 3176-77 (“If the city imposed closure penalties for demonstrated Fire Code violations or health hazards from inadequate sewage treatment, the First Amendment would not aid the owner of premises who had knowingly allowed such violations to persist.”); id. at 706, 106 S.Ct. at 3177 (“One liable for a civil damages award has less money to spend on paid *454political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim.”); id. ("[A] thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner’s claim to a prison environment least restrictive of his desire to speak to outsiders.”).
. It is undisputed that the taking here at issue burdens protected speech, as non-obscene motion pictures represent a constitutionally-protected form of expression, see Young v. American Mini Theatres, Inc., 427 U.S. 50, 59, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310 (1976); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952); Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 381, 248 A.2d 45, 47 (1968), and the URA does not contend that the films shown at the Theatre are obscene. Cf. Pap's II, 571 Pa. at 394, 812 A.2d at 602 (noting that, although it may not “ascend to the level of high art form,” nude dancing is constitutionally protected expression).
. Were this an issue of first impression, I would favor application of a modified O'Brien standard, see O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679, as outlined in my responsive opinion in Pap’s II. See Pap’s II, 571 Pa. at 412, 812 A.2d at 613 (2002) (Saylor, J., dissenting) (citing City of Erie v. Pap’s A.M., 529 U.S. 277, 310-13, 120 S.Ct. 1382 1402-04, 146 *456L.Ed.2d 265 (2000) (Souter, J., concurring)). As this is not an issue first impression, I am bound by the judgment of the Pap’s II majority.
. The record also supports this content-based underlying rationale. For example, the Conditions Report that formed the basis for the revitalization plan noted that the presence of an adult theater adds to the “negative image” of the area. See In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, No. GD 97-7170, slip op. at 3 (CCP Allegheny County, April 18, 2002). Additionally, Angalo Taranto, the URA project manager for the Federal North Redevelopment Project, testified at trial that the URA's desire to acquire the Theatre related to the "image problem” caused by the Theatre’s “undesirable uses.” N.T. April 3, 2000 at 634. In the face of this evidence, the majority’s suggestion that there is “no link” between the URA’s content-neutral stated purpose for acquiring the Theatre and the speech which would *458be suppressed is unpersuasive. See Majority Opinion at 450, 913 A.2d at 189.
. The trial court issued its opinion before Pap's II was decided.
. Indeed, neither the Commonwealth Court nor the trial court indicated that the URA considered the feasibility of an alternative plan which would allow the Theatre to continue in its present usage, or otherwise showed that redevelopment could not be accomplished without acquisition of the property. Further, certain trial testimony indicates that the URA never considered such an alternative or sought the Theatre's participation in redevelopment activities. For instance, when a URA official was asked whether the URA had made "any effort at all to learn of anybody who would have redeveloped that block with the adult theater in place," he admitted that it had not. N.T. April 3, 2000, at 634. The same official stated that one reason the URA decided to condemn the Theatre was that it was not an economic generator in the neighborhood; he admitted, however, that the URA had not undertaken any efforts to assess the Theatre’s economic contributions. See id. at 476, 812 A.2d 591. |
9,645,437 | 2023-08-22 21:24:46.628418+00 | Walker | null | Mr. Justice Walker
delivered the opinion of the Court.
The opinion delivered in this cause on February 10, 1960, is withdrawn, and the following is substituted therefor:
This is a controversy between a general contractor, C. H. Leavell & Co., and one of its subcontractors, Vilbig Bros., Inc. Leavell contracted with North Texas Municipal Water District for the erection of a water treatment plant and the construction of certain streets. Three phases of the street work were then sublet to Vilbig by separate contracts as follows: (1) Contract 169-B for grading and other earth work; (2) Contract 169-C for ready-mixed concrete; and (3) Contract 169-F for curb, gutters and paving. Contract 169-C is not involved in the case. Vilbig brought suit against Leavell to recover the retained percentages under Contracts 169-B and 169-F, and also compensation for extra rough grading alleged to have been done under Contract 169-F, damages for faulty engineering and fraud, and attorney’s fees. Leavell admitted liability for the retained percentages subject to its asserted right to recover from Vilbig the cost of correcting a hump and subsidence in the paving laid by the latter and attorney’s fees.
The case was tried to the court without a jury, and judgment was entered awarding Vilbig the retained percentages, *602plus attorney’s fees, less $2,458.38 allowed to Leavell for the cost of correcting the hump and subsidence. All other relief sought by either party was denied. Vilbig appealed, and the Court of Civil Appeals held that the trial court erred: (1) in allowing Leavell the cost of correcting the hump and subsidence; and (2) in failing to award Vilbig an additional $4,779.40 for the rough grading. The intermediate court reversed and rendered in Vilbig’s favor with respect to these claims and otherwise affirmed the trial court’s judgment. 319 S.W. 2d 731. Leavell is petitioner here with points of error attacking each of the holdings mentioned above.
There is no dispute as to many of the facts. Under the terms of Contract 169-B, Vilbig was required to bring the streets to within .2 foot of final grade. This work was approved as complete by Leavell’s project manager on March 30,. 1956, and about two weeks later the contract price less a retainage of ten per cent was paid to Vilbig. Some eight or ten weeks then elapsed before Leavell called upon Vilbig to do the paving under Contract 169-F. In the meantime other subcontractors had installed pipes and utility lines under the streets previously graded by Vilbig.
Under the provisions of Contract 169-F, Leavell was to furnish the streets to Vilbig within .2 foot of final grade, and the later was to do only what is known as fine grading before starting actual paving operations. When Vilbig returned to begin work on this contract, it was discovered that additional rough grading was necessary because the streets were not within .2 foot of final grade at several places. Vilbig notified Lea-veil’s project manager. D. J. Bandy, who instructed Vilbig to do the work necessary to prepare for the paving. In brining the streets to proper elevation, Vilbig did considerable grading which was not within the scope of Contract 169-F, and it billed Leavell for the cost of doing this as an extra under that contract. Leavell refused to pay, contending that Vilbig was obligated to do such work under Contract 169-B.
1 No detailed findings of fact or conclusions of law were filed by the trial court. Its judgment simply recites that Vilbig had failed to establish its claim for extra grading by a preponderance of the evidence. This phase of the case was reversed and rendered by the Court of Civil Appeals, apparently on the basis of its finding that “the evidence is sufficient to support appellant’s claim for $4,779.40 for extra subgrading as alleged in its petition.” Our appellate courts may not thus substitute their *603findings for those of the trial court where the evidence will support either conclusion. The Courts of Civil Appeals have exclusive jurisdiction, of course, to determine whether the findings of the trial court or jury are against the overwhelming weight and preponderance of the evidence, but the sustaining of such a contention usually requires that the cause be remanded for another trial. In the ordinary case an appellate court cannot properly render judgment based on findings contrary to those made by the trial court unless the record shows as a matter of law that the latter are wrong. See Liedeker v. Grossman, 146 Texas 308, 206 S.W. 2d 232; Woodward v. Ortiz, 150 Texas 75, 237 S.W. 2d 286. No question of the weight and preponderance of the evidence has been raised by either party in the present case.
2 Vilbig obviously is not entitled to recover as an extra under the paving contract for doing, that which at the time it was obligated to do under the grading contract. As indicated above, Bandy had certified the grading- contract as complete and Leavell had paid the agreed price less a ten per cent retainage prior to the time Vilbig returned to do the paving. In response to a request for release of the retainage, Leavell had also advised Vilbig that the same would be paid upon final acceptance of the project and payment by the owner. Vilbig insists that in these circumstances the grading contract was a closed chapter, and that it is entitled to recover for any work thereafter done at Leavell’s request which was not within the terms of the paving contract. This position would be sound if Leavell had waived, or was estopped from insisting upon, further performance under the grading contract.
3 Contract 169-B provides that acceptance of the work and making of final pavment to the subcontractor would not relieve the latter of liability for defects in the work which were thereafter discovered. Bandy testified that Vilbig wanted to take its equipment to smother job and asked for a release on the grading work: that he was unable to give such a release because only the owner’s engineer could accept the work: that he did agree to the removal of Vilbig’s equipment, but in the course of the conversation tried to make it clear that the latter had not completed the rough grading; that since the two contracts obligated Vilbig to take the streets down to final grade and pave them, he saw no objection to letting the subcontractor leave before all work on the grading contract had been done; that alhongh he did not know it at the time, there was one place which Vilbig had not touched at all; and that he approved the grading contract as complete knowing that Leavell had a cushion *604of the ten per cent retainage. In the light of this testimony and the contract provision, it is our opinion that the certification, payment and letter do not establish waiver or estoppel as a matter of law, and the trial court is presumed to have found in Leavell’s favor on each of these issues.
Vilbig had the burden then of proving that the dirt work for which it sought extra compensation was not within the terms of the grading contract. See 17 C.J.S. Contracts, section 591. The testimony of its officers supports the conclusion that the streets were brought to within .2 foot of final grade before the heavy equipment was moved in March, and that excess dirt from the utility ditches was later spread thereon. Photographs taken at the time it returned show piles of dirt in the areas which were to be paved. There is also testimony that the streets were used by Leavell and its other subcontractors during the ten-week period, and that such use while the ground was wet caused the surface to become rutted and uneven. Without attempting to review the evidence in detail, we agree with the Court of Civil Appeals that the record will support a finding that Vilbig was required to do rough grading which was not within the terms of either of its contracts.
On the other hand, Bandy testified that none of the contractors or subcontractors spread excess dirt where Vilbig had graded, and that the piles of dirt shown in the pictures were removed by another subcontractor, Condon & Cunningham. He also stated that the place which Vilbig had not touched before returning to do the paving was 250 or 300 feet long and that the grade there had to be taken down about four feet. The evidence does not disclose how much of the work claimed as an extra was done in bringing this area to grade. Bandy recognized that there was some washing and rutting during the ten-week period, but the amount of rough grading necessitated thereby cannot be determined from the record.
The evidence is conflicting, and the trial court was entitled to conclude that most of the additional rough grading was occasioned by Vilbig’s failure to bring the streets to within .2 foot of grade before leaving in March. Once that conclusion is reached, there is nothing to show how much of the alleged extra work was made necessary by grade disturbances occurring after the initial grading was done. With the record in this condition, it cannot be said that the denial of any recovery on the claim was erroneous as a matter of law.
*605The necessary engineering work in connection with Contract 169-B was to be done by Leavell. According to the evidence, this involved the setting of slope stakes at 50-foot intervals outside the curb lines. After these stakes were set by Leavell’s engineer, Montoya, Vilbig placed grade stakes in the curb lines and elsewhere in the streets. To set the grade stakes properly it was necessary to read the slope stakes and then measure out and up or down to stablish the grade of the street. The transferring of grade from slope stakes to grade stakes is not regarded as engineering, but is referred to in the trade as “guinea chasing.”
In addition to its claim for extra rough grading, Vilbig sought to recover damages for delay and expense alleged to have been caused by Montoya’s mistakes in setting his stakes. The two claims are entirely separate, and the trial court also denied any relief on the latter count. Vilbig did not attack this holding in the Court of Civil Appeals, and makes no contention that the extra rough grading was caused by faulty engineering.
After the paving was done, part of the fill placed by Vilbig settled, and this caused the pavement to crack and disintegrate. At another place a hump was found in the pavement. Upon being requested by the owner’s engineers to correct same, Leavell called upon Vilbig to do so. Vilbig refused, and Leavell had to the work done by another contractor. The Court of Civil Appeals held that the action of the trial court in allowing Lea-veil’s claim against Vilbig for these items of expense was erroneous.
Vilbig guaranteed its work under the paving contract for one year against defects in workmanship or material. An issue of fact is raised by the evidence as to whether the hump was caused by an error on Montoya’s part in placing the slope stakes or by Vilbig’s mistakes in setting the stakes which held its forms. Since the trial court evidently decided that the hump was caused by Vilbig’s faulty workmanship and the record supports this conclusion, the allowance to Leavell of $381.69 for correcting same should not be disturbed.
4 There is, however, no evidence to show that the subsidence in the paving was due to any defect in Vilbig’s workmanship or materials. On the contrary, Bandy testified that the grade was in accordance with the plans, that the materials used were satisfactory, that the fill was compacted to the proper density, and that the work was accepted by the engineers. He could think *606of nothing Vilbig had done or failed to do which was not in accordance with the plans and specifications, and expressed the opinion that the subsidence was caused by a downspout which introduced water into the area after the paving was done. Since Vilbig had completed its contract in accordance with the plans and specifications, it is not responsible for subsequent damage to the paving resulting from no fault on its part. See Lonergan v. San Antonio Loan & Trust Co., 101 Texas 63, 104 S.W. 1061; 9 Am. Jur. Building and Construction Contracts, section 27. Leavell should not, therefore, have been allowed the cost of correcting the subsidence.
The judgments of the courts below are reversed, and the cause is remanded to the trial court with instructions to enter judgment in Vilbig’s favor for $9,792.95, the same being the retained percentages plus the $500.00 attorney’s fee previously awarded by the trial court less the $381.69 credit to which Leavell is entitled for correcting the hump, with interest and costs of suit in the trial court as provided in the original judgment, and denying all other relief sought by either party. Vilbig will pay the costs in the Supreme Court, and all other costs of appeal are adjudged against Leavell.
Opinion delivered April 20, 1960. |
9,645,438 | 2023-08-22 21:24:46.633028+00 | Smith | null | Mr. Justice Smith,
dissenting.
The dissenting opinion delivered in this cause on February 10, 1960, is withdrawn, and the following is substituted therefor:
This dissent is written because the writer is not in agreement with the holding of the Court that no evidence was introduced supporting the trial court’s finding and judgment that Vilbig was indebted to Leavell in the sum of $2,076.69 for the expense incurred by Leavell in having the Kan-Tex Company repair the subsidence in the paving laid by Vilbig.
The Court of Civil Appeals substituted its findings for the findings of the trial court, and this Court has erroneously approved such action.
Leavell’s pleadings relating to this question are to be found under paragraph XII of its amended answer. The pleadings refer to the hump or bump and the subsidence, and reads as follows:
*607“That by reason of defective materials and/or workmanship, plaintiff left a hump or bump on the road it paved near the entrance road to the chemical building, and on or about November 21, 1956, by letter bearing said date, defendant requested plaintiff to correct same, which plaintiff refused to do, and defendant had same corrected at an expense of $381.69. That by reason of defective materials and/or workmanship, the road built up and paved by plaintiff under said contracts Nos. 169-B and 169-F sank due to settlement of the railroad spur fill and road fill, both of which were placed by plaintiff near Station 11+00 on the railroad spur, and on or about May 28, 1957, defendant in writing requested plaintiff to amend and make good such defect, which plaintiff refused to do, and defendant had same done and it was completed by Kan-Tex Company at the expense of plaintiff on or about August 27, 1957, at a reasonable and necessary cost of $2,076.69. Sec. 20 of said contracts provides that the subcontractor shall promptly amend and make good any defective materials and/or workmanship to the entire approval and acceptance of the owner and/or architect or their authorized representatives and should the subcontractor refuse or neglect to proceed at once with correction of rejected or defective materials and/or workmanship after receiving notice to do so, it was agreed that the contractor should have the right and power to have the defects remedied or changes made at the expense of the subcontractor, and the subcontractor agreed to pay contractor on demand any and all loss and/or expense paid or incurred by the contractor in remedying such defects and/or making such changes, together with interest thereon at the rate of 6% per annum until paid. It further provided in Sec. 21 of said contracts that the obligation of the subcontractor to perform and complete all work covered by said subcontracts to the satisfaction of the contractor and the owner is absolute and without exception. Sec. 35 of said contract provides that in the event of a breach of this contract or any of its provisions by the subcontractor resulting in litigation by the contractor to enforce its rights, the subcontractor agrees to pay the contractor a reasonable fee for its attorney’s services, which fee may be recovered in the same suit as part of the contractor’s cause of action. By reason of such provisions, plaintiff has become indebted to defendant in the sum of $381.69, the further sum of $2,076.69, together with interest on said sums at the rate of 6% per annum from the date same became due, and reasonable attorney’s fees for the services of defendant’s attorneys herein, which sum should be deducted from the retainages heretofore tendered to plaintiff.”
*608Vilbig in answer to Leavell’s pleadings in regard to the subsidence pleaded in paragraph VI of its first supplemental petition:
“Plaintiff denies that the road built up and paved by plaintiff near station 11+00 on the railroad spur sank due to settlement of the railroad spur fill and the road fill as prepared by plaintiff, and says that after the plaintiff had completed the fill, defendant by its own employees cut the fill with a ditch across it and laid the lines the defendant desired and then back-filled the ditch without compacting it to the density required by the specifications, and thereupon ordered plaintiff to pave across it, and the settlement which occurred after the spring rains occurred in the area where the plaintiff had not done the construction work but where it had been done by the defendant, and was due to the failure of the defendant’s employees to properly compact the back-fill. At all times plaintiff was required to conform to the specifications before authorization was given to it to pave, and there have been no defects where plaintiff was in charge of the work.”
The trial court’s judgment as to the subsidence item of $2,076.69, which was allowed Leavell as a credit reads as follows: “Plaintiff [Vilbig] is indebted to defendant [Leavell] in * * * in the sum of $2,076.69 for the expense incurred by defendant in having Kan-Tex Company repair the subsidence in the paving laid by plaintiff * *
It is uncontroverted that the reasonable cost of correcting the sag or subsidence was $2,076.69, and that it cost Leavell that amount of money to get the work done after respondent failed or refused to make good its guarantee or obligation. The contracts involved provided that petitioner could have the work done at the exnense of the respondent. The evidence supnorting the trial court’s findings disproves respondent’s only defense. That defense was that some independent agency was responsible for the subsidence. The specifications prepared under the terms of the contracts provided that Vilbig had to guarantee the paving for one year. Mr. Charles Vilbig, President of Vilbig Company, testified that he was familiar with the terms of the contract and that Vilbig was to complete all work and to promptly amend and make good any defective material and workmanship all to the entire approval and acceptance of the owner. Vilbig’s only chance of escape of liability was to plead and establish to the satisfaction of the trial court in accordance with rules of evidence and to establish by the preponderance of the evidence *609that the subsidence was not due to defective material furnished or poor workmanship on the part of Vilbig. The evidence shows that Vilbig is liable under the express terms of Section 2, 20, and 21 of Subcontracts 169-F and 169-B. See Footnote 1 for said Sections. Vilbig’s testimony that the subsidence was caused by the cutting of a ditch across the embankment for the laying of a pipe line was rejected by the trial court. The trial court accepted Leavell’s evidence. One of the witnesses for Leavell, a Mr. J. C. Bandy testified that he was familiar with the situation where petitioner had sued for $2,076.69 for repairing the place where the subsidence occurred. Petitioner’s brief reflects and I herewith adopt the statement that Mr. Bandy testified that the repair was made at “the extreme northwest corner of the chemical building, between the chemical building and the railroad track and under the railroad track; that there were not any pipelines or ditches that crossed the road at that place, and as to what occurred there that made the repair necessary, as to what defect showed up, it was a settlement in a railroad fill placed by Vilbig and that caused the pavement to settle and crack, disintegrate, and Forrest & Gotten requested that it be corrected, but petitioner’s attitude would be that it would want to fix it anyhow without demand as they wanted a to do a good job; that by letter to Mr. Vilbig and Mr. Andress, petitioner requested Vilbig to do it but Vilbig did not do it but had someone else to do it, to correct that defect, he hired Kan-Tex Company which also corrected some other defects which petitioner considered its own and petitioner got a separate statement on the part where the fill settled and the pavement cracked as he asked Kan-Tex to bill them for each place separately so they would know what was their share and what was Vilbig’s share, and he got a separate bill from Kan-Tex for that, and defendant’s Exhibit No. 23 is the statement which includes only the part where the fill sank up by the railroad embankment, and *610Exhibit D-23 was admitted in evidence, and as to whether or not Kan-Tex Company did the work that is set out in said Exhibit and furnished the equipment and material and labor that are set out on said Exhibit, he was out there at the time this work was going on and he invited Mr. Andress or Mr. Vilbig or someone to come out and verify the work and verify the quantities of material used, but he heard nothing from them although he told them when the work was going to be done and who was going to do it and how it was going to be done; that these charges for that kind of work and for the material and the use of their equipment and labor, and for moving in and out and for the overhead charge and profit, and Kan-Tex actually charged petitioner for the work Kan-Tex did in repairing that fill that settled and sank the sum of $2076.69.”
Mr. Bandy, on cross-examination about the area where there was a subsidence that was due to the settlement of the railroad fill, testified that “the paving went down and cracked and disintegrated; that the area where this subsidence occurred was not in the area of the excavation for the building; that respondent did the railroad back-fill, the railroad embankment and the railroad embankment was put there in place under contract 169-B; that petitioner did not have any written notification of any kind from Forrest & Gotten with reference to the subsidence and didn’t need any, but Forrest & Gotten called him two or three times on long distance phone, wanting to know when petitioner would get out there and do that; that Kan-Tex by way of corrective work drilled holes through the surface of the pavement and put a soil cement type of material, pumped it under the pavement through these holes under pressure, and raised the pavement back up to the grade.”
In accordance with thes terms of the contracts, supra, the owner’s architect and engineer required that the sag or subsidence be corrected. The defects appeared within the one-yar priod of Vilbig’s guarantee. Leavell’s testimony that no ditch was cut across the fill or embankment and that the failure of the fill or embankment to be completed to the required density was due to defective workmanship on the part of Vilbig was accepted by the trial court. The evidence shows that the settlement or subsidence caused the pavement to settle and crack. It was further shown that Vilbig so compacted the fill as to permit more than the maximum amount of water to infiltrate into it (the fill) than that required to get maximum density and therefore the fill settled and the pavement cracked. The trial court having resolved the issue made by the evidence, such findings are binding on the Court of Civil Appeals. That court had *611no right to substitute its own findings for the findings of the trial court.
The elementary principles of law that must be applied here in determining whether the findings of the trial court, sitting without a jury, should be sustained are clearly set forth in the case of Wisdom v. Widener, Texas Civ. App., 309 S.W. 2d 496, reversed on other grounds, Wisdom v. Widener, 159 Texas 98, 316 S.W. 2d 148. The rule is no different than the rule applied in a jury case. See Benoit v. Wilson, 150 Texas 273, 239 S.W. 2d 792. In either case, the trier of the facts has the right to reconcile conflicting testimony, if possible, or to accept as true or reject all, any part or none of the testimony of any witness. The trier of the facts may accept the theory presented by either party and reject the theory persented by the adverse party if he thinks the evidence justifies such action. The trial court in the present case incorporated in its judgment a finding on this question in favor of Leavell. To test the sufficiency of the evidence to determine if it will support such findings and judgment, we must give credence only to the evidence and circumstances favorable to the findings and judgment and disregard all evidence to the contrary, indulging every legitimate conclusion which tends to uphold such findings and judgment. This proposition needs no authority, but see such cases as Benoit v. Wilson, supra; Wisdom v. Widener, supra: Wininger v. Ft. Worth & D. C. Ry. Co.. 105 Texas 56, 143 S.W. 1150; Banks v. Collins. 152 Texas 265, 257 S.W. 2d 97; Hill v. Foster, 143 Texas 482, 186 S.W. 2d 343.
The case was fully developed, and the issues were clearly drawn. Since the controlling fact issues were resolved against Vilbig in the trial court, the judgment of the Court of Civil Appeals should be reversed and that of the trial court affirmed.
Opinion delivered April 20, 1960.
. — “Section 2. * * * In addition, the work covered * * * shall be sataisfactory to and meet the approval of the engineer having jurisdiction and the general contractor * * * .”
“Sec. 20. The subcontractor shall promptly amend and make good any defective materials and/or workmanship to the entire approval and acceptance of the owner and/or architect or their authorized representatives. Should the subcontractor refuse or neglect to proceed at once with correction of the rejected or defective materials and/or workmanship after receiving notice to do so, it is agreed that the contractor shall have the right and power to have the defects remedied and changes made at the expense of the subcontractor, and the subcontractor agrees to pay to the contractor on demand any and all loss and/or expense paid or incurred by the contractor in remedying such defects and/or making such changes, together with interest thereon at the rate of 6% per annum until paid.
“Sec. 21. The obligation of the. subcontractor to perform and complete all work covered by this subcontract to the satisfaction of the contractor and owner is absolute and without exception; * * |
9,645,439 | 2023-08-22 21:24:46.636831+00 | Walker | null | ON MOTION FOR REHEARING
Mr. Justice Walker
delivered the opinion of the Court.
In its motion for rehearing Leavell states that after the trial court’s original judgment was rendered, it paid Vilbig $7,716.26 on the judgment with the agreement that the right of either party to appeal would not be prejudiced thereby. Such motion for rehearing is granted to the extent that the trial court is directed, in addition to the instructions set out in our opinion *612of April 20, 1960, to allow proper credit for any amounts paid by Leavell to Vilbig on said judgment after the same was rendered. In all other respects the motion for rehearing of each party is overruled.
Rehearing overruled in part May 18, 1960. |
9,645,440 | 2023-08-22 21:24:47.210979+00 | Stewart | null | STEWART, Judge.
This is an appeal from a summary judgment entered by the Fayette Circuit Court against appellant, Henry Y. Mills, on motion of appellee, Reserve Life Insurance Company. The court also issued an order sustaining appellee’s motion to strike all affidavits filed by appellant in opposition to appellee’s motion. This appeal is from these rulings of the lower court.
On August 3, 1955, appellant, an illiterate person who was then 58 years of age, executed applications for insurance with ap-pellee which resulted in the issuance of three contracts described as (1) an accident policy, (2) a medical surgical policy, and (3) a hospital and surgical expense policy. No medical examination was required. On January 17, 1957, due to injuries sustained at the junk yard where he worked, appellant became totally and permanently disabled. He undertook to collect from appel-lee on his policies. Appellee declined to pay, and this action ensued in which appellant claimed he was entitled to receive benefits under the three policies for the total sum of $7000.
In the lower court, appellee defended its refusal to pay appellant on the ground that he made false answers to the same questions in each of the three written applications signed by him, which answers were material to the risk assumed under the contracts of insurance.
Appearing, among other questions, on each of the applications, was the following one, and we give the particular part that is pertinent: “Have you * * * ever had * * * diabetes?” Appellant’s response was “No.” It was stipulated by the parties hereto that on August 3, 1955, when appellant applied for these three policies, he knew he was suffering from diabetes.
Another significant question in each of the applications was: “Have you * * * received medical or surgical advice or treatment within the past three years?” Appellant’s answer to this question in each instance was “No.” On this point there appears in the record this agreed order: “It is further stipulated that the plaintiff was a patient in the Hurst Snyder Hospital in Hazard, Kentucky from January 3, 1955 to January 20, 1955 and was receiving medical care and treatment during that period for diabetes, regulation of his diet and regulation of the correct insulin dosage for the treatment of diabetes.”
The applications, which were made a part of each policy, contain no notice to the insured in respect to any limitations on the power of the insured’s agent. However, each of the policies does set forth language to the effect that the insured’s agents have no “authority to change this policy or to waive its provisions.”
The reply filed by appellant alleged his inability to read and write the English language and his dependence upon the superior knowledge of appellee’s agent when *957he made the application for insurance. He further averred he 'was only asked by the agent his name, age, place of employment, marital status, and whether he had the amount of the first premium on his person. He denied he was ever asked if he had the illness known as diabetes. He claimed he was told to sign each application at a place marked “x”, and that the terms and conditions of each application were not read to him before or after he signed it.
As the falsity of the answers to each of the questions quoted in the signed applications is admitted, one of the primary issues raised is, even if the agent put down untruthful answers when the insured told him the truth, may the insured recover on the policies?
The recent case of Reserve Life Insurance Company v. Thomas, Ky., 310 S.W. 2d 267, 269, involved a contract of hospitalization insurance practically identical to one of the policies now being considered. The policy there was placed in force pursuant to an application in every respect similar to those embraced in the record before us. In the Thomas case recovery was sought on the basis that the insured explained his illness to the insurer’s agent and the latter failed or wilfully refused to put down truthful answers in the application the insured signed. Although the insurer admitted the agent may have made false insertions, this Court, in reversing a judgment based upon a verdict the jury returned against the insurer, held:
“ * * * If the agent of the Company put down wrong answers in order to sell the policy, the applicant nevertheless signed the application. Was there a duty on the applicant’s part to read the application which was filled in by the agent? Or is the applicant entitled to rely upon the agent, who is presumably experienced in the field of insurance, and to take for granted that the agent acted properly within the scope of his authority? The answers to these questions are important because a hard and fast rule on the subject could lead to an insurance company unjustly avoiding payment on a policy as well as affording an opportunity to an applicant to obtain insurance when he was not entitled to it.
“The misrepresentations here involved were made in the inception of the insurance contract, and parol evidence should be admitted to show the circumstances under which the insurance policy — the contract — was procured. The courts of the country do not agree * * * on the effect of the insured’s failure to read either the policy or the application for it. See Vance on Insurance (1951 Hornbook), Section 44. This court recently has placed more responsibility on an applicant for insurance to see to it that his representations to the company approach the truth, Commonwealth Life Insurance Co. v. Keen, 1950, 331 [313] Ky. 301, 231 S.W.2d 78; Metropolitan Life Insurance Co. v. Tannenbaum, 1951, Ky., 240 S.W.2d 566; National Life and Accident Insurance Co. v. Scott, 240 S.W.2d 849, and, according to Vance, the trend in recent cases is in this direction.”
The only difference between the Thomas case and the one at bar is that Thomas, the insured in that case, could read, whereas the insured with whom we are dealing maintains he could neither read nor write. He argues in this connection he was unable to see to it that his representations appearing in the applications approximated the truth. This contention is specious. A handicap which makes it more difficult for one to fulfill a duty does not have the effect of excusing the duty. This principle of law taken from 12 Am.Jur., Contracts, sec. 137, p. 630, is in full force in this jurisdiction and answers the point raised by appellant:
“If a person can not read the instrument, it is as much his duty to procure some reliable person to read and ex*958plain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.”
See also Metropolitan Life Insurance Co. v. Tannenbaum, Ky., 240 S.W.2d 566, 567, where this Court ruled that an illiterate person was “bound to take notice” of the terms of the application he signed.
KRS 304.656 reads: “All statements or descriptions in any application for an insurance policy or- in negotiations therefor, by or in behalf of the insured, shall be deemed to be representations and not warranties. Misrepresentations,' unless material or fraudulent, shall not prevent a recovery on the policy.”
The rule is that a false answer is, material if the insurer, acting reasonably and naturally in accordance with the usual practice of life insurance companies under similar circumstances, would not have accepted the application if the substantial truth had been stated therein. See John Hancock Mutual Life Ins. Co. v. DeWitt, 259 Ky. 220, 82 S.W.2d 317; Chamberlain v. National Life & Accident Ins. Co., 256 Ky. 548, 76 S.W.2d 628, and Sovereign Camp, W. O. W. v. McDaniel, 251 Ky. 212, 64 S.W.2d 581.
As previously stated, the answers to the questions in each application were admittedly false; therefore, the query is: Were they material to the risk assumed by appellant?
Appellee, upon learning that appellant had diabetes on and before the date of application, informed him the policies were cancelled ab initio and offered to return all premiums. Appellee also averred in its answer that had it known of the diabetic condition of appellant, it would not have issued the policies.
In Appleman’s Insurance Law and Prac■tice, sec. 214, p. 210, it is stated: “Thus, the majority rule is at the present time that a misrepresentation as to the applicant’s state of health is material as a matter of lam and proof of the falsity thereof will avoid the contract. Likewise, the statement of the applicant that he had never suffered from disease, or his denial of ever having suffered from certain specified diseases or disorders is material as a matter of law so as to avoid the contract in the event of the falsity thereof.” (Italics ours.) In the same treatise in section 245, on page 270, this language appears: “The rule- seems-to be that where the applicant declares that he has not received medical or surgical care and attention and such statement is false, that it must be considered materia' as a matter of law so as to preclude recovery under the policy.” (Italics ours.),
Diabetes is a notoriously serious and chronic malady for which there is no known cure. As is evidenced by this very case, a victim of the disease frequently requires hospitalization in order to arrest and contain the illness and to prevent its taking a fatal course. It is well known that considerable medical expenses must attend the continuous regulation and treatment of diabetes. The determining fact on this point is simply this : If appellee had known about the condition of appellant’s health and had known that he had recently been hospitalized for the treatment of diabetes, it would not have issued these insurance policies to him. The misrepresentations set forth in the applications, therefore, were directly material to the risk.
A procedural point is raised to the effect that the lower court erred in ordering the affidavits of appellant, filed in opposition to appellee’s motion for summary judgment, to be stricken from the record. The undisputed facts in this connection are that a hearing was held on a motion for summary judgment on May 2, 1958, but, for a reason not explained, the order sustaining this motion was not entered until the fol*959lowing May 14th. After the date of the. hearing, the above affidavits of appellant, were tendered on the succeeding May 13th and May 14th. On July 2, 1958, on appel-lee’s motion, an order was filed striking them.
CR 56.03 states, in part: “The motion (i. e., for summary judgment) shall he served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” Once the hearing was held, on May 2, 1958, appellant’s opportunity to file affidavits had passed, as clearly stated by the wording of CR 56.03. Since appellant filed affidavits on May 13th and 14th, they were at least eleven days late and therefore were properly ordered stricken from the record.
We have reached the conclusion that the falsity of the representations in the application and the materiality of these to the risk involved were undisputed facts in the instant case and, as a consequence, the lower court was fully justified in granting summary judgment to appellee.
Wherefore, the judgment is affirmed.
PALMORE, J., dissenting. |
9,645,441 | 2023-08-22 21:24:47.215336+00 | Palmore | null | PALMORE, Judge
(dissenting).
The view that one who applies for a policy of insurance cannot be heard to say that he did not read the application before signing it is reasonable only if the applicant is able to read. Applied to an illiterate person, on the theory that he ought to obtain the services of a third person to read ithe application for him, such a principle simply ignores the realities of life. We .know, for example, from the frequency of .this type of case in the courts that even the average man who can read and write, and who is educated and experienced, is apt to 'trust the agent from whom he purchases an .insurance policy to the extent that he permits the agent to fill out the application and then signs without reading it. How often can it really be expected that an illiterate person would be so circumspect as to realize that he ought to secure the services of some disinterested party before signing the application?
In Metropolitan Life Ins. Co. v. Tannenbaum, Ky.1951, 240 S.W.2d 566, 571, Judge Moremen wrote that he was able to concur in the majority opinion only on the ground of stare decisis, not on the basis of its legal philosophy. But “the inn that shelters for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow. It must have the principle of growth.” Cardozo, The Growth of the Law, p. 20. Certainty and order are the sole objectives of stare decisis. But the judicial process, in which stare decisis plays only a part, seeks to correct deformities as well as uncertainties. Ibid., p. 19. I believe the rule stated in 12 Am.Jur. 630, the Tannenbaum case, and the majority opinion in this case is conducive to injustice. Therefore, I would overrule the Tannenbaum case and permit a jury to determine whether the agent or the illiterate applicant was responsible for the omissions in the application. |
9,645,442 | 2023-08-22 21:24:49.148878+00 | Morrison | null | MORRISON, Presiding Judge
The offense is the possession of whisky, gin, vodka and malt liquor for the purpose of sale in a dry area; the punishment, one year in jail and a fine of $500.00.
Mrs. Della West testified that appellant and one Jerry Ray James came to see her about renting one of her apartments, that James did the talking but appellant furnished the money for the first month’s rent, that as she prepared to make out the receipt to both of them James took the receipt and inserted his own name, that thereafter the two men unloaded some clothes, that she “saw them coming and going” and they lived in the apartment, and that after appellant was released from jail he came back and got “a lot of things.”
On May 2, two officers, armed with a search warrant, searched the apartment and found 314 half pints of whisky and other containers of gin, vodka and malt liquor.
At the time of the raid, an automobile, which the officers testified they had seen appellant drive for some time, was parked in the apartment garage, and in it the officers found a quantity of beer. Appellant and James were in jail at the time.
Appellant did not testify in his own behalf, but proved that the utility deposit at that address had been made in the name of James.
Two contentions are advanced by brief and in argument. It is first asserted that the evidence is insufficient to support a finding that appellant lived in the apartment and exercised any control over the intoxicants. The fact that he was seen to carry in clothes on the day the apartment was rented and was seen to come and go during the ensuing week, together with the fact that he returned for his clothes after his release from jail, plus Mrs. West’s testimony that he lived there, we have concluded was sufficient evidence to authorize the jury to conclude that he occupied the apartment jointly with James and exercised joint control over its contents.
Appellant objected to the introduction of three pieces of paper found in the apartment by the officers who made the *450search. The first was a note which read, “Tommy—I’ve gone to take girl home and pick up spare. Wait here. Jerry.” We have concluded that such note, though obviously not in appellant’s handwriting, was admissible as a circumstance to show that appellant shared the apartment with Jerry James. The second contained several first names and the word “sunrise,” and opposite the names were sums of money. This evidence could not have been injurious to appellant without some showing as to who the people were. When the officer testified that he knew people bearing such first names and what they did for a living, no objection was interposed. By permitting such testimony to be introduced without objection, we have concluded that appellant waived his objection originally made. The last piece of paper read as follows:
“Apr. 29 5 cases 286.00
“May 1 5 cases 277.00
“May 1 16 Jax 68.00”
Though this was not shown to be in appellant’s handwriting, it was found in an apartment where he was shown to be residing and, if error, not such as to call for a reversal of this conviction. Gray v. State, 116 Tex. Cr. Rep. 617, 38 S. W. 2d 457.
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed. |
9,645,443 | 2023-08-22 21:24:49.153153+00 | Dice | null | on appellant’s motion for rehearing
DICE, Judge.
In his motion for rehearing appellant strenuously insists that the admission in evidence of the three pieces of paper found by the officers in the apartment constituted reversible error.
As was shown in our original opinion, the three pieces of paper were found by the officers in their search of the apartment for the liquor. The finding of the pieces of paper was a part of the res gestae of the transaction and the evidence was admissible as such. 18 Tex. Jur. par. 190, pages 305-308. Emerick v. State, 97 Tex. Cr. R. 50, 259 S. W. 1087 and Buchanan v. State, 104 Tex. Cr. R. 612, 286 S. W. 230.
*451The motion for rehearing is overruled.
Opinion approved by the Court. |
1,516,103 | 2013-10-30 06:32:49.643636+00 | Matsch | null | 955 F. Supp. 1278 (1997)
UNITED STATES of America, Plaintiff,
v.
Timothy James McVEIGH and Terry Lynn Nichols, Defendants.
Criminal Action No. 96-CR-68-M.
United States District Court, D. Colorado.
February 26, 1997.
Patrick Ryan, U.S. Attorney for the Western District of Oklahoma, Oklahoma City, OK, Joseph Hartzler, Special Assistant U.S. Attorney, Assigned from S.D. Illinois, Denver, CO, for plaintiff.
Stephen Jones, Richard H. Burr, III, Robert Nigh, Jr., Jones, Wyatt & Roberts, Enid, OK, Jeralyn E. Merritt, Denver, CO, for defendant McVeigh.
Michael Tigar, Ronald G. Woods, N. Reid Neureiter, Denver, CO, for defendant Nichols.
MEMORANDUM OPINION AND ORDER ON MOTIONS FOR DAUBERT HEARING
MATSCH, Chief Judge.
In their motions and briefs, filed as docket entries 3026, 3056 (with exhibits in docket *1279 entries 3057 through 3060), 3102, 3130 and 3171, and in the oral arguments heard on February 20, 1997, the defendants assert that under the interpretation of Fed.R.Evid. 702 provided by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), this court must hold a hearing outside of the presence of the jury to determine the admissibility of results of certain laboratory testing, together with conclusions and opinions derived from those tests. In the government's response at docket entry 3191, the prosecutors agreed that a pretrial hearing to determine the qualifications of prospective witnesses Linda Jones, Paul Rydlund and William Stokes, may avoid lengthy voir dire of them when they are called at trial. After review of all of the material submitted, including the exhibits, the court has determined that no pretrial hearing is necessary. The showing required to determine admissibility under Fed.R.Evid. 104(a) will require the production of evidence that should be presented to the jury under Rule 104(e) to assist them in evaluating the credibility and weight to be given to the challenged testimony.
The principal dispute centers on FBI laboratory testing for chemical residue on clothing and personal property taken from Timothy McVeigh and analytical testing of Q507, an object taken from the site of the explosion and tested at the FBI lab and at another location. Defense counsel contend that information made known to them through discovery suggests the possibility of contamination of the items tested and the testing equipment; that the FBI laboratory lacked proper protocols and prescribed procedures; that the testing methodologies used were inappropriate and that unqualified persons participated in performing the tests. In sum, the defense argues that the government must prove to the court, outside the presence of the jury, that appropriate scientific methods were properly applied before the test results and conclusions drawn from them can be admitted as relevant and reliable scientific evidence.
The challenged evidence does not involve any new scientific theory and the testing methodologies are neither new nor novel. The government intends to prove that particular chemical elements were found on or in the items tested, using well-recognized qualitative analysis procedures. The government will, of course, first be required to establish the relevance of such evidence by proof of a chain of custody linking these items to persons, places and times of significance to the issues in this case.
The government must then show that the person selecting the testing methodologies was qualified to judge their appropriateness under the circumstances and that the data were developed in a manner consistent with the selected techniques and technology. Finally, the prosecution must show that the person interpreting the test data was qualified to do so.
Discovery has shown that the testing methodologies employed in the qualitative analysis included thin-layer chromatography (TLC), infrared spectroscopy (IR), fourier transform infrared spectroscopy (FTIR), ion chromatography (IC) and X-ray diffraction (XRD). These are all well-known techniques routinely used by chemists to determine the elemental composition of unknown samples. Evaluation of the effectiveness of these methods and the accuracy of the collected data requires a person who has appropriate scientific knowledge and who knows the proper care, use and limitations of the equipment employed. Proof of these foundation matters must be presented before the test results or any conclusions drawn from them may be received in evidence. Opposing counsel may ask voir dire questions in the course of such proof.
Opinion testimony based on scientific knowledge and data collected by scientific methods is admissible under Rule 702 only if the court first determines that it has sufficient relevance and reliability under Rule 104(a). Whether a hearing on these preliminary questions must be conducted outside the presence of the jury depends upon whether it is required in the interests of justice under Rule 104(c). Because the accused has the right to have the jury hear evidence relevant to the weight and credibility of opinion evidence, the necessary foundation *1280 for admission should be presented to the jury. That procedure avoids the duplication that would result from a pretrial hearing. If the test results and conclusions are excluded, the jury will recognize the reason for the ruling and it is difficult to see that the jury's knowledge that the court rejected evidence offered by the government would prejudice the defendant.
The difference between the court's role in deciding the admissibility of evidence and the jury's role in deciding the probative value of it is not easily defined when scientific opinions are involved, recognizing that qualified persons often reach conflicting conclusions about the proper application of scientific principles in laboratory applications and in the interpretation of test results. In this case, there is no doubt about the pertinence of the government's efforts to find and identify traces of chemical components of materials having explosive potential on the items tested. The question is whether those efforts produced reliable results.
Admission of the conclusions drawn by the government's opinion witnesses does not depend upon the prosecutors convincing the court that the data and the interpretations of it are completely accurate. Daubert does not substitute the judge for the jury as the fact-finder for scientific issues. It requires only that the court protect the jury from the influence of opinion testimony that does not have a proper foundation in the methods of science.
The admission and exclusion of real evidence is governed by Fed.R.Evid. 901(a). The proponent must establish the authenticity and relevance of such evidence by proving a chain of custody. The chain of custody need not be perfect for the evidence to be received. The jury must evaluate the import and effect of any defects. United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989). Similarly, scientific tests need not be shown to be infallible to make their results admissible. United States v. Hicks, 103 F.3d 837, 846 (9th Cir.1996) (quoting from State v. Lyons, 324 Or. 256, 924 P.2d 802, 813 (1996)).
In United States v. Beasley, 102 F.3d 1440 (8th Cir.1996), the defendant moved to exclude DNA evidence because of failures in the testing laboratory to observe certain precautions in conducting the analysis. Citing its earlier opinion in United States v. Martinez, 3 F.3d 1191, 1198 (8th Cir.1993), the Eighth Circuit Court of Appeals repeated its admonition that such deficiencies provide a basis for exclusion of an expert opinion only when they so alter a reliable scientific methodology as to "skew" the methodology itself. It was for the jury to determine whether the reliability of the test results was undercut by flaws in performing the laboratory tests. The court has the responsibility to determine the difference between admissibility and weight when considering objections to offers of evidence. The proof necessary for that decision is the same proof required for establishing a proper foundation for offering opinions from those qualified by the required education, training and experience.
The defense has not suggested that the government's principal witness on the subject of explosive residue analysis, Steven Burmeister, is not a qualified chemist capable of selecting appropriate testing methodology, supervising the lab work and interpreting the results. The challenges are to the collection and handling of the items tested; the manner in which the lab work was performed; the care and maintenance of the equipment used and the influence of general operating conditions in the lab. These are matters that may determine the admissibility of the opinion evidence and well may influence the jury's consideration of it if it is received. There is nothing prejudicial to the defendant in reserving ruling on the admission of the opinions and conclusions to be drawn from the testing until it is offered at trial. While Fed.R.Evid. 705 permits the witness to testify to his opinion or inference without first testifying to the underlying facts or data, the court may require otherwise, and in this case, such an order is required for both trials. All of the necessary foundation must be proved and the adequacy of the showing made will be determined before questions asking for opinions and conclusions will be permitted. This procedure provides the functional equivalent of a preliminary hearing, as the court recognized in United States v. Davis, 40 F.3d 1069, 1075 *1281 (10th Cir.1994). If voir dire requires questioning that may be too prolonged or that may include matters inappropriate for hearing by the jury, it may be done during a recess period. If the defendant's objections to qualification of the witness and to the particular offerings of opinions and conclusions require argument, that too may be heard during a trial recess or may be presented in writing.
Upon the foregoing, it is
ORDERED that the defendants' motions for pretrial hearing are denied and the defense objections will be heard during the course of each trial. |
1,516,108 | 2013-10-30 06:32:49.730731+00 | Belcher | null | 335 S.W.2d 385 (1960)
Guadalupe GONZALES, Appellant,
v.
STATE of Texas, Appellee.
No. 31836.
Court of Criminal Appeals of Texas.
May 18, 1960.
Frederic Johnson, A. J. Ellisor, Sinton (Frederic Johnson, Sinton, of counsel), for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The conviction is for murder without malice of Santiago Orozco under 802c, Vernon's Ann.P.C.; the punishment, two years.
The evidence of the state shows that about 10:30 p. m., the appellant while intoxicated and driving an automobile on a public highway at an excessive rate of speed drove it into the rear of an automobile driven by Porifio Orozco which was travelling in the same direction at 25 or 30 miles per hour and occupied also by his four sons, one of whom was Santiago Orozco.
The evidence further shows that Santiago and Raymundo Orozco were killed as a result of the collision.
Appellant did not testify but called one witness who testified that shortly after 9 p. m. appellant drank part of a bottle of beer at a tavern where she worked and that he was not intoxicated. He also called several other witnesses who testified that he bore a good reputation as a peaceable and law abiding citizen.
*386 Appellant contends that the evidence is insufficient to support the conviction because it fails to show a causal connection between appellant's intoxication and the accident and death of Santiago Orozco.
Porifio Orozco testified that all the lights on his automobile were burning as he drove along a public highway; that he saw the lights of a car overtaking him and that it "was coming pretty fast and I pulled off to give him a chance" and then the front of the oncoming car hit his car in the right rear. He further testified that Santiago was 13 years of age and in good health before the collision, but afterwards he appeared to be "completely injured".
The driver of the ambulance, who was also a licensed embalmer, testified that when he arrived at the scene of the collision he found the deceased "all broken up, some of the injuries were internal, * * that his chest was crushed and his neck was badly hurt inside".
There was extensive damage to the right rear of Orozco's car and also to the left front of appellant's car as shown by the pictures of both cars in the record.
When Orozco saw the oncoming car behind him he pulled to the right to "give him a chance", yet, appellant's car veered further to the right as its left front struck the right rear of Orozco's car, and both came to rest in the ditch on their right hand side of the road. It appears that if the appellant had reduced his speed, or had veered to the left, or had continued straight ahead on the highway the accident and resulting death could have been avoided.
The evidence is sufficient to warrant the jury's finding that had appellant been sober he could have avoided the accident which resulted in the death of Santiago Orozco. Long v. State, 154 Tex. Crim. 587, 229 S.W.2d 366; Spraglin v. State, Tex.Cr.App., 334 S.W.2d 798.
Appellant complains of the refusal of the trial court to charge on circumstantial evidence.
Deputy Sheriff Joe Zapata testified that at the scene of the collision he asked who was driving that car, pointing to a car, and Orozco said he was; and when he asked who was driving the other car, appellant answered: "I am, Joe, it was me that was driving". In view of appellant's admission that he was driving the car and evidence that the car was operated upon a public highway, and the testimony that he was intoxicated a charge on circumstantial evidence was not required.
Finding the evidence sufficient to support the conviction, and no reversible error appearing the judgment is affirmed.
Opinion approved by the Court. |
1,516,110 | 2013-10-30 06:32:49.762206+00 | Smith | null | 913 A.2d 326 (2006)
HELVETIA COAL COMPANY and General Recovery, Inc. (formerly Cantlon Associates, Inc.), Petitioners
v.
WORKERS' COMPENSATION APPEAL BOARD (LEARN), Respondent.
Commonwealth Court of Pennsylvania.
Submitted August 25, 2006.
Decided December 15, 2006.
*327 Toni J. Minner, Pittsburgh, for petitioner, Helvetia Coal Company.
Ronald J. Fonner, Greensburg, for respondent.
BEFORE: SMITH-RIBNER, Judge, COHN JUBELIRER, Judge, and KELLEY, Senior Judge.
OPINION BY Judge SMITH-RIBNER.
Helvetia Coal Company and General Recovery, Inc. (formerly Cantlon Associates, Inc.) (Employer) seeks review of the February 22, 2006 order of the Workers' Compensation Appeal Board (Board) that affirmed the remand decision of the Workers' Compensation Judge (WCJ) granting the claim petition filed by Glenn Learn (Claimant) seeking benefits for a permanent hearing loss. Employer questions whether the WCJ erred in finding that Claimant had a 34.7 percent binaural impairment as a result of his occupational noise exposure; whether the medical evidence presented by Claimant constitutes substantial competent evidence supporting a work-related permanent hearing loss; and whether the WCJ erred in concluding that the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626, prohibits consideration of the effects of hearing protection.
On April 21, 2000 Claimant filed a claim petition alleging that as of January 5, 1999 he suffered from a hearing loss due to his exposure to occupational noise while working for Employer at its coal mines. Claimant testified that he worked for Employer in various positions since 1978 and that from 1997 until his last day of work on January 4, 1999 he worked as either a mine foreman or a superintendent seven hours a day, six days a week mostly underground. His job required him to travel to problem areas of the mine and to evaluate the noise, and he spent a lot of time around belts, worked near pumps and ventilation equipment and was exposed to high-pitched noises from belt drives, rollers, drills and jackhammers. Hearing protection was mandatory only in one or two sections of the mine before 1998. After hearing protection became mandatory throughout the mine in 1998, he was given muffs, which he mounted into his hard hat. He wore them "in a significantly noisy environment." May 31, 2000 Hearing, Notes of Testimony (N.T.), p. 35; Reproduced Record (R.R.) at 70a. He could not wear hearing protection constantly because he had to be able to hear certain noises, such as those from roof movement and equipment malfunction. He owned a motor boat, operated a motorcycle and engaged in archery hunting, and he always wore hearing protection while using shotguns.
Claimant presented the August 8, 2001 deposition transcript of testimony from David R. Rogerson, M.D., a board-certified *328 otolaryngologist, who examined Claimant on April 23, 2001, reviewed his work history and performed an audiological evaluation. Using the American Medical Association (AMA) formula, Dr. Rogerson determined that Claimant suffered from a 20.3 percent binaural hearing loss, and he opined that the most significant cause of Claimant's hearing loss was his industrial noise exposure. Dr. Rogerson noted a lack of any other possible causes of the hearing loss other than the normal aging process and discounted Claimant's use of mowers or riding a motorcycle as a cause.
Employer presented the October 25, 2001 deposition testimony of Dr. Sydney N. Busis, M.D., a board-certified otolaryngologist, who examined Claimant on June 27, 2000. Dr. Busis opined that according to the AMA Guides Claimant had a 39.375 percent hearing impairment on the right, a 33.75 percent hearing impairment on the left and a 34.7 percent binaural impairment, that the most common causes of sensorineural hearing loss are heredity, aging and noise exposure and that Claimant's hearing loss was not caused by occupational noise induced problems. He stated that it was unlikely that Claimant was exposed to long-term hazardous noise while working in the mines because he wore hearing protection and that his hearing loss could have come from his early years of noise exposure while working for other employers.
The WCJ accepted Dr. Busis' testimony only to the extent of his evaluation that Claimant had a 34.7 percent binaural hearing loss. The WCJ found credible the testimony from Claimant regarding his occupational noise exposure and from Dr. Rogerson regarding the cause of Claimant's hearing loss and the effects of hearing protection; the WCJ rejected Dr. Busis' conflicting testimony. He granted the claim petition for a 34.7 percent work-related hearing loss as of January 5, 1999, entitling Claimant to "total disability benefits" of $588 per week for 88.33 weeks. WCJ's March 29, 2002 Decision, Findings of Fact No. 15.
On appeal, the Board noted its concerns and perceived inconsistencies in Dr. Rogerson's testimony, in Claimant's testimony and in the WCJ's findings: Dr. Rogerson assumed that Claimant was exposed to noise eight hours a day when Claimant testified that he worked seven hours a day; Dr. Rogerson was unaware that Claimant worked for Employer in a variety of positions and believed that Claimant wore hearing protection only when convenient although he testified that he wore it in a significantly noisy environment; Dr. Rogerson admitted that he did not have specific information regarding Claimant's noise exposure in the last three to four years of employment; and Dr. Busis did not opine that Claimant's 34.7 percent hearing loss was work related. The Board stated that on its face a discrepancy arises as to whether the 34.7 percent hearing loss found by the WCJ was "permanent." Board's April 23, 2003 Opinion, p. 5. The Board vacated the WCJ's order and remanded the matter for the WCJ to address the Board's concerns and the inconsistencies that it raised, to make a finding on the notice issue and to correct the WCJ's reference to total disability benefits.
On remand, the WCJ accepted Claimant's testimony as credible and found that he worked seven hours a day, six days a week mostly underground and sometimes more than seven hours a day and that he experienced long-term exposure to hazardous occupational noise during the last three years of his employment. The WCJ accepted Dr. Rogerson's opinion regarding the cause of Claimant's hearing loss and *329 accepted in part Dr. Busis' opinion that Claimant had a 34.7 percent hearing impairment. The WCJ again granted the claim petition and awarded hearing loss benefits at the rate of $588 per week for 88.33 weeks. Concluding that the WCJ addressed the Board's concerns and that the WCJ's remand decision is supported by substantial competent evidence, the Board affirmed the decision but remanded the matter for the WCJ to determine when statutory interest should begin to accrue. The WCJ determined on remand that interest should begin to accrue as of the date of Dr. Rogerson's examination of Claimant on April 23, 2001, which the Board affirmed.[1]
Section 306(c)(8)(i) of the Act, 77 P.S. § 513(8)(i), provides in part:
For permanent loss of hearing which is medically established as an occupational hearing loss caused by long-term exposure to hazardous occupational noise,[2] the percentage of impairment shall be calculated by using the binaural formula provided in the Impairment Guides.[3] The number of weeks for which compensation shall be payable shall be determined by multiplying the percentage of binaural hearing impairment as calculated under the Impairment Guides by two hundred sixty weeks.
A claimant has the burden of establishing that he or she suffers from a permanent loss of hearing of greater than ten percent that is medically established to be work related and caused by the long-term exposure to hazardous occupational noise. See Flatley v. Workers' Compensation Appeal Board (Mallinckrodt Chem., Calsicat Div.), 803 A.2d 862 (Pa.Cmwlth.2002); Section 306(e)(8)(iii) of the Act. Under 306(c)(8)(x), however, "[w]hether the employe has been exposed to hazardous occupational noise or has long-term exposure to such noise shall be affirmative defenses to a claim for occupational hearing loss and not a part of the claimant's burden of proof in a claim." (Emphasis added.) Section 306(c)(8)(viii) provides that "[w]henever an occupational hearing loss caused by long-term exposure to hazardous occupational noise is the basis for compensation or additional compensation, the claim shall be barred unless a petition is filed within three years after the date of last exposure to hazardous occupational noise in the employ of the employer against whom benefits are sought." *330 Whether the claimant was exposed to hazardous occupational noise is a question of fact to be found by the WCJ. Joy Mining Mach. v. Workers' Compensation Appeal Board (Noggle), 805 A.2d 1279 (Pa. Cmwlth.2002).
Employer claims that no competent evidence exists to support the WCJ's finding that Claimant had a 34.7 percent binaural impairment caused by occupational noise exposure because the WCJ rejected Dr. Busis' opinion. Relying on the fact that Dr. Rogerson obtained the audiologic score of a 20.3 percent hearing loss 10 months after Dr. Busis' audiogram, Employer also calls into question the permanency of Claimant's hearing loss. The WCJ found credible Claimant's testimony regarding his exposure to occupational noise since 1978 and Dr. Rogerson's opinion that the most significant cause of Claimant's hearing loss was his industrial noise exposure. It was within the WCJ's prerogative to accept Dr. Rogerson's opinion as to the causal relationship between Claimant's hearing loss and his occupational noise exposure and to accept in part the result of the audiogram conducted by Dr. Busis to determine the degree of the hearing loss.
The discrepancy in the results of the audiograms performed by Dr. Rogerson and Dr. Busis does not affect the determination of permanency of Claimant's hearing loss. Dr. Rogerson testified that a variation of a test can be up to ten decibels and that the discrepancy between the results of the two audiograms was within a test-to-retest variation which "could be a 20 decibel difference." Dr. Rogerson's Deposition, p. 38; R.R. 133a. The WCJ found as follows: "The difference here is fewer than 20 decibels. I find the higher degree of impairment more credible because I credit the significant subjective complaints Claimant described in his May 31, 2000 hearing testimony." WCJ's December 11, 2003 Decision, Findings of Fact No. 6. The testimony accepted by the WCJ as credible constitutes substantial competent evidence supporting his finding that Claimant had a 34.7 percent work-related binaural hearing loss.
Employer contends, however, that Dr. Rogerson's opinion cannot constitute substantial competent evidence to support the finding that Claimant's binaural impairment is attributable to occupational noise exposure because the doctor's opinion was based on inaccurate information and assumptions as to Claimant's work history, work hours, noise exposure and hearing protection and a lack of knowledge of long-term exposure to hazardous occupational noise under the Act. Employer relies on Dr. Rogerson's testimony on cross-examination that he had only the reports of Dr. Busis and Dr. Mark R. Klingensmith and no other data when he initially evaluated Claimant and that he had no specific information regarding Claimant's exposure during the last three or four years of employment.
Under Section 306(c)(8)(x) of the Act, the issue of whether Claimant was exposed to long-term hazardous occupational noise shall be an affirmative defense to the claim, "including whether the claim was filed within three years of last exposure." Meadville Forging Co. v. Workers' Compensation Appeal Board (Artman), 747 A.2d 958, 961 (Pa.Cmwlth.2000).[4]*331 Thus "[a]ll that a claimant has to do to meet his or her burden under Section 306(c)(8)(i) of the Act is to prima facie establish that the claim was timely filed by showing that he or she was exposed to occupational noise while working for Employer during the three years preceding the claim." Id. Employer presented no evidence to establish that Claimant was not subject to long-term exposure to hazardous occupational noise.
Dr. Rogerson's testimony that Claimant worked eight hours a day does not affect his unequivocal testimony regarding the cause of the hearing loss. A medical witness' opinion must be viewed as a whole, and inaccurate information will not defeat the opinion unless it is dependent upon the inaccuracy. American Contracting Enterprises, Inc. v. Workers' Compensation Appeal Board (Hurley), 789 A.2d 391 (Pa.Cmwlth.2001). Any inconsistencies between Dr. Rogerson's testimony and Claimant's testimony regarding his work history and noise exposure are a matter of the weight to be given to Dr. Rogerson's testimony, not the competency of his testimony. The testimony accepted by the WCJ supports the findings that Claimant experienced long-term exposure to hazardous occupational noise during the last three years of his employment and that Claimant's noise exposure was the most significant cause of his hearing loss.
Finally, Employer's contention that the WCJ failed to consider Claimant's use of hearing protection is not supported by the record. The WCJ did consider Claimant's use of hearing protection, as indicated by the WCJ's finding that "while he clearly wore hearing protection from time to time, . . . operational needs and Claimant's supervisory responsibilities prevented him from wearing it consistently." WCJ's December 11, 2003 Decision, Findings of Fact No. 5. The Court also notes that "whether a person is exposed to long-term exposure to hazardous noise is to be measured without the use of hearing protection devices." Meadville Forging, 747 A.2d at 961. The Court concludes that the WCJ's findings are supported by substantial competent evidence and affirms the Board's order.
ORDER
AND NOW, this 15th day of December, 2006, the Court affirms the order of the Workers' Compensation Appeal Board.
NOTES
[1] The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a practice or procedure of the Board was not followed or the findings of fact are supported by substantial evidence in the record. Select Sec., Inc. v. Workers' Compensation Appeal Board (Kobrin), 901 A.2d 1129 (Pa.Cmwlth.2006). The WCJ has sole power to evaluate the evidence and to determine witness credibility and may accept or reject any testimony in whole or in part. Miller v. Workers' Compensation Appeal Board (Airborne Freight), 817 A.2d 1200 (Pa. Cmwlth.2003).
[2] The term "hazardous occupational noise" is interpreted as "noise levels exceeding permissible noise exposures as defined in Table G-16 of OSHA Occupational Noise Exposure Standards, 29 CFR 1910.95 (relating to occupational noise exposure) (July 1, 1994)." Section 105.4 of the Act, added by Section 1 of the Act of February 23, 1995, P.L. 1, 77 P.S. § 25.4. The term "long-term exposure" means "exposure to noise exceeding the permissible daily exposure for at least three days each week for forty weeks of one year." Section 105.6, added by Section 1 of the Act of February 23, 1995, P.L. 1, 77 P.S. § 25.6. The permissible noise exposure is 90 decibels for 8 hours per day. 29 C.F.R. § 1910.95.
[3] The Impairment Guides refers to "the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (June 1993)." Section 105.5 of the Act, added by Section 1 of the Act of February 23, 1995, P.L. 1, 77 P.S. § 25.5.
[4] The employer is required to administer a continuing, effective hearing conservation program whenever employees' noise exposures equal or exceed an 8-hour, time-weighted average sound level of 85 decibels. 29 C.F.R. § 1910.95(c). A claimant could be exposed to an 8-hour, time-weighted average below 90 decibels two days a week and still be exposed to long-term hazardous occupational noise if noise levels, to which a claimant was exposed, exceeded those permissible for at least three days a week for forty weeks a year. See General Elec. Co. v. Workers' Compensation Appeal Board (Bower), 734 A.2d 492 (Pa.Cmwlth.1999). |
9,645,444 | 2023-08-22 21:25:03.682395+00 | Harris | null | Carleton Harris, Chief Justice.
This is an appeal from a judgment for $12,000 entered by the Saline Circuit Court in favor of appellee against appellant. The jury found Ford Motor Company guilty of negligence in the manufacture of a certain Ford truck, subsequently purchased and driven by appellee, and that such negligence was the cause of injuries sustained by Fish.
About April 12, 1956, Fisb, employed by the State Game and Fish Commission as a game refuge commissioner in Lafayette County, purchased the Ford pickup truck from the Ford dealer in Stamps, L. D. Galloway, Jr. Five days later, while traveling highway 67 out of Little Bock, going toward Benton, the truck left the right side of the highway, turned over twice, and Fish was injured. This occurred shortly after 2 p.m., and the testimony establishes that the truck had been driven a total of approximately 550 miles at the time of the occurrence.
On January 9,1958, Fish instituted suit in the Saline Circuit Court against the Ford Motor Company and Milton Green,1 d/b/a Stamps Auto Company, alleging the purchase of the Ford pickup truck from Stamps Auto Company. Appellee averred that he drove the truck for five days in a careful manner, and had allowed no one else to drive the vehicle; that it had been driven 550 miles; that he had not in any way tampered with, altered, or disturbed, the braking assembly or mechanism, nor allowed any other person to do so; that such mechanical parts and assemblies were sealed, and locked by the Ford Motor Company in the process of manufacture, by means of screws, bolts, rivets, and pins, and “were at the time of the injury to plaintiff hereinafter described in the same condition, position and alignment as they were when this vehicle left defendant Ford Motor Company’s factory except for whatever changes, if any, to condition, position and alignment as may have been caused by approximately 550 miles of careful operation of the vehicle.” Paragraph four alleged “that on April 17, 1956, plaintiff was driving this vehicle at a speed of approximately 45 miles per hour on U. S. Highway 67-70 in Saline County, Arkansas, at which point said highway is a smooth, level, unobstructed concrete public roadway, when the right front wheel of the truck suddenly ‘grabbed’ twice in rapid succession and immediately thereafter that wheel ‘locked’ causing the vehicle to overturn, and causing the injuries and damages to plaintiff hereinafter described.” The complaint further charged, insofar as Ford Motor Company was concerned, that the company negligently failed to exercise the degree of care owed by a manufacturer of a vehicle to the vendee and public “in the manufacture, testing, inspection, design and engineering of its product” and as a result of this failure, placed this vehicle in the channels of trade for sale with mechanical defects which caused, or contributed to cause, the injuries and damages to plaintiff. Further allegations were that the defective parts “were closed up, sealed and locked by defendant Ford Motor Company by means of screws, bolts, rivets and pins and thus continued to be in the exclusive control of this defendant until the time of the injuries to the plaintiff, and therefore their nature is within the exclusive knowledge of this defendant. All of the foregoing defects would have been discoverable by this defendant in the exercise of reasonable inspection and testing.” The complaint sought damages in the amount of $64,844.10. After the filing of various motions and interrogatories, both the Ford Motor Company and L. D. Calloway filed separate answers, denying liability and asserting that if appellee sustained any injuries or damages, such injuries or damages were proximately caused or contributed to by negligence or carelessness on the part of appellee. The case was heard on October 15, 1959, at which time the jury found the defendant, L. X). Calloway, d/b/a Stamps Auto Company, guilty of no negligence, found Charlie Fish guilty of no negligence, but found the Ford Motor Company guilty of the entire and total negligence, or 100%. Verdict was returned in the amount of $12,000.2
For reversal, appellant urges three points, as follows :
“I.
The evidence was insufficient to sustain a verdict against appellant, and the trial court should have directed a verdict in appellant’s favor.
II.
The Court erred in admitting, over the objection of appellant, certain incompetent testimony offered on behalf of appellee.
III.
The Court erred in giving, over the general and specific objections of appellant, plaintiff’s instructions numbered 1, 4, 5, and 6.”
We proceed to a discussion of these contentions, though not under separate headings.
The evidence reflected that appellee had been in possession of the truck five days, and had driven it 551 miles. Fish testified that no one else had driven the truck, and that he had not inspected or tampered with the mechanical parts in any way. Appellee is a game refuge keeper in Lafayette County, and on April 17th, he drove the vehicle to Little Rock for the purpose of having a two-way radio installed, leaving Bradley (a distance of 163 miles from Little Rock) about 1 or 1:30 a.m., and arriving in Little Rock between 6 and 6:30 a.m. Installation of the radio was completed around 12:30, and appellee started back to Bradley, taking highway 67 out of Little Rock. He passed a heavily loaded truck, while traveling at a speed of 40 or 45 miles per hour, and after getting back on his own side of the highway, noticed that his right front wheel was pulling to the right. “It grabbed two or three little short grabs, and then it grabbed and held, and pulled me to the right.” The car left the highway and turned over twice; the right door came open, and appellee, in sliding down, had both legs pinned to the ground by the running board. The radio was on, and Fish called the Came and Fish office, and asked that help be sent. According to the witness, no traffic was approaching at the time the mishap occurred. In the meantime, William Rider, a state policeman, arrived, and with the help of bystanders, removed Fish from the wreckage.3 Appellee testified that, while being carried away, he observed two or three short, black marks, three or four feet in length, some thirty or forty feet back of where the truck left the highway. Appellee’s contention is that these marks were left by the right front wheel, and show that the wheel did lock. Both Aubrey Fowler, Chief Enforcement Officer for the Game & Fish Commission, and Eider testified that they observed the skid mark, though they testified that it was a single (rather than two or three short marks), black, straight, mark, that ran straight for a few feet, and then veered, at first gradually, and then sharply, to the right. Fowler stated that he drove the truck back to the Game & Fish Commission Building in Little Bóck, a distance of approximately 15 miles, at a speed of 12 to 15 miles per hour. He observed nothing wrong with the operation of the vehicle, though he testified that he did not apply the brakes at all before stopping at the Game & Fish Building.
In endeavoring to establish liability on the part of the Ford Motor Company, appellee relied, to some extent, on the doctrine of res ipsa loquitur. This Latin phrase is generally interpreted to mean “the thing itself speaks” or “the transaction speaks for itself”, and is a concise way of stating that circumstances attending an accident are of themselves of such character as to justify an inference of negligence on the part of one having control over such circumstances. Interesting discussions of this doctrine are found in various legal volumes, and it is evident that all jurisdictions are not in accord in determining what fact situations properly come under the doctrine. However, in those states which recognize the doctrine, certain conditions are necessary before res ipsa loquitur may be applied. As stated in Corpus Juris Secundum, Yol. 65,para. 220 (4),page 999:
“There are several conditions, aside from those directly pertaining to the nature and happening of the accident or injury as such, which are generally recognized as essential to make the doctrine of res ipsa loquitur applicable to a given case and to lay the foundation for the presumption or inference arising therefrom. These conditions or essential elements include superior knowledge on the part of defendant as to the cause of the accident, * * * the absence or unavailability of direct evidence of negligence, * * * the existence of a sufficient duty on the part of defendant to use due care, * * * and proof of the accident or injury and defendant’s relation thereto.
In order that the doctrine of res ipsa loquitur may apply, plaintiff must first present sufficient proof of the existence of the elements necessary to bring the doctrine into operation; the inference arising from the rule does not supply the foundation facts from which the rule arises, and the application of the doctrine to a particular state of facts cannot be based on speculation alone.”
In paragraph 220 (6):
“Although, * * * the doctrine of res ipsa loquitur provides a substitute for direct proof of negligence, the rule is nevertheless one of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available. ’ ’
In Words and Phrases, Vol. 37, page 484:
“For application of doctrine of ‘res ipsa loquitur’ accident must be of a kind which ordinarily does not occur in the absence of some one’s negligence, it must be caused by an agency or instrumentality within defendant’s exclusive control, and it must not have been due to any voluntary action or contribution on part of plaintiff. ’ ’
Further, on page 488, paragraph 5:
“The mere happening of accident does not justify recourse to ‘res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable.” Still further, paragraph 12 :
“The ‘res ipsa loquitur’ doctrine applies only when the damage caused, which is the basis of the action, is of such a nature that it can be said that according to common experience the event which caused the damage would not have occurred without some fault on the part of the persons sought to be held responsible.”
Finally, in 7A Blashfield, Automobile Law and Practice, 217, Sec. 4818, it is stated:
‘ ‘ The mere occurrence of an accident resulting in injuries to the buyer of an automobile or other third person does not raise a presumption that the manufacturer or dealer was negligent, or that the vehicle had a latent defect, and plaintiff must prove that the alleged manufacturer was such, and he has the burden of proving that the manufacturer was negligent in the manufacture of the automobile. * * *
However, the doctrine of res ipsa loquitur may be applied in a proper case, as, for example, in the case of an explosion of a solvent used for the tune-up of automobile motors.”
Through the testimony of Artie Bearden, an automobile mechanic of Benton, and W. C. “Dutch” Mayer, a garage operator in Little Rock, appellee sought to prove that the right brake was defective. Mayer testified, ‘‘ The brake was binding”, and he took it to Cook’s Machine Shop to see “if the drum was out of round”. He stated that the drum was placed on a machine which could be used for determining whether the drum was out of round. Mayer testified that “it was an eighth of an inch off”. The witness stated that, based on his experience as an automobile mechanic, if a drum is an eighth of an inch out of round and the brakes are applied, or if the brakes are set too tight, the vehicle will be thrown to one side. He testified this would not happen every time, but that if the drum is out of round and it happens to revolve at the proper point, it would cause it to “lock up”. Mayer further stated that a brake could also be caused to lock by brake fluid or grease on the brake lining, or that it could be caused by a rough lining. However, on cross examination, the witness testified that if a drum is as much as an eighth of an inch out of round, the driver of the vehicle would feel this defect by pressure on the brake pedal; that the pedal would work backward and forward, and the driver could easily tell that something was wrong; also, if the car had been driven for 550 miles, a “hot spot” would be created at the high point, and that this “hot spot” would be visible by looking at the brake drum; however, his examination revealed no “hot spot” on this particular drum. Mayer found no foreign matter of any nature on the brake lining, and in fact, found nothing wrong with either the brake shoes or the brake lining except ‘ ‘ that the lining was scored a little bit”. Mr. Mayer testified that the brake linings “shouldn’t score within four to five thousand miles”.
Counsel for appellee propounded to the witness Bearden the following hypothetical question:
“Assume that a buyer purchased a new 1956 model Ford pick-up truck and drove it for four days and on the fifth day, at a time when he had about 550 miles on that pick-up truck, and at a time when no other driver but him had driven it since he bought it, and at a time when he had not tampered with any of the mechanical parts of that vehicle, nor had permitted anyone to, and at a time when he had had no mechanical difficulty with the pick-up truck, that he was driving down a straight, level, concrete highway, under favorable weather conditions, it was a pretty day, the pavement was dry, and, as he would describe it in his layman’s language, the right front brake grabbed one, two or three times in rapid succession, and releasing each time, and then it grabbed and locked, resulting in the vehicle making a single black skid mark on the pavement for a short distance in a straight line, then veering off gradually to the right shoulder, then more sharply to the right across the shoulder and off the highway, resulting in the vehicle turning over, I believe, twice; now, assuming that state of facts, do you have an opinion as to what might have caused that reaction? . . . Assume one further fact — that during this four days that the vehicle had been driven, that it had been driven on some paved roads, some gravel roads, some dirt roads; and, assume one further fact — that the driver of that vehicle had arisen on the morning of the incident so as to leave his home at approximately 1:30 in the morning, and consequently had been up all morning and the incident occurred approximately 2:00 o’clock in the afternoon, and he had not slept during that period of time and had had approximately 5 hours of sleep the night before; now, then, do you have an opinion, under those circumstances, as to what might have caused this incident?”
To this question, objected to by appellant, the witness replied that he had an opinion, the opinion being “it could be caused by foreign matter in the wheel or a bearing”. Bearden explained that by foreign matter, he meant something that was not supposed to be there, i.e., in this instance, grease or brake fluid on the brake lining. One addition was then made to the hypothetical set of facts, and the witness was asked, “Assume that some application was made on the brake pedal, would there be any change or do you have an opinion as to what might happen in this instance?” To this question, Mr. Bear-den replied, “It would lock the wheel.” Appellant continued with his objections to the question and answer.
Appellant offered the testimony of Robert Riding, an engineer and employee of Ford Motor Company for 19 years. Riding testified that á drum cannot be tested properly in the manner testified to by Mayer, and that the use of the spindle is not an accurate way to test a drum for “out of round”.4 The witness stated that the “run out” on the drum was measured at seven thousandths; and that the manufacturer’s permissible tolerance is five thousandths; that a run out of up to five thousandths is considered perfect; however, he testified that a run out of seven thousandths would not be noticed in the operation of the drum. The witness testified that if a drum were one-eighth of an inch out of round, one could not get a brake adjustment, and the pedal would bounce up and down; further, that under such a condition, the brake would not have lasted 500 miles; that a “hot spot” would have been evident, and he found no evidence that heat had ever been applied to the drum, nor did he notice any unusual scoring or wear on the linings. Of course, we are not here concerned with the conflict in evidence, for conflicts are resolved by juries. We are only concerned with whether the court committed error in permitting the case to go to jury on the theory advanced.
We have reached the conclusion that, under the evidence offered, the doctrine of res ipsa loquitur was inapplicable. Appellees rely heavily upon Coca-Cola Bottling Co. of Ft. Smith v. Hicks, 215 Ark. 803, 223 S. W. 2d 762 (1949) and Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S. W. 2d 15 (1951). Both of those cases involved the explosion of a bottle of coca-cola, and we held that the mere fact that a bottle explodes raises a presumption of negligence in bottling, since reasonable men know that when bottles are properly manufactured and filled, they do not blow up. Appellee considers these cases analogous to the one before us, for he argues that the evidence reflects that appellant had exclusive control over the brake assembly up until the time of the accident. It is at once apparent that there is a vast difference between the handling of a coca-cola bottle and the driving of an automobile. There is much room for mishandling in operating a ear; in fact, we think it can be safely said that automobiles ordinarily depart the road through negligence of the operator, rather than through negligence of the manufacturer. There is still another clear distinction. After the bottle explodes, there is little that can be done by the injured person to determine the cause of the explosion. The bottle cannot be reassembled, and checked for defects. The cited cases would be more similar if the motor of a ear exploded, or a wheel suddenly disintegrated. In such event, a determination of the exact cause would be extremely difficult; however, brakes are not a complicated mechanism. The average auto repairman can determine the exact nature of the malfunction of brakes, — and all parts of the brake mechanism were available for inspection. In General Motors Corporation v. John son, 137 F. 2d 320 (1943) and Hupp Motor Car Corporation v. Wadsworth, 113 F. 2d 827 (1940), cited by appellee, direct proof of negligence in tbe manufacturer of automobiles was found, and the doctrine of res ipsa loquitur was not relied upon. A case which seems to be somewhat similar to the case at bar is Haas v. Buick Motor Division of General Motors Corporation, 20 Ill. App. 2d 448, 156 N. E. 2d 263. There, a new automobile had been driven about 1,300 miles when smoke began coming from under the dashboard. When an attempt was made to turn off the ignition, the key would not turn. The fire melted the dashboard, and windows were smoked. A verdict was directed for the manufacturer, and this action was sustained by the Appellate Court of Illinois (Second District, Second Division). Although the suit was brought on express warranties, we feel that the logic is applicable to the present case. The Court said, inter alia:
" The mere fact that an occurrence resulting in damage to property has happened does not authorize any presumption or inference that the defendant was at fault. Rotche v. Buick Motor Co., 1934, 358 Ill. 507, 193 N. E. 529, Huff v. Illinois C. R. R. Co., 1935, 362 Ill. 95, 199 N. E. 116. The mere fact that a fire evidently occurred here, resulting in damage to the property, does not authorize any presumption or inference that the defendant was responsible therefor — the burden was on the plaintiff to prove, among other things, that there was some material defect in materials or workmanship. * * * This is not a case for the application of some doctrine analogous to that of res ipsa loquitur.”
In line with the definitions and authorities herein cited, we conclude that the facts do not make a proper case for the application of res ipsa loquitur. There was evidence that the car left the highway without fault of the driver. There was evidence that the brake mechanism was sealed and locked by the motor company, thus in their exclusive control, and that this mechanism had not been disturbed. Of course, it cannot be said that the accident (leaving the highway) was without explanation in the light of ordinary experience; however, be that as it may, the alleged defective mechanism was not destroyed, was available to the injured party for inspection and examination, was examined, and the testimony reflected that specific defects were found.
Appellant complains that appellee was permitted to testify that the right front wheel of his truck caused the marks on the highway. Appellant states that this was an unsupported conclusion or opinion, and violates the rules of evidence which exclude conclusions or opinions of all witnesses except experts. We do not agree. This was not a matter of a witness coming to the scene after the occurrence was over, viewing the skid mark and then testifying that it was caused by the right front wheel. Appellee’s testimony was based on the “feel” of the drag in the front wheel, through steering, as the car went to the right.
We think the court committed error in permitting the answer of the witness Bearden, in response to the hypothetical question, to be considered by the jury. Mr. Bearden’s testimony amounted to a suggestion that there was the possibility that grease or brake fluid within the braking assembly could have caused the accident. Yet, all witnesses were unanimous in stating that no such foreign matter was found within the assembly. The jury was told by the court that the witness had given his opinion as an expert “as to what might have happened, and the jury will consider it in that manner.” Since there was absolutely no evidence upon which to base this possibility, the answer should not have been considered, as it afforded the opportunity for speculation on the part of the jury.
We are also of the opinion that the court erred in giving Plaintiff’s Instructions 4 and 5. Without going into detail, it suffices to say that these instructions, in effect, permitted the jury to apply the doctrine of res ipsa loquitur, which we have held inapplicable under the facts developed at the trial. Objections to other instructions are held without merit.
There was evidence of specific negligence, though not of the strongest nature. For instance, the witness Mayer testified that the brake was binding, which occasioned his taking it to Cook’s Machine Shop to see if the drum was out of round; there was the evidence of the skid mark, the evidence of Fish himself as to the pull to the right; the testimony that the mechanism had not been disturbed and had remained sealed, and that the drum was an eighth of an inch out of round.
In accordance with the reasons set forth in this Opinion, the judgment is reversed, and the cause remanded.
McFaddin, J., dissents in part.
Subsequently, service of summons upon Green was quashed, and the complaint amended naming L. D. Galloway as the defendant owner of Stamps Auto Company rather than Green.
The excessiveness of the verdict is not questioned.
Rider testified that Fish told him that the reason he (Fish) did not pull to the left, .was because of oncoming traffic.
“Out oí round” means when the center point is not where it should be, and “run out” means a wobbling of the drum. |
1,516,550 | 2013-10-30 06:32:56.434669+00 | Dunn | null | 726 S.W.2d 705 (1986)
Sarah Harper DANIELS, Appellant,
v.
Harvey W. DANIELS, Appellee.
Court of Appeals of Kentucky.
December 12, 1986.
Rehearing Denied March 27, 1987.
W. Stokes Harris, Jr., Lexington, for appellant.
Glen S. Bagby, Lexington, for appellee.
*706 Before WILHOIT, COOPER and DUNN, JJ.
DUNN, Judge.
Sarah Harper Daniels appeals from the decree and judgment of the Fayette Circuit Court pursuant to its Findings of Fact and Conclusions of Law in her marriage dissolution case.
She raises four issues on appeal. The first issue involves the amount of child support awarded her by the court for the support and care of the parties' two children, John, age 8 at the time of the action, and Margaret, age 3. Proof showed and the court found that Sarah earned $18,616.00 in 1983 while the appellee, Harvey, earned through wages, investments and capital gains on his investments over $51,000.00. The trial court, considering the factors in KRS 403.210, awarded Sarah $600.00 per month in child support. Under the present circumstances and in view of the childrens' ages, a borderline situation is created as to the propriety of the award. In considering the disparity of rental costs of $170.00 for the mother and two children in a two bedroom duplex and $475.00 per month for the father and his companion who made no financial contribution, the award borders on an abuse of discretion that will ripen as the children grow older. This is true especially in light of the father's more comfortable life style and assuming he came into a substantial inheritance of $100,000.00 in January of 1986. These factors, as they occur, the children's sharing a bedroom as they grow older, the father's lifestyle and his inherited money, would constitute change of circumstance as to merit an increase in child support in the future.
Sarah next argues that the gain in value of stocks purchased during the marriage with non-marital funds is marital property. In pertinent part, KRS 403.190(2)(e) definitively excepts such gain as not being marital property by fixing as non-marital:
The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.
The issue is better defined in the case of Sousley v. Sousley, Ky., 614 S.W.2d 942 (1981), which held that "income produced from non-marital property is, in fact, marital property for purposes of disposition of property pursuant to the directives of KRS 403.190." That case stated simply that net income from non-marital property would be marital property; however, a mere increase in value of non-marital property remains non-marital property. We reject appellant's novel argument that the appellee's stock market expertise resulting in the gain was developed during the marriage resulting in the gain being partly marital rather than wholly non-marital.
As to appellant's next argument regarding other stock purchases, the trial court properly awarded the stock purchased with non-marital money as non-marital property to Harvey. The trial court properly determined that Harvey had traced money which he had inherited to its use in the purchase of stock and, except for one trade involving the sale of one stock and the purchase of another in 1981, Harvey had kept intact the securities which he had bought from his cash inheritances. The evidence supports the trial court in its award of other stocks to Harvey and the division of other marital assets between the parties where marital funds were indeed involved. In summary, we affirm the trial court as to its division of the marital property and its awards of non-marital property.
Finally, Sarah argues that the court erred in listing a Merrill Lynch debt as a marital debt when it was incurred after the parties' separation. KRS 403.190(3) establishes as being presumed to be marital that property acquired after the marriage but before the decree is entered but also provides that the presumption is rebuttable. Similarly, debts so accrued are presumed to be marital debts unless the presumption is rebutted. The trial court found that out of the Merrill Lynch account the husband purchased a car, furniture and a computer. Those items were assigned to the husband *707 as part of his division of marital property. Since those items purchased from this account were marital property, the court found that it was only just that the debt be given marital status. We agree. The judgment of the Fayette Circuit Court is AFFIRMED.
All concur. |
1,516,115 | 2013-10-30 06:32:49.82562+00 | Woodley | null | 335 S.W.2d 765 (1960)
Tony FRIAS, Appellant,
v.
STATE of Texas, Appellee.
No. 31946.
Court of Criminal Appeals of Texas.
May 4, 1960.
J. Paul Pomeroy, Jr., W. W. Holland, Houston, for appellant.
Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Howell E. Stone, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Justice.
The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 180 days in jail and a fine of $100.
The facts upon which the jury found appellant guilty and assessed the above punishment are not before us, there being no statement of facts.
The overruling of appellant's amended motion for new trial is the ground upon which reversal is sought. The testimony of four jurors at the hearing on said motion is brought forward.
The amended motion for new trial alleged that at least one juror took into consideration recent newspaper articles, punishment assessed and recommended in other cases, the failure or refusal of the defendant to submit to a blood test, and the failure of the defendant to testify.
A juror cannot impeach his own verdict by affidavit or testimony stating that in reaching his verdict he took into consideration the defendant's failure to testify. Edwards v. State, 155 Tex. Crim. 590, 238 S.W.2d 537.
There was no allegation that any reference to appellant's failure to testify, or any discussion or mention of any of the various matters above mentioned, occurred during the jury's deliberation. The allegations in the motion appear to be nothing more than an effort to have the jurors impeach their own verdict. This cannot be allowed. Franco v. State, 141 Tex. Crim. 246, 147 S.W.2d 1089; Stokes v. State, Tex. Cr.App., 305 S.W.2d 779, and cases there cited.
The same is true as to the contention that one of the jurors showed prejudice by her testimony on the hearing of the motion for new trial.
It was also alleged in the amended motion for new trial that at least one juror was prejudiced before the trial against any person charged with drunken driving and concealed such prejudice during the voir dire examination.
Appellant concedes that there was no evidence that before the trial any juror had a prejudice.
The judgment is affirmed. |
1,516,119 | 2013-10-30 06:32:49.875216+00 | null | null | 955 F. Supp. 385 (1997)
UNITED STATES of America
v.
Allen W. STEWART.
Criminal Action No. 96-583.
United States District Court, E.D. Pennsylvania.
February 21, 1997.
*386 Linda Dale Hoffa, U.S. Attorney's Office, Philadelphia, PA, for U.S.
Robert E. Welsh, Jr., Philadelphia, PA, for Stewart.
MEMORANDUM
BARTLE, District Judge.
On December 4, 1996, the grand jury returned a 63 count indictment against Allen W. Stewart ("Stewart"). It charges: (1) a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962; (2) 12 acts of mail fraud, in violation of 18 U.S.C. § 1341; (3) 13 acts of wire fraud, in violation of 18 U.S.C. § 1343; and (4) 35 acts of money laundering in violation of 18 U.S.C. § 1957. The final two counts of the indictment seek forfeiture of Stewart's assets.
Stewart now moves this court to dismiss the indictment on two grounds pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure.[1] He states that the indictment fails to allege all the required elements of a RICO violation and that the entire indictment is "preempted" by state law by reason of the McCarran-Ferguson Act, 15 U.S.C. §§ 1011 et seq.
In a motion to dismiss the indictment we accept as true the facts alleged in the indictment and determine if those facts "constitute the violation of law for which [the defendant] is charged." United States v. Polychron, 841 F.2d 833, 834 (8th Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 135, 102 L. Ed. 2d 107 (1988); United States v. Seitz, Crim. A. No. 96-272-2, 1997 WL 34690, at *1 (E.D.Pa. Jan. 29, 1997). If the facts do not constitute a violation of federal law, the charges should be dismissed. Polychron, 841 F.2d at 834.
According to the indictment, Stewart committed a pattern of racketeering activity through his association with Summit National Life Insurance Company ("Summit"), now incorporated in Pennsylvania, which he purchased in 1988. ¶ 3. Stewart allegedly "acquired control of Summit ... through a scheme wherein the costs of acquiring the company, including the purchase price, were paid from the insurance company's own funds after it was acquired." ¶ 6. By acts of wire and mail fraud, Stewart devised and furthered schemes to siphon funds out of Summit as well as Equitable Beneficial Life Insurance Company ("Equitable"), another Pennsylvania domestic life insurance company he controlled. ¶¶ 4, 11. Summit's capital and surplus was $38 million when Stewart purchased the company in 1988, but decreased to negative $80.5 million by 1993. ¶ 10. Likewise, Equitable's capital and surplus was reduced from $2 million in 1988 to negative $43.2 million in 1993. ¶ 12. Through a series of transactions which inflated the book value of Summit's and Beneficial's assets, Stewart concealed his theft of funds from the public, insurance regulators, policyholders, *387 customers, potential customers, insurance agents, and others. ¶¶ 28, 46-47, 51. Stewart sold both insurance companies in 1993. ¶ 13.
I
Stewart contends that these allegations, even if true, do not comprise a RICO violation under 18 U.S.C. § 1962(c),[2] because an entity cannot be both the enterprise through which the racketeering acts were committed and the victim of such racketeering activity. Since the indictment states that Summit was the enterprise as well as the victim, Stewart argues that no RICO violation exists and this count must be dismissed.
Congress originally enacted RICO to combat organized crime. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 487, 105 S. Ct. 3275, 3280, 87 L. Ed. 2d 346 (1985). However, it "has become a tool for everyday fraud cases brought against respected and legitimate enterprises." Id. at 499, 105 S.Ct. at 3286. The statute is to be "liberally construed." Pub.L. 91-452, § 904(a), 84 Stat. 947. Section 1962(c) of RICO, states:
[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c). An enterprise is broadly defined to include "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). A pattern of racketeering activity arises when at least two acts of racketeering are committed within ten years of each other. 18 U.S.C. § 1961(5).
In National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 127 L. Ed. 2d 99 (1994), the United States Supreme Court addressed the enterprise requirement. It stated that the term enterprise "connotes generally the vehicle through which the unlawful pattern of racketeering activity is committed, rather than the victim of that activity." Id. at 259, 114 S.Ct. at 804. The Third Circuit has interpreted this language to mean that a
victim corporation "drained of its own money" by pilfering officers and employees could not reasonably be viewed as the enterprise through which employee persons carried out their racketeering activity. Rather, in such an instance, the proper enterprise would be the association of employees who are victimizing the corporation, while the victim corporation would not be the enterprise, but instead the § 1962(c) claimant.
Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 267 (3d Cir.1995). Stewart is correct that the enterprise and victim cannot be the same entity.
However, a reading of the indictment establishes that the enterprise and the victim are not entirely the same in this case. In paragraphs 2 and 3, the enterprise is described not only as Summit, but also as Stewart. The victims of the schemes to defraud included Summit as well as Beneficial, the regulators, policyholders, customers, potential customers, insurance agents, the public, and others. ¶¶ 10, 11, 28, 46-47, 51. Stewart cites no case in which a criminal RICO count was entirely dismissed solely because the victim and the enterprise overlapped. We agree with the government that the better remedy is an instruction to the jury that before any criminal liability attaches it must find that someone other than Summit was a victim of Stewart's acts of racketeering.
Stewart also maintains that the indictment is defective because it charges him with the improper acquisition of Summit. That is not, and cannot be, a § 1962(c) violation.[3] While paragraphs 16 through 26, entitled "Acquisition of Summit National Life Insurance Company," introduce Racketeering Act 1, the acquisition is not charged as a separate criminal act. The only predicate act specifically *388 related to the acquisition of Summit appears to be Racketeering Act 1A which refers to a wire transfer of money from Equitable used as part of the purchase money for Summit. The indictment does not suggest that the procurement of Summit was a separate scheme or racketeering act or that it violated § 1962(c). It is merely relevant information surrounding the detailed plot to defraud. As such, we find no merit to Stewart's position.
II
Stewart next argues that the McCarran-Ferguson Act "preempts" the indictment, that is, that federal law withdraws its preemption and allows state rather than federal law to control.[4] Prior to 1944, insurance regulation was solely within the domain of the states since insurance was not considered to be interstate commerce. See Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183, 19 L. Ed. 357 (1868). A dramatic turn occurred in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944), a criminal antitrust case, when the United States Supreme Court held that insurance was a transaction of interstate commerce subject to federal regulation. In response, Congress passed the McCarran-Ferguson Act, 15 U.S.C. §§ 1011 et seq., which reaffirmed the primacy of state regulation of insurance. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 538-39, 98 S. Ct. 2923, 2928-29, 57 L. Ed. 2d 932 (1978). The Act provides, "[t]he business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business." 15 U.S.C. § 1012(a). With respect to federal regulation, the Act continues in pertinent part:
[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, ... unless such Act specifically relates to the business of insurance.
15 U.S.C. § 1012(b).
To decide whether a federal law must yield to state law pursuant to the McCarran-Ferguson Act, we must consider four questions: (1) does the federal law specifically relate to the business of insurance? (2) has Pennsylvania enacted any law for the purpose of regulating the challenged activity? (3) does the challenged activity constitute the business of insurance? and (4) would application of the federal law invalidate, impair, or supersede the state law? Cochran v. Paco, Inc., 606 F.2d 460, 464-66 (5th Cir.1979); First Nat'l Bank of Pa. v. Sedgwick James of Minn., Inc., 792 F. Supp. 409, 417 (W.D.Pa. 1992).
Stewart and the government agree that federal criminal laws in issue do not specifically relate to the business of insurance. See Senich v. Transamerica Premier Ins. Co., 766 F. Supp. 339, 340 (W.D.Pa.1990). Likewise, the parties are in accord that the Commonwealth of Pennsylvania has enacted laws governing the challenged activity. It is on the third and fourth issues where the parties disagree. If the challenged activity constitutes the business of insurance and federal law would invalidate, impair, or supersede state law, the indictment is barred. Cochran, 606 F.2d at 464. Otherwise, the indictment stands.
We must first determine if the challenged activity, alleged of Stewart, constitutes the "business of insurance." Cochran, 606 F.2d at 464-66. The meaning of the term does not include all the functions and operations of an insurance company. In noting its limited scope, the Supreme Court has said that "[i]nsurance companies may do many things which are subject to paramount federal regulation; only when they are engaged in the `business of insurance' does the [McCarran-Ferguson] statute apply." SEC v. National Sec., Inc., 393 U.S. 453, 459-60, 89 S. Ct. 564, 568, 21 L. Ed. 2d 668 (1969).
The Supreme Court has held that, in determining whether an activity is the "business of insurance," we must ask:
first, whether the practice has the effect of transferring or spreading a policyholder's *389 risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. None of these criteria is necessarily determinative in itself....
Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S. Ct. 3002, 3009, 73 L. Ed. 2d 647 (1982) (emphasis omitted). In United States Department of Treasury v. Fabe, 508 U.S. 491, 504, 113 S. Ct. 2202, 2209-10, 124 L. Ed. 2d 449 (1993), the Court explained that the business of insurance also includes the performance of the insurance contract because "[w]ithout performance of the terms of the insurance policy, there is no risk transfer at all." In that case, an Ohio statute gave the claims of policyholders priority over claims of the federal government in the liquidation of an insolvent insurance company, in direct contravention of federal bankruptcy law. Id. at 493, 113 S.Ct. at 2204. The Court upheld that state statutory provision under the McCarran-Ferguson Act because it protected policyholders. Id. at 493-94, 113 S.Ct. at 2204. The Court reasoned that "the enforcement of insurance contracts by ensuring the payment of policyholders' claims ... [was] integrally related to the performance of insurance contracts after bankruptcy." Id. at 504, 113 S.Ct. at 2209.
According to the indictment, the challenged activity of Stewart consisted of the use of the wires and mails for fraudulent transactions to siphon large sums of money from two insurance companies he controlled, rendering them insolvent. While Stewart's actions obviously affected the insurance companies and thus their policyholders, that is not the test for determining whether he was engaged in the business of insurance. The applicable standard under the McCarran-Ferguson Act is much more circumscribed. Fabe, 508 U.S. at 508-09, 113 S.Ct. at 2211-12; Pireno, 458 U.S. at 128-33, 102 S.Ct. at 3008-11. Stewart's activities, even if legitimate, do not fit within any of the guideposts enunciated by the Supreme Court. They did not have "the effect of transferring or spreading a policyholder's risk," and were not an "integral part of the policy relationship between the insurer and the insured." Pireno, 458 U.S. at 129, 102 S.Ct. at 3009. Moreover, the financial transactions in which Stewart was engaged, whether they be legal or illegal, were not of the kind that are "limited to entities within the insurance industry." Pireno, 458 U.S. at 129, 102 S.Ct. at 3009. Nor are we concerned here with priority of payments to policyholders under a liquidation statute so as to carry out the performance of contracts. See Fabe, 508 U.S. at 493, 113 S.Ct. at 2204. We conclude that Stewart was not engaged in the business of insurance when he undertook the activities alleged.
Assuming, however, that Stewart's conduct was the business of insurance because in some broad sense it undermined the performance of insurance contracts, we next consider whether the prosecution of this case, based upon RICO, as well as mail and wire fraud, will "invalidate, impair or supersede" any Pennsylvania law enacted for the purpose of regulating the business of insurance. Cochran, 606 F.2d at 464. If so, the indictment must be dismissed. Since the terms "invalidate, impair or supersede" are not defined in the McCarran-Ferguson Act, we will apply their ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 186-88, 115 S. Ct. 788, 793, 130 L. Ed. 2d 682 (1995). To invalidate means to "make invalid, deprive of efficacy," while impair signifies to "lessen in quality or strength, damage." New Webster's Dictionary and Thesaurus 485, 508 (1993). To supersede is to "outmode and take the place of." Id. at 994.
In SEC v. National Securities Inc., 393 U.S. 453, 89 S. Ct. 564, 21 L. Ed. 2d 668 (1969), the Supreme Court was confronted with a merger between two insurance companies which the state of Arizona had approved but which the Securities and Exchange Commission ("SEC") sought to unravel because of fraud. National Sec., 393 U.S. at 455-56, 89 S.Ct. at 566-67. The merged insurance company defended on the ground that the federal securities law impaired the state insurance law under which the merger had been endorsed. Id. at 457, 89 S.Ct. at 567. The Court first noted that Arizona was not regulating the relationship between insurer and *390 insured, but between the stockholder and the company. Id. at 460, 89 S.Ct. at 568-69. In determining whether the application of federal securities law would supersede or impair state law, it found that the SEC's complaint focused not on the merger, but on the fraud. Id. at 462, 89 S.Ct. at 569-70. "The merger became relevant only insofar as it was necessary to attack it in order to undo the harm caused by the alleged deception." Id. Although conceding the possibility of a "most indirect" impairment, the Court emphasized the fact that the "Federal government is attempting to protect security holders from fraudulent misrepresentations." Id. at 463, 89 S.Ct. at 570. Because the federal interest in protecting shareholders was "perfectly compatible" with the state interest in protecting policyholders, the federal securities laws did not invalidate, impair or supersede state law. Id.
Defendant points us to several cases which held that the McCarran-Ferguson Act invalidated a civil RICO claim because application of RICO in that context would impair, invalidate, or supersede state regulatory provisions. See Kenty v. Bank One, 92 F.3d 384, 392 (6th Cir.1996); Ambrose v. Blue Cross & Blue Shield, 891 F. Supp. 1153, 1168 (E.D.Va. 1995), aff'd, 95 F.3d 41 (4th Cir.1996); Wexco Inc. v. IMC, Inc., 820 F. Supp. 194, 203 (M.D.Pa.1993); Senich, 766 F.Supp. at 342; Richhart v. Metropolitan Life Ins. Co., Civ. A. No. 89-1725, 1990 WL 39268, at *3 (E.D.Pa. Mar. 30, 1990). However, these cases involved transactions which can be characterized as the business of insurance. In all, the insureds sued their insurers on account of some alleged wrongdoing related to the purchase or terms of their insurance policies. Kenty, 92 F.3d at 388-89; Ambrose, 891 F.Supp. at 1155-56; Wexco, 820 F.Supp. at 196-97; Senich, 766 F.Supp. at 341; Richhart, 1990 WL 39268, at *1. The courts held that applying RICO would impair, invalidate or supersede state regulatory provisions because RICO allowed a private cause of action when state law did not. Ambrose, 891 F.Supp. at 1165; Wexco, 820 F.Supp. at 203; Senich, 766 F.Supp. at 341; Richhart, 1990 WL 39268, at *3. Moreover, the remedies RICO provides, including treble damages and attorney's fees, significantly differed from those provided to private parties under their respective state laws. Kenty, 92 F.3d at 392; Ambrose, 891 F.Supp. at 1165; Wexco, 820 F.Supp. at 203. In contrast, this is a criminal action. The federal government is not a private plaintiff seeking to act outside of the state's regulatory scheme. Therefore, these cases are not controlling.
At least three criminal cases have held that the federal government's prosecution for mail fraud and related offenses survived the McCarran-Ferguson Act.[5]See United States v. Cavin, 39 F.3d 1299, 1305 (5th Cir.1994); United States v. Sylvanus, 192 F.2d 96, 100 (7th Cir.1951), cert. denied, 342 U.S. 943, 72 S. Ct. 555, 96 L. Ed. 701 (1952); United States v. Schmittzehe, Crim. A. No. 91-514, 1994 WL 635030, at *4 (E.D.La. 1994).
In Cavin, the defendants were charged with conspiracy to defraud state insurance regulators and policyholders, as well as other offenses including mail and wire fraud. Id. at 1304. Like the present case, the indictment arose out of fraudulent financial transactions affecting an insurance company's solvency. The court held that the federal government's "interest in the fraud prosecution is completely compatible with the state's regulatory interests." Id. It found unpersuasive a defendant's argument that he was being federally prosecuted for conduct permitted by the Insurance Commissioner of Louisiana. Id. Similarly in Sylvanus, which involved misrepresentations in the sale of insurance policies, the Seventh Circuit upheld a conviction for mail fraud and conspiracy to commit mail fraud notwithstanding the McCarran-Ferguson Act. Sylvanus, 192 F.2d at 99-100. It stated:
[w]e conclude, then, that it was not the intent of the Congress, by its passage of the McCarran Act, so [sic] surrender control of the use of the mails or to cease to *391 authorize the federal courts to determine whether the mails have been utilized in attempted execution of a scheme to defraud and that the district court, by entertaining jurisdiction, did not interfere with regulation of the insurance company by the state but properly overruled the motions to dismiss the indictment.
Id. at 100.
The Eastern District of Louisiana also employed the McCarran-Ferguson Act analysis to determine if a criminal mail fraud and conspiracy to commit mail fraud prosecution was valid. See Schmittzehe, 1994 WL 635030, at *1-4. There, as in Cavin and the present action, the indictment concerned financial manipulations of an insurance company. The court held that such a prosecution was within the federal court's jurisdiction.[6]Id. Under the fourth factor of the McCarran-Ferguson Act analysis, the court explained that despite the fact that the penalties differed between state and federal laws, the application of the federal mail fraud statute would not invalidate, impair, or supersede state law. Id. It observed that the mail fraud laws "do not instruct Louisiana how to sell, structure, or enforce an insurance policy. Nothing in the indictment limits or interferes with the power of state officials to perform their statutory duties, or to regulate [the] insurance business." Id.
In support of his position, Stewart cites an array of Pennsylvania insurance laws which are potentially implicated by this federal prosecution. (Mem. of Law in Supp. of Def's Mot. to Dismiss at 12-14.) He argues that a conviction on federal charges would "effectively subject Stewart's purported accounting and reporting malfeasance to penalties and disabilities vastly more severe than any envisioned by Pennsylvania's insurance laws." (Mem. at 15.) He submits that criminal sanctions completely change the remedy scheme set forth under state law, rather than just supplement that scheme. (Mem. at 16.) Stewart also contends that standards of liability between the federal and state statutes "might well differ." (Mem. at 18.) Stewart's argument misses the mark. The federal government is not challenging Pennsylvania's financial or other standards for its domestic insurance companies. Nor is it infringing upon the relationship between the insurer and its policyholder or its insured reserved to the states. See Schmittzehe, 1994 WL 635030 at *3.
The federal interest here is to protect the public from acts of racketeering and from use of the mails and wires for fraudulent purposes. That effort is "perfectly compatible" with the Commonwealth's interest in protecting policyholders and with its insurance regulatory responsibilities generally. National Sec., 393 U.S. at 463, 89 S.Ct. at 570; Cavin, 39 F.3d at 1304; Sylvanus, 192 F.2d at 100; Schmittzehe, 1994 WL 635030, at *3. The prosecution of Stewart will not invalidate, impair, or supersede the laws of Pennsylvania regulating the business of insurance. It is no more intrusive than the federal government's action in National Securities which sought to undo the fraudulent merger of two insurance companies already approved under state insurance law. Unlike Fabe, there is no clash between federal and state law. The McCarran-Ferguson Act, at least under the facts alleged in this case, does not shield a person accused of criminal conduct in violation of the laws of the United States.[7]
The motion of Allen W. Stewart to dismiss the indictment will be denied.
ORDER
AND NOW, this 21st day of February, 1997, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the motion of defendant Allen *392 W. Stewart to dismiss the indictment is DENIED.
NOTES
[1] Stewart does not specifically mention the subsection of the rule on which he is relying to dismiss the indictment. We assume it is pursuant to Rule 12(b)(2) which provides in relevant part "[t]he following must be raised prior to trial ... (2)[d]efenses and objections based on defects in the indictment or information...."
[2] The indictment does not specify which portion of § 1962 was violated, but its language mirrors that of § 1962(c).
[3] Rather, such an acquisition would be a violation of §§ 1962(a) or (b).
[4] The term "preemption" refers to "certain matters [that] are of such a national, as opposed to local, character that federal laws [] take precedence over state laws." Black's Law Dictionary (6th ed. 1990). Because under the McCarran-Ferguson Act, state law would be displacing federal law, the term preemption is not accurate.
[5] The Fifth Circuit upheld a federal prosecution very similar to the instant case, but the McCarran-Ferguson Act was not mentioned. See United States v. Krenning, 93 F.3d 1257 (5th Cir. 1996).
[6] In analyzing the third McCarran-Ferguson factor, the court stated that the activity
involved not the relationship between insurer and insured, but rather the relationship between the insurer and the state regulators. The alleged fraudulent use of the mails did not affect the transferring or spreading of the policyholder's risk or form an integral part of the relationship between insurer and insured, nor did it consist of a practice limited to entities within the insurance industry.
Schmittzehe, 1994 WL 635030 at *3.
[7] Because Stewart does not mention the applicability of the McCarran-Ferguson Act to the money laundering charges, we will not address it. |
1,516,120 | 2013-10-30 06:32:49.886479+00 | Rogers | null | 913 A.2d 460 (2007)
99 Conn.App. 203
STATE of Connecticut
v.
Antonio G. BARNES.
No. 26309.
Appellate Court of Connecticut.
Argued October 20, 2006.
Decided January 16, 2007.
*462 Arthur L. Ledford, special public defender, for the appellant (defendant).
Karen A. Roberg, certified legal intern, with whom were Susann E. Gill, senior assistant state's attorney, and, on the brief, Patricia M. Froehlich, state's attorney, and Matthew A. Crockett, deputy assistant state's attorney, for the appellee (state).
SCHALLER, ROGERS and LAVINE, Js.
ROGERS, J.
The defendant, Antonio G. Barnes, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61(a)(1), burglary in the third degree in violation of General Statutes § 53a-103, breach of the peace in the second degree in violation of 53a-181(a)(2), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(1), reckless endangerment in the first degree in violation of General Statutes § 53a-63, criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1) and criminal violation of a protective order in violation of General Statutes § 53a-223.[1] On *463 appeal, the defendant claims that the evidence was insufficient to convict him of attempt to commit assault in the first degree in that the state failed to prove beyond a reasonable doubt that he was at the crime scene and discharged a firearm and burglary in the third degree in that the state failed to prove beyond a reasonable doubt that he intended to commit a crime within the subject dwelling. The defendant also claims that his sixth amendment rights were violated when the trial court failed to investigate adequately a potential conflict that he did not waive. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could have found, are relevant to our resolution of the defendant's appeal. In August, 2003, Tammy Barnes, the defendant's wife, was living with her cousins, Patricia Mudge and George Mudge, at the Mudges' apartment in Danielson. At that time, Tammy Barnes was not living with the defendant, and he was not welcome in the Mudges' apartment. On August 2, 2003, Tammy Barnes was in the living room watching television, and Patricia Mudge was working on her computer in the kitchen, which was adjacent to the living room. Patricia Mudge heard a knock on the door but did not receive a response when she asked if anyone was there. The screen door to the apartment was closed but unlocked, and the other door was open. Tammy Barnes noticed her cellular telephone displaying the defendant's number and ringing on the floor next to the television, but before she could get to it, the defendant stepped in front of her and grabbed the cellular telephone. She had not known that the defendant was in the apartment until he stepped in front of her.
As Tammy Barnes tried to reach for her cellular telephone, the defendant punched her on the back of her head with his fist, causing her to fall to the floor. Patricia Mudge came into the living room after she heard Tammy Barnes shout that the defendant was in the apartment. Patricia Mudge entered the living room and saw the defendant move toward Tammy Barnes and grab her arms so she could not move. Tammy Barnes told Patricia Mudge to telephone the police. The defendant responded that he would be able to hit Tammy Barnes before the police could arrive. Patricia Mudge told the defendant to leave. He did so, but Tammy Barnes followed him because the defendant had the cellular telephone. There were two carloads of men outside the Mudges' apartment. The defendant tried to push Tammy Barnes into one of the cars and told his friend inside to open the car door, but the friend refused to do so. While outside, the defendant also broke her cellular telephone after it rang. When Tammy Barnes told someone to telephone the police, the defendant left. Subsequent to that incident, Tammy Barnes obtained a protective order prohibiting the defendant from coming near her.[2]
On September 3, 2003, the defendant borrowed a gray Toyota Camry from his girlfriend, Melissa Cahoon, and left at 7:30 p.m. from her house in Hope Valley, Rhode Island, which is approximately one *464 hour by car from Danielson. At approximately 9 p.m., the defendant telephoned George Mudge. According to George Mudge, the defendant was very irate and screaming that he wanted to know the whereabouts of Tammy Barnes. George Mudge informed the defendant that Tammy Barnes was not at his residence, despite the fact that she was. The defendant telephoned George Mudge again and was again irate and looking for Tammy Barnes. During this telephone conversation, the defendant threatened Tammy Barnes, stating: "I'll split her wig. I'm crazy. I don't care about the police. They'll have to take me dead." The defendant telephoned George Mudge three or four more times that night, swearing and accusing Tammy Barnes of marital infidelity. At some point, George Mudge telephoned the defendant to tell him to stop calling.
In the early morning hours of September 4, 2003, at approximately 1 or 2 a.m., Timothy Marcotte, Tammy Barnes' brother, heard knocking on the first floor bedroom window of his home on 75 Prospect Street in Danielson. Marcotte opened the window shades and discovered the defendant outside his window wearing a New York Yankees jacket. Through the closed window, the defendant asked Marcotte if Tammy Barnes was inside. Tammy Barnes had lived at 75 Prospect Street with Marcotte for approximately two months in early 2003. When she lived at the residence, she stayed in a bedroom on the second floor and had stayed in that bedroom five or six times with the defendant. When Marcotte told the defendant that she was not there, a loud verbal disagreement ensued in which the defendant accused Marcotte of lying, claiming that he believed Tammy Barnes was upstairs in her bedroom. The defendant continued arguing with Marcotte until Marcotte told the defendant that he was coming outside. Marcotte began walking toward the kitchen and heard what sounded to him like rocks being thrown against his residence and a window breaking. Marcotte telephoned the police and went outside but did not see anyone. Thereafter, state police Trooper Eric Leroux arrived at Marcotte's residence in response to what Leroux testified was a telephone call from Marcotte reporting that gunshots had been fired near his residence. Leroux and Marcotte walked to the rear of the residence where the noises had been heard and discovered bullet holes in the side of the house, as well as a broken window. Leroux explained to Marcotte that it was not rocks but bullets that he had heard. Leroux and Marcotte also observed damage inside the house, specifically bullet holes in the upstairs bedroom where Tammy Barnes and the defendant previously had stayed as well as another in the kitchen. Marcotte testified that the bullet holes were not present the day before.
Dawn Sears, a neighbor of Marcotte's, residing at 83 Prospect Street, was awakened at 2 a.m. by loud male voices arguing on the right side of her residence. Sears next heard four or five gunshots approximately ten to fifteen seconds after she heard the argument. She looked outside her bedroom window and saw a man wearing baggy clothing running along Prospect Street away from the noises, toward Williams Street. Sears lost sight of the individual, but heard a car door open and shut and a vehicle's engine start. Mark Tyler, another neighbor of Marcotte who lived at 102 Prospect Street located on the corner of Prospect Street and Williams Street, also awoke at approximately 2 a.m. when he heard four or five gunshots. Tyler looked out a window and noticed an extra car parked on Prospect Street in front of his house, which he described as a light blue or gray Nissan Sentra or a small compact car of some type. Tyler then saw *465 someone running along the street toward his house. He heard a car door open and saw something being tossed onto the passenger seat.
The defendant returned to Cahoon's house between 3 and 3:30 that morning and went to bed. Cahoon noticed that the defendant was wearing a New York Yankees jacket when he returned to her house. On September 4, 2003, the defendant was arrested by Rhode Island state police. Detective Terrence McFadden later investigated Marcotte's residence and found in the backyard seven spent shell casings, which were all fired from the same .45 caliber semiautomatic firearm.
After trial to the jury, the defendant was found guilty of assault in the third degree, burglary in the third degree, breach of the peace in the second degree, attempt to commit assault in the first degree, reckless endangerment in the first degree, criminal possession of a firearm and criminal violation of a protective order. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the evidence was insufficient to convict him of attempt to commit assault in the first degree in violation of §§ 53a-49(a)(2) and 53a-59(a)(1), and burglary in the third degree in violation of § 53a-103. We disagree.
We first set forth our standard of review. "The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.
"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical . . . to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542, 881 A.2d 290 (2005), cert. denied, ___ U.S. ____, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
A
A conviction of attempt to commit assault in the first degree, in violation of §§ 53a-49(a)(2)[3] and 53a-59(a)(1),[4] requires *466 proof of intentional conduct constituting a substantial step toward intentionally causing the victim serious physical injury by means of a dangerous instrument. The defendant challenges the sufficiency of the evidence on the grounds that the state failed to prove beyond a reasonable doubt that he was at the crime scene and that he discharged a firearm at Marcotte's house.
The evidence, viewed in the light most favorable to sustaining the verdict, reveals facts from which the jury reasonably could have inferred that the defendant was at the crime scene and discharged a firearm at Marcotte's house. George Mudge testified that the defendant telephoned his house several times on the night in question looking for Tammy Barnes. According to George Mudge, the defendant was very irate and threatened to "split her wig." Later that night, Marcotte awoke at approximately 1 or 2 a.m. to find the defendant outside his bedroom window looking for Tammy Barnes. An altercation ensued in which the defendant claimed that, contrary to Marcotte's assertions, Tammy Barnes was in an upstairs bedroom. Although Marcotte testified that moments later he heard what he thought were rocks thrown against his house and a window breaking, two of his neighbors, Sears and Tyler, both heard gunshots at approximately 2 a.m. and shortly thereafter saw a man running from the scene. Tyler also saw something being tossed onto the passenger seat of the car parked in front of his house. Additionally, Leroux testified that he arrived on the scene in response to a telephone call by Marcotte that gunshots had been fired near his residence. Leroux explained to Marcotte that it was not rocks but bullets that had hit his house. Leroux and Marcotte observed bullet holes in the upstairs bedroom where Tammy Barnes previously had stayed with the defendant as well as another bullet hole in the kitchen. Marcotte testified that the bullet holes were not present the day before the incident. Further police investigations revealed seven spent shell casings from the same firearm in the backyard of Marcotte's residence. We conclude that there was sufficient evidence for the jury to conclude that the defendant went to Marcotte's house looking for Tammy Barnes and fired several gunshots at Marcotte's house, specifically, the bedroom in which he believed Tammy Barnes was staying, in an attempt to injure her.
B
A conviction of burglary in the third degree in violation of § 53a-103[5] requires proof that the defendant entered or remained unlawfully in a building with intent to commit a crime therein. The defendant challenges the sufficiency of the evidence on the ground that the state failed to prove beyond a reasonable doubt that he intended to commit a crime when he entered the Mudges' apartment on August 2, 2003.
"Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence." (Internal quotation marks omitted.) State v. Ward, 76 Conn.App. 779, 798, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003). "The intent of the actor is a question for the trier of fact, and the conclusion of the trier in this regard should stand unless it is an unreasonable one." State v. *467 Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff'd, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983). Upon entering the Mudges' apartment without consent, the defendant took Tammy Barnes' cellular telephone and struck her. The defendant grabbed her arms so that she could not move and, in response to her statement to Patricia Mudge to telephone the police, stated that he would be able to hit Tammy Barnes before the police could arrive. Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the evidence established that at the time of entering the dwelling, the defendant intended to commit the crime of assault against Tammy Barnes.
II
The defendant next claims that the court violated his right to the effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution by failing to inquire adequately into a claimed conflict of interest, which he did not waive, between him and his trial counsel when the court knew or should have known about the conflict. We disagree.
The following additional facts and procedural history are relevant to the defendant's claim. On the day jury selection was to begin, the court, Foley, J., asked defense counsel if he was ready to proceed, and defense counsel responded, "no, with an explanation." Defense counsel stated: "Upon my arrival here this morning, Your Honor, my client informed me that he had filed a petition for habeas corpus, claiming, among other things, ineffective assistance of counsel with regard to the violation of probation hearing, which occurred in July. I'm not going to get into all the details of that at this point, Your Honor. He has also asked that the trial judge recuse himself. But this apparently was signed on the, looks like the twentieth of July, Your Honor, and I just found about this today. If I knew about it earlier, I would have informed the court prior. My client and I filed thisI'm not sure if I could proceed in the prosecution or the defense of his case, Your Honor. And if my client wishes to give up his right to a speedy trial for the time being and attempt to get another attorney, that's certainly perhaps an option open to him. If he wishes to proceed, then obviously he'd have to proceed with me as counsel. And I feel a bit uncomfortable doing that if he feels that I have ineffectively represented him."
The court then asked the defendant if he wanted to proceed with jury selection, and the defendant responded, "no," but stated that he wanted to be heard on a motion for dismissal that he had also filed. The court then asked the defendant if he wanted defense counsel to represent him in arguing the motion for dismissal to which the defendant replied, "[y]es, sir." The defendant, in response to questions from the court regarding the motion, stated that his case should be dismissed because he had filed a speedy trial motion and that his trial had not begun within thirty days of the filing of that motion. The court explained that defense counsel had been on trial in another case and was on vacation during the time that the defendant's case would have proceeded and, thus, could not be present for the trial. The court denied the motion, noting that the state had been ready to proceed within thirty days of the speedy trial motion.
After the motion was argued and denied, the court asked the defendant if he wanted to proceed with jury selection. The defendant replied, "[y]eah, proceed," and then asked the court to recuse itself on the *468 ground that the court had presided over his violation of probation hearing and pretrial hearings in the present case. The court informed the defendant that another judge could preside and again asked the defendant, "[a]re you ready to proceed? The defendant replied, "[y]eah. Ready to proceed." Defense counsel then stated that "my client has informed me he has filed this habeas corpus alleging ineffective assistance of counsel. So, if he wishes now to proceed, I certainly want to place on the record that he in fact wishes me to represent him during this process, in spite of any other allegations he may have made against me, and wishes me to represent him in this case. If he wishes me to do that and the court wants me to, I will continue representation." In response to the court's questioning, the defendant indicated that he wanted defense counsel to continue to represent him, and defense counsel indicated that he was ready to proceed.[6] After a short recess, the court, Dannehy, J., proceeded with jury selection.
The defendant seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823(1989).[7] Although the defendant's claim meets Golding's first two prongs, we conclude that his claim fails because he cannot satisfy the third prong by establishing that a constitutional violation clearly exists.
Before reviewing the defendant's claim, we underscore that our review is of the actions of the trial court, not of the actions of defense counsel. Our Supreme Court has instructed that "[a]lmost without exception, we have required that a claim of ineffective assistance of counsel . . . be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. . . . On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant's sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel." (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 428, 802 A.2d 844 (2002).
"The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest. . . . There are two circumstances under which a trial *469 court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial . . . or (2) when the trial court knows or reasonably should know that a particular conflict exists." (Citations omitted; internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793-94, 781 A.2d 285 (2001). "Before the trial court is charged with a duty to inquire, the evidence of a specific conflict must be sufficient to alert a reasonable trial judge that the defendant's sixth amendment right to effective assistance of counsel is in jeopardy." State v. Crespo, 246 Conn. 665, 697, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). "In discharging this duty, the trial court must be able, and be freely permitted, to rely upon [defense] counsel's representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) State v. Drakeford, supra, 261 Conn. at 427, 802 A.2d 844. "It is firmly established that a trial court is entitled to rely on the silence of the defendant and his attorney, even in the absence of inquiry, when evaluating whether a potential conflict of interest exists." (Internal quotation marks omitted.) State v. Cator, supra, at 795, 781 A.2d 285.
Our Supreme Court has described a conflict of interest as "that which impedes [counsel's] paramount duty of loyalty to his client [such that] an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client. . . ." (Citation omitted; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. at 689-90, 718 A.2d 925. "Conflicts of interest . . . may arise between the defendant and the defense counsel. The key here should be the presence of a specific concern that would divide counsel's loyalties. In some instances, defendants have sought (usually unsuccessfully) to convert general incompetence claims into conflict claims by arguing that the interest of counsel in protecting his reputation, in adhering to a particular philosophy, or in minimizing his effort constituted a conflicting interest that divided his loyalties. Typically, however, courts have looked to cases in which a representation fully devoted to [the] defendant's interest is likely to produce an adverse consequence unique to the individual case. Thus, the paradigm case is that in which the lawyer representing the defendant fears opening himself up to a criminal prosecution because he is under investigation for an offense relating to the same events." 3 W. LaFave, J. Israel & N. King, Criminal Procedure (2d Ed.1999) § 11.9(a), p. 653. Allegations that a defendant is simply unhappy with counsel's performance, without more, do not create a conflict of interest. See State v. Rodriguez, 93 Conn.App. 739, 747, 890 A.2d 591 (inquiry made after timely conflict objection revealed insignificant, unsubstantiated complaints regarding counsel's performance that were not sufficient to warrant withdrawal of counsel), cert. granted on other grounds, 277 Conn. 930, 896 A.2d 102 (2006); see also State v. Henton, 50 Conn. App. 521, 527, 720 A.2d 517 (what defendant referred to as conflict of interest between him and trial counsel was mere disagreement because it did not arise out of counsel's representation of clients with adverse interests), cert. denied, 247 Conn. 945, 723 A.2d 322 (1998).
*470 No timely conflict objection was made in this case. Therefore, when determining whether the court had a duty to inquire, we must determine whether the court knew or reasonably should have known that a conflict existed. The circumstances before the court did not amount to evidence of a specific conflict sufficient to alert a reasonable trial judge that the defendant's sixth amendment right to effective assistance of counsel was in jeopardy. See State v. Crespo, supra, 246 Conn. at 697, 718 A.2d 925. In this case, defense counsel informed the court that the defendant had filed a habeas petition claiming that defense counsel had ineffectively represented him at a violation of probation hearing. The filing of a habeas petition does not create a per se conflict of interest. See State v. Vega, 259 Conn. 374, 388, 788 A.2d 1221 ("a grievance in and of itself is insufficient to establish a violation of a defendant's sixth amendment rights"), cert. denied, 537 U.S. 835, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). It may, however, create a potential conflict. See Morgan v. Commissioner of Correction, 87 Conn.App. 126, 131-32, 866 A.2d 649 (2005) (potential conflict of interest existed when petitioner brought to attention of habeas court that he had filed three grievances against habeas counsel prior to habeas proceedings); see also State v. Vega, supra, at 788 A.2d 1221 (trial court conducted appropriate inquiry as to alleged conflict of interest and potential violation of defendant's sixth amendment rights upon being informed by defendant that he had filed grievance against court-appointed counsel).
While the filing of a petition for habeas corpus conceivably can create a potential conflict of interest, it did not do so under the circumstances of this case. As previously stated, a conflict of interest impedes a counsel's duty of loyalty to his client, subjecting counsel to divided loyalties. State v. Crespo, supra, 246 Conn. at 689-90, 718 A.2d 925; 3 W. LaFave, J. Israel & N. King, supra, § 11.9(a), at p. 653. Here, defense counsel merely stated that the habeas petition was filed; he did not indicate that any of his interests were diverse or otherwise discordant with the interests of the defendant, that his duty of loyalty to the defendant was divided or that he would be unable to represent the defendant effectively.
Additionally, defense counsel represented to the court that he was ready to proceed, and the defendant stated that he wanted defense counsel to represent him. Although defense counsel initially stated that he felt "a bit uncomfortable" representing the defendant due to his allegations that defense counsel had ineffectively represented him at a violation of probation hearing, defense counsel later agreed that he was ready to proceed. The court thereafter asked the defendant whether he wanted defense counsel to continue to represent him, and the defendant answered affirmatively and did not state any objection to being represented by defense counsel. "While Holloway v. Arkansas, [435 U.S. 475, 486, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)] emphasized that it was not transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict, the trial court must be able, and be freely permitted, to rely upon counsel's representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court." (Citations omitted; internal quotation marks omitted.) State v. Cruz, 41 Conn.App. 809, 813-14, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996). "[D]efense counsel have an ethical obligation to avoid conflicting representations and to advise *471 the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that [the potentially conflicted] representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. . . . [T]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. An attorney [facing a possible conflict] in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial." (Emphasis in original; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. at 696, 718 A.2d 925, citing Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Defense counsel, who was in the best position professionally and ethically to determine when a conflict of interest exists or will develop in the course of trial; see State v. Cator, supra, 256 Conn. at 795, 781 A.2d 285; told the court that he was ready to proceed.
The defendant argues alternatively that the court should have elicited from him a knowing and intelligent waiver of his constitutional right to conflict free representation before proceeding. "The scope of a court's inquiry, or the necessity for such inquiry, however, depends on the circumstances, and a court need not necessarily elicit a waiver." State v. Cruz, supra, 41 Conn.App. at 814-15, 678 A.2d 506. Nothing defense counsel stated alerted the court to a potential conflict of interest; rather, defense counsel agreed that he was ready to proceed. Therefore, the court was not alerted to a potential conflict of interest and, accordingly, did not have a duty to inquire. Thus, on the facts of this case, it was unnecessary for the court to obtain a waiver from the defendant. See id., at 814-16, 678 A.2d 506.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] The defendant was charged under two separate informations. One bore docket number CR-03-120021 and charged the defendant with the following three counts relating to events that occurred on or about August 2, 2003: assault in the third degree in violation of General Statutes § 53a-61(a)(1), burglary in the third degree in violation of General Statutes § 53a-103 and breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(2). The other bore docket number CR-03-120445 and charged the defendant with the following four counts relating to events that occurred on or about September 4, 2003: attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(1), reckless endangerment in the first degree in violation of General Statutes § 53a-63, criminal possession of a firearm in violation of
[2] The protective order later was modified to permit the defendant to be near Tammy Barnes when the two were receiving counselling.
[3] General Statutes § 53a-49(a) provides in relevant part: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime."
[4] General Statutes § 53a-59(a) provides in relevant part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . ."
[5] General Statutes § 53a-103(a) provides: "A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein."
[6] The following colloquy occurred:
"The Court: Do you want [your attorney] to continue to represent you?
"[The Defendant]: Yeah, for speedy trial.
"[Defense Counsel]: You want me to represent you with regard to the speedy trial motion or with regard to picking the jury on this trial?
"[The Defendant:] With picking the jury on this trial, this case.
"[Defense Counsel]: Okay. Thank you.
"The Court: Okay. So, you're ready to proceed?
"[Defense Counsel]: I'm ready."
[7] "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. |
1,516,125 | 2013-10-30 06:32:49.946852+00 | Robinson | null | 913 A.2d 1052 (2007)
Stephen REISE
v.
STATE of Rhode Island.
No. 2006-49-Appeal.
Supreme Court of Rhode Island.
January 23, 2007.
*1054 Stephen Reise, pro se.
Aaron L. Weisman, Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
OPINION
Justice ROBINSON for the Court.
On April 5, 2000, Stephen Reise, pled nolo contendere to two counts of driving while intoxicated, death resulting, and three counts of driving while intoxicated, serious bodily injury resulting. He received a sentence of fourteen years imprisonment on each of the two counts of driving while intoxicated, death resulting, said sentences to be served concurrently. Mr. Reise also received, on each count of driving while intoxicated, serious bodily injury resulting, a sentence of five years suspended imprisonment, with five years of probation, to run consecutively to the sentences on the other counts. In addition, his sentence included a five-year loss of his driver's license.
Mr. Reise has appealed to this Court, contending that the trial justice erred in denying his application for postconviction relief based on newly discovered evidenceviz., that he suffered from Obstructive Sleep Apnea at the time of the incident that resulted in the above-referenced criminal charges being filed. Mr. Reise also points to numerous alleged violations of his rights, including ineffective assistance of counsel.
This case came before this Court on December 12, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised in the appeal should not be summarily decided. Having considered the record, the memoranda filed by the parties, and the oral arguments, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. For the reasons set forth herein, we deny the appeal and affirm the judgment of the Superior Court.
Facts and Travel
Mr. Reise was charged with two counts of driving while intoxicated, death resulting, and three counts of driving while intoxicated, serious bodily injury resulting. He pled nolo contendere on April 5, 2000. We set forth below the most significant facts that the state indicated it would prove if the case had gone to trial.
During the early evening hours of October 29, 1999, Mr. Reise consumed multiple alcoholic beverages at three different locations. Thereafter, Mr. Reise, accompanied by two passengers, drove his mother's car, a 1986 Toyota, northbound on Route 4 towards Providence. According to the evidence outlined by the prosecution in connection with Mr. Reise's nolo plea, Mr. Reise was driving above the posted speed limit and was repeatedly changing lanes as he drove north on Route 4. Also traveling northbound on Route 4 that night was Marsha Bowman, who was driving a 1999 Honda vehicle and was accompanied by her daughter Rebecca Bowman and her daughter's friend Kaitlyn DeCubellis.
At approximately 8 p.m., Mr. Reise, while still driving erratically, began searching the floor of the car for cigarettes, thereby taking his eyes off of the road. While doing so, he struck the rear of Marsha Bowman's Honda, causing it to *1055 propel over the Route 4 median and land directly in the path of a vehicle being driven southbound on Route 4 by one Robert Sylvestre. The collision between the Honda and Robert Sylvestre's vehicle resulted in the deaths of both Marsha Bowman and Kaitlyn DeCubellis, as well as serious bodily injury to Rebecca Bowman and two other persons.
The state indicated that it would also be able to prove that Mr. Reise's blood alcohol concentration exceeded the legal limit at the time of the collision and that, two hours after the collision, his blood alcohol level still read 0.130a level well in excess of the legal limit.
At the plea hearing on April 5, 2000, Mr. Reise, after listening to the prosecutor recite the factual scenario summarized above, unequivocally acknowledged that the state had articulated an accurate account of the events that had occurred on the evening of October 29, 1999. Mr. Reise then pled nolo contendere to the charges and received a sentence of fourteen years to serve followed by fifteen years suspended, with probation.
On March 25, 2004, Mr. Reise, appearing pro se, filed an application for postconviction relief based on what he called the newly discovered evidence that he suffered from Obstructive Sleep Apnea at the time of the accident. On October 7, 2004, the state filed a motion to dismiss on the ground that Mr. Reise had failed to state a claim upon which relief could be granted. Arguments were heard on October 22, 2004, and the hearing justice summarily granted the state's motion to dismiss Mr. Reise's application for postconviction relief. An order reflecting this outcome was entered on October 25, 2004, and Mr. Reise filed a notice of appeal on November 5, 2004.
Analysis
I
Newly Discovered Evidence
Mr. Reise's main contention on appeal is that the hearing justice erred in denying his application for postconviction relief based on the newly discovered evidence that he suffered from Obstructive Sleep Apnea at the time of the October 29, 1999 incident because the hearing justice misinterpreted Mr. Reise's argument. More specifically, Mr. Reise contends that the hearing justice focused upon whether the newly discovered evidence prevented Mr. Reise from making a voluntary plea, whereas Mr. Reise contends that he had wanted the hearing justice to determine whether the newly discovered evidence "was directly associated with [his] innocence in relation to the crime" of which he had been convicted. Mr. Reise also argues that he was denied of his right to an evidentiary hearing on this issue.
This Court will not overturn a trial justice's findings regarding an application for postconviction relief absent clear error or absent a determination by this Court that the trial justice neglected or misconceived material evidence. State v. Thomas, 794 A.2d 990, 993 (R.I.2002); see also Bleau v. Wall, 808 A.2d 637, 641 (R.I. 2002).
General Laws 1956 § 10-9.1-1(a) provides in relevant part:
"Any person who has been convicted of, or sentenced for, a crime, a violation of law, or a violation of probationary or deferred sentence status and who claims:
"* * *
"(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
*1056 "* * *
"may institute * * * a proceeding [for postconviction relief]."
When conducting the analysis of an application for postconviction relief based on newly discovered evidence, the hearing justice utilizes the same standard used for considering a motion for a new trial due to newly discovered evidence. Brennan v. Vose, 764 A.2d 168, 173 (R.I. 2001). That standard consists of two parts. Bleau, 808 A.2d at 642. The first, or threshold, part consists of a multifaceted requirement in which the applicant must establish that (a) the evidence is newly discovered or available only since trial; (b) the evidence was not discoverable prior to trial despite the exercise of due diligence; (c) the evidence is not merely cumulative or impeaching but rather is material to the issue upon which it is admissible; and (d) the evidence is of a kind which would probably change the verdict at trial. Id.; see also State v. Hazard, 797 A.2d 448, 463-64 (R.I.2002); State v. L'Heureux, 787 A.2d 1202, 1207-08 (R.I. 2002); State v. Gomes, 690 A.2d 310, 321 (R.I.1997); McMaugh v. State, 612 A.2d 725, 731-32 (R.I.1992). If the threshold test has been satisfied, the hearing justice must then determine, in his or her discretion, whether or not the newly discovered evidence is sufficiently credible to warrant relief. Bleau, 808 A.2d at 642; Hazard, 797 A.2d at 464. As we noted in State v. Fontaine, 559 A.2d 622, 624 (R.I.1989), ordinarily this latter determination is, out of necessity, made in the context of an evidentiary hearing.
In this case, a hearing on Mr. Reise's application for postconviction relief was held on October 22, 2004. At that hearing, the justice stated that he had reviewed both the application for postconviction relief and the exchange that occurred in open court in 2000 when Mr. Reise pled nolo contendere in this case. After conducting an analysis of Mr. Reise's argument "in a variety of ways to give [him] every consideration that [could have been] given," the hearing justice concluded that "there is absolutely no basis in law for entertaining the application for post conviction relief."
We are of the opinion that the hearing justice did not commit clear error and did not neglect or misconceive material evidence in denying Mr. Reise's application for postconviction relief. See Thomas, 794 A.2d at 993. It is clear to us that Mr. Reise did not satisfy the criteria that must be met before postconviction relief may be granted. See Bleau, 808 A.2d at 642. Most notably, the fact that Mr. Reise suffered from Obstructive Sleep Apnea at the time of the accident[1] is not the type of evidence that would probably change the verdict at trial. See Bleau, 808 A.2d at 642.
At the time that he pleaded nolo contendere, Mr. Reise admitted (1) that he drank alcoholic beverages before the collision; (2) that his blood alcohol level was 0.130 two hours after the collision; and (3) that his actions were the sole cause of the deaths of Marsha Bowman and Kaitlyn DeCubellis.[2]*1057 Even if Mr. Reise were able to prove (1) that he suffered from Obstructive Sleep Apnea at the time of the collision; (2) that he was unaware of this condition at the time of the collision; and (3) that the condition was not discoverable prior to trial despite due diligence, we are nonetheless unable to perceive how, given his express acknowledgment of the truthfulness of the state's recital of facts, he can prove that this newly discovered evidence would change the verdict. Regardless of the existence or absence of the medical condition to which Mr. Reise now points, he still was legally intoxicated when he struck Marsha Bowman's vehicle, causing the deaths of both Marsha Bowman and Kaitlyn DeCubellis and serious injury to other persons.
General Laws 1956 § 31-27-2.6(a),[3] which deals with driving under the influence resulting in serious bodily injury, does not require that a defendant's intoxication be a "causal element of the offense." State v. Benoit, 650 A.2d 1230, 1234 (R.I. 1994).[4] Rather, all that it requires regarding defendant's intoxication is that "defendant *1058 be legally intoxicated at the time of the accident" for him or her to be held criminally liable. Benoit, 650 A.2d at 1234. In Benoit, this Court explained,
"By setting off the clause `the operator of which is under * * * any intoxicating liquor' with a comma, the General Assembly eliminated the operator's intoxication as a causal element of the offense, merely requiring that the operator of the vehicle be intoxicated at the time of the accident. Therefore, all the state need prove is that the defendant's operation of his or her motor vehicle was a proximate cause of the death in question occurring while the defendant was legally intoxicated." Id. at 1233.
Accordingly, it is of no consequence that Mr. Reise's Obstructive Sleep Apnea might have caused him to operate a motor vehicle dangerously even if he were not under the influence of alcohol or might have caused him to be affected by alcohol more significantly than if he did not have this medical condition. What is dispositive in this case is the blunt and inexorable fact that Mr. Reise, as he explicitly acknowledged in open court, was legally intoxicated when he caused the deaths of Marsha Bowman and Kaitlyn DeCubellis through the operation of his motor vehicle. It is clear to us that, in determining that this newly discovered evidence would not have changed the verdict, the hearing justice neither clearly erred nor neglected or misconceived material evidence.[5]
Additionally, the hearing justice did not err in summarily denying Mr. Reise's application for postconviction relief without affording him an evidentiary hearing. Since Mr. Reise failed to establish the four elements required to fulfill the threshold test articulated in Bleau, 808 A.2d at 642, the hearing justice was not required to conduct an evidentiary hearing regarding Mr. Reise's application for postconviction relief before making his decision.
II
Other Alleged Violations
This Court will conduct a de novo review when a postconviction-relief decision involves questions of fact concerning an alleged infringement of a defendant's constitutional rights or involves mixed questions of law and fact regarding an alleged violation of one's constitutional rights. See Ouimette v. State, 785 A.2d 1132, 1135 (R.I.2001); see also Bleau, 808 A.2d at 641-42; Thomas, 794 A.2d at 993. Even when applying this de novo standard, however, we will accord great deference to both a trial justice's findings of historical fact and the inferences drawn from those facts. Bleau, 808 A.2d at 642; Thomas, 794 A.2d at 993; Ouimette, 785 A.2d at 1135.
Mr. Reise's principal constitutional contention is that he suffered from ineffective assistance of counsel in connection with his decision to make a nolo contendere plea. He also contends that his "excessive bail" was a result of this ineffective assistance of counsel. We, however, perceive no ineffective assistance of counsel.
Prior to accepting Mr. Reise's plea, the justice who was presiding over the plea *1059 hearing engaged in an extensive exchange with both Mr. Reise and his attorney regarding the proceeding in which they were involved. During this colloquy, Mr. Reise expressly acknowledged that he understood that he would be forfeiting all of the rights that appeared on the face of the nolo contendere plea form, and he agreed that he had reviewed all of those rights with his attorney. Mr. Reise also stated that he did not have any questions regarding his plea or any of the rights he was forfeiting. Additionally, Mr. Reise's attorney stated that his colleague had traveled to the Adult Correctional Institutions, where he discussed "each and every right listed on the form" with Mr. Reise. Mr. Reise's attorney also informed the court that he believed that Mr. Reise understood all of those rights and was voluntarily giving them up. Moreover, at the hearing regarding Mr. Reise's application for postconviction relief, the justice stated that he was unable to find any evidence constituting ineffective assistance of counsel during the plea process. After a careful review of the record, we are of the opinion that the hearing justice properly concluded that Mr. Reise did not receive ineffective counsel as he was making his decision to plea nolo contendere.[6]
Mr. Reise also argues that he was the victim of numerous other errors, including multiple constitutional violations. More specifically, he argues that his sentence was not lawfully justified, that certain witnesses lacked credibility, and that there was unjustified pretrial publicity. Elementary logic compels us to give short shrift to these contentions. In pleading nolo contendere, Mr. Reise very specifically waived a series of rights.[7] For that reason, he may not now be heard to dispute his agreed-upon sentence or the credibility of any witnesses. Furthermore, since Mr. Reise opted to forgo a trial, he is barred from objecting to any prejudice that he feels might possibly have been an issue at the time of the never-held trial as a result of pretrial publicity. Accordingly, we reject each of these arguments.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The record may be remanded to the Superior Court.
*1060 APPENDIX
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
REQUEST TO ENTER PLEA OF NOLO CONTENDERE OR GUILTY
NOTES
[1] Although there is nothing in the record to show that Mr. Reise could prove that he suffered from this medical ailment at the time of the accident, we will assume that such is true for purposes of this appeal. See Super. R. Civ. P. 12(b)(6).
[2] Before pleading nolo contendere to the charges that had been lodged against him, Mr. Reise listened to, and then specifically acknowledged the truth of, the state's account of the events of October 29, 1999:
"[PROSECUTOR]: Your Honor, if this matter had gone to trial the State would prove that on these facts incorporated into these counts that during the early evening hours of October 29, 1999, Stephen Reise drank beer, Kahlua liquor, between 4 p.m. and 7:15 p.m. at three different locations. That he drove his mother's vehicle, a 1986 Toyota, with two passengers and proceeded to drive onto Route 4 north heading to Providence. That he drove at speeds in excess of the speed limit, repeatedly changing lanes and passing cars. That at one point at approximately 8 p.m. while driving in that manner he took his eyes off the road and began searching on the floor of his car for cigarettes. And at that point he drove into the rear of a 1999 green Honda vehicle being driven by Marsha Bowman and containing two children, Kaitlyn DeCubellis and Rebecca Bowman. That his striking the rear of the Bowman vehicle caused the Bowman vehicle to be propelled across the Route 4 median and into oncoming traffic of the south bound lane of Route 4. That the defendant's striking of the Bowman vehicle caused that vehicle to be placed in the path of a car being driven by the Sylvestres, particularly Robert Sylvestre, causing the Bowman vehicle to be split in two. That at the time of the collision the defendant's blood alcohol exceeded the legal limit and he was legally intoxicated while driving a motor vehicle. That in fact two hours of [sic] the collision his blood alcohol was .130 exceeding the legal limit. And defendant's actions were the sole cause of the deaths the facts which are incorporated in five counts of this indictment and the death of Kaitlyn DeCubellis and the death of Marsha Bowman. And in Count 5 serious bodily injury to Rebecca Bowman. And in Count 7 serious bodily injury to Janice Sylvestre. And in Count 9 serious bodily injury to Amy Palmer.
"THE COURT: You have heard the statement [the prosecutor] has made to you. Do you acknowledge that is in fact a true statement?
"DEFENDANT: Yes, I do."
[3] General Laws 1956 § 31-27-2.6 provides in pertinent part:
"(a) When serious bodily injury of any person other than the operator is caused by the operation of any motor vehicle, the operator of which is under the influence of any intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of title 21 or any combination of these, the person so operating the vehicle shall be guilty of driving under the influence of liquor or drugs, resulting in serious bodily injury."
[4] In State v. Benoit, 650 A.2d 1230, 1234 (R.I.1994), we came to this same conclusion regarding § 31-27-2.2(a), which deals with driving under the influence resulting in death. See also State v. DiCicco, 707 A.2d 251, 254 (R.I.1998). Accordingly, in the case at hand, the reasoning that follows concerning § 31-27-2.6(a) is equally applicable to § 31-27-2.2(a). Although this Court in Benoit held that a defendant's intoxication need not be a proximate cause of the death or serious bodily injury, we recognize that a defendant's manner of operation of his or her vehicle must be a proximate cause of the death or serious bodily injury. See Benoit, 650 A.2d at 1234. In the instant case, Mr. Reise acknowledged that his actions, including the manner in which he operated his vehicle, were the proximate cause of the deaths and serious bodily injuries.
[5] Mr. Reise also argues in this appeal that his Obstructive Sleep Apnea causes hypoxemia (decreased oxygen in the blood), which may have resulted in an inaccurate blood alcohol concentration reading; he suggests that, but for the hypoxemia, there would have been a reading under the legal intoxication limit. However, Mr. Reise chose not to make this argument in a sufficiently articulated manner in the court below, and, therefore, it has not been properly preserved for consideration by this Court.
[6] Although it would have been preferable for the hearing justice to have articulated his reasoning regarding Mr. Reise's ineffective assistance of counsel argument more fully, we find no indication in the record that he erred in his ultimate decision. It is noteworthy that the hearing justice who presided over the postconviction-relief hearing was the same justice as had presided over the plea hearing, during which he engaged in an extensive exchange with both Mr. Reise and his attorney to obtain what appears to us to have been a full understanding of the interplay between Mr. Reise and his counsel regarding Mr. Reise's decision to plead nolo contendere.
[7] A copy of the front side of Mr. Reise's "Request to Enter Plea of Nolo Contendere or Guilty" form, which itemizes with specificity the several rights that Mr. Reise chose to waive, is appended to this opinion. |
1,516,127 | 2013-10-30 06:32:49.98117+00 | Flynn | null | 913 A.2d 477 (2007)
99 Conn.App. 310
Charles COLEMAN
v.
COMMISSIONER OF CORRECTION.
No. 25636.
Appellate Court of Connecticut.
Argued October 11, 2006.
Decided January 23, 2007.
Lisa J. Steele, special public defender, for the appellant (petitioner).
James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (respondent).
FLYNN, C.J., and SCHALLER and McLACHLAN, Js.
FLYNN, C.J.
The petitioner, Charles Coleman, appeals following the habeas court's denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion by (1) denying his petition for certification to appeal, which challenged the habeas court's order allowing his attorney to withdraw over his objections, and (2) granting his attorney's motion for permission to withdraw. We dismiss the appeal.
The following facts and procedural history are relevant to this appeal. "Following a court trial, the [petitioner] was convicted *478 of four counts of sexual assault in the first degree in violation of General Statutes § 53a70 (a)(1), burglary in the first degree in violation of General Statutes § 53a-101 (a)(2), burglary in the second degree in violation of General Statutes § 53a-102, unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and robbery in the third degree in violation of General Statutes §§ 53a-136 (a) and 53a-133. The trial court rendered judgment sentencing the [petitioner] to an effective term of imprisonment of 110 years." State v. Coleman, 242 Conn. 523, 525-26, 700 A.2d 14 (1997). The petitioner's conviction of burglary in the second degree was later vacated. Id., at 527, 700 A.2d 14.
The petitioner subsequently filed a petition for a writ of habeas corpus in which he claimed that his trial attorney, Thomas E. Farver, did not prepare for trial and withheld material evidence at trial. The habeas court, Zarella, J., appointed Kathleen O'Reilly Berry as the petitioner's special public defender in the habeas proceedings. Thereafter, Berry filed a motion to withdraw from the case, pursuant to the provisions of Practice Book § 23-41,[1] on the ground that the petitioner's claims were frivolous. Berry included with the motion to withdraw a memorandum of law pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). On March 6, 2002, the habeas court, Levine, J., found the petitioner's claims to be wholly without merit and granted the motion to withdraw. The habeas court, however, did not dismiss the habeas petition. Rather, pursuant to Practice Book § 23-42(a),[2] the case proceeded with the petitioner acting pro se. The petitioner's subsequent written and oral motions for the appointment of counsel were denied. The petitioner filed an amended petition, and the case proceeded to a hearing on the merits. At the conclusion of the hearing, the habeas court, White, J., dismissed the petition. Judge White subsequently denied the petition for certification to appeal. This appeal followed.
We begin by noting our standard of review. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard *479 to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court's permission. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). In order for us to conclude that the habeas court abused its discretion, the petitioner first must demonstrate "that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Emphasis in original; internal quotation marks omitted.) Id., at 616, 646 A.2d 126, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). Applying these principles, the petitioner argues that the issues regarding the reviewability of a decision granting a motion to withdraw under Practice Book § 23-41, thereby depriving a habeas petitioner of his statutory right to counsel, are debatable among jurists of reason and, therefore, are worthy of review by this court. We disagree.
The issues raised in the present appeal are almost identical to the issues raised by the petitioner in Coleman v. Commissioner of Correction, 274 Conn. 422, 876 A.2d 533 (2005) (Coleman I). In that case, the petitioner brought a habeas petition in which he alleged ineffective assistance of counsel with respect to a criminal conviction following a jury trial on similar yet unrelated charges. In both Coleman I and the present case, Berry was appointed as the petitioner's special public defender. In both cases, Judge Levine permitted Berry to withdraw as counsel, and the cases proceeded to trial on the merits. Although Coleman I and the present case never were consolidated, they were tried together, following which Judge White denied both habeas petitions. In Coleman I, the petitioner argued on appeal that "the habeas court, White, J., abused its discretion in denying his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus because he was denied his constitutional right to counsel at the habeas proceeding when Berry was allowed to withdraw. He further claim[ed] that the habeas court, Levine, J., abused its discretion in granting the motion to withdraw." Id., at 425, 876 A.2d 533. Our Supreme Court, in a per curiam opinion, dismissed the petitioner's appeal as frivolous.[3]Id., at 426, 876 A.2d 533.
The petitioner attempts to distinguish the present case from Coleman I on the grounds that the present case involves a different underlying trial record, a different crime scene officer and different representations made by Berry about her investigation of the case. We conclude, however, that the issues and arguments raised in the present appeal are not distinguishable significantly from those raised in Coleman I. We, therefore, are persuaded that the present appeal should be dismissed, as was the appeal in Coleman I.
The appeal is dismissed.
In this opinion the other judges concurred.
NOTES
[1] Practice Book § 23-41, entitled "Motion for Leave to Withdraw Appearance of Appointed Counsel," provides: "(a) When counsel has been appointed pursuant to Section 23-26, and counsel, after conscientious investigation and examination of the case, concludes that the case is wholly frivolous, counsel shall so advise the judicial authority by filing a motion for leave to withdraw from the case."
"(b) Any motion for leave to withdraw shall be filed under seal and provided to the petitioner. Counsel shall serve opposing counsel with notice that a motion for leave to withdraw has been filed, but shall not serve opposing counsel with a copy of the motion or any memorandum of law. The petitioner shall have thirty days from the date the motion is filed to respond in writing.
"(c) The judicial authority may order counsel for the petitioner to file a memorandum outlining:
"(1) the claims raised by the petitioner or any other potential claims apparent in the case;
"(2) the efforts undertaken to investigate the factual basis and legal merit of the claim;
"(3) the factual and legal basis for the conclusion that the case is wholly frivolous."
[2] Practice Book § 23-42, entitled "Judicial Action on Motion for Permission to Withdraw Appearance," provides: "(a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se. If the petition is not dismissed, the judge ruling on the motion to withdraw as counsel shall not preside at any subsequent hearing on the merits of the case."
[3] The opinion in Coleman I states: "After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues he has raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. . . . Accordingly, the appeal should be dismissed as frivolous." (Citations omitted.) Coleman v. Commissioner of Correction, supra, 274 Conn. at 426, 876 A.2d 533. |
1,516,129 | 2013-10-30 06:32:50.008445+00 | Brady | null | 335 S.W.2d 456 (1960)
BUSSMANN MANUFACTURING COMPANY, a corporation (Petitioner), Plaintiff-Appellant,
v.
INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, and Violette Pogue, Defendants-Respondents.
No. 30410.
St. Louis Court of Appeals, Missouri.
May 17, 1960.
*458 Robert W. Kroening, St. Louis, Chapman, Schwartz, Chapman & Kroening, St. Louis, of counsel, for appellant.
Donald H. Clooney, St. Louis, for Violette Pogue.
George Schwartz, Jefferson City, for Div. of Employment Security.
Lloyd G. Poole, Jefferson City, for Industrial Commission of Mo.
BRADY, Commissioner.
Violette Pogue, respondent, a married woman, had worked for the appellant as a coil winder for two years and four months prior to leaving her employment with appellant on February 28, 1958, because of her pregnancy. Her child was born on March 8th. She had no other reason for leaving her job, and stated that if she had not been pregnant, she would have continued working. Upon leaving the employment of appellant, she asked for leave of absence, but was refused one, and on that occasion she was told that when she wished to return to work, if there was anything for her to do, she would be rehired. Her doctor released her and she was ready to return to work approximately two and a half months after the baby's birth. Upon application to return to work, she was told there was no work available for her. She thereupon filed her initial claim for unemployment compensation benefits, which is the subject of these proceedings. Her availabilty to work is admitted by the appellant.
A deputy in the Missouri Division of Employment Security determined that respondent was eligible for benefits, and subject to no disqualification. The appellant *459 took an appeal from the deputy's determination to the Appeals Tribunal, which, after a hearing, found that respondent was eligible for benefits and not subject to disqualification, and affirmed the deputy's determination. The appellant made a timely application to the Industrial Commission of Missouri for a review of the Appeals Tribunal, as provided by Section 288.210 RSMo 1949, V.A.M.S., and the application for review was denied. By virtue of the action of the Industrial Commission in denying appellant's application for review, the decision of the Appeals Tribunal is deemed to be the decision of the Commission, for the purpose of judicial review. Section 288.200 RSMo 1949, V.A.M.S. Appellant filed the petition for review with the circuit court of the City of St. Louis, and that court affirmed the decision of the Appeals Tribunal. Following unsuccessful after trial motions, this appeal was duly perfected.
The section of the Employment Security Law involved is Section 288.050, subd. 1(1) RSMo 1949, V.A.M.S., as amended, Laws of 1957, p. 531. The pertinent parts of that section read as follows:
"1. Notwithstanding the other provisions of this law a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds
"(1) That he has left his work voluntarily without good cause attributable to his work or to his employer; * * *"
The respondent's basic position throughout has been that there are two elements to the disqualification provided in Section 288.050, subd. 1(1), supra. First, the leaving must be the voluntary act of the employee, and second, this voluntary leaving must be without good cause attributable to her work or to her employer; that if Mrs. Pogue's leaving was not voluntary, the disqualifying provision of the statute does not apply, and it is then unnecessary to determine the existence or non-existence of good cause attributable to her work or to her employer.
The trial court, on reviewing the decision of the Commission, adopted respondent's position, in part, by finding that the undisputed facts established that claimant's separation from employment was involuntary. In so ruling, the trial court relied upon Section 290.060, RSMo 1949, V.A. M.S., which reads:
"It shall be unlawful for any person, firm or corporation to knowingly employ a female or permit a female to be employed in any of the divers kinds of establishments, places of industry, or places of business specified in section 290.040, within three weeks before or three weeks after child birth. Any person, firm or corporation who shall violate this section shall be deemed guilty of a misdemeanor."
The trial court found that because of the above statute, "The termination of employment of a pregnant woman three weeks before childbirth, in Missouri, is coercive under state law and therefore not voluntary." However, the trial court further found that the claimant's leaving under such circumstances "* * * constituted good cause within the meaning of Section 288.050." The decision of the Industrial Commission was affirmed because:
"1. The hearing and order of said Respondent was authorized by law;
"2. Said decision of Respondent is supported by competent and substantial evidence."
There is no dispute as to the evidence. The question presented is one of law, and the conclusions of the Commission will not be binding upon this court. The interpretation of Section 288.050, supra, by the administrative body here involved does not preclude, restrict, or control the right of a complete review of the issue by this court. Bussmann Manufacturing Co. v. Industrial *460 Commission et al., Mo.App., 327 S.W.2d 487; Kroger Co. v. Industrial Commission of Missouri, Mo.App., 314 S.W.2d 250.
The point presented for our decision is whether an employee who leaves her work due to pregnancy does so "* * voluntarily without good cause attributable to his work or to his employer" as that language is used in Section 288.050, supra. In determining this question, our duty is to construe the statute by ascertaining the lawmakers' intent from the words used, if possible, and to put upon the statutory language, honestly and faithfully, its plain and rational meaning to promote the object of the Act. Bussmann Manufacturing Co. v. Industrial Commission of Missouri, et al., supra; Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77. Section 288.020 RSMo 1949, V.A.M.S., requires a liberal construction of the Employment Security Law. ACF Industries, Inc. v. Industrial Commission of Missouri, Mo.App., 309 S.W.2d 676, reversed on other grounds, Mo., 320 S.W.2d 484. Since the provisions of Section 288.050, subd. 1(1), supra, limit or except certain claimants from the benefits of a remedial act, the Employment Security Law, that section is to be strictly construed. Bussmann Manufacturing Co. v. Industrial Commission of Missouri, supra; Kroger Co. v. Industrial Commission of Missouri, supra.
Respondent's basic position is unsound. There is no basis for any splitting of this clause into separate requirements, and still less for the argument that only one of the two elements thus created need be proved by the claimant. We have no authority to supply or insert words in a statute unless there is an omission plainly indicated and the statute as written is incongruous or unintelligible and leads to absurd results. Wolfson v. Chelist, Mo. App., 278 S.W.2d 39. This statute is not of that character. What respondent would have this court do is to judicially legislate the word "or" into the clause here involved, after the word "voluntarily", so that it would read in the disjunctive, requiring proof only upon one of the two elements then stated therein. Norberg v. Montgomery, 351 Mo. 180, 173 S.W.2d 387: Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 114. If such had been the legislative intention, it would have been easy of accomplishment, but they did not do so, and we are not empowered to contort their plain, clear language. To rule as respondent urges would be to negate the use of the words, "* * * without good cause attributable to his work or to his employer." Yet the rules of statutory construction require that we give every word, phrase, and sentence in the statute some meaning, unless it is in conflict with the legislative intent. Anderson v. Deering, Mo.App., 318 S.W.2d 383; Miltenberger v. Center West Enterprises, Mo.App., 251 S.W.2d 385. We are not to presume that the legislature intended to use superfluous or meaningless words in a statute, Dodd v. Independence Stove & Furnace Co., supra. The word, "without", is of significance. Webster's New International Dictionary, 2d Edition, defined the word as "not having or using; lacking." The meaning of the word in Section 288.050, subd. 1(1) supra is that one is disqualified if he leaves his work without, that is, not having, lacking, good cause attributable to his work or to his employer. By the use of the words employed in this clause, the legislature recognized that when the pressure of real, not imaginary, substantial, not trifling, reasonable, not whimsical, circumstances compel the decision to leave employment, the decision may be said to be voluntary in the sense that the worker has willed it, but may equally be said to be involuntary because outward pressures have compelled it, and sought to avoid such semantics in defining when a leaving was voluntary or involuntary by further restricting that term by adding "* * * without good cause attributable to his work or to his employer." Neither is such a result in conflict with the *461 legislative intent as to the purpose of the whole Employment Security Act, but furthers such intention as stated in Section 288.020 RSMo 1949, V.A.M.S., as being for the "* * * compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own." In this connection, we do not interpret the word "fault" as meaning something blameworthy, culpable, or wrongful, but find that word to mean "failure" or "volition." Moulton v. Iowa Employment Security Commission, 1948, 239 Iowa 1161, 34 N.W.2d 211. Thus, the purpose of the Employment Security Act is to provide for the compulsory setting aside of an unemployment reserve to be used for the benefit of persons unemployed through no volition of their own. The clause, "* * * voluntarily without good cause attributable to his work or to his employer" comprises a single factual standard which the claimant must prove existed in order to avoid disqualification.
In Bussmann Manufacturing Co. v. Industrial Commission of Missouri, supra, 327 S.W.2d 487, at loc. cit. 491, this court held:
"The Missouri Employment Security Law uses the word `attributable.' Webster's New International Dictionary, 2d Edition, defines `attribute' as `to ascribe (to) as belonging or pertaining.' It is significant that this word was used in the Missouri statute and we believe the legislature's purpose in using that specific language was to require a causal connection between the disability and the work of the claimant. To hold otherwise would be to negate the meaning of the word `attributable' and the legislature's clear intention by the insertion of the clause `attributable to his work or to his employer' in the Employment Security Law."
It follows from what we have stated above that the clause, "* * * voluntarily without good cause attributable to his work or to his employer", means that this claimant, and the burden is indisputably hers, must prove that her leaving was voluntary not having good cause which established a causal connection between her disability and her work. It is obvious that under the facts disclosed by this record, such proof cannot be made.
The Commissioner recommends that the judgment in this case be reversed and the cause remanded to the trial court for further proceedings not inconsistent with the decision herein.
PER CURIAM.
The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is, accordingly, reversed, and the cause remanded to the trial court for further proceedings.
WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur. |
9,645,446 | 2023-08-22 21:25:10.713601+00 | Saylor | null | OPINION
Justice SAYLOR.
This case primarily concerns the constitutionality of Pennsylvania’s fetal homicide statute; it additionally entails a challenge to jury instructions given at Appellant’s trial, where he was convicted of voluntary manslaughter of an unborn child.
I.
In the late 1990s, Pennsylvania’s General Assembly enacted the Crimes Against the Unborn Child Act.1 The Act added Chapter 26 to the Pennsylvania Crimes Code, which created several new offenses designed to protect unborn children from unlawful injury or death. Under the Act, an individual commits criminal homicide of an unborn child if he or she intentionally, knowingly, recklessly, or negligently causes the death of an unborn child, see 18 Pa.C.S. § 2603, a term that refers to *485the fetus at any stage of gestation. See 18 Pa.C.S. § 2602.2 Accordingly, the Act establishes the crimes of first, second, and third degree murder of an unborn child, as well as voluntary manslaughter and aggravated assault of an unborn child. See 18 Pa.C.S. §§ 2604-2606. Its criminal provisions do not apply, however, to consensual abortion, doctors engaged in good faith medical practice, or pregnant women in regard to crimes against their own unborn children. See 18 Pa.C.S. § 2608(a). Of particular relevance to this appeal are the Act’s specifications with regard to voluntary manslaughter:
(a) Offense defined. — A person who kills an unborn child without lawful justification commits voluntary manslaughter of an unborn child if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the mother of the unborn child whom the actor endeavors to kill, but he negligently or accidentally causes the death of the unborn child....
* ❖ * * * :Js
(c) Penalty. — The penalty for voluntary manslaughter of an unborn child shall be the same as the penalty for voluntary manslaughter.
18 Pa.C.S. § 2605.
II.
In late 2002, Appellant was living with his girlfriend, Lisa Hargrave, who was 22 to 28 weeks pregnant. According to Appellant’s statement to police, on New Year’s Eve 2002, he and Hargrave consumed alcohol and cocaine at a party and then returned to their apartment, where Hargrave continued to ingest cocaine. Appellant asked Hargrave to cease using drugs for the remainder of the night in view of her pregnancy. When Hargrave failed to comply, an argument ensued, during *486which Appellant “blacked out.” When he awoke, he found himself on top of Hargrave strangling her so that she was almost unconscious. Because he feared Hargrave would call the police, he wrapped her feet and hands with masking tape and left the room. When he could hear her yelling and attempting to free herself, he returned, taped her mouth shut, and left the room again. After Hargrave continued to struggle to break free, Appellant returned to the bedroom once more and strangled her until she stopped breathing. He then dragged her body into the closet.
On January 6, 2003, Appellant arrived at the Wilkes-Barre Police Department and informed an officer that he had strangled his girlfriend to death. When the police arrived at the apartment, they found Hargrave’s partially decomposed body in the closet with her hands, feet, and mouth bound with masking tape. Appellant was charged with the murder of Hargrave, see 18 -Pa.C.S. § 2501(a), and, pursuant to the Act, with the criminal homicide of her unborn child as well. He filed a pre-trial motion challenging the constitutionality of the Act on, inter alia, due process and equal protection grounds; this motion was denied. The matter then proceeded to trial by jury in October 2003, at which Appellant did not testify.
At trial, the coroner stated that, after performing autopsies of Hargrave and her unborn child, he concluded that Hargrave’s cause of death was “strangulation by history,” which refers to the events immediately preceding the death, see N.T. October 20, 2003, at 142-44; this conclusion was apparently based, in part, upon the occurrences as related by Appellant in his statement to police. The coroner also found that the fetus’s death was caused by “asphyxia due to the death of the mother by homicide.” Id. at 148. In both cases, the coroner determined that the manner of death was homicide.
Before deliberations began, Appellant objected to the trial court’s refusal to charge the jury on the mens rea elements “negligently” and “accidentally” found in the voluntary manslaughter provision of the Crimes Against the Unborn Child Act (see supra). The trial court overruled the objection, however, opting to allow the jury to use the “common and *487ordinary understanding” of the terms. Id. at 911. The jury found Appellant guilty-but-mentally-ill of third degree murder as to Hargrave, and guilty-but-mentally-ill of voluntary manslaughter of an unborn child. Appellant was sentenced to consecutive terms of imprisonment of fifteen to forty years for the murder of Hargrave, and five to twenty years for voluntary manslaughter of an unborn child. Appellant’s post-sentence motions were denied.
After a unanimous panel of the Superior Court affirmed in a published opinion, see Commonwealth v. Bullock, 868 A.2d 516 (Pa.Super.2005), this Court granted discretionary review. See Commonwealth v. Bullock, 584 Pa. 705, 885 A.2d 40 (2005) (per curiam). Only the judgment of sentence for voluntary manslaughter of an unborn child is at issue in this appeal.
III.
We turn first to the question of the constitutionality of the Crimes Against the Unborn Child Act.3 It is foundational that all legislation duly enacted by the General Assembly enjoys a strong presumption of validity, and “will only be declared void if it violates the Constitution ‘clearly, palpably and plainly.’ ” City of Phila. v. Commonwealth, 575 Pa. 542, 573, 838 A.2d 566, 585 (2003) (quoting Commonwealth, Dep’t of Transp. v. McCafferty, 563 Pa. 146, 155, 758 A.2d 1155, 1160 (2000)). The party challenging the statute’s constitutionality “bears a very heavy burden to prove that it is unconstitutional,” moreover, and all doubts on the question are resolved in favor of a finding of constitutionality. Payne v. Commonwealth, Dep’t of Corr., 582 Pa. 375, 383, 871 A.2d 795, 800 (2005). Because this is an issue of law, our scope of review is plenary and our standard of review is de novo. See Commonwealth v. Cousin, 585 Pa. 287, 294, 888 A.2d 710, 714 (2005).
*488A. Vagueness
Appellant initially contends that the Act violates due process under the void-for-vagueness doctrine. He proffers that, absent a requirement that the fetus be viable outside the womb at the time of its death, the statute fails to provide fair warning of precisely what conduct is prohibited. Appellant reasons, in this regard, that, until a fetus is viable (in the sense that it could likely survive outside the womb),4 it cannot actually be alive and, hence, cannot suffer death. Such failure to include a viability component, according to Appellant, permits arbitrary application and enforcement of the statute because it is impossible for a person of ordinary intelligence to understand what “death” means when applied to a non-viable fetus. See Brief for Appellant at 13-14.
The void-for-vagueness doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); see Commonwealth v. Mayfield, 574 Pa. 460, 467, 832 A.2d 418, 422 (2003). Although criminal statutes should be strictly construed in favor of lenity where there is ambiguity, their words are, nonetheless, interpreted according to the “fair import of their terms.” 18 Pa.C.S. § 105; see Commonwealth v. Booth, 564 Pa. 228, 234 & n. 5, 766 A.2d 843, 846 & n. 5 (2001).
Presently, the Act prescribes that it is unlawful to intentionally, knowingly, recklessly, or negligently cause the death of an unborn child, defined to include all stages of gestation from fertilization to live birth. This definition is *489straightforward. In the first place, the concept of a fetus or unborn child as a potential victim of violence is neither obscure nor difficult to grasp. See Booth, 564 Pa. at 241, 766 A.2d at 850 (“Today it is understood that a mother and her unborn child are separate and distinct entities, and that medicine is generally able to prove the corpus delicti of the homicide of an unborn child.”). It is also clear that, by defining unborn child to include all stages of gestation, see supra note 2, the General Assembly intended to eliminate any viability requirement. Accord People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189, 1198 (1991) (reaching same conclusion with regard to a similarly-worded definition of unborn child). Moreover, as appellate courts in other jurisdictions have elaborated in construing similar feticide enactments, the statutory language does not purport to define the concept of personhood or establish when life as a human being begins and ends; rather, it imposes criminal liability for the destruction of a human embryo or fetus that is biologically alive. See, e.g., State v. Merrill, 450 N.W.2d 318, 324 (Minn. 1990) (“People are free to differ or abstain on the profound philosophical and moral questions of whether an embryo is a human being, or on whether or at what stage the embryo or fetus is ensouled or acquires ‘personhood.’ These questions are entirely irrelevant to criminal liability under the statute.”). In this context, death occurs when the embryo or fetus “ceases to have the properties of life.” Id.; see also Ford, 163 Ill.Dec. 766, 581 N.E.2d at 1201 (“The statute only requires proof that, whatever the entity within the mother’s womb is called, it had life and, because of the acts of the defendant, it no longer does.”); see also Bullock, 868 A.2d at 522 (“Clearly, a death occurs when the embryo or fetus no longer has the capacity to thrive or grow.” (citing Webster’s New Collegiate Dictionary 289 (8th ed.1981) (defining death as “a permanent cessation of all vital functions”))).
Appellant appears to accept that the Legislature intentionally omitted any viability requirement associated with the death of an unborn child under the statute, but largely premises his vagueness claim upon an assertion that the concept of *490death is difficult to understand relative to a fetus that is not viable (again, in the sense that it could likely survive outside the womb). We disagree, as we believe that the concepts of life and its cessation are readily understandable to persons of ordinary intelligence relative to biological life forms beginning at the cellular level — as noted, the concept of biological life extends to organisms that retain vital functions and the capacity to grow and thrive. Appellant offers no example of a circumstance in which an actor who causes the permanent cessation of all of the vital functions of an embryo or fetus would not conventionally understand that his conduct has caused the death of the embryo or fetus.5 Moreover, to accept that a fetus is not biologically alive until it can survive outside of the womb would be illogical, as such a concept would define fetal life in terms that depend upon external conditions, namely, the existing state of medical technology (which, of course, tends to improve over time). See Booth, 564 Pa. at 246 n. 18, 766 A.2d at 853 n. 18 (recognizing the General Assembly’s findings concerning “the steady reduction in the age of fetal viability”).
Accordingly, viability outside of the womb is immaterial to the question of whether the defendant’s actions have caused a cessation of the biological life of the fetus, and hence, to the question of whether the statute is vague in proscribing the killing of an unborn child. We find that individuals of ordinary intelligence are readily capable of discerning the conduct prohibited by the Act, and we fail to perceive anything in the legislation giving rise to a substantial concern that it may be discriminatorily enforced.
*491B. Substantive Due Process
Appellant also maintains that the statute is “unconstitutionally broad” for similar reasons, i.e., because it fails to “distinguish between viable or living organisms and nonviable or nonliving organisms.” Brief for Appellant at 15. He contends that the statute’s allegedly unnecessary breadth is fatal to its validity because it affects his fundamental liberty interest in remaining free from confinement, and thus, must be justified by a compelling state interest. In this respect, he notes that the United States Supreme Court has determined that a State’s interest in fetal life only becomes “compelling” at viability, see Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973), a property that he alleges the unborn victim in the present case lacked.
We interpret this claim as sounding in substantive due process, as opposed to overbreadth, both because it appears in Appellant’s brief under a general due process heading, see Brief for Appellant at 12, and because over-breadth claims only pertain in a First Amendment context. See City of Chicago v. Morales, 527 U.S. 41, 79, 119 S.Ct. 1849, 1870, 144 L.Ed.2d 67 (1999) (“[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987))). Under the doctrine of substantive due process, the United States Supreme Court has recognized that the Fourteenth Amendment’s Due Process Clause, see U.S. Const. amend. IV, § 1 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), guarantees more than fair process and the absence of physical restraint, but “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997).
Appellant characterizes the liberty interest affected by the Crimes Against the Unborn Child Act as his fundamental right to remain free from confinement; however, complying *492with the Act would not result in confinement. Moreover, Appellant does not reference any authority for the position that he has a right to unilaterally kill the unborn child carried by another person. To the contrary, the United States Supreme Court has affirmed that states have an “important and legitimate interest” in protecting fetal life at all stages, even if that interest only becomes “compelling” at viability. Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973); see Planned Parenthood v. Casey, 505 U.S. 833, 846, 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674 (1992) (reaffirming that one of Roe’s essential holdings was that “the State has legitimate interests from the outset of the pregnancy in protecting ... the life of the fetus ... ”); see also Bullock, 868 A.2d at 522-24 (discussing cases); accord People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50, 872 P.2d 591, 597 (1994) (observing that Roe “does not hold that the state has no legitimate interest in protecting the fetus until viability”); State v. Merrill, 450 N.W.2d 318, 322 (Minn.1990) (noting that the state’s interest in protecting “the potentiality of human life” includes protection of the unborn child, “whether an embryo or a nonviable or viable fetus”); State v. Alfieri, 132 Ohio App.3d 69, 724 N.E.2d 477, 482 (1998) (explaining that, even under Roe, “there has never been any notion that a third party ... has a fundamental liberty interest in terminating another’s pregnancy”); People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189, 1199 (1991). Therefore, as Appellant has failed to identify any fundamental right infringed by the statute, his substantive due process claim fails.
C. Equal Protection
Appellant next urges us to find that the statute violates the Equal Protection Clause. See U.S. Const, amend. IV, § 1 (“nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws”). He proffers that natural fathers who kill their unborn children are similarly situated to pregnant mothers who kill the fetus they are carrying. In forwarding this argument, Appellant again maintains that fundamental rights are in issue, this time not only his right to remain free from confinement, but his “liberty *493interest to father children and in the growth and development of the fetus.” Brief for Appellant at 17. Thus, he posits, “[t]he fact of pregnancy alone, encompassed within a mother’s privacy right, is not a compelling reason for the state to excuse a mother who perpetrates a crime against her own unborn child, yet hold the natural father criminally responsible.... ”Id.
While the Equal Protection Clause assures that all similarly situated persons are treated alike, it does not obligate the government to treat all persons identically. See Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672 (1998) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)). Thus, the Clause does not prevent state legislatures from drawing classifications, so long as they are reasonable. See generally Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088 (2003) (affirming that equal protection precepts “do not vitiate the Legislature’s power to classify, which necessarily flows from its general power to enact regulations for the health, safety, and welfare of the community”). In determining constitutional reasonableness, this Court first ascertains the appropriate level of judicial scrutiny to apply, which in turn depends upon the type of categorization involved and the nature of the right affected. Where the challenged governmental action does not burden “fundamental” or “important” rights, and does not make a suspect or quasi-suspect classification, it is subject to rational-basis review. Small, 554 Pa. at 615, 722 A.2d at 672 (citing McCusker v. Workmen’s Comp. Appeal Bd. (Rushton Mining Co.), 536 Pa. 380, 385, 639 A.2d 776, 778 (1994)). See generally Commonwealth v. Bell, 512 Pa. 334, 344-45, 516 A.2d 1172, 1178 (1986) (summarizing the three levels of scrutiny in Pennsylvania law). Suspect classes are race and national origin, and for purposes of state law, alienage; quasi-suspect classifications are gender and legitimacy. See Small, 554 Pa. at 615 nn. 14-15, 722 A.2d at 672 nn. 14-15.6
*494Presently, the challenged distinction consists of the mother versus everyone else. See 18 Pa.C.S. § 2608(a)(3) (exempting the pregnant woman in regard to crimes against her own unborn child). This classification is neither suspect nor quasi-suspect,7 and the primary asserted right involved, i.e., the “right” to unilaterally kill the unborn child that another person is carrying, is neither fundamental nor important — indeed, it does not exist. Nor is any right of fathers to produce children and promote their development adversely affected by the Act; rather, the statute is plainly aimed at protecting fetal growth and development from unlawful interference. Hence, to survive judicial scrutiny, the present classification need only satisfy the rational basis standard.
Under rational basis review, a classification will be upheld so long as it bears a reasonable relationship to a legitimate state purpose. See Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088 (2003). Specifically, “the classification, though discriminatory, will be deemed reasonable if any state of facts reasonably can be conceived to sustain it.” Id. at 137, 828 A.2d at 1089. In undertaking this analysis, courts are free to hypothesize grounds the Legislature might have had for the classification. See id. at 137-38, 828 A.2d at 1089 (citing Baltimore & Ohio R.R. Co. v. Commonwealth, Dep’t of Labor & Indus., 461 Pa. 68, 84, 334 A.2d 636, 644 (1975); Geary v. Retirement Bd. of Allegheny County, 426 Pa. 254, 259-60, 231 A.2d 743, 746 (1967)). It bears repeating that all doubts on this question, as with all questions of constitutional validity, are resolved in favor of upholding the statute.
In our view, the General Assembly had a legitimate basis for distinguishing between the mother and everyone else. Simply put, the mother is not similarly situated to everyone else, as she alone is carrying the unborn child. Under prevailing jurisprudence of the United States Supreme Court, the fact of her pregnancy gives her (and only her) certain liberty *495interests in relation to the termination of that pregnancy that the Legislature could reasonably have sought to avoid infringing by exempting her from criminal liability under this particular statute. Cf. Witters v. State Comm’n for the Blind, 112 Wash.2d 363, 771 P.2d 1119, 1123 (1989) (rejecting an equal protection challenge where the classification at issue served the Legislature’s interest in complying with constitutional requirements). Although the Act contains a separate exemption for voluntary abortion, see 18 Pa.C.S. § 2608(a)(1), because of the mother’s unique connection to the fetus there are various situations even outside of the abortion context (such as those pertaining to drug addiction or attempted suicide) in which she alone might bear an increased risk of criminal prosecution were it not for the (a)(3) exception. The Legislature could rationally have taken this into account and sought to place the mother on a similar footing to all other persons as respects these types of situations.8 While this does result in the mother being treated more leniently under the Act as regards crimes against her unborn child, such a result would only be constitutionally problematic if it stemmed from an arbitrary classification, which, as noted, it does not. Accordingly, Appellant has not carried his burden of proving that the challenged distinction is “clearly, palpably, and plainly” unconstitutional.
IV.
We now turn to Appellant’s alternate claim that he should receive a new trial due to an error in the trial court’s jury instructions. The court first instructed the jury concerning the possible verdicts as to the killing of Hargrave, and then as to the killing of the unborn child. In this latter portion of the charge, after delineating the elements of murder of an unborn child, including malice, the trial court instructed the jury on the offense' of voluntary manslaughter of an unborn child:
*496If you do not find that the Defendant had malice ... you may find him guilty of voluntary manslaughter of the unborn child as long as you are satisfied that the following three elements have been proven beyond a reasonable doubt: first, that the unborn child is dead. Second, that the Defendant killed it. And, third, that the Defendant had the intent to kill the mother of the unborn child.
N.T. October 20, 2003, at 907. As discussed above, the applicable statutory definition of manslaughter of an unborn child clarifies that the defendant must have been
acting under a sudden and intense passion resulting from serious provocation by the mother of the unborn child whom the actor endeavors to kill, but he negligently or accidentally causes the death of the unborn child.
18 Pa.C.S. § 2605(a)(1) (emphasis added). Appellant states that the Act establishes a minimum mens rea, relative to causing fetal death, of negligence or accident, which the judge refused to define for the jury.
A. Negligence
In the present context, the term “negligence” means criminal negligence, see 18 Pa.C.S. § 302, official cmt., which is defined as follows:
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(4); see Commonwealth v. Heck, 517 Pa. 192, 201, 535 A.2d 575, 580 (1987); Commonwealth v. Ketterer, 725 A.2d 801, 806-07 (Pa.Super.1999). This is a higher level of negligence than ordinary tort negligence. See Commonwealth v. Huggins, 575 Pa. 395, 404, 836 A.2d 862, 867 (2003).
*497Appellant argues that the judge’s failure to define criminal negligence allowed the jury to convict on the basis of ordinary negligence. The Commonwealth counters that the charge must be read as a whole, and that the judge had previously defined gross negligence. Therefore, according to the Commonwealth, the judge’s overall instructions accurately reflected the law. See Brief for Appellee at 19. While the judge did define gross negligence, see N.T. October 20, 2003 at 895, this definition was provided as part of the charge on the homicide of the mother, and not the unborn child. The Commonwealth’s suggestion that the jury must have understood the same definition to apply to mere negligence, a distinct term recited as an element of a different offense, is not well taken. We find that the trial court erred in refusing Appellant’s request that it define criminal negligence for purposes of the offense of voluntary manslaughter of an unborn child. See Commonwealth v. Safrit, 517 Pa. 484, 485, 538 A.2d 1335, 1335 (1988) (per curiam) (noting the necessity of a charge on the applicable mens rea requirement); see also Commonwealth v. Mason, 474 Pa. 308, 311, 378 A.2d 807, 808 (1977) (“The trial court’s refusal to charge the jury concerning the element of intent necessary to convict of voluntary manslaughter was error.”).
This raises the question of whether the error was harmless. The Superior Court deemed the error harmless by observing that the evidence adduced at trial was sufficient to support a finding of criminal negligence. See Bullock, 868 A.2d at 526. Evidentiary sufficiency, however, is not the correct standard where the trial court errs. Rather, under the harmless error doctrine, the judgment of sentence will be affirmed in spite of the error only where the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict. See Commonwealth v. Samuels, 566 Pa. 109, 112-13, 778 A.2d 638, 641 (2001).
Upon review under this standard, we conclude that the trial court’s error in failing to define “negligently” was harmless. The jury received the charge set forth above and *498ultimately convicted Appellant of voluntary manslaughter of an unborn child. One of the elements that the trial judge recited for this offense was that Appellant must have “had the intent to kill” the mother. Thus, pursuant to the instructions — which the jury is presumed to have followed, see Commonwealth v. Williams, 581 Pa. 57, 78, 863 A.2d 505, 517 (2004) — the guilty verdict for manslaughter of an unborn child subsumed a specific finding by the jury that Appellant intended to kill Hargrave.9 Further, it is undisputed that Appellant was aware of Hargrave’s pregnancy, and that the jury knew of this awareness on Appellant’s part.10 Any failure on Appellant’s part to perceive that killing Hargrave would also result in the death of her unborn child, considering the nature and intent of his conduct and the circumstances known to him, would plainly “invoIve[ ] a gross deviation from the standard of care that a reasonable person would observe in [Appellant’s] situation.” Thus, as the degree of culpability actually found by the jury was at least criminal negligence with respect to the unborn child, the court’s failure to define this term could not have contributed to the verdict.
B. Accident
As part of this claim, Appellant also takes issue with the trial court’s “failure to instruct on the mens rea component of ‘accidentally.’ ” Brief for Appellant at 10; see N.T. October 20, 2003, at 911 (reflecting the judge’s decision to allow the jury to rely on the “common or ordinary” meaning of the term). Preliminarily, we find doubtful Appellant’s sugges*499tion that “accidentally” is a mens rea, or guilty mental state. Rather, it is a term of common usage that, in the present context, signifies the lack of any purpose or intention to kill the unborn child. For example, as the Superior Court observed, “the death of an unborn child could be considered ‘accidental’ if the perpetrator was not aware the mother was pregnant....” See Bullock, 868 A.2d at 526. In this respect, the offense as described under Section 2605(a)(1) embodies the concept of transferred intent, similar to that reflected in the traditional manslaughter offense when the actor “negligently or accidentally” kills someone other the individual whom “the actor endeavors to kill.” 18 Pa.C.S. § 2503(a)(2).11 Appellant does not reference any authority for the position that “accidentally” must be defined by the trial court, and we are unaware of any; indeed, the jury would appear capable of applying a common-sense meaning to the term. Cf. Commonwealth v. Lambert, 529 Pa. 320, 339, 603 A.2d 568, 577 (1992) (indicating that the term, “knowingly created a grave risk of death to others,” need not be defined by the trial court, as the jury was able to apply a common-sense meaning).12 Finally, as we have already determined that the evidence was uncontested that Appellant was criminally negligent in the killing of *500the unborn victim, whether or not the jury had an incorrect understanding of the term “accidentally” is inconsequential.
V.
For the reasons stated, the judgment of sentence for voluntary manslaughter of an unborn child is affirmed.
Chief Justice CAPPY, Justice CASTILLE, Justice NEWMAN, Justice EAKIN and Justice BALDWIN join the opinion. Justice BAER files a concurring opinion.
. Act of October 2, 1997, P.L. 379, No. 44, effective March 31, 1998 (as amended, 18 Pa.C.S. §§ 2601-2609).
. Section 2602 provides this definition by reference to the Abortion Control Act, 18 Pa.C.S. §§ 3201-3220. See 18 Pa.C.S. § 3203 (defining both "unborn child” and "fetus” as "an individual organism of the species homo sapiens from fertilization until live birth”).
. As noted, a contention surrounding the jury instructions given at trial is before the Court. However, the constitutional question must be addressed because, even if Appellant were to prevail with regard to the jury instruction issue, a new trial on the fetal homicide charge could only be required if the Act is deemed constitutional.
. Although the Act does not reference the concept of viability, we note that the Abortion Control Act defines viability as ‘‘[t]hat stage of fetal development when, in the judgment of the physician based on the particular facts of the case before him and in light of the most advanced medical technology and information available to him, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.” 18 Pa.C.S. § 3203.
. Appellant does argue that the statute leaves room for speculation in unusual cases in which, for example, brain activity in a developed fetus may have ceased but other vital functions remain. See Brief for Appellant at 14. It is well settled, however, that, outside the First Amendment context, vagueness challenges are examined in light of the facts of the case at hand, rather than abstract, hypothetical scenarios. See Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 245 (1976) (quoting United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975)). If a defendant’s conduct was clearly prohibited by the challenged statute, he will have received fair warning even though there may be doubts about the statute's applicability in other situations.
. This Court has sometimes used the term "sensitive classification’' when referring to quasi-suspect classifications. See id.
. Notably, this is not a gender classification, as male and female perpetrators (other than the mother) are treated identically under the Act.
. This Court need not presently opine regarding the legal propriety of a hypothetical criminal prosecution of the mother in such circumstances. The relevant point here is that the classification is not arbitrary, but is based on the Legislature’s recognition that the mother is differently situated from everyone else in relation to her unborn child.
. Any inconsistency between this finding and the jury’s failure to convict Appellant of first-degree murder of Hargrave is of no moment. See generally Commonwealth v. Magliocco, 584 Pa. 244, 266, 883 A.2d 479, 492 (2005) ("[A] mere facial inconsistency in verdicts is not a valid basis upon which to upset a conviction which is otherwise proper, since consistency in verdicts is not required.”).
. For example, in his signed statement to the police — which was shown and read to the jury, see N.T. October 20, 2003, at 83, 85— Appellant indicates: "She [Hargrave], being 6 months pregnant, I asked her to slow down [in her use of drugs].” The officer who took the statement also provided uncontested testimony that, upon turning himself in to the police, Appellant orally admitted he knew Hargrave was pregnant. See id. at 73.
. See generally Commonwealth ex rel. McCant v. Rundle, 418 Pa. 394, 396, 211 A.2d 460, 462 (1965) (describing the transferred intent rule); State v. Brady, 393 Md. 502, 903 A.2d 870, 875-78 (2006); In re T.K., 109 Ohio St.3d 512, 849 N.E.2d 286, 289 (2006) (“[U]nder the doctrine of transferred intent, an offender who intentionally acts to harm someone but ends up accidentally harming another is criminally liable as if the offender had intended to harm the actual victim.”); State v. Horne, 282 S.C. 444, 319 S.E.2d 703, 704 (1984) (explaining the operation of transferred intent in a common-law fetal homicide scenario).
. We note that the Act’s general definition of criminal homicide of an unborn child indicates that that the offense includes the mens reas of intentionally, knowingly, recklessly, and negligently, see 18 Pa.C.S. § 2603(a), whereas the specific definition of voluntary manslaughter of an unborn child clarifies that an accidental cause of death suffices so long as the actor endeavored to kill the mother. See id., § 2605(a)(1). There is no conflict between these two provisions, however, because Section 2603 does not preclude liability where the death of the unborn child is accidental. Furthermore, even if a conflict were deemed to exist, the particular definition of voluntary manslaughter would control. See 1 Pa.C.S. § 1933 (providing that, in statutory construction, specific provisions prevail over general ones where a conflict exists). |
9,645,447 | 2023-08-22 21:25:10.721014+00 | Baer | null | Justice BAER,
concurring.
I join the decision of the Majority in full. I write separately only to emphasize certain matters implicit in our decision which I believe are of particular importance and, thus, are worth reiteration.
As the Majority correctly observes, the United States Supreme Court, through Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and its progeny, has clearly concluded that states have an important and legitimate interest in protecting fetal gestation from the outset of a pregnancy through the birth of a child. See generally Maj. at 491-92, 913 A.2d at 214. The legislature was, therefore, within its prerogative in enacting the Crimes Against the Unborn Child Act (the “Act”), 18 Pa.C.S. §§ 2601-2609, in furtherance of that interest. In doing so, the legislature sought to criminalize certain acts that would result in the cessation of the gestational process. As aptly noted by the Majority, however, the legislature’s effort in this regard, “does not purport to define the concept of personhood or establish when life as a human being begins and ends; rather, it imposes criminal liability for the destruction of a human embryo or fetus that is biologically alive.” Maj. at 489, 913 A.2d at 212-13 (citing State v. Merrill, 450 N.W.2d 318, 324 (Minn.1990)) (“People are free to differ or abstain on the profound philosophical and moral questions of whether an embryo is a human being, or on whether or at *501what stage the embryo or fetus is ensouled or acquires ‘personhood.’ These questions are entirely irrelevant to criminal liability under the statute.”) (emphasis added).
Accordingly, I stress that, in my view, our decision today upholding the legislation in question should not, and cannot, be interpreted as an attempt in any way to define, generally, a fetus as a life-in-being or as endorsing the notion that the interruption of the reproductive process is the killing of human life. Roe and its progeny remain the law in this nation and any attempt, based upon the legislature’s choice of language in the Act, to undermine its constitutional imperative is unavailing |
9,645,448 | 2023-08-22 21:25:12.310867+00 | Cathell | null | CATHELL, J.
This instant case arises from an attorney malpractice claim filed by Charles E. Meeks, Jr. (“Meeks”), respondent, against Charles E. Dashiell, Jr., Esquire (“Dashiell”), petitioner.1 In *1571989, Meeks asked Dashiell to draft a prenuptial agreement to protect his family business in the event that his upcoming marriage to Melanie Davis (“Davis”) did not last. According to Meeks, the initial draft that Dashiell reviewed with him contained a waiver of alimony provision, but the version ultimately signed by Meeks and Davis failed to contain such a provision. Meeks asserted that, at the earliest, he did not learn of this discrepancy until he separated from his wife on May 10, 2001. During divorce proceedings before the Circuit Court for Worcester County (held prior to the instant Wicomico County case), he asked that court to grant Davis rehabilitative alimony. Meeks also sought to have the divorce court declare the prenuptial agreement enforceable as executed. That court granted Meeks’s request to pay Davis rehabilitative alimony in addition to granting his motion seeking to enforce the prenuptial agreement.
On October 24, 2003, Meeks sued Dashiell in the Circuit Court for Wicomico County alleging that Dashiell was negligent in omitting the alimony waiver provision from the prenuptial agreement and counseling Meeks to sign the prenuptial agreement without reading it. Dashiell moved to dismiss the complaint or, alternatively, for summary judgment on the grounds that the malpractice claim was barred by judicial estoppel or barred by the three-year statute of limitations. On May 14, 2004, the trial judge, treating the motion as a motion for summary judgment, ruled that judicial estoppel did not bar the claim, but that the statute of limitations expired three years after Meeks signed the agreement.
Meeks appealing to the Court of Special Appeals, argued that the trial court erred by not applying the discovery rule.2 Dashiell argued that the claim was barred by the statute of limitations and, alternatively, that the trial court erred by not finding that the claim was barred by judicial estoppel. The *158appeal initially was heard by a three judge panel and then by the Court of Special Appeals sitting en banc. After argument and on its own motion, but prior to ruling on the issues before it, the Court of Special Appeals ordered that the entire record from the prior divorce proceedings in the Circuit Court for Worcester County, to include the transcripts of the hearing in the divorce case regarding the enforcement of the prenuptial agreement, be delivered to the Court of Special Appeals. The intermediate appellate court, however, after having obtained that record did not consider it and based solely on the record in the Wicomico County case, found that the trial court erred in ruling as a matter of law that the malpractice claim was barred by the statute of limitations.3 The Court of Special Appeals declined to rule on the trial court’s finding with respect to judicial estoppel. The Court of Special Appeals vacated the judgment of the Circuit Court for Wicomico County and remanded the matter to that court for further proceedings. Meeks v. Dashiell, 166 Md.App. 415, 890 A.2d 779 (2006). Dashiell filed a petition for writ of certiorari, which this Court granted on June 14, 2006. Dashiell v. Meeks, 393 Md. 245, 900 A.2d 751 (2006). Dashiell presented one question for our review:
“Should an appellate court consider on its review portions of the record the appellate court ordered be obtained and supplemented into the record?”
We hold that there is no requirement that an appellate court must consider portions of the record from a prior case that it has ordered to be obtained as a supplement to the record in a subsequent case and that the Court of Special Appeals did not abuse its discretion by doing exactly that in this case. In so holding, we affirm the judgment of the Court of Special Appeals that: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that Meeks’s claim was barred by the statute of limitations; (2) the Circuit Court for *159Wicomico County, in a summary judgment context, did not abuse its discretion in denying Dashiell’s motion based on judicial estoppel grounds; and (3) upon remand, in addition to any other defenses he may have, Dashiell is free to assert the claim of judicial estoppel if that claim is supported by a more fully developed record in the trial court as the case progresses.
I. Facts
On October 24, 2003, Meeks filed a complaint in the Circuit Court for Wicomico County alleging that Dashiell was negligent for omitting the waiver of alimony provision from a prenuptial agreement he was employed to draft and for assuring Meeks that there was no need to read the prenuptial agreement before signing it when Dashiell knew or should have known that the agreement did not contain a waiver of alimony provision. Meeks had retained Dashiell to draft a prenuptial agreement between, his ex-wife, Davis and himself. Meeks and Davis signed the agreement on or about November 3, 1989, and were married on November 4, 1989. The original draft of the agreement allegedly contained a waiver of alimony provision, but the final agreement executed by Meeks and Davis did not contain that provision. Meeks further alleged that Dashiell told him there was no need to read the agreement before signing it. He also claimed that he did not know that the waiver of alimony provision was missing until, as a result of his separation from his wife on May 10, 2001, he finally read the prenuptial agreement.
After separating from Davis and learning of the missing waiver of alimony provision, Meeks filed for absolute divorce in the Circuit Court for Worcester County on February 7, 2002. In his complaint for divorce, he asked that his wife be granted rehabilitative alimony and the divorce court granted the request. On July 11, 2002, Meeks filed a Motion to Enforce the Antenuptial Agreement he signed which the divorce court granted on October 28, 2002. On June 11, 2003, the Circuit Court for Worcester County entered a judgment *160for absolute divorce. Subsequently, Meeks filed the above described malpractice claim on October 24, 2003.
The Court of Special Appeals summarized what happened next:
“No answer was filed in the case. Instead, Dashiell’s initial response to Meeks’s complaint was a motion entitled ‘Motion to Dismiss, or in the alternative, Motion for Summary Judgment.’ Because the motion relied upon three attached exhibits that were not part of the complaint, we shall treat Dashiell’s motion as a motion for summary judgment. See Maryland Rule 2-322(c).
“In the motion for summary judgment, Dashiell asserted that ‘the material facts in this case are undisputed and judgment should be entered for the Defendants as a matter of law.’ The motion set forth three alternative bases for entering judgment for Dashiell: ‘[1] The Plaintiffs claim is barred under the doctrine of judicial estoppel. [2] The Plaintiffs claim is also barred under the applicable statute of limitations. [3] The Plaintiffs cause of action fails since the Defendants did not cause the alleged damages.’
“In Dashiell’s supporting memorandum, he emphasized that Meeks’s Complaint for Divorce, filed in the Worcester County divorce action, included as one of its several prayers for relief a request that Davis ‘be awarded rehabilitative alimony.’ Dashiell further emphasized that, in the divorce action, Meeks had filed a motion asking the Circuit Court for Worcester County to enforce the antenuptial agreement dated November 3,1989. There was no mention in Meeks’s motion of any dissatisfaction on his part with the terms of that agreement. The docket entries from the divorce action reflect that after Meeks filed the motion to enforce the prenuptial agreement, the Circuit Court for Worcester County conducted a hearing and granted the motion. The docket entry for June 11, 2003, states: ‘Court finds the *161Antenuptial Agreement to be a valid agreement, and Grants the Motion to Enforce the Antenuptial Agreement.’
“At the hearing on Dashiell’s motion for summary judgment, the motion judge took issue with Dashiell’s contention that Meeks was attempting to pursue a remedy in the malpractice action that was clearly inconsistent with Meeks’s successful efforts to enforce the prenuptial agreement, as executed, in the Worcester County divorce action. The following colloquy appears in the transcript from the hearing on Dashiell’s motion for summary judgment:
[COUNSEL FOR DASHIELL]: In this court he says [the prenuptial agreement] wasn’t my deal.
THE COURT: No, wait a minute. But I don’t understand why his position is inconsistent.
[COUNSEL FOR DASHIELL]: It’s inconsistent, Your Honor, because in Worcester County he says to the Court in his motion to enforce the settlement, this was my agreement.
THE COURT: He said I entered into a contract, and the contract did not provide for a waiver of alimony.
[...]
[COUNSEL FOR DASHIELL]: And he says to the Court, Judge, in Worcester County, this is my deal, specifically enforce it, honor it, meaning that it’s the full and final agreement of the parties. It’s everything that—
THE COURT: Right, it was the agreement of the parties. And the reason it was the agreement was because your client was negligent, is what he is saying, I don’t know if that fact is true but—
[•■•]
THE COURT: Would the unilateral mistake of one party prevent the prenupcial agreement] from being enforceable?
*162[COUNSEL FOR DASHIELL]: In a vacuum, no. But when the opposing party is saying, don’t enforce it, it’s not my deal, that wasn’t it, which is what she’s saying—
THE COURT: Well, no, but he is saying, you know, I wanted what I got plus a waiver of alimony.
[•■•]
THE COURT: So you are saying that he has to say, all right, I don’t want anything in the agreement, I’ll be a lot worse off, not just don’t I have a waiver of alimony, I don’t have the waiver with respect to property and everything, I have to take everything bad, instead of just what your client did wrong.
[COUNSEL FOR DASHIELL]: No. What I’m saying, Your Honor, is he has got to take a consistent position. If he tells the Court in Worcester that’s my deal, that’s what I intended—
[■••]
THE COURT: No, no, he is saying that’s the contract, the agreement I entered into with my wife. And in here he is saying that is the agreement I entered into with my wife, the reason I entered into it was because your client was negligent.
[•■■]
[COUNSEL FOR DASHIELL]: He says to the Court in Worcester, I had offer, acceptance and consideration on these terms. He says to this Court I didn’t really mean to enter that agreement. That wasn’t my agreement. That’s the distinction.
THE COURT: He is not saying I didn’t enter into that agreement. He is saying I entered into that agreement because your client was negligent. He is not saying that was not the agreement I entered into.
“After hearing further argument, the motion judge ruled from the bench:
*163THE COURT: All right.
I don’t think there is any judicial estoppel. However, this agreement was signed 11 years before[.] I believe the Defendant is charged with knowing the contents of the document that he signed, and that his limitations would have begun [at] the time of the execution of the document. And the Court is going to grant the motion to dismiss based on limitations.”
Meeks v. Dashiell, 166 Md.App. 415, 420-26, 890 A.2d 779, 782-86 (2006) (en banc) (footnotes omitted).
II. Standard of Review
The Circuit Court for Wicomico County made two separate rulings with respect to Dashiell’s motion for summary judgment. The trial court granted summary judgment based on the expiration of the statute of limitations, but it denied summary judgment on the basis of judicial estoppel.
With respect to the trial court’s grant of a motion for summary judgment, the standard of review is de novo. Rockwood Cas. Ins. Co. v. Uninsured Employers’ Fund, 385 Md. 99, 106, 867 A.2d 1026, 1030 (2005); see also Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 14, 852 A.2d 98, 105 (2004); Todd v. Mass Transit Admin., 373 Md. 149, 154-55, 816 A.2d 930, 933 (2003). Prior to determining whether the trial court was legally correct, an appellate court must first determine whether there is any genuine dispute of material facts. Converge Services Group, LLC v. Curran, 383 Md. 462, 476, 860 A.2d 871, 879 (2004); Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners, 380 Md. 106, 114, 843 A.2d 865, 869 (2004). Any factual dispute is resolved in favor of the non-moving party. Jurgensen, 380 Md. at 114, 843 A.2d at 869. Only when there is an absence of a genuine dispute of material fact will the appellate court determine whether the trial court was correct as a matter of law. Rockwood, 385 Md. at 106, 867 A.2d at 1030; Converge Services Group, 383 Md. at 476, 860 A.2d at 879; Jurgensen, 380 Md. at 114, 843 A.2d at 869.
*164Although, ordinarily, when there is no dispute of material fact, a trial court does not have any discretionary power when granting summary judgment it does, nonetheless, exercise discretion when affirmatively denying a motion for summary judgment or denying summary judgment in favor of a full hearing on the merits. We said in Metropolitan Mortgage Fund, Inc. v. Basiliko, 288 Md. 25, 415 A.2d 582 (1980):
“[W]hereas a court cannot draw upon any discretionary power to grant summary judgment, it ordinarily, does possess discretion to refuse to pass upon, as well as discretion to affirmatively deny, a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for an entry of such a judgment have been met.
“[W]e now hold that a denial (as distinguished from a grant) of a summary judgment motion, as well as foregoing the ruling on such a motion either temporarily until later in the proceedings or for resolution by trial of the general issue, involves not only pure legal questions but also an exercise of discretion as to whether the decision should be postponed until it can be supported by a complete factual record; and we further hold that on appeal, absent clear abuse (not present in this case), the manner in which this discretion is exercised will not be disturbed.”
288 Md. at 28-29, 415 A.2d at 583-84 (citation omitted) (quotations omitted). In Foy v. Prudential Ins. Co. of America, 316 Md. 418, 559 A.2d 371 (1989), this Court stated: •
“Although a trial court is allowed discretion to deny a motion for summary judgment in favor of a full hearing on the merits, a court cannot draw upon discretionary power to grant summary judgment.
“[0]rdinarily no party is entitled to a summary judgment as a matter of law. It is within the discretion of *165the judge hearing the motion, if he finds no uncontroverted material facts, to grant summary judgment or to require a trial on the merits. It is not reversible error for him to deny the motion and require a trial.”
316 Md. at 423-24, 559 A.2d at 373 (citing Basiliko, supra)4 As indicated, a trial court may even exercise its discretionary power to deny a motion for summary judgment when the moving party has met the technical requirements of summary judgment. Basiliko, 288 Md. at 28, 415 A.2d at 583. Thus, on appeal, the standard of review for a denial of a motion for summary judgment is whether the trial judge abused his discretion and in the absence of such a showing, the decision of the trial judge will not be disturbed. Foy, 316 Md. at 424, 559 A.2d at 374; Basiliko, 288 Md. at 29, 415 A.2d at 584.
III. Discussion
Before we may address the dispositive issue on this appeal, whether an appellate court must consider on its review portions of the record of a prior case the appellate court ordered to be obtained and supplemented into the record of a later case, we must first examine the findings of the Court of Special Appeals regarding the trial court’s determinations with respect to Dashiell’s motion for summary judgment.
A. Statute of Limitations
By way of background, we return to the en banc majority opinion of the Court of Special Appeals:
“The prenuptial agreement that is the basis of Meeks’s alleged legal malpractice claim against Dashiell was executed by Meeks on November 3, 1989. The complaint asserting the malpractice claim was filed on October 24, 2003. Dashiell asserted in the motion for summary judgment that ‘Maryland law presumes that [Meeks] knew the contents of *166the [prenuptial] contract he signed in 1989. The contract did not contain a waiver of alimony provision. Because thirteen years have passed from the date the contract was signed, and [Meeks] had knowledge of the lack of an alimony provision, this claim is barred under the applicable three-year statute of limitations.’
“In Meeks’s affidavit filed in opposition to the motion for summary judgment, however, Meeks asserted, under oath: T first discovered that the waiver of alimony provision was not in the executed antenuptial agreement when I consulted with an attorney in 2001 regarding a divorce from my wife, [Davis].’ Meeks further asserted in his affidavit that when he had, prior to the date of signing, reviewed a draft of the proposed prenuptial agreement, the draft ‘contained a waiver of alimony provision’; that he ‘was not made aware of any negotiations that occurred between the time [he] reviewed the draft of the antenuptial agreement and the execution of the final agreement that related to alimony’; and that ‘[p]rior to executing the antenuptial agreement, [Meeks] was not advised by [his] attorney, Charles R. Dashiell, Jr., or any other individual employed by Hearne and Bailey, P.A., that the waiver of alimony provision had been removed from the agreement.’
“The motion judge apparently discounted Meeks’s sworn statement that he had no actual awareness that the waiver-of-alimony provision had been deleted by his attorney without Meeks’s knowledge from the final draft of the prenuptial agreement. The motion court accepted Dashiell’s argument, based upon Merit Music v. Sonneborn, 245 Md. 213, 221-22, 225 A.2d 470 (1967), that Meeks was presumed to know the contents of the document he signed. The motion court treated such presumed knowledge as sufficient to establish as a matter of law that Meeks was on inquiry notice of his potential malpractice claim the day he signed the document in question. Accordingly, the motion court ruled that Meeks was ‘charged with knowing the contents of the document that he signed, and that his [statute of] *167limitations would have begun [at] the time of the execution of the document.’ ”
Meeks, 166 Md.App. at 428—430, 890 A.2d at 787-88.
Generally, it is the rule under Maryland contract law that, as between the parties to an agreement, a party who signs a contract is presumed to have read and understood its terms and that the party will be bound by them when that document is executed. Holloman v. Circuit City Stores, 391 Md. 580, 595, 894 A.2d 547, 556 (2006) citing Walther v. Sovereign Bank, 386 Md. 412, 444, 872 A.2d 735 (2005) (“If petitioners did not [read the agreement] before they signed the agreement, they have no persons to blame but themselves. As expressed earlier in our discussion, we are loathe to rescind a conspicuous arbitration agreement that was signed by a party who now, for whatever reason, does not desire to fulfill that agreement.”); Binder v. Benson, 225 Md. 456, 461, 171 A.2d 248, 250 (1961) (“[T]he usual rule is that if there is no fraud, duress or mutual mistake, one who has the capacity to understand a written document who reads and signs it, or without reading it or having it read to him, signs it, is bound by his signature as to all of its terms.”) (citations omitted); McGrath v. Peterson, 127 Md. 412, 416, 96 A. 551, 553 (1916) (“ ‘It would lead to startling results if a person, who executes without coercion or undue persuasion, a solemn release under seal, can subsequently impeach it on the ground of his own carelessness though at the very time of its execution he might, had he seen fit, had advised himself fully as to the nature and legal effect of the act he was doing.’ ” (quoting Spitze v. Baltimore & Ohio R.R. Co., 75 Md. 162, 23 A. 307 (1892))).
The principle represented by each of the cases cited above is distinguishable from the present malpractice claim for the purposes of determining when the statute of limitations began to run. Those cases all involved disputes between parties to a contract where one party was attempting to enforce a contract against the other party. This case involves a negligence claim against an alleged tortfeasor who was not a party to the contract which is the subject of the *168dispute. Thus, even though a person is presumed to have read and understood the terms of a contract at the moment of execution, we agree with the Court of Special Appeals that this principle of contract law:
“does not conclusively establish as a matter of law that the statute of limitations for a legal malpractice claim against the attorney who prepared the contract expires three years after the date the contract was signed. This is particularly so when, as alleged in this case, the attorney assures the client that the document is ready for the client’s signature and advises the client to sign the document without rereading it.”
Meeks, 166 Md.App. at 430, 890 A.2d at 788. We conclude, for the purpose of determining the accrual of the statute of limitations, that, in the context of this case, the Circuit Court for Wicomico County erred as a matter of law when holding that Meeks was charged with knowledge of the alleged malpractice at the time he signed the document. We, like the Court of Special Appeals, think the Circuit Court should have applied what is commonly referred to as the “discovery rule” in order to determine when Meeks was put on notice of his potential claim. We explain.
It is generally true that granting summary judgment for a defendant is appropriate when the statute of limitations governing the action has expired. See Maryland Code (1973, 2002 RepLVoL), § 5-101 of the Courts and Judicial Proceedings Article. This Court, however, has recognized the inherent unfairness of “charging a plaintiff with slumbering on his rights where it was not reasonably possible to have obtained notice of the nature and cause of an injury ...” and we have adopted the discovery rule to determine the date of accrual of a cause of action. Frederick Road Ltd. Partnership v. Brown & Sturm, 360 Md. 76, 95, 756 A.2d 963, 973 (2000) (citing Hahn v. Claybrook, 130 Md. 179, 186-87, 100 A. 83, 85-86 (1917)). Chief Judge Bell, writing for the Frederick Road Court, explained the operation of the discovery rule and its impact on motions for summary judgment based on the expiration of the statute of limitations:
*169“The discovery rule tolls the accrual of the limitations period until the time the plaintiff discovers, or through the exercise of due diligence, should have discovered, the injury. Thus, before an action is said to have accrued, a plaintiff must have notice of the nature and cause of his or her injury. See, Pennwalt [v. Nasios], [ ] 314 Md. [433] at 453, 550 A.2d [1155] at 1165-66 [ (1988) ] (holding that limitations do not begin to run until a plaintiff knows or reasonably should know the nature and cause of his or her harm.); See also, United Parcel [Service v. People’s Counsel for Baltimore County], [] 336 Md. [569] at 579, 650 A.2d [226] at 231 [ (1994) ] (holding that ‘a cause of action “accrues” within the meaning of § 5-101 when “the plaintiff knows or should know of the injury, its probable cause, and ... [the defendant’s] wrongdoing....” ’)(citing Hecht [v. Resolution Trust Corp.], [ ] 333 Md. [324] at 336, 635 A.2d [394] at 400 [ (1994) ]). Aware that the question of notice generally requires the balancing of factual issues and the assessment of the credibility or believability of the evidence, this Court in O’Hara v. Kovens, 305 Md. 280, 503 A.2d 1313 (1986), made clear:
‘whether or not the plaintiffs failure to discover his cause of action was due to failure on his part to use due diligence, or to the fact that defendant so concealed the wrong that plaintiff was unable to discover it by the exercise of due diligence, is ordinarily a question of fact for the jury.’
Id. at 294-295, 503 A.2d at 1320. (citations and internal quotations omitted).”
Frederick Road, 360 Md. at 95-96, 756 A.2d at 973-74. Therefore, the discovery rule tolls the running of the statute of limitations and it is ordinarily a question for the jury or the ultimate factfinder as to whether the plaintiff failed to discover the cause of action because he failed to exercise due diligence or whether he was unable to discover it (and, as a result, unable to exercise due diligence) because the defendant concealed the wrong.
*170In the case sub judice, Meeks alleged the following in an affidavit dated December 19, 2003: Dashiell reviewed with him a draft prenuptial agreement in 1989, Dashiell made changes to the agreement that were more favorable to his ex-wife without Meeks’s knowledge, his attorney advised him to sign the document without reading it and, as a result of his reliance on Dashiell’s advice, Meeks did not find out about the discrepancy in the prenuptial agreement until 2001. If Meeks can prove these allegations, the statute of limitations would not have begun to run until he discovered that the alimony waiver was missing in the final version of the prenuptial agreement he signed in reliance upon his attorney. Therefore, we find no reason to disturb the findings of the Court of Special Appeals, that (1) the Circuit Court for Wicomico County erred in ruling as a matter of law that the cause of action accrued on the date the prenuptial agreement was executed; and (2) there is a genuine dispute of material fact regarding when Meeks discovered the nature and cause of his injury.
B. Judicial Estoppel
Judicial estoppel is defined as “a principle that precludes a party from taking a position in a subsequent action inconsistent with a position taken by him or her in a previous action.” Underwood-Gary v. Mathews, 366 Md. 660, 667 n. 6, 785 A.2d 708, 712 n. 6 (2001) (citing WinMark Ltd. P’ship v. Miles & Stockbridge, 345 Md. 614, 693 A.2d 824 (1997)). The purpose behind the doctrine of judicial estoppel was eloquently explained in Kramer v. Globe Brewing Co., 175 Md. 461, 2 A.2d 634 (1938):
“ ‘If parties in court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralyzed; the coercive process of the law, available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonest, are in the keeping of the courts, and consistency of proceeding is therefore required of all those who come or are brought before them. *171It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation, must act consistently with it; one cannot play fast and loose.’ ”
175 Md. at 469, 2 A.2d at 637 (quoting Melville M. Bigelow, The Law of Estoppel, 783 (Little, Brown & Co. 6th ed.) (1913) (citing Ohio & M. Railway Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693 [ (1877) ])). Before judicial estoppel may be applied, three circumstances must exist: (1) one of the parties takes a factual position that is inconsistent with a position it took in previous litigation, (2) the previous inconsistent position was accepted by a court, and (3) the party who is maintaining the inconsistent positions must have intentionally misled the court in order to gain an unfair advantage. Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 910 A.2d 1072 (2006) (citing Pittman v. Atlantic Realty Co., 359 Md. 513, 529 n. 9, 754 A.2d 1030, 1038-39 n. 9 (2000)). Thus, judicial estoppel applies when it becomes necessary to protect the integrity of the judicial system from one party who is attempting to gain an unfair advantage over another party by manipulating the court system.
In the present matter, the Court of Special Appeals synthesized the relevant facts pertaining to judicial estoppel, stating:
“[I]t appears from the comments made by the motion judge during the hearing on the motion for summary judgment that the judge was not persuaded, based upon his review of only the documents in the motion court’s file, that Meeks’s claim of malpractice was irreconcilably inconsistent with Meeks’s successful motion to enforce the executed antenuptial agreement in the divorce litigation in the neighboring county’s circuit court. From our review of the exhibits that were before the motion court at the time of the hearing on the motion for summary judgment we cannot say that the motion judge committed legal error on this point, or that he *172abused his discretion by refusing to grant Dashiell’s motion for summary judgment.
“In his motion for summary judgment, Dashiell argued that Meeks’s malpractice claims were inconsistent with the position Meeks had pursued during the Worcester County divorce litigation in two regards. (1) In Meeks’s complaint for divorce, he specifically included among his prayers for relief a request that Davis ‘be awarded rehabilitative alimony’; Dashiell asserted that it is inconsistent for Meeks to now allege in his malpractice complaint that, ‘[a]s a result of the negligence of [Dashiell], [Meeks] has been ... required to pay alimony.’ (2) In the divorce proceedings, Meeks filed a Motion to Enforce Antenuptial Agreement, which was granted by the Circuit Court for Worcester County; but in the malpractice complaint, Meeks alleged that he did not intend to sign an antenuptial agreement which did not contain a waiver of alimony.
“Given the facts in the record at the time the motion judge ruled upon Dashiell’s motion for summary judgment, it was not an abuse of discretion to deny Dashiell’s motion that summary judgment should be granted for these reasons ....
“At the argument on the motion for summary judgment, Dashiell’s counsel appropriately conceded that a unilateral mistake by Meeks would not prevent the prenuptial agreement from being an enforceable agreement. The motion judge was not persuaded that a party whose attorney neglected to advise the client of a change to the final execution draft was limited to either rejecting the entire agreement or waiving the alleged error of the attorney. Upon weighing the value of the property settlement provisions against the possibility of an alimony award, it was not inconsistent for Meeks to take the position that, as between himself and Davis, the signed agreement was an enforceable contract, and also take the position that his attorney either mishandled the preparation of the final agreement or failed *173to properly advise Meeks of the ramifications of signing the final version....
“The documents before the motion judge, however, did not assert that the signed prenuptial agreement was contrary to the terms to which Davis had agreed. To the contrary, the exhibits filed with the motion for summary judgment and response supported a factual inference that the deletion was made at Davis’s request during negotiations between counsel, but never communicated to Meeks. Accordingly, the motion judge did not abuse his discretion in refusing to grant Dashiell’s motion on this basis. In further proceedings in the present case, however, Dashiell will have the opportunity to develop the facts surrounding this possible inconsistency in Meeks’s factual assertions, and the court may revisit this issue as necessary.”
Meeks, 166 Md.App. at 439-44, 890 A.2d at 793-96 (citations omitted).
Dashiell urges this Court, should we find that the record is to be considered from the divorce proceedings in the Circuit Court for Worcester County, to apply the doctrine of judicial estoppel. For the reasons stated below, we decline to consider the Worcester County record. Moreover, we see no independent reason to disturb the Court of Special Appeals’ conclusion with respect to judicial estoppel:
“Based upon our review of the documents in the record that was before the motion judge at the time he ruled upon Dashiell’s motion, we conclude that the motion judge did not abuse his discretion in denying Dashiell’s motion to grant summary judgment based upon judicial estoppel. Without prejudice to Dashiell’s right to continue to assert a claim of judicial estoppel upon a more fully developed record, we decline Dashiell’s invitation to reverse the motion court’s denial of the motion for summary judgment on that basis.”
Meeks, 166 Md.App. at 436, 890 A.2d at 791-92. We agree. The trial judge, based on the record that was before him at *174the time, did not abuse his discretion when denying the motion for summary judgment. Dashiell is, however, free to continue to assert a claim of judicial estoppel on remand and upon a more fully developed record.
C. Judicial Notice and Appellate Review
We may now turn to the issue directly before this Court: “Should an appellate court consider on its review portions of the record the appellate court ordered be obtained and supplemented into the record?”
Dashiell urges that this is an exceptional case and, in the interests of justice, this Court should look outside the record of the proceedings in the Circuit Court for Wicomico County. He bases his argument on the following: (1) the case is exceptional because of the need for both the panel hearing and the en banc hearing in the Court of Special Appeals, (2) the two are closely related because the malpractice action stems from the divorce proceeding, and (3) the principals of judicial economy will be better served by deciding any unresolved issues in this Court then by remanding the matter to the Circuit Court.
Meeks argues before this Court that a full evidentiary hearing in the Circuit Court for Wicomico County is necessary because that court never had the entire record of the divorce proceeding before it when it ruled on summary judgment. Consequently, he states that considering the record at the appellate level for the first' time would be unjust to him because he never had the chance to challenge the facts and circumstances of that record in a trial court context in the instant case.
The parties have not directed us to and we have not found any authority that compels an appellate court in this State to consider, or take judicial notice of, facts presented in a prior case not in the original record of the instant case, which it thereafter, ordered placed in the record of the instant case.
Generally, judicial notice may only be taken of “matters of common knowledge or [those] capable of certain *175verification.” Faya v. Almaraz, 329 Md. 435, 444, 620 A.2d 327, 331 (1993); see also Smith v. State, 388 Md. 468, 499, 880 A.2d 288, 306 (2005) (Harrell, J. dissenting). The latter category includes facts which “ ‘are capable of immediate and certain verification by resort to sources whose accuracy is beyond dispute.’ ” Faya, 329 Md. at 444, 620 A.2d at 331 (quoting Murphy, Maryland Evidence Handbook, § 1000(A)(2) (1989)). Maryland Rule 5-2015 governs the use of judicial notice with respect to adjudicative facts6 and although it does not explicitly cover the present situation, it is *176instructive. Initially, we note that Rule 5—201(f) permits judicial notice to be taken at “any stage of the proceeding.” This has been correctly interpreted to mean that judicial notice may be taken during appellate proceedings. See Lerner v. Lerner Corp., 132 Md.App. 32, 40, 750 A.2d 709 (2000); Burral v. State, 118 Md.App. 288, 295, 702 A.2d 781 (1997). Under Rule 5-201(a), the appellate courts of this State are exempt from mandatory provision of the Rule found in 5-201(d), which states that: “A court shall take judicial notice if requested by a party and supplied with the necessary information.” (Emphasis added). Rule 5-201(c) is, however, applicable to Maryland’s appellate courts; it states that “[a] court may take judicial notice, whether requested or not.” (Emphasis added). Rule 5-201(c) is clearly discretionary in nature. Thus, under the Maryland Rules, there is no mandatory requirement for this Court or the Court of Special Appeals to take judicial notice of any such adjudicative fact, but both courts, if they choose to do so, may take judicial notice of adjudicative facts. Necessarily, our case law is consistent with the discretionary nature of the Rule. With respect to taking judicial notice of proceedings outside the record, as we are asked to do here, we have said:
“ ‘The general rule undoubtedly is that a court will not travel outside the record of the case before it in order to take notice of proceedings in another case, even between the same parties, and in the same court, unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable strictness. * * * But in exceptional cases, as high authority shows, the dictates of logic yield to the demands of justice, and the courts in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation.’ ”
Fletcher v. Flournoy, 198 Md. 53, 60-61, 81 A.2d 232, 235 (1951) quoting Morse v. Lewis, 54 F.2d 1027, 1029 (4th Cir.1932). Only in exceptional cases, when the requirements of logic are overcome by the demands of justice, is it proper to exercise the discretionary power of an appellate court in this *177State to look to a proceeding outside the record of the case before it.
As a result of our determination that the Court of Special Appeals’ decision not to review the Worcester County records was discretionary in nature, we will examine the intermediate appellate court’s decision under an abuse of discretion review. Judicial discretion has been defined as “ ‘that power of decision exercised to the necessary end of awarding justice and based upon reason and law, but for which decision there is no special governing statute or rule----’ ” Jenkins v. College Park, 379 Md. 142, 164, 840 A.2d 139 (2003) quoting Goodman v. Commercial Credit Corp., 364 Md. 483, 491-92, 773 A.2d 526, 531-32 (2001) (citations omitted). We have also said that judicial discretion “is defined as the power of a court to determine a question upon fair judicial consideration with regard to what is right and equitable under the law and directed by reason and conscience to a just result.” Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861, 865 (1940) citing Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931). In the context of juvenile court, we have said that discretion has been abused when there is a showing that the juvenile court’s actions were “ ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” In re Don Mc., 344 Md. 194, 201, 686 A.2d 269, 272 (1996) (quoting State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775, 784 (1971)). In the criminal context, a court’s exercise of discretion is not abused if it is:
“ ‘done according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.’ ”
“Wilhelm v. State, 272 Md. 404, 438, 326 A.2d 707[, 728] (1974), quoting Lord Halsbury, L.C., in Sharp v. Wakefield [1891] A.C. 173, 179. Discretion is abused
‘if exercised in a harsh, unjust, capricious and arbitrary way.’ Mathias [v. State], 284 Md. [22], [ ] 27, 394 A.2d 292, *178[295 (1978) ] [ (]quoting Jones v. State, 185 Md. 481, 489, 45 A.2d 350[, 353] (1946)[) ].”
Gonzales v. State, 322 Md. 62, 72, 585 A.2d 222, 227 (1991). Generally, the standard is that absent a showing that a court acted in a harsh, unjust, capricious and arbitrary way, we will not find an abuse of discretion. There is no such showing here.
The Court of Special Appeals explained why it chose not to consider the divorce court record:
“We have considered the option of undertaking our own independent review of the Worcester County divorce proceedings to analyze in more detail the degree of any inconsistency between the positions asserted by Meeks in that litigation and the claim he now asserts against Dashiell, but we have rejected that course of action for a number of reasons. First and foremost, the complete record of those proceedings was not available to, or considered by, the motion court in this case. Consequently, except for the five specific exhibits submitted by Dashiell and Meeks in connection with the motion for summary judgment, the records from the Worcester County divorce proceedings are not part of the record in this case. The divorce court’s records were not even in the same courthouse as the one in which the motion was being argued, let alone part of the same court file.
“[T]he parties were represented by skilled litigation counsel who made a strategic decision to submit only five excerpts from the divorce action. Counsel for each party could have sought to have the entire court file from the Worcester County divorce action made available to the Wicomico County motion judge, but did not do so. It is not the proper function of an appellate court to override such tactical decisions and seek out additional evidence to supplement the record in order to support better arguments than those that were in fact raised and decided in the circuit court. *179Meeks, 166 Md.App. at 445-47, 890 A.2d at 797-99 (citations omitted). The decision of the intermediate appellate court not to review the divorce record after it had ordered it supplemented into the malpractice claim record was within the bounds of reason and justice. The Court of Special Appeals’ decision was not harsh, unjust, capricious, or arbitrary. It did not abuse its discretion.
We also decline to travel outside the record of the instant malpractice claim to examine the record of the prior divorce proceedings. This case is not of such exceptional circumstances that justice demands that this Court exercise its discretionary power and decide this issue based on facts that were not before the Circuit Court for Wicomico County. Just as the parties made a strategic decision not to place the entire record of the divorce proceedings before the Circuit Court for Wicomico County, Dashiell made a strategic decision, based on the disposition of the matter after the Court of Special Appeals issued its judgment, to petition this Court for relief rather than return to the Circuit Court to create a more fully developed record. While we understand Dashiell’s strategic desire to have the matter resolved with finality before the State’s highest Court, we are not a trial court. Were we to go outside the record of the malpractice claim in the name of justice and decide factual matters that could have been before the trial court, we would be circumventing the judicial system and, in so doing, denying the very justice the parties seek.
IV. Conclusion
For the reasons stated above, we hold that there is no requirement that an appellate court consider portions of the record that it has ordered to be obtained as a supplement to the existing record. The Court of Special Appeals did not abuse its discretion. In so holding, we affirm the judgment of the Court of Special Appeals that, in the context of summary judgment: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that Meeks’s claim was barred by the statute of limitations; and (2) the Circuit Court for Wicomico County did not abuse its discretion by denying *180Dashiell’s motion for summary judgment on judicial estoppel grounds. Dashiell is free to assert the claims of limitations, judicial estoppel and any other defenses upon remand.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE DIVIDED BETWEEN THE PARTIES.
HARRELL, J., Dissents.
. Meeks also filed suit against Dashiell’s law firm, Heame & Bailey, P.A. Both Dashiell and Heame & Bailey, P.A. will be collectively referred to herein as "Dashiell."
. The discovery rule tolls the running of the statute of limitations until the potential plaintiff discovers or should have discovered the alleged injury, Frederick Road Ltd. Partnership v. Brown & Sturm, 360 Md. 76, 95, 756 A.2d 963, 973 (2000). We discuss the rule in more detail below.
. The dissent argued that the court should have considered the record from the divorce case. Meeks v. Dashiell, 166 Md.App. 415, 890 A.2d 779 (2006) (Deborah Eyler, J. dissenting).
. While there may be a linguistic difference in the holdings of Basiliko and Foy as to the appropriateness of the exercise of discretion in the granting of such matters, the cases are consistent in that both cases hold that a trial court has discretion to deny the granting of motions for summary judgment.
. "Rule 5-201. Judicial notice of adjudicative facts.
(a) Scope of Rule. This Rule governs only judicial notice of adjudicative facts. Sections (d), (e), and (g) of this Rule do not apply in the Court of Special Appeals or the Court of Appeals.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. Upon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed, except that in a criminal action, the court shall instruct the jury that it may, but is not required to, accept as conclusive any judicially noticed fact adverse to the accused.
. There are both adjudicative and legislative facts. We have previously distinguished the two:
"The difference between adjudicative and legislative facts is not easily drawn; Professor Davis says that adjudicative facts are facts about the parties and their activities, businesses and properties. They usually answer the questions of who did what, where, when, how, why, with what motive or intent while legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion."
Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 711-12, 376 A.2d 483, 497 (1977) (citation omitted) (quotations omitted). |
9,645,449 | 2023-08-22 21:25:12.317035+00 | Harrell | null | Dissenting Opinion by
HARRELL, J.
For the reasons stated in Judge Deborah S. Eyler’s dissent, speaking for the five dissenters in the Court of Special Appeals, Meeks v. Dashiell, 166 Md.App. 415, 448-481, 890 A.2d 779, 799-818 (2006), I dissent from the Majority opinion of this Court. |
1,516,138 | 2013-10-30 06:32:50.173529+00 | Jacobs | null | 913 A.2d 1189 (2006)
Ricky HICKS, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
No. 360, 2005.
Supreme Court of Delaware.
Submitted: October 25, 2006.
Decided: December 6, 2006.
John F. Brady, Esquire, of Brady, Richardson, Beauregard & Chasanov, Georgetown, Delaware; for Appellant.
Kim Ayvazian, Esquire, Deputy Attorney General, Department of Justice, Georgetown, Delaware; for Appellee.
Before STEELE, Chief Justice, BERGER and JACOBS, Justices.
JACOBS, Justice.
Ricky Hicks ("Hicks"), the defendant-below, appeals from a Superior Court judgment of conviction following a jury trial. Hicks claims that the Superior Court reversibly erred in three respects, namely: (i) by denying Hicks' motion for a new trial claiming newly discovered evidence; (ii) by excluding evidence of a prior crime committed by the State's trial witness; and (iii) by denying Hicks' request to impeach the State's expert.[1] We conclude that the Superior Court committed no error. Therefore, we affirm.
FACTS
On October 28, 2004, Delaware State Police Officer Lance Skinner ("Skinner") drove to the Royal Farms convenience store in Milford, Delaware after being alerted about Hicks from a concerned citizen. When Skinner drove into Royal Farms, he saw an orange Honda Accord, which he recognized as Hicks' car, parked in an odd manner in front of the gas pumps. Hicks was standing between the gas pumps and a blue Ford Explorer. When Officer Skinner drove toward both cars, Hicks saw him and asked, "What's up, Skinner?" Hicks then reached into the pocket of his jacket, pulled his hand back, and dropped an object onto the lap of Timothy Davis ("Davis"), the driver of the blue Ford Explorer.
Skinner left his vehicle, approached the Ford Explorer, and asked Hicks what he had thrown into that car. Hicks replied, "nothing." At that point, Skinner observed that Davis' hand was resting on the steering wheel, that the driver's side window was down, and that on Davis' lap was a clear plastic baggie containing an off-white substance that looked like crack cocaine. Skinner told Davis to get out of the Ford Explorer. Appearing shocked, Davis looked down and placed the baggie onto the floor behind him. Davis then stepped out of the Explorer, and Skinner took Davis into custody.
Meanwhile, Hicks got into his orange Honda, which he backed into a parking space in front of the convenience store. Skinner then attempted to place Hicks in custody, and asked a corrections officer *1192 who was passing by to assist him. While Skinner was struggling to place Hicks in handcuffs, he observed a woman leave the Royal Farms store and walk over to the Ford Explorer. Hicks then began yelling at the woman, telling her to get into the Explorer, to ignore Skinner and to leave. Skinner then pushed Hicks aside and ran over to the woman, who was later identified as the owner of the Explorer, Jeanetta Daniels ("Daniels"). Skinner told Daniels to get out of her vehicle and go back into the store. Daniels did as she was told.
Skinner then opened the back door of the Explorer and retrieved a bag of cocaine from the rear passenger side floor. The bag, after being analyzed by a medical examiner, Farnan Daneshgar, was later found to contain about 25 grams of crack cocaine. Skinner also searched Hicks' orange Honda, where he found the torn end of a plastic sandwich bag. Skinner then took Hicks into custody and called for a tow truck to tow the two vehicles to the police station.
After Hicks and Davis were arrested, and while they were seated in Skinner's unmarked police car, Hicks told Skinner that Davis had nothing to do with the drugs. Davis also told Hicks that he (Davis) was not taking any responsibility for any criminal charges, because it was Hicks who had thrown the drugs on his lap. Both Skinner and Officer Dwight Young of the City of Milford Police Department, who also had been called out to the Royal Farms store in the early morning hours of October 29, testified that, while at the scene, Davis told them that the drugs belonged to Hicks.
Thereafter, Skinner contacted Daniels, who identified herself as the owner of the Explorer and told Skinner that she knew nothing about the events at Royal Farms. Daniels told Skinner that she had driven to the gas pump, that Davis was her passenger, and that as she was walking into the store, Hicks pulled up to the gas pump in his orange Honda.
Skinner returned to State Police Troop 4, where he was met by Delaware State Police Corporal John McColgan, who had processed the evidence that Skinner had collected from both vehicles. Searching Hicks' orange Honda a second time, Skinner located a small black plastic baggie containing a small amount of cocaine on the front passenger seat. Hicks later told Skinner that "this is the only thing I know how to do. I don't know anything else but selling. I have no trades or skills."
Hicks and Davis were charged as co-defendants with trafficking in, and delivery of, cocaine, and with other related charges. Davis' charges were later dismissed without prejudice in exchange for giving testimony on behalf of the State. At trial, Hicks took the witness stand and denied having made any incriminating statements to Officers Skinner or Young. Hicks also claimed that three other peopleDennis Hicks, Carlos Daniels, and Dale Davishad been in the Explorer with Davis, but left before Skinner arrived. Davis testifiedcontrary to Hicks' testimonythat the drugs all belonged to Hicks and that two bags were thrown into the Explorer, although only one bag was found there.
Daneshgar, the State's expert witness, testified that the baggie collected from Daniels' Ford Explorer contained 25.48 grams of crack cocaine. Frustrated because he had to wait all day to testify, Daneshgar used profane language in front of the prosecutor and the court bailiff. When first questioned about his inappropriate behavior by the trial judge, Daneshgar denied using the "F" word, but later admitted that he had said, "I got to pick up my `f' ing kids." The Superior Court ordered Daneshgar to apologize to the prosecutor and the court bailiff. Hicks' defense counsel then requested an opportunity *1193 under D.R.E. 609 to impeach Daneshgar by developing the fact that he had initially been untruthful to the trial judge, analogizing his behavior to a finding for contempt.[2] The Superior Court denied defense counsel's request, ruling that Daneshgar had not been found in contempt, and that Daneshgar's initial lack of candor to the Court was a collateral matter.
The jury ultimately convicted Hicks of trafficking in cocaine, delivery of cocaine and possession of drug paraphernalia. Hicks was acquitted, however, of the charges of maintaining a vehicle and resisting arrest. The Superior Court sentenced Hicks to life imprisonment on the charges of which he was convicted.
Hicks appealed from that conviction and sentence. Seven months after the trial, Hicks' defense counsel received a typewritten affidavit bearing Daniels' signature and stamp of a Delaware Notary Public. Daniels' affidavit, in its entirety, read as follows:
I Jeanette Danels [sic], here by state that on the night of October 2004. I was at the Royals [sic] Farms located in Milford Delaware. I was the driver of the Ford [E]xplorer, Timmothy [sic] Davis was my passenger. Officer Skinner seize[d] my truck to search it. When I receive my truck back the weed that Timmothy [sic] was smoking before getting arrest [sic] was still located in my ash tray. Also one of the two bags of crack cocaine that Tim had on him when he arrived at [R]oyals Farms that night was still under the seat. When I received my truck bake [sic] I gave Timmothy [sic] Davis the bag of [c]rack cocaine the same day.
Yours Truly,
Jeanetten Danels [sic]
Hicks moved this Court to remand the case to the Superior Court to present a motion for a new trial, based on newly discovered evidence. This Court granted the application, and Hicks presented his new trial motion to the Superior Court on remand. The Superior Court denied Hicks' motion, holding that: (i) although Daniels' affidavit was newly discovered evidence, the information therein could have been discovered before trial by exercising due diligence; (ii) the new evidence would not have changed the result even if it had been presented to the jury; and (iii) the new evidence was merely impeaching, and not substantive.
DISCUSSION
Hicks appeals to this Court from his conviction and the Superior Court's denial of his motion for a new trial. This appeal presents three issues which we next address.
I.
The first issue is whether the Superior Court erroneously denied Hicks' motion for a new trial. This Court reviews the denial of a motion for new trial for abuse of discretion.[3] To grant a motion for a new trial based on newly discovered evidence, the trial court must conclude that:
*1194 (1) The new evidence is of such a nature that it would have probably changed the result if presented to the jury;
(2) The evidence was newly discovered; i.e., it must have been discovered since trial, and the circumstances must be such as to indicate that it could not have been discovered before trial with due diligence; and
(3) The evidence must not be merely cumulative or impeaching.[4] Hicks claims that by finding that none of these criteria had been satisfied, the Superior Court abused its discretion.
The Superior Court found that Daniels' affidavit would not have changed the result had it been presented to the jury, because "the State has a strong case," and Daniels' affidavit was weak, conclusory and "inconsistent with Daniels' report given to Skinner at the time of the accident." Disputing that finding, Hicks contends that Daniels' affidavit was not conclusory because it recounted specific events surrounding the seizure of Daniels' Ford Explorer and its return to her. Alternatively, Hicks argues, that because the Superior Court did not require Daniels to testify at the new trial hearing, he was deprived of any opportunity to develop further Daniels' affidavit testimony.
We disagree. Daniels' affidavit fails to explain why Hicks initially told Officers Skinner and Young that the cocaine was his. Nor does the affidavit address what contrary testimony Skinner and other State's witnesses had given. Accordingly, Daniels' affidavit does not establish a reasonable probability that her testimony would have altered the outcome of the trial. The credibility of Daniels' affidavit is also doubtful, because the information in the affidavit contradicted Daniels' earlier statement to Skinner at the scene that, during the incident at Royal Farms, she did not know what was going on. Moreover, Daniels had an opportunity to testify at the evidentiary hearing, but declined to appear.
Relying on Charbonneau v. State,[5] Hicks next claims that the Superior Court erroneously concluded that "the State's proffered version of key facts underlying [Hicks'] conviction is more credible than that of Daniels'." That conclusion was error, Hicks argues, because credibility issues are the province of the jury. Hicks' argument, and his reliance on Charbonneau, is misplaced, because on a new trial motion, the trial court has the power to weigh the evidence and pass on its credibility.[6]
Hicks next attacks the Superior Court's determination that the information in Daniels' affidavit could have been discovered before trial with due diligence. The Court so concluded because: (i) Daniels had previously been identified during the trial; (ii) Hicks had the opportunity to question Daniels; and (iii) Daniels had been present throughout the trial, so the information in the affidavit was available through subpoena.
Hicks disputes those findings on three grounds. He argues that (a) the State did not investigate Daniels thoroughly enough to determine whether she had any knowledge of the cocaine found in her vehicle; (b) although Daniels appears on the State's pretrial witness list, there was no indication that Daniels had information that would undermine the evidence offered by the State; and (c) there was no practicable way for Hicks to discover Daniels' information before the trial.
*1195 The threshold, and critical, issue is whether Hicks has shown that Daniels' testimony could not have been discovered before the trial with due diligence. To prevail on that issue, Hicks must prove that he experienced difficulty in discovering Daniels' testimony and that the difficulty could not have been overcome by exercising due diligence. Hicks has shown no basis that would support that conclusion.
The record does not show that Hicks had any difficulty discovering the information contained in Daniels' affidavit. In that respect, this case contrasts sharply with State v. Washington,[7] where the Superior Court confronted a motion for a new trial based on newly discovered evidence because the new witnesses were never identified until several months after the trial.[8] Here, in contrast, Daniels had been identified before, and was available throughout, the trial, yet Daniels' affidavit was not submitted until over seven months after trial.
Nor has Hicks persuasively shown that he exercised due diligence to uncover the information in Daniels' affidavit. Hicks has not addressed, let alone adequately explained, how his efforts amount to due diligence. In the context of a motion for new trial, due diligence requires that the moving party make some effort to discover the evidence before the trial.[9] Here, Daniels was Davis' friend, was the owner of the Explorer and was present at the scene. Daniels was a key witness, and Hicks knew Daniels. Hicks therefore had the opportunity, and the responsibility, to develop the information and call Daniels to the witness stand. Hicks did not do that.
Lastly, the Superior Court found that the "new" evidence at issue would have served only to impeach the credibility of Skinner's and Davis' testimony. Hicks concedes that "Daniels' testimony would impeach the testimony of Davis and Skinner," but he also claims that Daniels' affidavit would not "merely" impeach but also would have created substantive evidence requiring a new trial. We disagree.
Hicks relies on State v. Young,[10] but Young is unhelpful to his position. There, the newly discovered evidence consisted of the testimony of the brother (Jullian Cuffee) of a crucial State witness (Miles Cuffee). The court granted a motion for a new trial after finding that Jullian Cuffee "presents himself as a most believable individual with ample opportunity, coupled with a long-standing, trusting relationship with his brother Miles, to have been in a position to have received the information about which he testified."[11] The Young court held that Jullian's testimony was far more than "merely" cumulative and impeaching. Here, by way of contrast, Daniels' affidavit was found to be suspect, because (among other things) Daniels failed to testify at the evidentiary hearing. Moreover, the information in Daniels' affidavit would at best have impeached Davis' testimony implicating Hicks, and the testimony of Officers Skinner and Young.[12] That is, Daniels' affidavit provided no new *1196 substantive evidence, but only impeaching evidence.
II.
Hicks next claims that the trial court erred by excluding evidence of a prior crime committed by Davis, the State's principal fact witness. This Court reviews a trial court decision to admit (or not to exclude) evidence under D.R.E. 404(a)(2) and 404(b) for abuse of discretion.[13]
Hicks admits that Davis' 1999 narcotics adjudication was not a felony or a crime involving dishonesty. Therefore, Davis' 1999 conviction ". . . was inadmissible under D.R.E. 609 for the purpose of impeachment and likewise was probably not properly admissible under Rule 608(b)." Hicks claims, however, that the Superior Court "should have considered whether the evidence was relevant under Rule 401." If it was, Hicks asserts, then the Superior Court should have conducted a balancing test under D.R.E. 403.
The record shows, however, that the Superior Court did conduct that balancing test, and that the trial court held that the probative value of Davis' 1999 narcotic adjudication, if any, was substantially outweighed by the danger of confusion and undue delay. Therefore, Hicks' claim of error lacks a factual basis.
Relying on United States v. Cruz-Garcia,[14] Hicks next argues that the Superior Court "should have considered whether the evidence concerning Davis' 1999 narcotics possession adjudication was admissible under D.R.E. 404(b)."[15]Cruz-Garcia is of no aid to Hicks. In Cruz-Garcia, the District Court had excluded evidence that was probative of whether the witness was intelligent and sophisticated enough to act on his own. Reversing the trial court's ruling, the Ninth Circuit held that "the proffered evidence could not be properly excluded under 404(b) because it was probative of a matter other than the witness's propensity to commit crime."[16] Nonetheless, the Ninth Circuit held, even if the evidence is admissible under Rule 404(b), it may be excluded under Rule 403's balancing test.[17]
Hicks' argument lacks substantive merit. Skinner saw a clear plastic baggie containing a large amount of crack cocaine on Davis' lap. Davis was then charged as a co-defendant, and the charges against him were dismissed without prejudice at trial in exchange for his testimony. Had Davis' 1999 narcotic adjudication been admitted, that evidence would have been highly prejudicial because it would have invited the jury to infer that Davis had a propensity to commit drug offenses, and that therefore the drugs and paraphernalia found in the Explorer must have been his. That is precisely the kind of inference that Rule 404(b) is intended to preclude. The evidence of the 1999 adjudication would be probative only of Davis' propensity to commit a drug-related crime. Under the D.R.E. 403 balancing test, the concern that the jury would consider that evidence solely as propensity evidence outweighed whatever limited probative value that the *1197 evidence might have had. Therefore, the Superior Court committed no error in excluding Davis' 1999 narcotic adjudication.
III.
Hicks' final claim is that the Superior Court erred by denying his request to show that Daneshgar, the State's expert, had lied to the Court. A trial court's decision to admit or exclude evidence is reviewed by this Court for an abuse of discretion.[18]
Relying on In re Hillis,[19] Hicks claims that the Superior Court's order that the State's expert, Daneshgar, apologize to the prosecutor and bailiff constituted an implicit finding and sanction for contempt. Hicks claims that he was entitled to use that "contempt" finding to impeach Daneshgar under D.R.E. 609(a) as a conviction of a prior offense involving a false statement (his lie to the Court).[20] Hicks also urges that the Superior Court's exclusion of this evidence was highly prejudicial, because Daneshgar was the only witness whose testimony established the seized evidence as cocaine. That impeachment evidence, Hicks claims, could have undermined the jury's confidence in Daneshgar's expert opinion.
This argument lacks merit, because there was no adjudication of contempt. In In re Hillis, in contrast, an assistant public defender returned to a courtroom a half-hour late from a recess, offered no apology or explanation and became insolent. Although the trial judge disclaimed that he was finding the public defender in contempt for his openly sarcastic and disrespectful attitude, this Court held the trial judge's action disciplining the public defender constituted a summary finding of contempt. This case is distinguishable. Here, Daneshgar obeyed the Superior Court's instruction and apologized to the prosecutor and the court bailiff for his abusive language. The "contempt power . . . [can]not be used to punish a person merely for committing perjury in the court's presence without the additional showing that an actual obstruction of justice was caused thereby."[21] Here, the Superior Court properly found that Daneshgar's false statement to the trial judge on a matter totally unrelated to his testimony did not impair the jury's search for truth, or the order, dignity or authority of the court.
CONCLUSION
For the above reasons, we find that Hicks' conviction was free from error and the Superior Court committed no error in denying Hicks' motion for a new trial. The judgments of the Superior Court are affirmed.
NOTES
[1] Hicks also claims that the trial court erroneously recited Hicks' contention that he had received ineffective assistance of counsel. This Court does not entertain claims of ineffective assistance of counsel on direct appeal which were not raised below. Collins v. State, 420 A.2d 170, 177 (Del.1980); Duross v. State, 494 A.2d 1265, 1266, 1267 (Del.1985); Traylor v. State, 1993 WL 22021, 1993 LEXIS 18 (Del.1993) (Order). Because this claim was not raised below in a proceeding where counsel had an opportunity to be heard, we do not consider it in this Opinion.
[2] D.R.E. 609(a) provides as follows:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted but only if the crime (1) constituted a felony under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect or (2) involved dishonesty or false statement, regardless of the punishment.
D.R.E. 609(a) (2001).
[3] Wolhar v. GMC, 734 A.2d 161 (Del.1999), citing Eustice v. Rupert, 460 A.2d 507 (Del. 1983).
[4] Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).
[5] 904 A.2d 295 (Del.2006).
[6] Storey v. Camper, 401 A.2d 458, 461 (Del. 1979), citing Millman v. Millman, 359 A.2d 158, 160 (Del.1976).
[7] 1992 WL 302014, 1992 Del.Super. LEXIS 423 (Del.Super.Oct. 15, 1992).
[8] Id. at *2-3, 1992 Del.Super. LEXIS at *7.
[9] United States v. Jaramillo, 42 F.3d 920, 925 (5th Cir.1995).
[10] 1982 Del.Super. LEXIS 1062 (Del.Super.Oct. 4, 1982).
[11] Id. *25-26.
[12] Skinner had observed Hicks throw an object onto Davis' lap while he was seated in the Explorer. Officer Young testified that he heard Hicks confess that the cocaine was his.
[13] Pope v. State, 632 A.2d 73, 78-79 (Del. 1993).
[14] 344 F.3d 951 (9th Cir.2003).
[15] D.R.E. 404(b) provides that:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
D.R.E. 404(b) (2001).
[16] United States v. Cruz-Garcia, 344 F.3d at 955.
[17] Id. at 956.
[18] Kiser v. State, 769 A.2d 736, 739 (Del. 2001).
[19] 858 A.2d 317 (Del.2004).
[20] D.R.E. 609(a), supra note 2.
[21] Temple v. United States, 386 U.S. 961, 87 S. Ct. 1024, 18 L. Ed. 2d 110 (1967). |
9,645,450 | 2023-08-22 21:25:16.356234+00 | Dixon | null | DIXON, Chief Justice.
Appellant Vaughan Wood, doing business as Village Carpets, brought two suits to foreclose mechanic’s and materialmen’s liens on two separate pieces of property.
One suit was against R. Wayne Patty, Robert Barnes, Jr. and wife, Jeanette Barnes and Mortgage & Trust, Inc.
The other suit was brought against R. Wayne Patty, Everett C. Morgan and wife, Olive M. Morgan, and Dallas Teachers Credit Union.
R. Wayne Patty, developer and builder, owned two lots on each of which he himself as builder constructed a residence. In September 1964 and October 1964 respectively appellant Wood furnished labor and material to Patty, the owner, in the construction of the houses. Patty sold one house to the Barnes, the other to the Morgans. *427Mortgage & Trust, Inc. and Dallas Teachers Credit Union loaned money to the purchasers and each held a mortgage to secure payment.
Though he made an affidavit that all bills were paid the truth was that Patty, at the time he sold the houses to the Barnes and the Morgans, still owed Wood $461.91 principal on one house and $1,368.03 on the other.
Well within the 120-day period prescribed by statute, Art. 5453, Sec. 1, Vernon’s Ann. Civ.St., but subsequent to the sale of the properties by Patty to the Barnes and Morgans, Wood filed affidavits pursuant to Articles 5453 and 5455, V.A.C.S.* to fix and secure his liens. He sent two copies to Patty, the original owner, as required by statute. At the same time he also sent copies to the Barnes and the Morgans, purchasers from Patty. It is not contended that the purchasers received actual notice of Wood’s claim prior to the time they bought the properties, or prior to the time they received actual notice from Wood.
The two suits filed by appellant were consolidated. All parties except Patty filed motions for summary judgment. The motions of appellees were sustained. Those of appellant were overruled. Appellant Wood was granted judgment against Patty for $2,520.59, but was denied foreclosure of his mechanic’s and materialmen’s liens against the properties sold by Patty to the Barnes and Morgans. Appellant has appealed only from that part of the judgment denying foreclosure.
In his first four points of error appellant asserts in substance that having fully complied with Articles 5453 and 5455, V.A.C.S., he is entitled to judgment foreclosing his liens.
Appellees in their brief present only one ground in support of the court’s refusal to foreclose appellant’s liens. They do not deny that appellant fully complied with Articles 5453 and 5455, V.A.C.S., but they say that he did not comply with Articles 6626 and 6627, V.A.C.S., in that he did not also have his affidavits acknowledged as well as sworn to before a notary public.
Article 6626 provides that certain named instruments which shall have been acknowledged are authorized to be recorded. Mechanic’s and materialmen’s liens are not among the instruments specifically named, *428but the statute includes the general statement, “ * * * or other instruments of writing concerning any lands * * Article 6627 provides that all conveyances of land and mortgages on land shall be void as to all creditors and subsequent purchasers unless they be acknowledged and filed with the clerk. Neither of the above statutes expressly refers to mechanic’s and material-men’s liens.
Appellees contend that since appellant’s affidavits were not acknowledged they were not legally filed with the County Clerk, hence did not give constructive notice to ap-pellees of appellant’s claimed liens. It is their position that they are innocent purchasers without notice and for that reason the court properly denied foreclosure of appellant’s alleged liens. We do not agree with appellees.
Art. 5453, V.A.C.S. is explicit, detailed and unambiguous. It sets out very clearly the manner in which a mechanic’s and ma-terialmen’s lien shall be secured and fixed. It requires the execution and filing of an affidavit * * *, to be recorded in a book kept by the county clerk for that purpose * * It further directs that “The county clerk shall index and cross-index such affidavit * * (Emphasis ours.) It does not prescribe the execution and filing of an acknowledged instrument. Article 5455 is equally explicit. It prescribes and outlines the form and substance of the affidavit. It does not require an acknowledgment.
Art. 5460, V.A.C.S., which provides the manner of fixing a lien against a homestead, does require a written contract which must be acknowledged by the wife. It seems to us that by requiring an acknowledgment in the case of a homestead but omitting such requirement in regard to property not a homestead the Legislature intended that an acknowledgment was not to be required in the latter instance.
If we were to interpret Articles 6626 and 6627, V.A.C.S. to mean that an affidavit for a mechanic’s and materialmen’s lien must be acknowledged as well as sworn to in order to be valid, as appellees contend, then we would be impelled to hold that the above named statutes not being specific or detailed but being general in character as to mechanic’s and materialmen’s liens (“ * * * other instruments of writing concerning land * * * ”) are in conflict with Articles 5453 and 5455, V.A.C.S. And in case of conflict the latter statutes, being special and detailed statutes relating particularly to mechanic’s and materialmen’s liens, are to prevail over the general statutes. It will be noted too that Articles 6626 and 6627, V.A.C.S. are in different titles of the statutes and deal with different subjects than Articles 5453 and 5455, V.A.C.S. A mechanic’s lien is a creature of the Constitution and the statutes. Handy v. Holman et al., 281 S.W.2d 356 (Tex.Civ.App., Galveston 1955, no writ); Culver v. Miears, 220 S.W.2d 200 (Tex.Civ.App., Eastland 1949, writ ref’d); Real Estate-Land Title & Trust Co. v. Dildy, 92 S.W.2d 318, 323 (Tex.Civ.App., Austin 1936, writ ref’d); Larkin et al. v. Pruett Lbr. Co., 209 S.W. 443 (Tex.Civ.App., El Paso 1919, no writ); Houston v. Myers, 88 Tex. 126, 30 S.W. 912 (1895).
It is undisputed that appellant complied in all ways with Articles 5453 and 5455, V.A.C.S. Appellant’s affidavits were filed within 120 days. The Barnes and Morgans having purchased the property before the expiration of the 120-day period must take constructive notice of appellant’s existing right to file his affidavits. Marks v. Calcasieu Lbr. Co., 245 S.W.2d 749 (Tex.Civ.App., Austin 1952, writ ref’d n. r. e.); Tomlinson v. Higginbotham Bros. & Co. et al., 229 S.W.2d 920 (Tex.Civ.App., Eastland 1950, no writ); Keating Imp. & Mach. Co. v. Marshall Elec. Light & Power Co., 74 Tex. 605, 12 S.W. 489 (1889). The liens, being properly fixed, relate back to the inception of the contract between appellant and Patty. Lubbock Nat’l Bank v. Hinkle, 397 S.W.2d 285 (Tex.Civ.App., Amarillo 1965, writ ref’d *429n. r. e.); Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765 (1895). We sustain appellant’s first four points.
In his fifth point appellant says that he has constitutional mechanic’s and materialmen’s liens under Art. 16, Sec. 37 of the Constitution of Texas, Vernon’s Ann.St., as between the owner and the contractor a constitutional lien is self-executing and is not dependent on compliance with statutes. Continental Radio Co., Inc. v. Continental Bank & Trust Co., 369 S.W.2d 359 (Tex.Civ.App., Houston 1963, writ ref’d n. r. e.); Pierce v. Mays, 277 S.W.2d 155 (Tex.Civ.App., Amarillo 1954, affirmed in part and reversed in part 154 Tex. 487, 281 S.W.2d 79); Warner Elevator Mfg. Co. v. Maverick, 88 Tex. 489, 30 S.W. 437, 31 S.W. 353, 499 (1895). But for the contractor to be protected against the rights of third parties he must either comply with the statute in regard to affidavits for fixing mechanic’s and ma-terialmen’s liens, thus giving constructive notice to third parties; Newman v. Coker, 310 S.W.2d 354 (Tex.Civ.App., Amarillo 1958, no writ); Black, Sivalls & Bryson v. Operators’ Oil & Gas Co., 37 S.W.2d 313 (Tex.Civ.App., Eastland 1931, no writ); De Bruin v. Santo Domingo Land & Irr. Co., 194 S.W. 654 (Tex.Civ.App., San Antonio 1917, writ ref’d); Kinsey v. Spurlin, 102 S.W. 122 (Tex.Civ.App.1907, no writ); or he must give actual notice to third parties within the time prescribed by statute. Stone v. Pitts, 389 S.W.2d 601 (Tex.Civ.App., Waco 1965, no writ); O’Ferral v. Coolidge, 225 S.W.2d 582 (Tex.Civ.App., Texarkana 1950, affirmed 149 Tex. 61, 228 S.W.2d 146); Neblett v. Slosson, 223 S.W.2d 938 (Tex.Civ.App., Galveston 1949, writ ref’d n. r. e.); Farmers Mut. Royalty Syndicate v. Isaacks, 138 S.W.2d 228 (Tex.Civ.App., Amarillo 1940, no writ); Hampshire v. Greeves, 130 S.W. 665 (Tex.Civ.App.1910, affirmed 104 Tex. 620, 143 S.W. 147 (1912)). It is undisputed that in this case appellant complied with Articles 5453 and 5455, V.A.C.S., and he also gave actual notice to the Barnes and the Morgans within the time prescribed in Article 5453. We sustain appellant’s fifth point.
Appellant’s sixth and seventh points have to do with matters which apparently are no longer in the case, so in the interest of brevity we shall not pass on them.
Since we are of the opinion that appellees’ motions for summary judgment should have been overruled and appellant’s motions should have been sustained we have concluded that we should reverse the trial court’s judgment and render judgment herein. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).
The judgment is reversed and judgment is here rendered foreclosing appellant’s mechanic’s and materialmen’s liens against the properties described in the petitions and the motions for summary judgment.
Reversed and rendered.
The material parts of the two statutes are as follows:
“Art. 6453. [5622-3] Securing lien “The lien provided for in Article 5452 may be fixed and secured in the following manner:
“1. Every original contractor, not later than one hundred twenty (120) days, * * * after the indebtedness accrues as defined hereinafter in Article 5467, shall file his affidavit claiming a lien, to be recorded in a book kept by the county clerk for that purpose in the office of the county clerk of the county in which such property is located * * * an(j he shall send to the owner by certified or registered mail, addressed to his last known business or residence address, two (2) copies of such affidavit claiming a lien. The county clerk shall index and cross-index such affidavit in the names of the claimant, the original contractor and the owner. So long as the claim for a lien has been filed with the county clerk, failure of the county clerk to comply with these instructions shall not invalidate the lien.” (Emphasis ours.)
“Art. 5455 [5624] [3297] Form of claim
“An affidavit claiming a lien filed for record by any one claiming the benefit of this Act shall be signed by the claimant or by some person on his behalf and shall contain in substance the following:
“a. A sworn statement of his claim, including the amount thereof. A copy of the written agreement or contract, if any, may be attached at the option of the claimant.
“b. The name of the owner or reputed owner, if known.
“c. A general statement of the kind of work done or materials furnished by him, or both. * * *
“d. The name of the person * * * to whom he furnished the materials or labor, and the name of the original contractor.
“e. A description of the property sought to be charged with the lien legally sufficient for identificatioft.” |
9,645,451 | 2023-08-22 21:25:16.360733+00 | null | null | ON REHEARING
In our original opinion we reversed the trial court’s judgment and rendered judgment foreclosing appellant’s mechanic’s and materialmen’s liens, including the sum of $450 as attorney’s fees. Appellees in their motion for rehearing take issue in general with our judgment holding appellant’s liens valid and ordering foreclosure in any amount, but in particular they contend that it was error to include attorney’s fees in the judgment of foreclosure.
We agree with appellees. The amount of an attorney’s fee may not be included in a judgment of foreclosure of a mechanic’s lien unless the parties have entered into a written agreement so providing, or unless there is statute providing for a lien to secure payment of an attorney’s fee. 57 C.J.S. Mechanics’ Liens § 353, pp. 1037-1038.
Appellant cites Art. 2226, Vernon’s Ann.Civ.St., as statutory authority for the allowance of an attorney’s fee for labor *430done or material furnished. The cited statute does, indeed, make provision for the allowance of a personal judgment for attorney’s fee, but it does not provide for a lien to secure payment. And we know of no statutory authority which does provide for such a lien under the circumstances here presented to us.
Appellant also cites us to the case of Lipscomb v. Adamson Lumber Co., 217 S.W. 228, 230-231 (Tex.Civ.App., Dallas 1919, no writ). However, in that case there was a written contract providing for a mechanic’s lien to include an amount for attorney’s fee. Since the property in question was not a homestead * the court held that there was no objection to including the amount of the attorney’s fee in the foreclosure.
There are other cases not involving a homestead in which a foreclosure judgment was held to be proper though it included the amount of an attorney’s fee; but in every instance, so far as we have been able to determine, there was a written mechanic’s lien contract which provided for attorney’s fee. West End Town Co. v. Grigg et al., 93 Tex. 451, 56 S.W. 49 (1900); Summerville v. King, 98 Tex. 332, 83 S.W. 680, 682 (1904); White et ux. v. Dozier Const. Co., 70 S.W.2d 240, 242 (Tex.Civ.App., Austin 1934, no writ); Kleiner v. Eubank, 358 S.W.2d 902, 906 (Tex.Civ.App., Austin 1962, writ ref’d n. r. e.); Zorola v. Bishop & Son, 401 S.W.2d 713, 716 (Tex.Civ.App., San Antonio 1966, writ ref’d n. r. e.). We have not been cited to a case and we know of none which holds that foreclosure of an affidavit mechanic’s lien may include an allowance for an attorney’s fee.
We have not found a Texas case exactly in point, but we believe our view finds some support in the following: Hennemuth v. Weatherford, 278 S.W.2d 271, 273 (Tex.Civ.App., Waco 1955, writ ref’d n. r. e.); Galbraith-Foxworth Lumber Co. v. Long, 5 S.W.2d 162, 166 (Tex.Civ.App., Dallas 1928, writ ref’d); Breckenridge City Club v. Hardin, 253 S.W. 873, 876 (Tex.Civ.App., Fort Worth 1923, no writ); D. June 6 Co. v. Doke, 35 Tex.Civ.App. 240, 80 S. W. 402, 406 (San Antonio 1904, writ ref’d); 38 Tex.Jur.2d 667.
For another reason the judgment for attorney’s fee cannot be allowed to stand. We find no evidence in the record in the form of affidavits or otherwise that $450 is a reasonable amount as attorney’s fee. In the absence of such evidence the court is not authorized to make a fact finding as to the amount to be allowed as a fee. Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex.Sup., 1966).
The motion for rehearing will be overruled to the extent that the judgment of the trial court is reversed and rendered foreclosing a mechanic’s lien for $461.91 principal for material and labor furnished plus 6 per cent interest per annum from December 1, 1964 on the real property sold by Patty to Robert W. Barnes, Jr. and wife, Jeanette R. Barnes, as described in plaintiff’s petition; and reversed and rendered foreclosing the mechanic’s lien for $1,368.-03 plus interest from December 3, 1964 at the rate of 6 per cent per annum on the real *431property sold by Patty to Everett C. Morgan and wife, Olive M. Morgan, as described in plaintiff’s petition.
The motion for rehearing will be sustained to the extent that the judgment for foreclosure will include only the above named amounts and will not include a judgment for attorney’s fee.
The personal judgment against Patty will be affirmed.
Reversed and rendered in part and affirmed in part.
The authorities are in agreement that under the Constitution of Texas, Art. 16, Sections 37 and 50, a mechanic’s lien against a homestead does not secure and cannot include that part of the judgment allowing attorney’s fee even if the written mechanic’s lien contract so provides. This is made clear in those cases which allow foreclosure of a written contractual mechanic’s lien including an attorney’s fee against property not a homestead. See also Stricklin v. Southwestern Reserve Life Ins. Co., 234 S.W.2d 439, 443 (Tex.Civ.App., Texarkana 1950, writ ref’d); Anderson v. Hirsch et al., 112 S.W.2d 535, 541-542 (Tex.Civ.App., Amarillo 1937, writ ref’d); Mathews et ux. v. Texas Building & Loan Ass’n, 48 S.W. 744 (Tex.Civ.App., 1899, writ ref’d). However, that question is not before us in this ease as it is undisputed that at the time the labor was performed and the material furnished the properties involved were not homesteads. |
9,645,452 | 2023-08-22 21:25:17.206503+00 | Leavitt | null | OPINION BY
Judge LEAVITT.
Joseph John Kachurak appeals from an order of the Court of Common Pleas of Luzerne County (trial court), which denied his statutory appeal from a suspension of his driving privileges by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) pursuant to Section 1547 of the Vehicle Code (Code).1 We affirm the trial court.
On February 8, 2006, PennDOT notified Kachurak that his driving privileges were being suspended for one year, effective March 15, 2006, as a result of his refusal to submit to chemical testing on January 26, 2006. Reproduced Record at 25a-27a (R.R.-). Kachurak subsequently filed a timely appeal and on May 31, 2006, the trial court held a de novo hearing.
At the hearing, the sole witness, Officer David Allen Rinehimer of the Dallas Borough Police Department, testified to the following. On January 26, 2006, Officer Rinehimer was on patrol in a marked police vehicle when he received a dispatch from the Luzerne County 911 Center to be on the lookout for an erratic driver who was possibly intoxicated traveling up State Route 309 at a high rate of speed.
Officer Rinehimer subsequently observed and began following a pick-up truck matching the description of the vehicle made by the dispatcher. As he came up behind the vehicle, Officer Rinehimer watched the truck veer over the center line, kicking up salt and cinders that were in the middle of the turning lane. Officer Rinehimer explained that the truck came back into the driving lane as it continued up the road, but it “veered a couple more times” as it approached an intersection. R.R. 32a. While proceeding through the *984intersection, Officer Rinehimer saw the truck veer towards the guide rail on one side of the intersection, nearly taking it out. The truck then continued along the narrow berm of the road, at which time Officer Rinehimer activated his lights and siren. However, the vehicle continued moving forward; again crossed over the yellow line for the center turning lane; came back into the driving lane; slowed a bit; and then pulled over.
Officer Rinehimer approached the vehicle operator, whom he identified as Kachu-rak, and asked for his driver’s license, registration and proof of insurance. Ka-churak fumbled through the vehicle and his pockets but could not locate the information. Kachurak did locate and pull out a bottle of pills. When questioned as to what the pills were for, Kachurak stated that he was a diabetic. Officer Rinehimer detected the odor of alcohol and noticed that Kachurak’s speech was slurred and his eyes were glassy, red and bloodshot.
Upon request, Kachurak exited the vehicle, at which time he began to stagger. Kachurak walked to the rear of the vehicle with an “obvious stagger” and refused to take a breath test. A field sobriety test was not performed because Officer Rine-himer was not sure whether Kachurak was having a diabetic emergency and did not want Kachurak to fall over and injure himself while performing the test. Officer Rinehimer testified that “due to his condition and the observations that I had made,” he placed Kachurak under arrest for suspected driving under the influence of alcohol and transported him to Wilkes-Barre General Hospital for a chemical test of his blood. R.R. 33a. At the hospital, Officer Rinehimer read Kachurak a form requesting him to submit to a chemical test. Kachurak responded that he would not take the test and signed the form indicating that he declined to take the test.
On cross-examination, Officer Rinehimer acknowledged that in his prior testimony at a preliminary hearing he stated that the only reason he stopped Kachurak was because of his erratic driving. Officer Rine-himer agreed that Kachurak did not strike any objects, did not interfere with oncoming traffic and did not interfere with traffic in his lane of travel.
Kachurak’s counsel then argued to the trial court that the suspension should be overturned because the stop was not appropriate. Counsel asserted that erratic driving as perceived by a police officer, without anything more, is an insufficient basis for a traffic stop to be lawful.
At the end of the hearing, the trial court found Officer Rinehimer’s testimony credible and, based on the facts and relevant case law, determined that there was no merit to Kachurak’s appeal. The trial court issued an order on May 31, 2006, dismissing the appeal; subsequently, on July 31, 2006, the trial court issued an opinion. In its opinion, the trial court noted that in addition to observing erratic driving, Officer Rinehimer had another reason for stopping Kachurak, namely, the information received from the 911 dispatcher. Trial Court Opinion at 4-5. Nevertheless, the trial court explained that the lawfulness of a driver’s underlying arrest is irrelevant when determining whether operating privileges can be properly suspended as a result of a driver’s refusal to submit to a chemical test. Because the parties agreed that Kachurak was arrested for DUI; that he was asked to submit to chemical testing; that he was specifically warned that his refusal would result in revocation of his operating privileges; and that he refused to take the test, the trial court concluded that PennDOT met its burden of proof. Kachurak now appeals to this Court.
*985On appeal,2 Kachurak contends that the trial court abused its discretion by finding that thei'e was an additional reason besides erratic driving for the traffic stop. Kachurak argues that there is no competent evidence to support that finding because Officer Rinehimer testified that the only reason he stopped Kachurak was because of erratic driving. Kachurak asserts that a motorist’s erratic driving is not a violation of the Vehicle Code and, without more, a police officer lacks probable cause to execute a traffic stop. Therefore, Kachurak maintains that Officer Rinehimer’s stop of Kachurak was unlawful and the appeal should have been sustained.
PennDOT counters that Kachurak’s theory that his license suspension was improper because the underlying traffic stop was purportedly illegal, has been clearly, consistently and repeatedly rejected by the courts for many years. PennDOT asserts that because Kachurak does not attempt to distinguish any of the binding precedent or even acknowledge its existence, his appeal is frivolous and PennDOT should be awarded a reasonable counsel fee.
To establish that a suspension of operating privileges was proper, PennDOT must prove at a statutory appeal hearing that the licensee (1) was arrested for driving while under the influence by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to do so, and (4) was warned that a refusal would result in a license suspension. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999). An officer has reasonable grounds to believe an individual was operating a motor vehicle under the influence of alcohol “if a reasonable person in the position of the police officer, viewing the facts and circumstances as they appeared to the officer at the time, could conclude that the driver drove his car while under the influence of alcohol.” McCallum v. Commonwealth, 140 Pa. Cmwlth. 317, 592 A.2d 820, 822 (1991). The test for determining if reasonable grounds exist is not very demanding. Hasson v. Department of Transportation, Bureau of Driver Licensing, 866 A.2d 1181, 1185 (Pa.Cmwlth.2005). An officer may acquire reasonable grounds to believe that a licensee was driving under the influence of alcohol at any time during the course of interaction between the officer and the licensee. Department of Transportation, Bureau of Traffic Safety v. Stewart, 107 Pa.Cmwlth. 200, 527 A.2d 1119, 1120 (1987) (emphasis in original).
The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Banner, 558 Pa. at 446, 737 A.2d at 1207. A driver’s guilt or innocence of a criminal offense is not at issue in the license suspension proceedings. Department of Transportation v. Wysocki, 517 Pa. 175, *986180, 535 A.2d 77, 79 (1987). It is axiomatic that the legality of a driver’s underlying DUI arrest is irrelevant for purposes of a license suspension proceeding for refusal to submit to chemical testing. Id.; Mitchell v. Department of Transportation, Bureau of Driver Licensing, 826 A.2d 936, 939 (Pa.Cmwlth.2003); Zwibel v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599, 603 (Pa.Cmwlth.2003).
Kachurak’s argument on appeal focuses solely on the validity of Officer Rinehimer’s reasons for stopping Kachurak. In support, he cites Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001) and Commonwealth v. Battaglia, 802 A.2d 652 (Pa.Super.2002). Both cases arose from a motion to suppress evidence in a criminal case. In each case, evidence was suppressed because the court held that “perceived ‘erratic driving’ in and of itself is not a violation of the [Vehicle] Code and, without more, does not provide probable cause to execute a traffic stop.” Id. at 657. In the absence of probable cause, the vehicle stops were held to be invalid.
Gleason and Battaglia are criminal cases and, as such, irrelevant to a license suspension matter. The law is clear that the legality of the underlying DUI arrest is of no moment in a license suspension that results from a refusal to submit to chemical testing. It is irrelevant whether Officer Rinehimer had probable cause for executing the traffic stop.3 An illegal arrest is not an impediment to a license suspension for refusing a chemical blood test. Wysocki, 517 Pa. at 180, 535 A.2d at 79.
It is undisputed that when Kachu-rak was pulled over he smelled of alcohol; his speech was slurred; his eyes were glassy, red and bloodshot; and he was staggering outside of the vehicle. These were reasonable grounds for Officer Rine-himer to believe Kachurak was operating a vehicle under the influence of alcohol. McCallum, 592 A.2d at 822. Kachurak was asked to submit to a chemical test, but he refused to do so despite being warned of the consequence of a refusal. PennDOT met each element of its burden of proving its case under Banner, and the trial court appropriately denied Kachurak’s appeal.
We turn, next, to PennDOT’s request for an award of attorney’s fees, as provided for by Pa. R.A.P. 2744,4 on the basis that Kachurak has presented a frivolous appeal. An appeal is frivolous if it is lacking in any reasonable basis in either law or fact. Adams v. Pennsylvania *987Board of Probation and Parole, 885 A.2d 1121, 1128 (Pa.Cmwlth.2005). Kachurak’s appeal is frivolous under this standard.
First, this Court has held that when no justiciable question has been presented and the appeal is easily recognized as lacking merit, the appeal warrants the imposition of attorney fees. Hewitt v. Commonwealth, 116 Pa.Cmwlth. 413, 541 A.2d 1188, 1184-1185 (1988). In Hewitt, the licensee had his license revoked for a period of five years as a habitual offender, and he appealed the revocation, arguing that the well-settled law on the issue was not controlling in his case. This Court determined the appeal to be frivolous because the licensee did not cite any legal support for his argument that the controlling law did not apply to his case. Id. at 1186, 541 A.2d 1183. Here, Kachurak did less. Kachurak did not merely fail to cite to legal authority in his argument; his argument blatantly ignored the controlling law. Under Hewitt, Kachurak’s appeal is frivolous.
Second, this Court has held that an argument that the officer lacked probable cause for the traffic stop was “facially mer-itless” in a license suspension appeal. Zwibel, 832 A.2d at 607. Here, both counsel for PennDOT in its trial brief and the trial court explained to Kachurak that the lawfulness of the underlying arrest was irrelevant to whether a licensee’s operating privileges can be suspended for refusing to submit to chemical testing. Nevertheless, on appeal to this court, Kachurak continued to make the “facially meritless” argument that Officer Rinehimer lacked probable cause to stop him. As in Zwibel, the argument was frivolous.5
In short, pursuing an appeal that is contraindicated by well-established controlling law, even after it is pointed out by opposing counsel and the trial court, makes that appeal a frivolous one. Accordingly, this matter is remanded to the trial court to determine the amount of reasonable attorney’s fees due and owing to PennDOT. The trial court shall also investigate the circumstances that prompted this frivolous appeal and determine whether the attorney’s fees should be paid by Kachurak, his attorney, or both. See Zwibel, 832 A.2d at 608 (trial court to determine who shall pay counsel fees).
The trial court’s order is affirmed.
ORDER
AND NOW, this 27th day of December, 2006, the order of the Court of Common Pleas of Luzerne County, dated May 31, 2006, in the above-captioned case is hereby affirmed. Pursuant to Pa R.A.P. 2744, attorney’s fees are granted to PennDOT, and this case is remanded to the Court of Common Pleas of Luzerne County for a determination of reasonable attorney’s fees. The trial court shall also determine whether the attorney’s fees shall be paid by Joseph John Kachurak, his attorney, or both.
Jurisdiction relinquished.
. 75 Pa.C.S. § 1547. Section 1547(b)(l)(i) of the Code, commonly referred to as the "Implied Consent Law,” authorizes suspension of the driving privileges of a licensee for one year where the licensee is placed under arrest for driving under the influence of alcohol, and the licensee refuses a police officer’s request to submit to chemical testing.
. This Court’s scope of review is limited to determining whether the trial court’s findings are supported by competent evidence, whether errors of law have been committed or whether the trial court’s determinations demonstrate a manifest abuse of discretion. Finnegan v. Department of Transportation, Bureau of Driver Licensing, 844 A.2d 645, 648 n. 3 (Pa.Cmwlth.2004). "Abuse of discretion is not merely an error of judgment; however, if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.” Gillespie v. Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317, 319 (Pa.Cmwlth.2005) (emphasis in original).
. Although the reasons for the initial stop are irrelevant, we do not believe that the trial court abused its discretion in finding that Officer Rinehimer had an additional reason besides perceived erratic driving for stopping Kachurak. While it is true that Officer Rine-himer testified that his only reason for stopping Kachurak was erratic driving, he also testified that his reason for following Kachu-rak in the first place was because of information received in a 911 dispatch to be on the lookout for a possibly intoxicated driver. The trial court judge was free to consider all the testimony and she did not abuse her discretion in finding that the 911 dispatch, not just the observed erratic driving, prompted Officer Rinehimer to stop Kachurak’s truck.
. Rule 2744, "Further costs. Counsel Fees. Damages for Delay,” states in pertinent part:
In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay ... if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious.
Pa R.A.P. 2744.
. The concurring and dissenting opinion believes that Kachurak's appeal was not frivolous as defined in Hewitt. We believe that Kachurak's appeal was even more frivolous than Hewitt’s appeal. Kachurak cited no authority to demonstrate why the clearly controlling law does not apply to his case. He simply ignored the existence of controlling law, which was set forth in PennDOT’s trial brief. As such, we agree with PennDOT that Kachurak’s appeal is frivolous and grant its request for attorney's fees. |
9,645,453 | 2023-08-22 21:25:17.210918+00 | McGINLEY | null | CONCURRING AND DISSENTING OPINION BY
Judge McGINLEY.
I concur with the majority’s decision to affirm the denial of Joseph John Kachu-rak’s (Kachurak) appeal of the suspension *988of his driving privileges. I respectfully dissent to the majority’s conclusion that Joseph John Kachurak’s (Kachurak) appeal was frivolous and that DOT is entitled to an award of attorney’s fees as provided for by Pa.R.A.P. 2744. Under Pa.R.A.P. 2744 an appellate court may award a reasonable counsel fee, “if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate, or vexatious.” The majority correctly states that an appeal is frivolous when no justiciable question has presented and the appeal is easily recognized as lacking any merit. Hewitt v. Commonwealth of Pennsylvania, 116 Pa. Cmwlth. 413, 541 A.2d 1183 (1988). While I agree with the majority that Kachurak should not prevail on his appeal, I do not believe that the appeal was frivolous as defined in Hewitt. Further, DOT does not allege that Kachurak’s conduct was dilatory, obdurate, or vexatious. I would deny the request for attorney’s fees under Pa. R.A.P. 2744. |
9,645,454 | 2023-08-22 21:25:18.19711+00 | Alpert | null | ALPERT, J.
William Thomas Johnson, the appellant, was convicted in the Circuit Court for Baltimore County, after pleading not guilty on an agreed statement of facts, of possession of cocaine with intent to distribute. The court sentenced Johnson to 25 years imprisonment without possibility of parole, and Johnson filed this appeal.
ISSUE
Johnson argues, in essence, that the trial court erred by refusing to compel the State to permit the defense to inspect, in connection with the preparation of a motion to suppress evidence, a search and seizure warrant that was issued for the residence, car, and person of an unnamed individual who implicated Johnson in the case, where that warrant was mentioned in a search and seizure warrant for Johnson’s residence, car, and person.1 We find no merit in this argument and affirm the judgment of the trial court.
FACTS
The trial proceedings have not been transcribed and made a part of the record on appeal. The parties rely on the facts set *129forth in the “Application and Affidavit for Search and Seizure Warrant” for Johnson’s residence, car, and person, as well as the transcript of a hearing in the trial court at which defense counsel sought discovery of the warrant to search the residence, car, and person of the unnamed individual (“the first warrant”). We shall do the same.
In pertinent part, the application for the search and seizure warrant as to Johnson, his home, and his car reflected that the affiants, two detectives with the Baltimore County Police Department, had been conducting an investigation into drug distribution activities in Essex. Pursuant to that investigation, one of the affiants and a third officer had already obtained the first warrant as to the residence, car, and person of the unnamed individual. The detectives received information that on a particular date at a particular time the unnamed individual was going to meet his cocaine supplier. They, along with other members of a police drug unit, followed the unnamed individual and saw him drive to a meeting with a “black male” near the intersection of Rossville Boulevard and Pulaski Highway. That person was driving a dark-colored Acura with Maryland license plates bearing the number LMZ374.
Police continued to follow the unnamed individual after the meeting concluded. When it appeared that the individual was driving to his residence, officers in a marked Baltimore County Police vehicle stopped the car and explained to the unnamed individual that they had a search and seizure warrant for his person, vehicle, and residence. They searched the unnamed individual and found a quantity of cocaine on his person.
The unnamed individual was arrested, advised of his rights, and interviewed. He admitted that the person driving the dark-colored Acura was indeed his cocaine supplier, that the supplier went by the nickname “Joe,” and that he lived half way down the street on the left hand side of Marquette Road, a one-way street in White Marsh.
One of the affiants found the car in question parked in the driveway of 6077 Marquette Road. A check of local utility and *130motor vehicle records revealed that William Thomas Johnson, who went by “Joey,” resided in the home.
The police collected a bag of trash that had been left in the alley in back of the home. Inside the bag, they found correspondence bearing Johnson’s name and the address of the home, as well as the cut corner of a plastic bag containing what proved, upon analysis, to be cocaine residue.
An application for a search and seizure warrant for Johnson’s residence, car, and person (“the second warrant”) was prepared and approved, and the warrant was executed. Johnson was then charged in the instant case.
Johnson’s counsel sought to inspect the first warrant, which was for the search and seizure of the residence, car, and person of the unnamed individual who had identified Johnson as his supplier and told the police where Johnson lived. Counsel reasoned that if the first warrant was invalid, the information obtained from the unnamed individual and used to procure the second warrant was tainted. The evidence seized pursuant to the second warrant would thus be inadmissible.
The State refused to turn over the first warrant, and a hearing was held. Prior to the hearing, the court reviewed the first warrant in camera and determined that “the probable] cause set forth in [the second] warrant is clearly independent and in no [ ] way affected” by the first warrant. The court denied the defense request to inspect the first warrant.
DISCUSSION
Johnson now contends that the trial court erred by denying the defense request to examine the first warrant. He argues that disclosure of the first warrant was required under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That is, he contends that, under Brady, the prosecution in this case should have been required to permit the defense to inspect the first warrant because such an inspection might have revealed grounds for conducting a *131hearing, under Franks, that might have resulted in the invalidation of the second warrant.
Johnson’s reliance on Franks is misplaced. In that case, the Supreme Court held that,
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the [search] warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at the hearing the allegation of perjury or reckless disregard is established by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
430 U.S. at 155-56, 97 S.Ct. 996.
Johnson suggests that if he had been permitted to review the first warrant, he might have discovered a false statement therein. He further suggests that he then might have established that the false statement was made knowingly and intentionally or with reckless disregard for the truth, and that probable cause for the warrant would not have existed without the false statement. Johnson reasons that if the first warrant was invalid then any evidence gathered as a result of that warrant, including the unnamed individual’s statement implicating Johnson, was tainted. He thus concludes that the statement could not properly have been used to establish probable cause for issuance of the second warrant.
We shall assume arguendo that the Franks holding bars not only the admission at trial of evidence seized pursuant to a search warrant containing a false statement that was made knowingly and intentionally or with reckless disregard for the truth, but also the use of such evidence to establish probable cause for the issuance of another warrant. We *132nevertheless reject Johnson’s argument. Even if the trial court had permitted counsel for Johnson to review the first warrant, Johnson would not have been able to challenge the truthfulness of any statement it contained. “Ordinarily, [an] appellant would have no standing to challenge the validity of [a] ... warrant issued for anyone other than himself.” Thompson v. State, 62 Md.App. 190, 213, 488 A.2d 995 (1985). There can be no earnest dispute that the unnamed individual was the only person who had standing in regard to the first warrant.
As this Court has explained:
It has now been made clear ... that when a defendant seeks to establish that a search in question is the Fourth Amendment “fruit” of an earlier Fourth Amendment “poisonous tree,” it is necessary that the defendant have the required Fourth Amendment standing to object with respect to both places and with respect to both occasions.... To litigate fully under the “fruit of the poisonous tree doctrine,” a given defendant must enjoy standing, independently, both as to the fruit and also as to the antecedent tree.
Id. at 214 n. 4, 488 A.2d 995 (citation omitted). Since Johnson did not have standing to challenge the first warrant, he cannot argue that the second warrant is the tainted fruit of that warrant.
Johnson’s argument as to Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, is without merit as well. In Brady, 373 U.S. at 87, 83 S.Ct. 1194, the Supreme Court held that due process principles are violated when the prosecution withholds, despite a demand from the defense, evidence that is favorable to the accused and material to guilt or to punishment, regardless of whether the prosecution acts in good faith or bad faith. Ordinarily, a Brady violation will result in the vacation of a judgment and a retrial. See id. at 88-91, 83 S.Ct. 1194. “[T]hree factors must coalesce to effect the Brady sanction: ‘(a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the *133defense, and (c) the materiality of the evidence.’ ” Green v. State, 25 Md.App. 679, 699-700, 337 A.2d 729 (1975) (citation omitted). See generally Md. Rule 4-263(a) (providing that in Maryland, “[w]ithout the necessity of a request, the State’s Attorney shall furnish to the defendant ... [a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged”).
Preliminarily, it appears that the Brady argument is not preserved for this Court’s review. In the hearing before the trial court, Johnson’s counsel argued only that a review of the first warrant might reveal that the second warrant was tainted. He did not argue that the first warrant might contain material that was exculpatory to Johnson.2 See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court ... ”). Assuming arguendo that the argument was preserved, however, it is without merit.
Brady was a felony murder case in which the prosecution failed to disclose to the defense that an accomplice had confessed to being the actual killer. Thus, potentially exculpatory evidence was not before the court or the jury during the trial or sentencing. Johnson does not direct us to any case in which this Court, the Court of Appeals, or any other court *134applied the Brady analysis to pretrial proceedings involving information contained in, or omitted from, a search warrant.
In United States v. Colkley, 899 F.2d 297 (1990), police officers obtained arrest warrants for two defendants based in part on an informant’s report that the defendants admitted to him that they robbed a bank. One of the defendants challenged the warrant for his arrest on the ground that, inter alia, the police failed to reveal in the application for the warrant that the same informant was unable to select that defendant’s photo from an array. The United States District Court for the District of Maryland rejected the challenge, and the United States Court of Appeals for the Fourth Circuit affirmed. It explained:
In effect, [the defendant] asks us to import the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ... (1963), into the warrant application process. Brady and its progeny establish that the prosecutor has a duty to disclose to the defendant exculpatory evidence, defined as material evidence that would create a reasonable doubt as to the correctness of a guilty verdict at trial----
We must be cautious, however, about importing the panoply of Brady protections from trial practice into warrant application proceedings. The Brady rule derives from due process and is designed to ensure fair criminal trials.... It is at trial that the accused is cloaked with the presumption of innocence and may put the state to its proof beyond a reasonable doubt. By contrast, the probable cause determination in Franks, which derives from the Fourth Amendment, involves no definitive adjudication of innocence or guilt. Because the consequences of arrest or search are less severe and irremediable than the consequences of an adverse criminal verdict, a duty to disclose potentially exculpatory information appropriate in the setting of a trial may be less compelling in the context of an application for a warrant.
Colkley, 899 F.2d at 302 (citations omitted). The Colkley Court stated:
*135[A] requirement that all potentially exculpatory evidence be included in an affidavit would severely disrupt the warrant process. The rule would place an extraordinary burden on law enforcement officers, who might have to follow up and include in a warrant affidavit every hunch and detail of an investigation in a futile attempt to prove the negative proposition that no potentially exculpatory evidence had been excluded____
Id. at 303. Cf. Mays v. City of Dayton, 134 F.3d 809, 815 (6th Cir.1998) (explaining, in the context of a civil rights action filed by a plaintiff who had been the subject of a criminal investigation, that “the due process protections provided to defendants prior to trial under Brady” do not apply to the warrant process “under the guise of a Franks analysis”).
Assuming, without deciding, that Brady would apply to a situation such as that in the instant case, we see no error on the part of the trial court. To reiterate, the first warrant was for the residence, automobile, and person of an unnamed individual. Johnson acknowledges on appeal that the State may have had a legitimate interest in protecting the identity of that individual, and asserts that in asking to examine the warrant he was not attempting to ascertain the individual’s identity. See generally Md. Rule 4-263(c)(2) (stating that the State is not required to disclose “[t]he identity of a confidential informant, so long as the failure to disclose the informant’s identity does not infringe on a constitutional right of the defendant and the State’s Attorney does not intend to call the informant as a witness”). Yet defense counsel apparently never suggested to the trial court that it redact those portions of the warrant that could have revealed the identity of the unnamed individual. Rather, counsel demanded only that he be permitted to review the warrant in its entirety.
Under the circumstances, the trial court quite properly elected to review the first warrant in camera rather than to permit defense counsel to examine it. In cases where a defendant seeks access to confidential or sensitive records, “in camera review is the usual procedure____” Robinson v. State, *136354 Md. 287, 323-24, 730 A.2d 181 (1999) (dissenting opinion). Cf. Zaal v. State, 326 Md. 54, 81-87, 602 A.2d 1247 (1992) (where defendant in child sexual abuse case sought to inspect victim’s education records in order to challenge victim’s credibility, trial court erred by simply denying request without at least conducting in camera review of records and then considering whether to permit defense counsel to review the records alone or in the court’s presence); Sutton v. State, 25 Md.App. 309, 314-15, 334 A.2d 126 (1975) (absent showing by defendant of particularized need to view Grand Jury minutes that contained testimony of witnesses against him at trial, trial court properly declined to permit defense to examine minutes or to review them itself in camera). As this Court has pointed out, Brady “do[es] not provide a constitutional device permitting [a defendant] to cast his net upon the evidentiary waters, nor do[es it] extend our rules of discovery to such broad, net-like fishing expeditions.” Green, 25 Md.App. at 701, 337 A.2d 729.
The trial court implicitly determined that the first warrant contained no information that could have been exculpatory to Johnson by negating probable cause for the second warrant. Upon our own review of the first warrant, we agree. The first warrant made no reference to Johnson, and nothing in the first warrant could be construed as negating or conflicting with anything set forth in the second warrant.
The court expressly stated, moreover, that the application and affidavit in support of the second warrant established probable cause for issuance of the second warrant, even without reference to the first warrant. Johnson does not challenge this determination, and any such challenge would be unavailing.3 See Greenstreet v. State, 392 Md. 652, 670-71, 898 A.2d 961 (2006) (summarizing that, in reviewing an issuing *137judge’s approval of an application for a search warrant, an appellate court looks to whether, based on the four corners of the warrant, the issuing judge had a substantial basis to believe that probable cause existed).
In truth, the instant case involves nothing more than a discovery dispute. Johnson points to nothing in the discovery rule, Md. Rule 4-263, that would require the State to permit defense counsel to inspect the first warrant under the circumstances. Absent any showing by Johnson that the first warrant might contain information that would have any legitimate bearing on his case, we are satisfied that the trial court’s in camera review of the warrant was sufficient to resolve the discovery dispute. Indeed, Maryland Rule 4-263(c)(2) suggests that the State quite properly denied the request for inspection. That subsection provides:
(c) Matters not subject to discovery by the defendant. This Rule does not require the State to disclose:
(2) The identity of a confidential informant, so long as the failure to disclose the informant’s identity does not infringe on a constitutional right of the defendant and the State’s Attorney does not intend to call the informant as a witness.
Md. Rule 4-263(e)(2).
Here, the State did not call the unnamed individual as a witness, and Johnson expressly denies that he sought to *138ascertain the identity of the individual. Thus, Johnson does not suggest that the failure to disclose the identity of the unnamed individual in and of itself infringed upon any constitutional right. We are hard pressed to believe that the first warrant could be sufficiently redacted to permit the defense to inspect it without ascertaining the unnamed individual’s identity. It appears, rather, that in seeking to inspect the warrant the defense was attempting to engage in a fishing expedition that likely would have netted confidential and undiscoverable information.
Absent any showing by Johnson that the first warrant might contain information that would have any legitimate bearing on his case, we are satisfied that the trial court’s in camera review of the warrant was sufficient to resolve the discovery dispute. Cf. Zaal v. State, 326 Md. 54, 81-87, 602 A.2d 1247 (1992) (where defendant in child sexual abuse case sought to inspect victim’s education records in order to challenge victim’s credibility, trial court erred by simply denying request without at least conducting in camera review of records and then considering whether to permit defense counsel to review the records alone or in the court’s presence). See generally Robinson v. State, 354 Md. 287, 323-24, 730 A.2d 181 (1999) (dissenting opinion) (explaining that in cases where a defendant seeks access to confidential or sensitive records “in camera review is the usual procedure ...”).
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
. Although Johnson refers only to the "warrants” for himself and the unnamed individual, we presume that he implicitly references the applications and affidavits in support of those warrants as well. Therefore, we shall collectively refer to the application, affidavit, and warrant for the unnamed individual as "the first warrant.” We shall collectively refer to the application, affidavit, and warrant for Johnson as "the second warrant.”
. In pertinent part, counsel stated:
In body, in that search and seizure warrant and an intrical [sic] and primary basis for it, was reference to another search and seizure warrant which was used to stop an individual. That individual had been stopped pursuant to that warrant. Now, he had allegedly given statements concerning my client. They then went and got a warrant against my client and I raise the issue of the fact that I would have to see and review that warrant to determine whether or not there was any taint fixed from that warrant to the information that was therefore given and used in the warrant before the Court in this case.
The trial court queried, "But what about the State’s right to have their warrant secured and the probable cause for the warrant ... secured?” It then stated, "Here’s what we’re going to do.... We’ll leave that up to the Appellate Courts____[T]he previous affidavit [ ] will be sealed in the record for appellate review....”
. The application for the second warrant made little mention of the first warrant. It merely mentioned that, at the time police first saw the unnamed individual meet with Johnson, they "had a search and seizure warrant in [their] possession [which] named the individual we had been performing surveillance on, his vehicle, and his residence.” The application further indicated that, when the officers stopped the unnamed individual after watching him meet with Johnson they told him about *137the warrant, searched his person and vehicle, and seized “a quantity of cocaine.”
Independently of the first warrant, the application made clear that, while police were keeping the unnamed individual under surveillance, they saw him meet with a person driving a dark-colored Acura with Maryland license plates bearing the number LMZ374. The unnamed individual gave the police the Johnson's nickname and approximate address, and the officers were able to locate the suspect vehicle and ascertain Johnson’s full name and precise address. Subsequently, the police analyzed a substance found in Johnson's abandoned trash and determined that it was cocaine. |
9,645,483 | 2023-08-22 21:26:26.386509+00 | Roberts | null | *66BROSKY and ROBERTS, JJ.,
concurring:
In Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1986) (allocatur granted), this Court held that random roadblocks violate Article I, § 8 of the Pennsylvania Constitution. In our view, Tarbert clearly controls this case. Therefore, we concur only in the result. |
1,516,192 | 2013-10-30 06:32:51.094973+00 | Morrison | null | 420 S.W.2d 958 (1967)
Ex parte L. D. LARKIN.
No. 40886.
Court of Criminal Appeals of Texas.
November 29, 1967.
Houston McMurry, Henrietta, for petitioner.
Crawford Martin, Atty. Gen. of Texas, Monroe Clayton, Asst. Atty. Gen., Austin, and Frank Douthitt, County Atty., Henrietta, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
Petitioner's conviction as a third offender with punishment for life was affirmed by this Court in Larkin v. State, 134 Tex. Crim. 44, 113 S.W.2d 553.
On September 5, 1967, petitioner applied to the District Court of Clay County for a writ of habeas corpus alleging among other things that he was not represented by competent counsel at the time of his original conviction. A hearing was had with petitioner and his court appointed counsel present, at the conclusion of which the Judge filed his findings of fact and conclusions of law as required by Article 11.07, Vernon's Ann.C.C.P. as amended in 1967 SB 145, Acts 60th Legislature, p. 1732 (at p. 1734) as follows:
(1) That petitioner was indigent and was represented at the time of his conviction by court appointed attorney.
(2) Though a licensed attorney, his court appointed lawyer (naming him) had *959 during the ten years prior to petitioner's conviction appeared only two times under court appointment and had not appeared as attorney for the plaintiff or defendant in any other case.
(3) That court appointed attorney issued no process for witnesses, though petitioner requested that he do so, that he made no argument to the jury and did not cross examine any witness or make any objections to any of the State's testimony or any objections to the court's charge.
(4) That court appointed attorney never at any time maintained a law office, was never a member of any law firm, never held himself out to the public as a practicing lawyer and never at any time relied upon the practice of law for a livelihood.
(5) That court appointed attorney was not a competent attorney and was not capable of adequately defending the rights of a defendant upon the trial of a case.
It appearing that petitioner was denied the effective aid of counsel at his trial, the writ of habeas corpus is granted, and he is ordered released from custody under his 1937 conviction in Cause No. 3197 in the District Court of Clay County and delivered to the Sheriff of Clay County to answer to the indictment pending against him in said cause.
It is so ordered. |
9,645,464 | 2023-08-22 21:25:51.647954+00 | Leavitt | null | OPINION BY
Judge LEAVITT.
The City of York appeals a writ of mandamus issued to it by the Court of Common Pleas of York County (trial court) upon request of South End Enterprises, Inc. The writ directs the City, first, to “employ the necessary labor and materials” to stabilize the other half of a double house owned by South End and, second, to reimburse South End for its lost rental income at the rate of $445 per month until the City’s work is done. Agreeing with the City that this writ exceeds the bounds of mandamus, in that it seeks to compel the City’s exercise of discretion in a particular way, we reverse.
South End is the owner of rental property located at 314 East South Street in York, which is one half of a double home; the other half has its address at 316 East South Street. The two addresses occupy a building constructed as one and divided by an internal wall. The half at 316 East South has been vacant for several years and not been maintained. Roof tile has been lost, leaving bare plywood in places; floors have collapsed or are sagging; bricks have fallen into the basement, leaving a large hole in the front wall; and another wall is bowed.
On April 16, 2005, the City’s code enforcement officer declared the building at *356316 in danger of imminent collapse and prohibited further occupancy of both 316 and 314, even though 314 was in good repair. Accordingly, South End’s long term tenants at 314 had to relocate, and South End lost its monthly income of $445. The City then boarded up all the doors and windows on both sides and posted a notice on the outside that the entire building was unsafe.1
South End engaged the services of an engineer who confirmed the code enforcement officer’s findings, but found 314 to be otherwise sound. By July, the City had done no repairs to stabilize the 316 side of the building so that 314 could be reoccupied. Accordingly, on July 10, 2005, South End filed an action in mandamus against the City. In response, the City filed preliminary objections, but they were overruled.
At the evidentiary hearing, South End offered the testimony of Glen Heidlebaugh, who testified that he owned the property at 314 South East Street and has since October 1976.2 Heidlebaugh testified that on numerous occasions he had complained to the City about the disrepair at 316. The City responded by advising him to locate the owner and institute a civil action against him.3 Heidlebaugh established his costs that resulted from the City’s decision to declare his property unfit for habitation including, inter alia, lost rental income, attorney fees and engineering fees (both for evaluating the property and for appearing at trial). In the meantime, Hei-dlebaugh has continued to pay his property taxes.
South End also offered the testimony of its engineer, Michael Weaver, who confirmed that 316 was in danger of collapse but that 314 was sound. Weaver also explained that care needs to be taken when 316 is taken down in order to avoid damaging 314.
The City called Steven Buffington, Assistant Chief of the York City Fire Department and Building Code Official for the City. He confirmed that the vacant property at 316 had been identified as a problem since at least 1988 or 1990, prompting the City to respond with “years worth of citations [and notices of violations issued] to the various owners.” Reproduced Record at 60a. (R.R.-). Buffington explained that in April 2005, when the City determined the property at 316 was unsafe, he ordered the property to be vacated, posted, boarded-up, and demolished. The City also sent a “notice of unsafe structure” letter to the current owner of 316, Nigel Searle, who lives in Philadelphia, advising him that he was obligated to make immediate remediation. When Searle failed to respond or appeal the notice, the City initiated a civil action against Searle. In Buffington’s opinion, the City has done everything required under the ordinance by securing the property at 314 (and 316) from entry, posting a notice that the building was unsafe and, finally, pursuing Searle in a civil action.
At the conclusion of the hearing, the trial court found in favor of South End and issued a writ of mandamus directing the City to:
*357(1) employ forthwith the necessary labor and materials to stabilize the structure at 316 East South Street so that [South End’s] structure, located at 314 East South Street, is no longer deemed uninhabitable due to the danger of 316’s structural infirmities.
(2)Upon stabilizing the structure at 316 East South Street, [the City] shall provide [South End] with written notice that 314 East South Street is no longer uninhabitable due to 316’s structural insecurities.
(3)[The City] shall pay forthwith to [South End] the amount of $445.00 per month for each month [South End] was unable to rent the property at 314 East South Street.
Order of February 3, 2006. This appeal followed.
On appeal,4 the City presents six issues for our consideration, which have been consolidated for purposes of this opinion.5 Essentially, the City contends that the trial court erred in its application of the principles of mandamus. Because the appropriate response by government to the danger posed by a building about to collapse requires the exercise of discretion, that response cannot be directed by a writ of mandamus. Further, mandamus is not available where plaintiff has an alternate legal remedy, and never for the purpose of awarding damages. Additionally, the City asserts that the trial court erred in its interpretation of the ordinance.
With respect to the propriety of the writ of mandamus, the City contends that it exercised its discretion to determine the appropriate course of action to deal with the dilapidated condition of 316 East South Street, and the trial court improperly substituted its discretion for that of the code official in issuing a writ to bring about a different course than that chosen by the City.6 The trial court seemed to agree that the City had discretion with respect to deciding whether to enforce its building code but once it did so, it was required to stabilize 316 so that the law-abiding taxpayer at 314 was not dispossessed. The City believes, however, that the trial court has misconstrued the ordinance in reaching this conclusion and observes that its reasonable interpretation of its own ordinance is entitled to deference. Winslow-Quattlebaum v. Maryland Insurance Group, 561 Pa. 629, 635, 752 A.2d 878, 881 (2000).
We begin, then, with a review of the City ordinance. Section 109 of the Property Maintenance Code of the City of York (Code), entitled “Emergency Measures,” is the operative provision. Section *358109.1 addresses “imminent danger” as follows:
When, in the opinion of the code official, there is imminent danger of failure or collapse of a building or structure, which endangers life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the structure, or when there is actual or potential danger to the building occupants or those in the proximity of any structure because of explosives, explosive fumes or vapors or the presence of toxic fumes, gases or materials, or operation of defective or dangerous equipment, the code official is hereby authorized and empowered to order and require the occupants to vacate the premises forthwith. The code official shall cause to be posted at each entrance to such structure a notice reading as follows: “This Structure is Unsafe and Its Occupancy Has , Been Prohibited by the Code Official.” It shall be unlawful for any person to enter such structure except for the purpose of securing the structure, making the required repairs, removing the hazardous condition or of demolishing the same.
YORK, Pa, Code § 109.1; R.R. 94a (emphasis added). Section 109.2 authorizes the code official to address the imminent danger posed by an unsafe structure as follows:
Notwithstanding other provisions of this code, whenever, in the opinion of the code official, there is imminent danger due to an unsafe condition, the code official shall order the necessary work to be done, including the boarding-up of openings, to render such structure temporarily safe whether or not the legal procedure herein described has been instituted; and shall cause such other action to be taken as the code official deems necessary to meet such emergency.
YORK, Pa, Code § 109.2; R.R. 94a (emphasis added). In implementing his authority under Section 109.2, the code official is specifically authorized to close streets and to board up buildings “when necessary for the public safety.” Yore, PA, Code, § 109.3.7 Section 109.4 of the Code, entitled “Emergency repairs,” provides as follows:
For the purposes of this section [109], the code official shall employ the necessary labor and materials to perform the required work as expeditiously as possible.
York, Pa, Code § 109.4; R.R. 94a.
Dispositive here is the meaning of the statement in Section 109 that the code official “shall order the necessary work to render [a] structure temporarily safe” by employing “the necessary labor and materials to perform the required work....” YORK, Pa, Code §§ 109.2, 109.4; R.R. 94a. “Shall” is used in statutes far more often than in speech or everyday writing, because of its cachet as a “legal” word. 1A Norman J. Singer, Sutherland Statutory CONSTRUCTION § 32A:11 (6th ed. 2002) (Sutherland). Because the word “shall” is overused, it is not examined critically before placed in a statute and, thus, can convey a diversity of meanings. These diverse meanings include those that follow:
“shall” is imperative, is directory, means “may,” expresses a mandate, either per*359missive or peremptory, applies to the past, to the future, and to the present.
Id. Unless and until legislative bodies turn to more careful draftsmanship and more sparing use of “shall,” the judiciary’s task of choosing the precise meaning of “shall” in a given context is not an easy one. Id.
Turning to Section 109 of the Code, one sees that “shall” can be replaced by “will” without affecting its meaning. This suggests that the York City Council intended simply to signify the future tense of “to be” in choosing the verb “shall.” The central purpose of Section 109.1 is to invest the code official with authority to act where there is an imminent danger. The provisions that follow the grant of authority given in Section 109.1 provide the code official with directions on how to exercise this authority. In sum, there is a good case to be made that the York City Council used the word “shall” in its directory, not mandatory, sense. Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 376, 888 A.2d 758, 764-765 (2005) (explaining that “shall” is an ambiguous word that can be interpreted as directory as opposed to mandatory). It is, of course, the intention of the York City Council that must govern the meaning of “shall.” Commonwealth v. Baker, 547 Pa. 214, 221, 690 A.2d 164, 167 (1997).
However, even if we read City Council’s use of “shall” to convey a mandate, there are variations to a mandatory “shall.”8 Sutherland notes that “shall” may convey either a “permissive or peremptory” mandate. SutherlaND § 32A:11 (6th ed.2002). The appearance of “shall” in a sentencing statute, for example, has been construed to convey a lack of any discretion in the sentencing court. Commonwealth v. Menezes, 871 A.2d 204, 209 (Pa.Super.2005). However, it is impossible to read “shall” in the context of Section 109 as conveying a peremptory mandate intending to divest the code official of any discretion. To the contrary, City Council invested the code official with a broad grant of discretion to decide how to protect the public from a dangerous building. In the end, it is this discretion in Section 109, not its creation of a mandate, that makes the exercise of the code official’s duties beyond the reach of a mandamus action.
Mandamus is an extraordinary remedy that compels official performance of a ministerial act or a mandatory duty. Pennsylvania Dental Association v. Insurance Department, 512 Pa. 217, 227, 516 A.2d 647, 652 (1986).9 A ministerial act has been defined as
one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.
Council of City of Philadelphia v. Street, 856 A.2d 893, 896 (Pa.Cmwlth.2004) (cita*360tions omitted). See, e.g., Murphy v. Township of Abington, 88 Pa.Cmwlth. 491, 490 A.2d 483, 488 (1985) (township’s issuance of a certification that a firefighter had died was a ministerial act); Rose Tree Media School District v. Department of Public Instruction, 431 Pa. 233, 234, 244 A.2d 754, 755 (1968) (school district’s payment of expenses by application of a statutory formula is a ministerial act). Where the governmental action sought involves the exercise of discretion, the court may direct the agency to do the act but may never direct the exercise of discretion in a particular way. Matesic v. Maleski, 155 Pa.Cmwlth. 154, 624 A.2d 776, 778 (1993). Moreover, mandamus will not lie to compel a revision of the decision resulting from such exercise of discretion, though in fact, the decision may be wrong. Anderson v. City of Philadelphia, 348 Pa. 583, 587, 36 A.2d 442, 444 (1944).
Section 109.2 of the Code provides that where the code official, in his opinion, believes a building to present an imminent danger, he “shall order the necessary work to render such structure temporarily safe and shall cause such action to be taken as the code official deems necessary to meet such emergency.” York, Pa, Code § 109.2; R.R. 94a (emphasis added). The ordinance does not say how the code official is to make the structure temporarily safe to meet the emergency.10 Rather, it is the nature of the emergency itself that will determine how to make a structure temporarily safe or to meet the emergency. The emergency could be the result of a building fire, the ongoing neglect of the building owner or a gas leak. As a consequence, the City must exercise judgment and discretion to develop the appropriate response. That response may require no more than posting notices and boarding up windows and doors on a building; on the other hand, it may require more significant action such as closing a street or even vacating an entire City block, as in the event of a gas leak. Section 109.3.11 The variety of potential emergency circumstances requires the code official to exercise discretion; in doing so, the code official performs more than a mere ministerial act.
Here, upon finding the building at 316 East South Street in danger of imminent collapse, the code official perceived a danger to anyone who could gain access to 316 or to South End’s property at 814. The code official determined, in his opinion, that the entire building had to be vacated, posted, and boarded up to make it temporarily safe. This course of action met the emergency, in his view. The trial court deemed these actions inadequate because they did not render to make a structure habitable, only to make it “temporarily safe as the code official deems necessary to meet such emergency.” York, Pa, Code § 109.2; R.R. 94a. Here, the code official exercised his discretion to meet the emergency by eliminating access to the dangerous building. Once the City exercised its discretion to act in this particular way, the trial court could not revisit that decision sitting in mandamus, even if the code offi*361cial was wrong in his judgment. Anderson, 348 Pa. at 587, 36 A.2d at 444.12
From at least 1990 to 2005 the City of York watched 316 East South Street decline to the point of danger to the public. It issued citations to the property owner, but it did nothing to enforce these citations or to force the property owner to repair 316. As a result, South End, which maintained their property in accordance with the Property Maintenance Ordinance and paid its taxes, has been ejected from its property. We share the trial court’s frustration. That we find the City beyond the reach of a writ of mandamus does not mean that we condone its failure to succeed at a core municipal function, i.e., the enforcement of its own building code.13
For these reasons, we reverse.
ORDER
AND NOW, this 19th day of December, 2006 the order of the Court of Common Pleas of York County dated February 3, 2006, in the above captioned matter is hereby reversed.
. Subsequently, the City then located the owner of 316 East South Street and commenced an action; the owner is now under a court order to correct the problem at 316.
. The connection between Heidlebaugh and the corporation "South End Enterprises, Inc.” was never established.
.Heidlebaugh testified that he believed 316 was owned by the Tax Claim Bureau. He also stated that he did not pursue the owner of 316 because he did not know who the owner was. Heidlebaugh acknowledged that he never went to the Recorder of Deeds Office to identify the owner.
. Our scope of review in a mandamus action is to determine whether the trial court abused its discretion or committed an error of law and whether sufficient evidence exists to support its findings. Philomeno & Salamone v. Board of Supervisors of Upper Merion Township, 882 A.2d 1044, 1047 (Pa.Cmwlth.2005).
. The City’s "issues” are really just separate arguments to support its central issue that the trial court committed legal error in issuing a writ of mandamus.
. The trial court stated that once the City
determines that a structure is dangerous, [it] must take certain action to make it temporarily safe. Sometimes, this will consist only of posting notices and boarding-up doors. The instant case, however, is not one of those scenarios. Neighboring property is in danger, and [South End] is left with no other remedy than to ask [the City] to do what it is obligated to do, namely, stabilize the property so that no one — vagrants, passersby, and neighboring structures — is injured or damaged.
Trial Court Opinion of February 3, 2006, at 5.
. Section 109.3 states:
When necessary for the public safety, the code official shall temporarily close structures and close, or order the authority having jurisdiction to close, sidewalks, streets, public ways and places adjacent to unsafe structures, and prohibit the same from being utilized.
York, Pa, Code § 109.3; R.R. 94a
. In most cases, however, the word "shall” conveys a mandate not a suggestion. See, e.g., Cranberry Park Associates ex rel. Viola v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 460, 751 A.2d 165, 167 (2000) ("Here, the word 'shall' denotes a mandatory, not permissive instruction.”).
. The basic test for issuance of a writ of mandamus is well established. It may issue only where there is a clear legal right in the plaintiff to compel the performance of a ministerial act or mandatory duty, a corresponding duty in the defendant, and lack of any other appropriate and adequate remedy at law. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 20, 493 A.2d 1351, 1355 (1985). Because the right must be clear, one might argue that a mandamus action is not the appropriate proceeding for interpreting an ambiguous statute.
. The dissent asserts that the duty to act is non-discretionaiy. However, this conclusion cannot be squared with the language of the ordinance that requires the code official to do acts "necessary” to meet the emergency. The code official decides what is necessary. In this case, he decided that closing entry to the building was sufficient to render the structure temporarily safe. An action in mandamus is not the vehicle for reviewing whether the code official exercised his judgment correctly. Anderson, 348 Pa. at 587, 36 A.2d at 444.
. See note 7, supra, for text of Section 109.3.
. Because we conclude the trial court erred in substituting its discretion for that of the City’s code official, we need not address the City’s remaining issues.
. By contrast, the vigorous Township of Upper Merion enforced its building code by initiating a suit in equity against a developer where retaining walls were in danger of collapse, causing a risk of danger to nearby homeowners. The Woods at Wayne Homeowners Association v. Gambone Brothers Construction Company, Inc., 893 A.2d 196 (Pa.Cmwlth.2006). The City could have followed this example, or performed the repairs necessary to make 316 structurally safe and then recovered its costs from the owner of 316. Section 109.5 of the Code states that the City “shall institute appropriate action against the owner of the ... unsafe structure ... for the recovery of such costs.” York, Pa, Code § 109.5; R.R. 94a. |
9,645,465 | 2023-08-22 21:25:51.652894+00 | Smith | null | DISSENTING OPINION BY
Judge SMITH-RIBNER.
I respectfully dissent from the majority’s decision to reverse the order of the Court of Common Pleas of York County, which issued a writ of mandamus directing the City of York to employ the necessary labor and materials to stabilize the structure at 316 East South Street so that the structure belonging to South End Enterprises, Inc. (South End) at 314 East South Street is no longer uninhabitable due to structural insecurities at 316 East South Street. The City declared the property at 316 to be an imminent danger to the public, but the City failed to make the necessary repairs so that South End could occupy its rental property.
I agree with the trial judge that the language of the York City Property Maintenance Code is clear as to the City’s duties once a code enforcement official has prohibited occupancy of a property. York Code § 109.2, provides:
Temporary safeguards. Notwithstanding other provisions of this code, whenever, in the opinion of the code official, there is imminent danger due to an unsafe condition, the code official shall order the necesswry work to be done, including the boarding-up of openings, to render such structure temporarily safe whether or not the legal procedure herein described has been instituted; and shall cause such other action to be taken as the code official deems necessary to meet such emergency-
York Code § 109.4 provides:
Emergency repairs. For the purposes of this section, the code official shall employ the necessary labor and materials to perform the required work as *362expeditiously as possible. (Emphasis added.)[1]
• The City is not relieved of its non-discretionary responsibility under the Code merely because the owner of 316 East South Street ultimately is liable for the repairs. The City may enforce the owner’s liability under Section 109.5.
The evidence accepted by the trial court supports its decision, and its order therefore should be affirmed. The requirements for a writ of mandamus clearly were met here: a clear legal right existed in South End for the City’s performance of a ministerial act or a mandatory duty; a corresponding duty existed in the City to perform the ministerial act or mandatory duty; and other appropriate or adequate remedy is absent from this case. See Council of Philadelphia v. Street, 856 A.2d 893 (Pa.Cmwlth.2004); Pennsylvania Dental Ass’n v. Insurance Department, 512 Pa. 217, 516 A.2d 647 (1986).
Nothing in the York Code provisions indicates that the code official has the discretion to withhold ordering the necessary work to be done and the labor and materials to make emergency repairs when there is imminent danger, i.e., the code official shall act as directed to meet the emergency. The code official’s failure to act required the trial court to issue the writ of mandamus. Therefore, I would affirm the trial court’s order.
. The word "shall'' is defined in relevant part as follows:
As used in statutes, contracts, or the like, this word is generally imperative or mandatory. ...
In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears ....
But it may be construed as merely permissive or directory, (as equivalent to "may,”) to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense.
Black’s Law Dictionary 1541-1542 (Rev. 4th ed.1968). |
1,516,195 | 2013-10-30 06:32:51.160663+00 | Belcher | null | 420 S.W.2d 709 (1967)
Ex parte Otto THOMPSON.
No. 40712.
Court of Criminal Appeals of Texas.
November 1, 1967.
Rehearing Denied December 6, 1967.
*710 Davis, Davis & Hornbuckle by William E. Hornbuckle, III, Huntsville, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
BELCHER, Judge.
This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody for extradition to the state of New Mexico.
The executive warrant issued by the Governor of Texas, which appears regular on its face, was introduced in evidence. It is recited in the warrant that the appellant stands charged by "judgment of conviction, sentence, parole violation, before the proper authorities, convicted of murder, committed in said state * * *."
The warrant made out a prima facie case authorizing the remand of the appellant to custody for extradition. Ex parte Favor, Tex.Cr.App., 406 S.W.2d 434.
As a ground for discharge, the appellant contends that the state failed to comply with Art. 51.13, Section 10, Vernon's Ann.C.C.P., in that after his arrest under the Governor's warrant, he was not taken "forthwith" before a judge of a court of record, but held in the county jail.
On May 10, 1967, the appellant was arrested on a fugitive warrant, and on the same date an extradition warrant was issued. The extradition warrant was withdrawn by the Governor on June 2, 1967. The appeal from an order remanding him to custody after a hearing on the fugitive warrant was dismissed on July 12, 1967, on the ground that the appellant was then in custody on another extradition warrant issued on June 26, 1967. Ex parte Thompson, Tex. Cr.App., 417 S.W.2d 169.
The petition for writ of habeas corpus in this cause was filed July 28, 1967. On July 31, 1967, the appellant was brought before the court, and after a hearing, counsel was appointed to represent the appellant, and a hearing on said petition was set for August 1, 1967. After a hearing, the court ordered the appellant remanded to custody for extradition. From such order he gave notice of appeal.
The statute relied on by the appellant provides that the accused shall not be delivered to the agent of the demanding state until he shall first be taken forthwith before a judge of a court of record who shall inform him of his rights. The statute also provides that when a writ of habeas corpus is applied for, notice of the hearing shall be *711 given to the prosecuting officer and the agent of the demanding state.
The petition herein was filed Friday, July 28, 1967, and on Monday, July 31, the appellant was brought before the court and counsel appointed for him and the hearing was had on Tuesday, August 1. There is no showing when the writ was served or when it was first called to the attention of a judge of a court of record, or when the prosecuting officer or the extradition agent were notified of the hearing.
From all the facts and circumstances in evidence and in light of the applicable provisions of the statute, it is concluded that the trial court did not abuse its discretion in remanding the appellant to custody for extradition.
The judgment is affirmed. |
9,645,466 | 2023-08-22 21:25:54.188178+00 | Lavine | null | Opinion
LAVINE, J.
The defendant, Franciszek Marcisz, appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. On appeal, the defendant claims that (1) there was insufficient evidence for the trial court to find him guilty and (2) the court’s knowledge of a part B information prior to rendering its decision violated his rights to a fair trial and to due process. We disagree and accordingly affirm the judgment of the trial court.
*33The following facts are relevant to the resolution of the defendant’s appeal. The court found that Officer Kenneth Miller of the Farmington police department was traveling north on Route 177 at about 1:30 a.m. on September 2, 2004, when he observed a blue Ford Crown Victoria operating erratically, at one point causing the driver of another car to swerve to avoid being hit. Miller watched the car as it suddenly was driven to the side of the road and stopped. Concerned that the driver might be lost, Miller drove his cruiser closely alongside the blue car, aligning his passenger side window with the driver’s side window, and stopped briefly. The driver turned his head and looked at Miller. Miller “had a perfect [view]” and “clearly saw the [the defendant’s] face” through the open window of his cruiser. The defendant was the only person in the vehicle. After seeing Miller, the defendant drove ahead a few feet and tinned into the nearest driveway. Miller used the computer in his vehicle to check the license plate of the defendant’s car and discovered that it was owned by the defendant, who lived approximately fifteen minutes away by car. Miller then observed the defendant walking along the road with an unsteady and stumbling gait. When he came closer to the defendant, Miller noticed a strong odor of alcohol emanating from him and observed that his eyes were glassy and bloodshot. Miller gave the defendant a field sobriety test, which he failed, and then arrested the defendant.
At trial, the state charged the defendant in a two part information, proceeding in the first part on charges of operating a motor vehicle while under the influence of intoxicating liquor and operating a motor vehicle while his license was under suspension. After the state rested, the defendant moved for a judgment of acquittal on the charge of operating a motor vehicle while his license was under suspension, claiming that the state had offered no evidence in support thereof. The court *34granted the motion and rendered judgment of acquittal on that charge only. The court then asked whether the state planned to introduce evidence that this was a second offense. The prosecutor began to respond to the court’s question when defense counsel intervened and asserted that it was not the proper time in the trial to discuss prior convictions.1 At no time did the defendant object to the court’s purported knowledge of the part B information. The court subsequently found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor despite the defendant’s assertion that he was not the operator. Additional facts will be set forth as necessary.
I
The defendant first claims that the evidence was insufficient to support the court’s finding of guilt on the charge of operating a motor vehicle while under the influence of intoxicating liquor. Specifically, the defendant argues that the state failed to prove beyond a reasonable doubt that he was the operator of the vehicle. We disagree.
We begin by setting forth the applicable standard of review.2 “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply *35a two part test. First, we construe the evidence in the light most favorable to sustaining the [decision]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the [fact finder] if there is sufficient evidence to support the [decision].” (Internal quotation marks omitted.) State v. Jones, 93 Conn. App. 200, 203-204, 888 A.2d 180, cert. denied, 277 Conn. 920, 895 A.2d 790 (2006). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s finding] of guilty.” (Internal quotation marks omitted.) State v. Gary, 273 Conn. 393, 406, 869 A.2d 1236 (2005).
At trial, the defendant presented evidence in support of an alternative factual scenario of the events of September 2, 2004. He claims that he called Sophia Chorazy from the Haller Post, a Polish club in New Britain, because he had been drinking and needed a ride home. Chorazy and her son drove to the club in Chorazy’s car and picked up the defendant. The son got into the driver’s seat of the defendant’s car and began to drive the defendant home while the defendant fell asleep in the passenger’s seat. Chorazy followed behind the defendant’s vehicle. At some point, the son saw a police car. He drove to the side of the road, exited the defendant’s vehicle and got into his mother’s vehicle because he was concerned about driving without a license. The son left the defendant asleep in the passenger’s seat. The defendant woke up, exited the car and started to *36walk home when he was apprehended by Miller. At trial, Chorazy, her son and the defendant testified to this exculpatory version of events.
Although the defendant attempted to prove that he did not operate the vehicle, the court was free to disbelieve the defense witnesses’ testimony and to credit the testimony of the police officer, who testified that he saw the defendant driving. “It is the [fact finder’s] right to accept some, none or all of the evidence presented. . . . Moreover, [e]vidence is not insufficient . . . because it is conflicting or inconsistent. [The court] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [finder of fact’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 87, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003). “[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.” (Internal quotation marks omitted.) State v. Gary, supra, 273 Conn. 406.
The court explained in its oral decision that it found that the defendant’s version of events lacked credence due to the fact that the police officer was certain that he “got a clear look” at the defendant driving when the officer rolled down his window and drove his vehicle next to the defendant’s vehicle. The court also based its credibility determination on Miller’s ability to identify the defendant several months later at trial as the person he had seen sitting in the driver’s seat and on his testimony that he had never seen Sophia Chorazy’s son before. Moreover, the court stated that it did not *37believe the defendant’s version of events because the time element, as testified to by the defense witnesses, was not consistent with the time or date of the arrest, nor was the testimony of the sequestered defense witnesses consistent.
Our review of the record, therefore, persuades us that the court reasonably could have concluded that the cumulative force of the evidence established beyond a reasonable doubt that the defendant was indeed the operator of the motor vehicle. Accordingly, we are not persuaded by the defendant’s insufficiency of the evidence argument.3
*38II
The defendant’s second claim is that the court’s purported knowledge of the part B information prior to rendering its decision on the first part of the information violated his rights to due process and a fair trial. The dispositive issue is one of reviewability. The defendant failed to preserve his claim, as he neither raised the issue of the court’s disqualification when he became aware of the claimed potential for bias or at any other time during the trial. The defendant, accordingly, seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. We decline to address the claim, as we conclude that it is not properly before us.
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional [magnitude] alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Emphasis added; internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 89-90, 905 A.2d 1101 (2006).
We decline to review this claim under Golding because the defendant’s right to an information in two parts is based on Practice Book §§ 36-14 and 37-11, and *39as such, is not a constitutional right.4 We therefore conclude that the defendant has failed to satisfy the second prong of Golding, as the claim alleging the violation of a fundamental right is not of constitutional magnitude.
We also decline to reverse the defendant’s conviction under the plain error doctrine in accordance with our Supreme Court’s ruling in State v. Fitzgerald, 257 Conn. 106, 777 A.2d 580 (2001).5 In that case, the Supreme Court reversed the judgment of this court, concluding that the prosecutor’s improper disclosure of the part B information to the court before trial on a charge of operating a motor vehicle while under the influence of intoxicating liquor did not constitute plain error and was therefore not reviewable. See id.6
As in Fitzgerald, the defendant in the present case failed to move for judicial disqualification and raises *40the claim for the first time on appeal. See id., 116. Despite his assertion that his rights to due process and a fair trial were violated by the court’s purported knowledge of the part B information, the defendant has failed to establish that the claimed error resulted in an unreliable finding of guilt or a miscarriage of justice. See id., 112. The court found that the state satisfied its burden by proving guilt beyond a reasonable doubt. Our review of the evidence supports this conclusion. Any harm caused by the court’s knowledge of the prior conviction did not undermine the validity of the finding of guilty. We accordingly decline to reverse the defendant’s conviction under the plain error doctrine.
The judgment is affirmed.
In this opinion BISHOP, J., concurred.
The defendant asserts on appeal that a review of the colloquy following the court’s question indicates that the court acquired knowledge of the part B information before rendering its decision on the charge of operating a motor vehicle while under the influence of intoxicating liquor. The state responds that the transcript should be read to suggest that the court was referring to the part B information on the charge of operating a motor vehicle with a suspended license only and that the defendant’s counsel was responsible if the court learned of the part B information on the other charge. As the record is unclear, we decline to speculate as to whether the court learned of the part B information.
The defendant seeks to prevail on his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding review is not necessary to resolve the claim. See State v. Pranckus, 75 Conn. App. 80, 85, 815 A.2d 678 (defendant found guilty on basis of insufficient evidence has been deprived of constitutional right and would therefore necessarily *35meet the four prongs of Golding), cert. denied, 263 Conn. 905, 819 A.2d 840 (2003). *38that the court’s credibility determination was improper even if that issue were before us properly.
The dissent contends that the court improperly gave special weight to Miller’s identification of the defendant as the operator of the motor vehicle solely because he was a police officer. The dissent acknowledges, however, that the defendant briefed this issue only on a claim of insufficiency of the evidence. Therefore, the sole issue presented for our determination is whether the record reveals that there was sufficient evidence from which the trier could find guilt. See State v. Jones, supra, 93 Conn. App. 203-204.
Moreover, the defendant in his brief failed to challenge adequately the court’s statement regarding the weight given to Miller’s identification of the defendant. He mentioned the language only once in his facts section and neglected to present any legal argument. “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) State v. Abraham, 84 Conn. App. 551, 561, 854 A.2d 89, cert. denied, 271 Conn. 938, 861 A.2d 514 (2004). It is inadvisable for this court to address an issue, sua sponte, rather than at the behest of one of the parties because it deprives them of an opportunity to brief the issue. See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994).
Finally, concerning the substance of the claim, the dissent quotes only a portion of the trial court’s statement. The entire statement provides: “[W] e’re not talking about the average eyewitness. We’re talking about a police officer who, as I recall, has been four years—or maybe it was two years at the time—at the Farmington police department, and I think he said he was security at West Farms Mall, and he’s a professional and his eyewitness testimony has to be given more credence than the average citizen, who can be mistaken.” The full quotation reveals that this statement is susceptible to two reasonable interpretations: that the court credited Miller solely because he was a police officer or that it credited him because of the experience and knowledge he had gained in making eyewitness identifications as part, of his employment. Given the inadequacy of the record on the issue and the ambiguity of the remarks, we would be unwilling to conclude
Practice Book § 36-14 provides in relevant part: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts .... In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. . . .” In addition, Practice Book § 37-11 provides in relevant part: “[P]rior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. ...”
As the state points out, plain error is a rule of reversibility, not reviewability. State v. Ramirez, 94 Conn. App. 812, 826, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). “[Such] review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice.” (Citations omitted; internal quotation marks omitted.) State v. Fitzgerald, supra, 257 Conn. 111.
In State v. Fitzgerald, supra, 257 Conn. 109, the part, B information was inadvertently raised by the prosecutor. The Court stated that “[w]e leave for another day the situation in which a part B information is improperly revealed and the defendant can demonstrate either a prosecutor’s illicit motivation or biased judicial behavior resulting from the improper revelation.” Id., 113-14. We are not persuaded that the defendant in this case has demonstrated either situation. |
9,645,467 | 2023-08-22 21:25:54.193008+00 | Flynn | null | FLYNN, C. J.,
dissenting. I respectfully dissent.
The court was under no obligation to state reasons for its finding of guilt in this trial to the court. Nevertheless, it did. And, although the defendant briefed this case on the basis of his claim of insufficiency of the evidence, one could argue that the claimed impropriety, although directed to the weight to be given to police testimony, resulted in evidentiary insufficiency. Accordingly, I would reach the issue of the improper weight given to the testimony of Officer Kenneth Miller by the trial court.
In this case, only one witness identified the defendant as the operator of the motor vehicle, and that witness was Officer Miller. Other witnesses testified that the defendant did not operate the motor vehicle or, in the case of other police officers, that they did not witness him operate the vehicle. Officer Miller’s testimony and eyewitness identification of the defendant was given credence by the court over other testimony in this case *41because, as the court explained, Officer Miller was “a professional and his eyewitness testimony has to be given more credence than the average citizen, who can be mistaken.”
In my opinion, this special weight could not be given properly to police testimony, and the error could not be deemed harmless because Officer Miller was the only witness providing evidence of a necessary element of the crime, namely, operation of the motor vehicle.
It has been time-honored in charges to the jury that the court instructs: “The testimony of a police officer is entitled to no special or exclusive sanctity merely because it comes from a police officer. . . . And in the case of police officers, you should not believe nor disbelieve them merely because they are police officers.” D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (1986) § 3.11, p. 94.
“It is improper to suggest that the [fact finder] should accord greater weight to the testimony of police officers on account of their occupational status. Indeed, Connecticut courts routinely instruct juries that they should evaluate the credibility of a police officer in the same way that they evaluate the testimony of any other witness, and that the jury should ‘neither believe nor disbelieve the testimony of a police official just because he is a police official.’ J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § 2.29, p. 74.”1 *42State v. Thompson, 266 Conn. 440, 469, 832 A.2d 626 (2003). Certainly, this clear, direct and time-honored principle must apply to bench trials as well as jury trials.
Accordingly, I would conclude that the court’s record statement that it was giving more credence to Officer Miller’s testimony because he was a police officer was improper. Because Officer Miller was the sole witness to testify that he saw the defendant operating the motor vehicle, the impropriety was not harmless. I would reverse the defendant’s conviction and order anew trial.
I respectfully dissent.
J. Pellegrino, Connecticut Selected Jury Instructions: Criminal, supra, § 2.29, p. 74, sets forth the following standard jury instruction in cases where police testimony has been presented to the jury: “Police officials have testified in this case. You must determine the credibility of police officials in the same way and by the same standards as you would evaluate the testimony of any ordinary witness. The testimony of a police official is entitled to no special or exclusive weight merely because it comes from a police official. You should recall his demeanor on the stand, his manner of testifying, and weigh and balance it just as carefully as you would the testimony of any other witness. You should neither believe nor disbelieve the testimony of a police official just because he is a police official.” |
1,516,213 | 2013-10-30 06:32:51.427141+00 | Houser | null | 420 S.W.2d 330 (1967)
STATE of Missouri, Respondent,
v.
Charles Larry ALLEN, Appellant.
No. 52440.
Supreme Court of Missouri, Division No. 1.
October 9, 1967.
Motion for Reconsideration and Modification Without Rehearing Denied November 13, 1967.
*331 Norman H. Anderson, Atty. Gen., Jefferson City, A. Michael Sullivan, Special Asst. Atty. Gen., Clayton, for respondent.
Lovell W. George, Clayton, for appellant.
HOUSER, Commissioner.
Eighteen-year-old Charles Larry Allen, convicted by a jury of second degree burglary and stealing and sentenced to consecutive 3 and 2-year terms in the custody of the department of corrections, has appealed. Represented at the trial and on this appeal by counsel of his own choosing, appellant makes two points: First, that the evidence is not sufficient to sustain a verdict of second degree burglary and stealing; second, that the prosecuting attorney made an inflammatory and prejudicial argument to the jury.
On the night of August 2-3, 1965 a sporting goods store located on Manchester Road in the City of Rockhill was broken into. Guns, rifles and knives valued at $700 were removed therefrom. There are front and rear entrances. The rear entrance consists of combination wood and glass twin or double doors, covered on the outside by screen doors. The screen doors were secured by hooks. The twin doors were secured by two inside bolts, one belt high, the other about six feet up. There was a crack in the glass in the left-hand door (as you face the doors from the outside) caused by the wind slamming the door shut. It had been taped over with Scotch tape. The crack was 18 inches long. Semicircular in shape, it ranged up from the base of the glass pane in a curving line to a point on the side of the door frame where the pane was set in the molding. The section of glass outlined by the crack constituted the right-hand area of the glass pane of the left door. The glass panes were held in place in the doors by a half-inch *332 wooden molding. There was a "molding line" on the long perpendicular side of the somewhat triangular section of the pane of glass.
On the night of August 2 the proprietor of the store checked the doors and put the bolts in place. The next morning he found the back door standing open, some shells and gun cases scattered around and a couple of little pieces of glass on the floor inside the building, and a hole in the back screen door that was not there the night before; a hole "like you'd stick your hand through." The elongated, semicircular-shaped piece of glass had been removed from the left rear door. It appeared that the entrant had burst through the screen, unlatched it, removed the piece of glass and unbolted the door by reaching through the opening created by the removal of the glass.
The proprietor called the police department. Sergeant Bell, an experienced officer, made an examination of the premises. On the interior he found the disarray above described. He took the empty cardboard boxes and some boxes of shotgun shells to the police station for fingerprints but found nothing legible, "only smudges." Outside the building he found the displaced section of the left rear door glass, leaning from the ground against the concrete steps which lead from the porch at the rear of the store. Fingerprints on this section of glass were "quite obvious." The sergeant put transparent tape over them and the section of glass was taken to the Identification Bureau of the St. Louis County Police Department for processing. Two detectives, both experienced in the art of fingerprinting, one of them in charge of the identification bureau, testified with respect to the fingerprints on the section of glass. A fingerprint examination was conducted. Several prints were lifted and put on a white background and photographed. One print which could not be lifted was photographed on the glass. The photographs were enlarged. Appellant lived with his grandmother in the vicinity. There is no evidence that appellant had ever been in the store prior to August 2, 1965. Appellant was taken into custody as a suspect and his fingerprints were taken. His fingerprint card, made available to the identification bureau, was photographed and enlarged. The enlarged photographs from the glass and the enlarged photograph of appellant's fingerprint card were paired on a comparison chart. One print lifted off the glass was a partial latent fingerprint impression, which the expert testified was made along the edge of the section of glass. The experts found numerous points of identificationabutments, scars, ending ridges, etc.on the basis of which they expressed their opinions that the fingerprints on the glass were identical with and belonged to the same person who made the prints on the card. There were 15 points of identification on one pair of prints. There was a line on the glass under one of the prints. This was the "molding line" where the molding held the pane in the frame. A latent fingerprint lifted off the glass was found to compare with the right middle finger on the chart. At one point skin was missing as a result of an opening in the skin which had not grown over. That pattern was in exactly the same spot on the card print. They were identical. Two prints, from the right index and right middle fingers, were found on one side of the glass, and a right thumbprint on the other side. These were compared with appellant's fingerprints on the card and 12 points of identification were noted. The officers positively testified that the prints on the glass were one and the sameidentical withthe prints on the card. The card and charts were offered in evidence.
Appellant took the stand and testified that he was walking through the area behind the sporting goods shop on the night in question; that he had left his sister's house in St. Louis sometime between 10 and 11 p. m. and caught a bus to the Maplewood loop, from whence he walked home; that when he passed the corner of the store building his attention was attracted by the fact that the door was open or ajar, and it seemed like there was a little light flashing *333 in the front of the store. The door was not wholly open but was "cracked." Curious, he mounted the back porch steps, put his hands on the doors, "leaned in," looked inside and saw only a flash of the light coming from the front. He testified that he did not go inside the store. He "figured the man might be in there or something wrong," so he turned around, went down the steps, went home and went to bed. He said that in leaning over and "peeking in" he held onto one door with his left hand and rested his extended right arm and hand on the other (closed) door; that he saw no open place where glass had been broken, but was not looking for glass; that he had to touch the glass since he put his hand on the door; that if he hit the glass with his left thumb and fingers the prints should be on it, and his right palm print should be on the glass part of the other door. He could not say whether there was glass in either door because he "didn't exactly examine it."
It was the state's theory that the only way one could get his fingerprints on the part of the glass covered by the molding would be to "wiggle" the glass out of the frame and then touch it after the glass was removed and out from behind the molding, and that the position of the prints on the glass proves beyond doubt that appellant took the glass out and made the prints thereafter. Appellant argues that this is unlikely; that the state's evidence is puzzling and at most creates a suspicion that appellant was implicated, or a probability of guilt, and that circumstantial evidence must go beyond mere suspicion and conjecture. Appellant claims there is no chain of evidence here, but merely a single link, a single circumstance.
Where the evidence of defendant's agency in connection with the crime charged is entirely circumstantial, "the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence." State v. Walker, Mo.Sup., 365 S.W.2d 597, 601 [5]; State v. Stoner, Mo.Sup., 395 S.W.2d 192. Ordinarily evidence of a single, isolated fact, however incriminating, is not sufficient to support a conviction. State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17; 52 C.J.S. Larceny § 137 c. (1). Furthermore, the mere presence of the accused at the scene of a crime and an opportunity on his part to have committed the offense is not sufficient circumstantial evidence to justify conviction. State v. Castaldi, Mo. Sup., 386 S.W.2d 392; State v. Whitaker, Mo.Sup., 275 S.W.2d 322 [4]. The mere fact that defendant was at the rear of the building at or near the time the building was burglarized is a circumstance entirely consistent with his innocence, and is insufficient to support a conviction in the absence of proof of flight or "other corroborating circumstances." State v. Rutledge, 304 Mo. 32, 262 S.W. 718. Proof, however, that fingerprints found in the place where a crime is committed, "under such circumstances that they could only have been impressed at the time the crime was committed, correspond to those of the accused, may be sufficient proof of identity to sustain a conviction." Anno: Evidence Finger, Palm, or Footprint, 28 A.L.R. 2d 1115, §§ 28, 29.
The evidence in this case shows more than mere presence of defendant at the scene of the crime and opportunity to commit the crime. It connects this defendant with the removal of the glass from the door through which the burglar entered. There is the admitted fact that defendant was at the rear door of the shop that night, interested in what was within the building. The glass with the fingerprints thereon, and the enlarged prints from the glass and from defendant's fingerprint card, with the aid of the expert testimony, provided the jury with proof from which it could be found beyond a reasonable doubt that defendant *334 removed the glass from the door. The fingerprints and thumbprint were found at the edge of the piece of glass which had been removed from the door, at and on a portion of the glass which had been covered by the molding, so positioned that it would have been physically impossible to have left the prints there while the glass yet remained in position as a part of the door. The evidence dispels the possibility that defendant left these prints on the glass after the commission of the burglary by another. There was nothing to indicate that these particular fingerprints, at that particular place on the glass, were placed there innocently. There was no attempt to show that the fingerprints were not those of the defendant. That the person who removed the glass could have gained entrance to the building by reaching through the hole and unbolting the door and that whoever entered the building took or participated in the taking of the property that was missing the next morning, follows so reasonably and surely as to exclude any other reasonable hypothesis. The jury was justified in concluding that defendant was the guilty party and that he committed the crimes beyond a reasonable doubt.
In an almost identical situation the Court of Criminal Appeals of Texas said: "The presence of appellant's finger print on the portion of the glass covered by the molding is inconsistent with his innocence. It could not have been placed there while the pane was in the door and the molding in place. The evidence was sufficient to authorize the jury's finding. This court has no right to disturb their verdict." In his motion for rehearing appellant contended that the evidence of identity of the fingerprint was not sufficient to sustain the verdict. The court answered: "In determining this question we think the first requisite is to show a reasonable doubt that the finger print found on the glass was placed there by the burglar at the time of the burglary, excluding the hypothesis that it might have been innocently imprinted on the glass at a time prior to or subsequent to the burglary. On this point we think the evidence leaves no room for doubt. The glass was held in the door by a molding. Along the glass at the edge of the molding was a showing of paint. The finger print found was on the glass at a point which had been covered by the the molding, hence impossible to find its way there until the molding was removed. Therefore it seems conclusive that when the glass was removed in order to effect an entrance to the building the burglar at that time left his finger print on the glass after removing the molding. The evidence excludes the idea that appellant ever handled the glass subsequent to the burglary." Grice v. State, 142 Tex. Crim. 4, 151 S.W.2d 211, 221.
Prejudicial closing argument? The assistant prosecuting attorney said: "* * * This wasn't a prank. He didn't go in and steal some tennis balls or baseball bats. He went in there and took $700 worth of guns and rifles out of that store. Those shotguns and rifles haven't been returned, they haven't been found. And you can bet your life they are not going to be used for hunting or for any legal purposes. Those are shotguns now. * * *" At this point counsel for defendant made an objection and the court said "There's been an objection; let's attempt to stay within the record." No other or further action was requested by the defendant. It is urged that the state thereby implied that the guns were stolen by defendant for the specific purpose of perpetrating violence and, coming as it did when the Watts riot was still fresh in the public mind, was so prejudicial and inflammatory as to deprive defendant of the full and fair consideration of the evidence. This interpretation would require us to reach and stretch the argument beyond the realities of the situation. The plain truth is that the assistant prosecuting attorney did not directly or indirectly refer to Watts, rioting or violence. Defendant was a negro but no reference was made to race. We find nothing in the argument from which the reasonable inference could be drawn *335 that reference was being made to these tender subjects. The "bet your life" argument was irrelevant, nothing on this subject having been put in evidence. The court properly noted the objection and admonished counsel to stay within the record. No request to strike or to instruct the jury to disregard was made, and no other or further action was requested. We find nothing to place the court in error in its ruling.
An examination of the record as required by Supreme Court Rule 28.02, V.A. M.R., discloses no error.
The judgment is affirmed.
WELBORN and HIGGINS, CC., concur.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur. |
1,516,214 | 2013-10-30 06:32:51.433674+00 | Ellis | null | 955 F. Supp. 598 (1997)
RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., Plaintiff,
v.
UTAH DIVISION OF TRAVEL DEVELOPMENT, Defendant.
Civil Action No. 1:96cv0788.
United States District Court, E.D. Virginia, Alexandria Division.
February 21, 1997.
*599 Stephen M. Colangelo, John F. Anderson, McGuire Woods Battle & Boothe, L.L.P., McLean, VA (Steven B. Pokotilow, Laura E. Goldbard, Stroock & Stroock & Lavan, New York City, of counsel), for Plaintiff.
Jan Graham, Attorney General, Jerrold S. Jensen, Ralph L. Finlayson, Assistant Attorneys General, Salt Lake City, UT, for Defendant.
MEMORANDUM OPINION
ELLIS, District Judge.
This trademark action presents the novel question whether a jury trial is available for a cause of action brought under the new anti-dilution provision of the Lanham Act ("the Act"), 15 U.S.C. § 1125(c).
I.
Ringling Bros.-Barnum & Bailey Combined Shows, Inc. ("Ringling") operates a well-known circus which has advertised and promoted its product for more than a century using the mark THE GREATEST SHOW ON EARTH. This trademark was registered in 1961, receiving U.S. Trademark Registration No. 724,946, and was renewed in 1981.[1]
Utah Division of Travel Development ("Utah") uses the mark THE GREATEST SHOW ON EARTH on license plates, advertisements, and other promotions in an effort to attract visitors to Utah's recreational and scenic resorts. This mark was registered in Utah in 1975 and has been used continuously since 1966.[2] In 1988, Utah applied to the Patent and Trademark Office for federal registration of its mark, THE GREATEST SHOW ON EARTH. Ringling opposed this application, but its opposition was dismissed by a unanimous decision of the Trademark Trial and Appeal Board.[3] One month later, Congress amended the Act to include a federal cause of action for dilution.[4] Thereafter, on June 6, 1996, Ringling filed this action.
II.
Analysis properly begins by acknowledging that,
the question of the right to a jury in litigating a statutorily-created right should be decided as a matter of statutory construction rather than of constitutional interpretation whenever possible.
Gnossos Music v. Mitken, Inc., 653 F.2d 117, 118-19 (4th Cir.1981). In other words, if the statute creating a legal right is properly interpreted to require a jury trial then the *600 constitutional issue need not, and should not, be reached. See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandeis, J. concurring). On the other hand, if the statute (i) is ambiguous with respect to the right to a jury trial or (ii) expressly precludes that right, the Seventh Amendment must be consulted to determine if a jury trial is constitutionally required. See Gnossos Music, 653 F.2d at 118-19.
The Act nowhere explicitly refers to a jury. But this does not mean it is altogether silent on the subject. To the contrary, the Act's pertinent language makes clear the essentially equitable nature of the dilution claim and therefore reflects Congressional intent to commit the dilution cause of action to a court without a jury. Thus, to begin with, a plaintiff is limited "only to injunctive relief" unless it is shown that the party charged with dilution "willfully intended" to cause dilution or trade on plaintiff's mark. 15 U.S.C. § 1125(c)(2).[5] And this injunctive relief is "subject to the principles of equity and ... such terms as the court deems reasonable." 15 U.S.C. § 1125(c)(1). In the absence of willful intention to dilute, therefore, the Act's limitation to traditional equitable relief plainly means that Congress, conscious of centuries of settled jurisprudence excluding juries in purely equitable matters, intended to commit a dilution claim to a court without a jury. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-09 & n. 15, 79 S. Ct. 948, 954-56 & n. 15, 3 L. Ed. 2d 988 (1959); see also 9 Wright & Miller, Federal Practice and Procedure § 2308 (1995) ("A statute will not be read as having created a right to a jury trial on a claim for an injunction unless Congress has expressly so provided.").
Even assuming evidence of willful intent, the Act's language points unerringly to the same conclusion. If willful intent is shown, a plaintiff may recover "subject to the discretion of the court and principles of equity" the damages specified in § 1117(a). 15 U.S.C. § 1125(c)(2). And § 1117(a) further specifies that any damage recovery is "subject to the principles of equity", and directs (i) that "[t]he court shall assess such profits and damages or cause the same to be assessed under its direction" and (ii) that "the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case." 15 U.S.C. § 1117(a).[6] These several references to "the court", the court's "discretion", and the "principles of equity" make clear that even where "willful intent" is demonstrated, Congress intended to commit dilution claims to a judge without a jury.[7]
*601 But the analysis does not end here, for as Gnossos Music teaches, where, as here, a statute creating a right of action precludes a jury,[8] or where a statute is ambiguous in this regard, the analysis must proceed to consider whether the Seventh Amendment compels that a jury be provided.[9]
III.
It is not sufficient to find that the Act does not entitle a party to a jury trial. This is so because the Seventh Amendment requires a jury trial in the adjudication of any legal, as opposed to equitable, right, whether created by statute or common law. Tull v. United States, 481 U.S. 412, 417, 107 S. Ct. 1831, 1835, 95 L. Ed. 2d 365 (1987). In other words, the Seventh Amendment trumps Congressional intent with respect to the jury trial issue where legal rights are adjudicated. And importantly, the Seventh Amendment has been construed to require that "`any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.'" Beacon Theatres, 359 U.S. at 501, 79 S.Ct. at 952 (quoting Dimick v. Schiedt, 293 U.S. 474, 486, 55 S. Ct. 296, 301, 79 L. Ed. 603 (1935)). Accordingly, Ringling's dilution claim must be analyzed under the Seventh Amendment to determine if Ringling is constitutionally entitled to a jury trial.
The mandated Seventh Amendment inquiry was recently described by the Supreme Court in Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, 494 U.S. 558, 110 S. Ct. 1339, 108 L. Ed. 2d 519 (1990). In essence, the inquiry focuses on whether legal or equitable rights are at stake. To determine which are at stake, courts must examine (1) the nature of the issues involved, and (2) the remedy sought. Id. More particularly:
First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.
Tull v. United States, 481 U.S. 412, 417-18, 107 S. Ct. 1831, 1835, 95 L. Ed. 2d 365 (1987). Of the two inquiries, the second, the nature of the remedy, is more important. Terry, 494 U.S. at 565,[10] 110 S.Ct. at 1344-45. *602 These principles, applied here, compel the conclusion that the Seventh Amendment does not entitle Ringling to a jury trial on its dilution claim.
A.
The first inquiry focuses on the nature of the issues to be adjudicated. Infringement actions bear similarities to actions in tort for interference with a property right. See, e.g., Gnossos, 653 F.2d at 120. Thus, courts considering infringement claims in other contexts have found that these claims encompass primarily legal issues.[11] Similarly, the new federal anti-dilution provision, while recognizing a new manner in which infringement can occur, reflects an injury to a trademark owner's property right in that trademark. Accordingly, an anti-dilution claim has some elements of a classic legal action in tort.
On the other hand, other elements of a trademark dilution claim encompass equitable issues.[12] For example, an actionable anti-dilution claim is, by the terms of the statute, subject to the "principles of equity." 15 U.S.C. § 1125(c)(1). Moreover, the inquiry defined by the anti-dilution provision requires the consideration and balancing of factors that are articulated, in part, in the statute. 15 U.S.C. § 1125(c)(1). In a classic trademark infringement action, the determination of whether there is a likelihood of confusion between the marks at issue requires a similar balancing test.[13] And, although the existence of relevant factors is a question of fact, the balancing of these factors to determine likelihood of confusion is a matter of law. Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1005 (2nd Cir.1983). Similarly, the balancing test required in the dilution inquiry is likely a matter of law for the court. Thus, although the anti-dilution claim bears some resemblance to a property tort, the claim itself invokes the principles of equity and rests upon a court's balancing of enumerated factors, a traditional characteristic of an equitable cause of action.
In the final analysis, a claim brought under the Act's anti-dilution provision has both legal and equitable characteristics thereby leaving this part of the Seventh Amendment inquiry in equipoise. In this circumstance, the Seventh Amendment search "for a single historical analog" must focus chiefly on the nature of the remedy, the more important half of the Seventh Amendment equation. *603 See, e.g., Terry, 494 U.S. at 565, 110 S.Ct. at 1344-45.
B.
The remedies for a dilution claim are limited by the Act to injunctive relief, except where a defendant "willfully intended to trade on the owner's reputation or to cause dilution of the famous mark." 15 U.S.C. § 1125(c)(2). Thus, a trademark owner showing dilution, but not willful intention to dilute, will have only the right to an injunction, an entirely equitable remedy.[14] And where only an injunction is available to remedy dilution, the Seventh Amendment does not compel a jury trial. See 9 Wright & Miller, supra, at § 2308 ("[T]here is no constitutional right to a jury trial on a claim for an injunction.")
This conclusion is sufficient to resolve the instant matter because Ringling is limited to an injunction for its dilution claim. This is so because Utah is entitled to summary judgment on the issue of "willful intent". Alternatively, even if "willful intent" is shown, the Seventh Amendment does not compel a jury trial for Ringling's dilution claim because there is no evidence of damages and the remaining available remedies in §§ 1117(a) and 1118 are wholly equitable.
1. Summary Judgment on "Willful Intent"
The principles governing summary judgment are well settled. Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. This standard is met where the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). A "mere scintilla" of evidence is not enough. To the contrary, when viewed in the light most favorable to the non-moving party, the evidence must be sufficient for a reasonable trier of fact to find in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). Thus, summary judgment on the question of "willful intent" is required if the evidence, viewed in the light most favorable to Ringling, would not allow a reasonable trier of fact to find that Utah "willfully intended to trade on the owner's reputation or to cause dilution of the famous mark." 15 U.S.C. § 1125(c)(2).
"Willful", the Supreme Court has observed, is synonymous with "voluntary," "deliberate," and "intentional". McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 1681, 100 L. Ed. 2d 115 (1988) (construing language in the Fair Labor Standards Act). Thus, "willful intent", while somewhat redundant, requires a plaintiff seeking non-injunctive remedies to demonstrate that a defendant deliberately adopted a mark with the intent either (i) to trade on the owner's reputation,[15] or (ii) to dilute the famous mark. 15 U.S.C. § 1125(c)(2).
These principles, applied here, compel summary judgment for Utah on the question of willful intent to dilute. To demonstrate "willful intent", Ringling relies on (i) Utah's presumed knowledge of Ringling's famous mark before its adoption of THE GREATEST SNOW ON EARTH, and (ii) Utah's alleged efforts to expand its mark notwithstanding its longstanding knowledge of Ringling's trademark. This evidence falls far short of demonstrating "willful intent". Utah's adoption and use of its mark notwithstanding its knowledge of Ringling's famous mark cannot, without more, demonstrate "willful intent". Such actions are as consistent with a belief that Utah's mark does not *604 dilute as they are with an allegation of "willful intent." In other words, while knowledge of a famous mark is necessary to demonstrate that a subsequent mark was adopted deliberately to dilute or trade upon the owner's reputation, that knowledge, by itself, is not sufficient to demonstrate that a defendant "willfully intended" to violate the protection granted by the Act. Utah clearly believes that its mark is not diluting, and has not exploited any similarity of its mark with that of Ringling through the presentation of THE GREATEST SNOW ON EARTH with circus style lettering or circus themes. Moreover, the record reflects that Utah had a good faith, reasonable belief that its use of THE GREATEST SNOW ON EARTH was entirely lawful.[16]
In a further effort to find evidence of "willful intent", Ringling points to a Utah Fall/Winter 1995-96 press release. By Ringling's lights, this press release reflects Utah's intent to trade upon Ringling's reputation because it states, in part, "Utah Stars As Main Act in the Greatest Snow of Earth" and "Get your tickets to the Greatest Snow on Earth now!" Ringling's reliance on this press release is of no avail.
To begin with, this press release was issued before the January 16, 1996 effective date of the anti-dilution provision, and "willful intent" before this effective date cannot provide the basis for an enhancement of Utah's potential liability for dilution. See Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).[17] In other words, under Landgraf, "willful intent" before January 16, 1996 is not actionable. Thus, the press release is only relevant to the extent that it might create an inference of Utah's intent before January 16, 1996 that, in turn, might create a further inference of Utah's "willful intent" after that date. These weak, multiple inferences do not create a basis upon which a reasonable trier of fact could find "willful intent". See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("[A party] cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.")
Moreover, any inference created by the press release is conclusively rebutted by Utah's uncontradicted explanation of the press release as a reference to the theater, not a circus.[18] Given this and the weakness of the inference, the press release is, at best, a bare scintilla of "willful intent" and does not provide the basis upon which a reasonable trier of fact could find that Utah "willfully intended" to trade on Ringling's reputation or to dilute Ringling's famous mark. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. To hold otherwise would improperly allow a jury to speculate. Thus, Utah is entitled to summary judgment on the question of its willful intent and Ringling is limited to an injunction for its dilution claim. It follows that the Seventh Amendment does *605 not entitle Ringling to a jury trial on this claim.[19]
2. Even Assuming Willfulness, Only Equitable Remedies Are Available
In the alternative, even if "willful intent" is demonstrated, the Seventh Amendment does not entitle Ringling to a jury trial on its dilution claim because no legal remedies are available on the facts of this case.
Where "willful intent" is demonstrated, a trademark owner is not limited to injunctive relief, but may be entitled, subject to "equitable principles", to further remedies, namely (i) disgorgement of defendant's profits, (ii) money damages, (iii) costs, and (iv) the issuance of an order requiring production and destruction of any materials in the possession of defendant that bear the diluting mark. Two of these remedies the disgorgement of defendant's profits and the order requiring production of defendant's materials bearing the diluting mark are wholly equitable[20] and do not create a constitutional jury trial right. Likewise, the availability of a costs remedy, by itself, provides no basis for a constitutionally mandated jury right. Costs are merely incidental to and intertwined with other available remedies. Thus, where the other available remedies are wholly equitable, costs are also an equitable remedy. See Terry, 494 U.S. at 570-71, 110 S.Ct. at 1347-48.
Only the availability of money damages may possibly trigger the Seventh Amendment mandate for a jury trial. But it is unnecessary to reach this question because there is no evidence of money damages in this case. The Act defines dilution as the lessening of the "capacity of a famous mark to identify and distinguish goods or services." Ringling contends that damages from such dilution include (i) a reduction in the sales of the owner of the mark related to its primary business activity, i.e., circus ticket sales, or (ii) a reduction in the value of the mark for licensing and co-promotion with third parties. The record contains no evidence of a reduction in the selling power of the trademark under either theory. Indeed, at oral argument Ringling conceded that the value of its mark for licensing had not diminished and that it had no evidence of damages. Given this, there can be no Seventh Amendment claim for a jury trial based on the money damages remedy.
In sum, the Act's language makes clear Congress' intent to commit dilution claims to the court without a jury. And the Seventh Amendment does not require otherwise where, as here, only equitable remedies are available. Accordingly, Utah's motion to strike Ringling's jury demand must be granted.
An appropriate Order has issued.
NOTES
[1] Ringling also owns two other trademark registrations which include the mark THE GREATEST SHOW ON EARTH on a globe graphic, U.S. Trademark Registration Nos. 724,947 and 1,366,779.
[2] The record reflects that Utah did not use the mark in its winter sports advertising in three separate years during the period from the early 1960s to the present. For the purposes of this analysis, these breaks in Utah's otherwise continuous use are not significant.
[3] Decision of Trademark Trial and Appeal Board on Opposition No. 81,828 to application No. 73/762,641 (December 13, 1995). In dismissing the opposition, however, the Trademark Trial and Appeal Board specifically found that dilution was not a basis for opposing registration. Id. at 16. Federal registration was finally granted to Utah for its mark on January 21, 1997. For reasons that do not appear in this record, the proceedings leading to this result spanned nearly nine years.
[4] In § 1127, the Act defines dilution as:
lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of
(1) competition between the owner of the famous mark and other parties, or
(2) likelihood of confusion, mistake, or deception.
[5] Section 1125(c)(2) states:
In an action brought under this subsection, the owner of the famous mark shall be entitled only to injunctive relief unless the person against whom the injunction is sought willfully intended to trade on the owner's reputation or to cause dilution of the famous mark. If such willful intent is proven, the owner of the famous mark shall also be entitled to remedies set forth in sections 1117(a) and 1118 of this title, subject to the discretion of the court and the principles of equity.
[6] Section 1117(a), states, in pertinent part:
the plaintiff shall be entitled, ... subject to the principles of equity, to recover (1) the defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. The court shall assess such profits and damages or cause the same to be assessed under its direction.... In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case.... The court in exceptional cases may award reasonable attorney fees to the prevailing party.
15 U.S.C. § 1117(a). A showing of "willful intent" also permits a plaintiff to recover under § 1118, which allows a court, in its discretion, to order the production of all promotional materials in the possession of the defendant that bear the diluting mark in order that these materials can be destroyed.
[7] This conclusion is not foreclosed by Gnossos Music. There, the Fourth Circuit analyzed the 1976 Copyright Act to determine if it provides a right to jury trial. 653 F.2d at 119. In the course of its analysis, the panel rejected the contention that a single reference in the Copyright Act to the award of damages "as the court considers just" indicated congressional intent for statutory damages to be determined without a jury. Instead, the panel held that "court" could mean "either `judge' singularly or `judge and jury' in tandem." Id. Thus, the Gnossos Music panel concluded that the Copyright Act was unclear with respect to the right to a jury trial. While this conclusion fits the Copyright Act, it hardly fits the anti-dilution provision. Thus, the Copyright Act provision construed in Gnossos Music contains only a single reference to "the court", which understandably was found to be "not sufficiently clear to mandate either a bench trial or a jury trial." Id. at 119. By contrast, the Act's anti-dilution provision contains several references solely to "the court", to the court's "discretion" and to the "principles of equity." Accordingly, the panel's construction of "the court" in Gnossos Music does not compel the conclusion that Congress intended "the court" in the Act to refer to judge and jury collectively.
[8] To be sure, this conclusion depends upon a modest inferential step that would be entirely unnecessary had Congress simply said what it meant. And it is hard to see why Congress did not speak more plainly in this instance, since in creating a new cause of action for dilution, the issue whether to commit the matter to a jury must have been prominent in the minds of those who drafted the provision. In any event, courts spend altogether too much time trying to fathom Congress' intent from a statute's terms when the intent might easily have been plainly stated. In the dialogue between court and legislature, which is central to our legal system, the legislature has a duty to speak with reasonable precision lest the dialogue becomes cacophonous and the law making power that properly belongs to the legislators passes to the judges.
[9] Thus, the Gnossos Music panel turned to the Seventh Amendment inquiry to resolve whether a jury was constitutionally required once it found the Copyright Act ambiguous on the issue. 653 F.2d at 119. If the Seventh Amendment does not require a jury trial for claims created by a statute that is ambiguous on that issue, a court would presumably have to return to traditional statutory interpretation to determine whether a jury was intended by Congress. In other words, the ambiguity would have to be resolved. That question was not reached in Gnossos Music because the panel found that a jury trial was constitutionally required notwithstanding the language of the statute.
[10] Ringling contends that the Seventh Amendment inquiry is a disjunctive test. Thus, in Ringling's view, a jury trial is required if either legal rights are adjudicated or legal remedies are implemented. See, e.g., In re Lockwood, 50 F.3d 966, 972 (Fed.Cir.1995), vacated sub nom, American Airlines, Inc. v. Lockwood, ___ U.S. ___, 116 S. Ct. 29, 132 L. Ed. 2d 911 (1995). Yet, Terry makes clear that the sole inquiry is whether legal rights are adjudicated. And in this inquiry, both the nature of the claims asserted and the remedies requested must be examined. Terry, 494 U.S. at 565, 110 S.Ct. at 1344-45; see also Wooddell v. Intern. Broth. of Elec. Workers, 502 U.S. 93, 97, 112 S. Ct. 494, 497-98, 116 L. Ed. 2d 419 (1991) (reaffirming the Terry analysis). Ringling's contention that the nature of the claim, by itself, mandates a jury trial is contrary to Terry's clear emphasis on the nature of the remedy. 494 U.S. at 565, 110 S.Ct. at 1344-45. As the Supreme Court has stated, "[o]ur search is for a single historical analog, taking into consideration the nature of the cause of action and the remedy as two important factors." Tull, 481 U.S. at 421 n. 6, 107 S.Ct. at 1837 n. 6.
[11] See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477, 82 S. Ct. 894, 899-900, 8 L. Ed. 2d 44 (1962) (trademark infringement claim held to be legal); Lockwood, 50 F.3d at 976 (patent infringement claim could be raised in law or equity); Gnossos, 653 F.2d at 120 (copyright infringement analogous to tort actions traditionally recognized as legal). But cf. Twentieth Century Music Corp. v. Frith, 645 F.2d 6, 7 (5th Cir.1981) (denying jury trial for copyright claim where statutory damages are characterized as equitable).
[12] This conclusion is not foreclosed by Dairy Queen or Gnossos Music, wherein trademark and Copyright claims were held to adjudicate legal rights. In Dairy Queen, the Supreme Court observed that the claim presented "[is] for a money judgment [and hence] is a claim wholly legal in its nature." Id. at 477, 82 S.Ct. at 899. Thus, the Supreme Court held that "an action for damages based on a charge of trademark infringement" is a legal claim. Id. Similarly, in Gnossos Music, the Fourth Circuit observed that defendant's infringing activity was "a tortious interference with a property right for which Congress created damages", 653 F.2d at 120, and held that the relevant damages were "a remedy of a type which traditionally would have been enforced at law." Id. Thus, Dairy Queen and Gnossos Music clearly turn on the nature of the remedy available for the claims presented and neither is conclusive support for the contention that trademark dilution claims are legal in nature.
[13] See, e.g., Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2nd Cir.1961), cert. denied, 368 U.S. 820, 82 S. Ct. 36, 7 L. Ed. 2d 25 (1961) (likelihood of confusion inquiry considers strength of mark, degree of similarity, proximity of products, actual confusion, quality of defendant's product, and other factors).
[14] See 9 Wright & Miller, supra, at § 2308 ("Actions for injunctions are equitable in nature and were unknown to the common law courts.").
[15] To "trade on an owner's reputation" is similar to the "predatory intent" that often factors into the analysis of dilution under state anti-dilution statutes. See, e.g., Mead Data Cent., Inc. v. Toyota Motor Sales, 875 F.2d 1026, 1037 (2nd Cir.1989) (Sweet, J. concurring) (predatory intent "requires a showing that the junior mark adopted its mark hoping to benefit commercially from association with the senior mark").
[16] This conclusion is supported by (i) Utah's registration of its mark in Utah, (ii) the opinion Utah received from the Utah Attorney General that the use of its mark was appropriate, and (iii) the defeat of Ringling's opposition to Utah's right to federal registration of the mark in 1995.
[17] In Landgraf, the Supreme Court held that a statute will not be applied to have retroactive effect absent clear congressional intent to the contrary. 511 U.S. at 280-81, 114 S.Ct. at 1505. Specifically, the "retroactive effect" prohibited is present where a statute:
would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.
Id. The anti-dilution provision does not reflect clear Congressional intent with respect to retroactivity. See Circuit City Stores, Inc. v. Office-Max, Inc., 949 F. Supp. 409, 414-15 (E.D.Va. 1996). Thus, under Landgraf, Utah's liability for past, completed conduct cannot be increased by the subsequent enactment of the anti-dilution provision. Accordingly, Landgraf bars relief, including damages, based solely on conduct completed before the enactment of the anti-dilution provision.
[18] The press release reports comments made by a Washington, D.C. meteorologist who described "the drama of American skiing." Pursuing this analogy, the meteorologist described the Cascades and Sierra Nevadas as a "prologue", Colorado and New Mexico as the "epilogue", and Utah as "the main, show-stealing act". It is in this context, not in the context of a circus, that the release refers to Utah as a "star" and to buying "tickets". Thus, Ringling's reliance on this press release to show Utah's deliberate effort to trade upon Ringling's reputation is conclusively rebutted.
[19] See supra, note 14 and accompanying text.
[20] An order issued by a court authorizing destruction of materials in a defendant's possession is clearly not a traditional remedy enforced at law. And an action for disgorgement of improper profits, while involving a monetary award, is "traditionally considered an equitable remedy." Tull, 481 U.S. at 424, 107 S.Ct. at 1839; see also Terry, 494 U.S. at 570-71, 110 S.Ct. at 1347-48 (action for improper profits is "restitutionary" and, thus, characterized as equitable). |
9,645,468 | 2023-08-22 21:26:00.072617+00 | Castille | null | OPINION
Justice CASTILLE.
This collateral capital matter is before this Court on appeal from the trial court’s dismissal of appellant’s petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. For the following reasons, we remand appellant’s layered claim of counsel ineffectiveness concerning mitigation evidence to the PCRA court for an evidentiary hearing. In all other respects, we affirm the order below.
On November 18, 1999, this Court affirmed appellant’s judgment of sentence on direct appeal for the first-degree *523murder of William Lloyd, see Commonwealth v. Carson (Carson I), 559 Pa. 460, 741 A.2d 686 (1999),1 and the United States Supreme Court denied appellant’s petition for a writ of certiorari on June 5, 2000.2 Carson v. Pennsylvania, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). Appellant timely filed a pro se petition for relief under the PCRA on June 20, 2000.
On June 28, 2000, the trial court granted a petition for stay of execution filed on appellant’s behalf by Yvonne Bradley, Esq., of the Defender Association of Philadelphia. The trial court appointed Attorney Bradley as appellant’s counsel and ordered that an amended PCRA petition be filed no later than September 21, 2000. Subsequently, counsel obtained several extensions from the trial court and timely filed an amended petition on September 6, 2001, followed by a supplemental petition for habeas corpus relief on October 1, 2001, and a supplement to the amended petition for habeas corpus relief on February 12, 2002. On May 23, 2002, the Commonwealth filed a motion to dismiss, and appellant filed a response in opposition to the motion on July 16, 2002.3 In an order dated December 26, 2002, the PCRA court granted the Commonwealth’s motion and dismissed appellant’s petition without an evidentiary hearing. The court denied appellant’s motion for reconsideration on January 6, 2003, and on June 30, 2003, issued its opinion addressing the claims raised by appellant in *524his amended and supplemental petitions. Commonwealth v. Carson, Nos. 2887-2840 & Nos. 1841-1848 (Pa. C.C.P., Philadelphia County 2003) (hereinafter “PCRA ct.”). Appellant’s timely appeal to this Court follows.
In all, appellant raises a total of twenty-two claims: eight arising from the guilt phase of his trial; twelve arising from the penalty phase; one seeking PCRA discovery; and one summarily alleging that the cumulative effect of the errors asserted in each of his other twenty-one claims warrants relief. All but two of the twenty guilt and penalty phase claims sound in a layered allegation of the ineffective assistance of counsel.4 For purposes of organization, we will address appellant’s guilt phase claims first, then turn to his sentencing phase claims and then his other claims, otherwise addressing appellant’s claims in the order in which they are presented in his prolix and disorganized brief.
We begin by noting our decision in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), where this Court summarized the proper procedure for litigation and review of layered claims of ineffectiveness. In McGill, we held that:
[A] petitioner must pléad in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument ... on the three prongs of the Pierce test as to each relevant layer of representation.
McGill, 832 A.2d at 1023 (citing Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203 (2001)).5 A properly pleaded claim of *525ineffectiveness under Pierce posits that: (1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice befell petitioner from counsel’s act or omission. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). Therefore, in cases where appellate counsel is alleged to be ineffective for failing to raise a claim of trial counsel’s ineffectiveness, McGill instructs that the inability of a petitioner to prove each prong of the Pierce test in respect to trial counsel’s purported ineffectiveness alone will be fatal to his layered ineffectiveness claim. McGill, 832 A.2d at 1023; see also Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883, 891 (2004); Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003). Proving trial counsel was ineffective, however, will establish the arguable merit prong of Pierce in respect to appellate counsel. Rush, 838 A.2d at 656. The PCRA petitioner is then left to demonstrate that prior appellate counsel’s actions lacked a reasonable basis and prejudiced him. Id.
As a corollary to the layered pleading rule adopted in McGill, it is necessary that a PCRA petitioner have the ability to amend his petition in order to properly plead, and attempt to prove, layered claims where dismissal of the petition is imminent on grounds that such claims were not adequately pled. McGill, 832 A.2d at 1024. Indeed, our cases have recognized as much. See, e.g., Commonwealth v. Washington, 583 Pa. 566, 880 A.2d 536, 540 (2005); Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 513 (2004); Rush, 838 A.2d at 651. Furthermore, the ability to amend, in turn, flows from the guarantee embodied in our Rules of Criminal Procedure that a PCRA court will give a petitioner adequate notice of its intention to dismiss his petition and the attendant reasons therefor. Pa.R.Crim.P. 905(B) (PCRA judge shall order an amendment to a PCRA petition when it is defectively tiled); Pa.R.Crim.P. 909(B)(2)(a) (PCRA judge shall state reasons for its intention to dismiss). In cases where a petitioner has not been afforded the opportunity to amend his layered pleadings, a remand from this Court is appropriate unless a petitioner has not satisfied his “Pierce burden in *526relation to the underlying claim.” Commonwealth v. Harris, 578 Pa. 377, 852 A.2d 1168, 1173 (2004) (quoting Rush, 838 A.2d at 657-58).
Additionally, before addressing appellant’s individual claims, it is pertinent to note the law on previously litigated claims under the PCRA, which we are statutorily barred from reviewing according to 42 Pa.C.S. § 9543(a)(3). If the highest court in which a petitioner had the right to review a claim has evaluated the merits of that claim, the claim has been previously litigated. 42 Pa.C.S. § 9543(a)(2). This Court must, however, consider and substantively analyze an ineffectiveness claim as a “distinct legal ground” for PCRA review. Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 573 (2005). This Court recognized in Collins that while an ineffectiveness claim may fail for the same reasons that the underlying claim faltered on direct review, the Sixth Amendment basis for ineffectiveness claims technically creates a separate issue for review under the PCRA. Id. We also acknowledged that preCollins decisions by PCRA courts may have dismissed an ineffectiveness claim as previously litigated without touching on the proper Sixth Amendment merits of the claim. However, we resolved only to remand those claims that were in need of further clarification before this Court exercised its duty of review. Id. at 574. In this case, the PCRA court, which passed upon the issues before Collins was decided, disposed of a number of ineffectiveness claims on previous litigation grounds, and, thus, we have no substantive ineffectiveness analysis to review. This circumstance, however, does not require remand because we are satisfied that the claims plainly fail.
I. GUILT PHASE CLAIMS
A. Denial of Defense Peremptory Strike6
Appellant first claims that appellate counsel was ineffective in forwarding his claim on direct appeal that the trial court improperly violated appellant’s right to exercise a peremptory *527challenge during voir dire. Appellant argues that the trial court improperly seated Dorothy Spicer as a juror over his challenge despite his race-neutral explanation that he believed she looked untrustworthy. The trial court’s ruling, appellant argues, violated his due process rights and his rights under the Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and Article 1, Sections 9 and 13 of the Pennsylvania Constitution. With respect to appellate counsel’s alleged deficient performance, appellant contends that appellate counsel was ineffective for failing to argue that: (1) there was no prima facie case of discrimination established; (2) trial counsel had accepted a white juror, Scott Yoder, whom the Commonwealth had rejected; (3) Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam), supported his claim; and (4) the trial court’s ruling is not subject to harmless error analysis under Vasquez v. Hillery 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986).
The Commonwealth responds that appellant’s claim was previously litigated since appellant’s challenge to seating Dorothy Spicer on the jury was decided by this Court on direct appeal. The PCRA court agreed with the Commonwealth and, accordingly, did not analyze the merits of appellant’s appellate ineffectiveness claim.
On direct appeal, this Court characterized appellant as arguing that juror Spicer should not have been seated because:
(1) the trial court erred in sua sponte raising the issue of the discriminatory use of peremptory challenges by the defense; (2) at the time the issue was raised there had been no pattern of prejudice establishing prima facie discrimination and warranting explanation for the use of peremptories; and (3) placing the juror on the panel was not the appropriate remedy.
Carson I, 741 A.2d at 693. While noting that the case law supported the Commonwealth’s contrary position that trial courts are duty-bound to respond to and prevent racial discrimination, we ultimately stated that:
*528In addressing appellant’s claim, we decline to step into the morass of “peremptory challenge jurisprudence” created by the United States Supreme Court. For even if we were to accept Appellant’s contention that the trial court erred in raising the issue sua sponte, we must nevertheless agree with the Commonwealth that Appellant suffered no prejudice.
Id. at 696. In this regard, we observed that appellant had failed to show that juror Spicer was biased or incompetent to serve as a juror and that a defendant’s right to an impartial jury of his peers does not entitle him to a jury of his choice. Id. (citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).
The foregoing resolution of appellant’s underlying claim on direct appeal requires rejection of his current claim, i.e., because we previously determined that appellant suffered no prejudice by the trial court’s seating of juror Spicer, appellant is hard-pressed to argue now that a deficient performance by direct appeal counsel precluded the Court from reaching an opposite result. Although appellant inappropriately argues that Vasquez prohibits employing a harmless-error analysis in jury discrimination claims, this discrete portion of the U.S. Supreme Court’s opinion garnered only three votes and controls nothing. Vasquez, 474 U.S. at 264, 106 S.Ct. 617. More importantly, Vasquez is inapposite, as it is a case where members of the defendant’s own race were excluded from a grand jury. Id. at 256, 106 S.Ct. 617. Here, there are no allegations that the trial court’s action amounted to racial discrimination and we know of no authority, and appellant does not cite any, providing that a defendant has an unfettered constitutional right to exercise a peremptory challenge to a juror. Appellant does not offer any other argument implicating the prejudice prong of his ineffectiveness claim, but rather baldly states that he was prejudiced by direct appeal counsel’s failure to make particular arguments. Notably, though, not one of the arguments that appellant says his direct appeal counsel should have made would have disputed this Court’s prior finding that appellant suffered no prejudice *529when juror Spicer was placed on his jury.7 Consequently, appellant’s first ineffectiveness claim fails.
B. Prosecutorial Misconduct8
Appellant next claims that his direct appeal counsel was ineffective for failing to raise his trial counsel’s tolerance of the prosecutor’s repeated prejudicial conduct which violated his federal due process, Sixth Amendment, and Fourteenth Amendment rights, as well as his state constitutional rights under Article 1, Sections 9 and 18 of the Pennsylvania Constitution. Appellant argues that the prosecutor impermissibly: (1) presented victim impact testimony and made related arguments concerning that testimony to the jury; (2) offered conjecture and opinion; (3) commented during witness testimony; and (4) withheld impeachment evidence concerning Commonwealth witnesses in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant asserts that his trial counsel should have objected or asked for a mistrial and, thereafter, appellate counsel was ineffective for failing to raise trial counsel’s omissions on direct appeal. Moreover, appellant contends that appellate counsel was ineffective for not arguing trial counsel’s failure to investigate impeachment facts about the Commonwealth’s witnesses.
The Commonwealth denies that any of appellant’s claims have merit, arguing that they are nothing more than waived claims recast in the guise of boilerplate ineffectiveness claims. The Commonwealth argues that: (1) the victim’s mother was properly called to testify that the victim was a life-in-being; (2) the prosecutor did not insert his personal opinions at trial *530or argue extra-record evidence; and (3) the prosecutor did not violate Brady with regard to any witness.
The PCRA court found that the prosecutor’s conduct did not deprive appellant of a fair trial, since his remarks were fair comment and proper argument on the evidence of record. Moreover, the PCRA court reasoned that the trial court’s jury instructions were sufficient to guard against any prejudice to appellant. As to appellant’s associated Brady claims, the court below found that the proposed impeachment of Commonwealth witnesses Monique Wylie and Edgar Clarke would not have altered the outcome of the case and that the Commonwealth was unaware of impeachment evidence related to its witness Ramon Burton.
In order to obtain relief for alleged prosecutorial “misconduct,” a petitioner must first demonstrate that the prosecutor’s action violated some statutorily or constitutionally protected right. See, e.g., Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986) (using peremptory challenges to exclude jurors based on race violates the Equal Protection Clause); Brady, 373 U.S. at 86, 83 S.Ct. at 1196 (nondisclosure by a prosecutor of exculpatory material violates due process). Consistently, we have held that prosecutorial misconduct does not occur unless the prosecutor’s challenged comments had the unavoidable effect of prejudicing the jury with such animus toward the defendant as to render it incapable of fairly weighing the evidence and arriving at a just verdict. Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 542 (2005); Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 503 (1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). A prosecutor does not engage in misconduct when his statements are based on the evidence or made with oratorical flair. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100, 1110 (1993). Additionally, a prosecutor must be permitted to respond to arguments made by the defense. See Hawkins, 701 A.2d at 503; Commonwealth v. Clayton, 516 Pa. 263, 532 A.2d 385, 396 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). With these rules in mind, appellant’s specific contentions of *531prosecutor misconduct, which underlie his layered ineffectiveness claims, and the Commonwealth’s pointed responses will be addressed seriatim.
1. Victim, Impact Testimony
Appellant’s first claim relates to the Commonwealth’s presentation of testimony from the victim’s mother, which he argues was both inflammatory and prohibited victim impact evidence during the guilt phase. Appellant further asserts that the prosecutor exacerbated the alleged inappropriate testimony during his closing argument in the guilt phase and thereby destroyed the jurors’ objectivity.
The Commonwealth deems appellant’s claim to be frivolous under Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 (2000), because the victim’s mother properly testified that the victim was a life-in-being and that she conclusively identified him. As to the prosecutor’s closing remarks, the Commonwealth simply explains that there is nothing improper about asking a jury to fulfill its duty to reach a just verdict, Commonwealth’s Brief at 22 (citing Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811, 829 (1994)).
As defined by our Sentencing Code, victim impact evidence is information concerning the victim and the impact the victim’s death has had on the family of the victim. 42 Pa.C.S. § 9711(a)(2). We held in Miller that there was no error in a murder victim’s mother testifying during the guilt phase that her child was a life-in-being and that she had identified the body of her deceased child. 746 A.2d at 602. Additionally, in Ragan, we stated that it is a prosecutor’s job to argue that failure to convict a defendant would be a “failure of justice.” 645 A.2d at 829.
The entire examination of the victim’s mother, Naomi Collier, consisted of five questions and answers:
PROSECUTOR: Ma'am, Did you know William Lloyd?
MS. COLLIER: Yes.
PROSECUTOR: Who was he?
MS. COLLIER: My son.
*532PROSECUTOR: Before November 22nd, 1993, was Mr. Lloyd alive and well?
MS. COLLIER: Yes.
PROSECUTOR: When was the next time that you had seen your son?
MS. COLLIER: He was dead.
PROSECUTOR: Did you identify his body at the office of the medical examiner?
MS. COLLIER: Yes.
N.T. 7/11/1995 at 84-85. Ms. Collier’s answers to the prosecutor’s questions were never more than three words and were far from the highly emotional testimony that appellant characterizes in his brief. Nor did they involve victim impact. Since Miller establishes the appropriateness of the prosecutor’s questions and Ms. Collier clearly said nothing to unfairly stoke the passions of the jury, appellant’s claim that the prosecutor committed objectionable “misconduct” fails, and his attendant layered ineffectiveness claim is without merit.
Likewise, there was no misconduct in the prosecutor’s closing remarks which obliged appellant’s prior counsel to object. Appellant objects to the prosecutor’s statement that:
I am not going to take up any more of your time. You have seen these people here and you saw the victim’s mother take the stand. I hope you can send her home with a sense of justice and that justice has been done. She has to go back to that neighborhood, too. I am urging you to use your common sense because when you think about everything, of why he did what he did. Do not let him out of this one.
N.T. 7/12/1995 (p.m.) at 49. This allegedly impermissible statement contains no mention of how the victim’s mother’s life has been altered by her son’s death, but rather merely asks the jury to give the victim’s mother a just verdict by declaring appellant guilty. The prosecutor’s statement did not amount to impermissible victim impact argument. Nor is there anything in the argument that could be said to so destroy the objectivity of the jury that counsel were obliged to *533object. Because this individual claim of prosecutor misconduct has no more merit than the first, appellant cannot establish his primary layered ineffectiveness claim. McGill, 832 A.2d at 1023.
2. Closing Argument
In advancing his second list of claims of prosecutor misconduct, appellant labels several statements that the prosecutor made during his closing arguments as prejudicial. First, appellant quotes the prosecutor’s statement that: “I have the evidence to speak for me and that is why I am not going to take long,” N.T. 7/12/1995 (p.m.) at 28, as an improper expression of the prosecutor’s personal belief or opinion as to appellant’s guilt.
The Commonwealth responds that it was proper for the prosecutor to ask the jury to consider the evidence and, in addition, it was a fair response to defense counsel’s suggestion that district attorneys may say anything to get a guilty verdict.
Appellant’s underlying argument is meritless because the prosecutor merely stated that his case relies simply upon the evidence placed before the jury. The prosecutor did not say that he personally believed appellant was guilty, but rather that the evidence showed appellant’s guilt. See Marshall, 633 A.2d at 1110 (prosecutor’s arguments based on the evidence are proper). If such arguments were improper, the Commonwealth would be hard-pressed to make any argument in response to the defense.
Next, appellant claims the prosecutor improperly “vouched for himself’ during closing arguments and violated appellant’s “constitutional right to cross-examine his own statements,” Appellant’s Brief at 20, when the prosecutor stated: “Well, if I were that type of a guy, you would probably see about ten eyewitnesses up there all having been paid in full.” N.T. 7/12/1995 (p.m.) at 30. The Commonwealth replies that the prosecutor’s remark was a fair response to defense counsel’s accusation that the prosecutor would “do anything *534and say anything in order to engineer a guilty verdict in a case.” N.T. 7/12/1995 (p.m.) at 5. We agree that the prosecutor’s statement was a fair response to defense counsel’s largely improper and baseless implication that the prosecutor would behave unethically, or indeed, criminally, in order to win cases.
Appellant also claims that the prosecutor impermissibly “wrapped himself in ‘cloak of state authority’,” Appellant’s Brief at 20, when he said, “.... People are scared to death. That’s [r]ule [n]umber [o]ne. They are scared to death in th[is] City.” N.T. 7/12/1995 (p.m.) at 32. Appellant contends that the prosecutor’s comment compelled the jury to sentence appellant to death.
The Commonwealth, however, portrays the prosecutor’s remark as a proper synopsis of witness testimony and correctly notes appellant’s quotation is taken out of context.
The prosecutor’s full statement was:
As dictated to you by Ruth Beverly, as an example of what happens in this society, people are scared to death. That’s rule number one. They are scared to death in this city, as Ruth Beverly is scared to death. How scared is she? She moved out of here. Does a person do that when they are lying or telling the truth?
Id. Ms. Beverly, an eyewitness to the murder, testified that she moved out of Philadelphia after receiving threats from one of appellant’s witnesses. N.T. 7/10/1995 at 146-47. The prosecutor asked the jury, based on this testimony, to contemplate whether a person who was lying about witnessing a murder— defense counsel accused her of lying — would flee from her home. When viewing the prosecutor’s statement in responsive context, it prompted the jury to weigh Ms. Beverly’s credibility in light of the evidence. The prosecutor did not seek to “wrap himself in a cloak of authority.” This claim is nonsensical.
Fourth on appellant’s list is a claim that the prosecutor did not abide by the court’s instruction and argued extra-record evidence, which violated his Confrontation Clause *535rights under the Sixth and Fourteenth Amendments, in the following exchange:
PROSECUTOR: I am telling you right now that this man, Samuel Carson, was not in the house the second time. I never maintained that.
DEFENSE COUNSEL: Objection. The personal opinion of the prosecutor has nothing to do with this case, Your Honor.
PROSECUTOR: I just said he was not in the house.
THE COURT: Stick to the record.
PROSECUTOR: He wasn’t in the house. I never maintained that. I will maintain, however, ladies and gentlemen, that he was right outside. A lookout because these men came back in the house.
N.T. 7/12/1995 (p.m.) at 42.
The Commonwealth maintains that the prosecutor’s statement was a fair response to defense counsel’s accusation that the prosecutor had given the jury incorrect information. Moreover, the Commonwealth notes that the record supports its theory of the events that preceded the murder.
The prosecution’s theory of the case was that, prior to the murder, appellant came with two other men to rob a drug house in South Philadelphia and acted as a lookout outside of the home during the robbery. One of the men in the home at the time of the robbery, Edgar Clarke, testified that two men, other than appellant, entered the house and committed the robbery. N.T. 7/7/1995 at 81-85. Outside of the home a short time later, Ramon Burton testified to engaging in a shootout with appellant and two other men. N.T. 7/10/1995 at 63-67. Mr. Burton’s and Mr. Clarke’s testimony provided record support for the prosecution’s argument that appellant was a lookout. Furthermore, the prosecutor’s closing remarks were a fair response to the defense counsel’s closing argument, in which he claimed that the prosecutor’s theory was “mistaken or disingenuous”:
What did [the prosecutor] say in his opening? He said at one point — and I wrote it down — the three came back and *536robbed Clark [sic]. Now, we know that that’s not true. Either he made a mistake or he was being disingenuous. I don’t know. And I’m not here to sit in judgment over him, but what I am saying to you, that he gave you wrong information, because we heard from Clark [sic].
N.T. 7/12/1995 (a.m.) at 72. Because the prosecutor’s closing was both a fair response to this specific portion of defense counsel’s closing argument and was based on the evidence presented at trial, appellant’s claim that counsel was obliged to object has no merit.
In appellant’s next claim, he contends that the prosecutor improperly vouched for his witness, Ms. Beverly, when he said:
If you are' going to set a man free for having shot at someone seven times, and put one bullet in his brain, just remember please, that I presented to you a witness who had absolutely no motive to come in here and lie to you.
N.T. 7/12/1995 (p.m.) at 40. The Commonwealth argues that the prosecutor’s remark was a response to defense counsel’s closing, during which he repeatedly attacked Ms. Beverly’s credibility. The Commonwealth is correct.
In his closing argument, defense counsel spent a considerable amount of time attacking Ms. Beverly’s explanation for waiting so long to come forward and speak to the police. Id. at 11-18. Appellant personally sought to attack Ms. Beverly’s testimony when he took the witness stand, accusing her of having sex with him for drugs and giving the police a statement in exchange for drugs. E.g., N.T. 7/11/1995 at 141-43; 160-61. Clearly, based on appellant’s direct attacks on Ms. Beverly, it was fair for the prosecutor to argue in reply that his witness had no motive to lie. Counsel was not obliged to object.
Sixth on appellant’s list is a claim that it was inflammatory for the prosecutor to speak about his own family and to supposedly provide his opinion about appellant’s alibi witnesses. The prosecutor stated:
*537You had two alibi witnesses who came in here. Naturally, they are related to the defendant. I am going to give them this. I am sure they care very much about him. I am not taking anything away from them. The two witnesses, I am sure, they love this man. I am sure they love him as much as I love my children and my wife and as much as you love your loved ones. And if anyone of them is locked up for a crime, you better believe that I am going to go tell somebody that this person was with me that night. Aren’t you going to do that?
N.T. 7/12/1995 (p.m.) at 44. Appellant asserts that these comments introduced extra-record evidence prejudicial to him, including information about the prosecutor’s family and the fact that appellant was in jail during trial.
The Commonwealth argues that it was entirely proper to ask the jury to infer from the evidence that appellant’s alibi witnesses had a motive to lie. As to the prosecutor’s comments about his own family, the Commonwealth argues that the prosecutor was drawing a credibility analogy in order to focus the jury on reasonable inferences that flowed from the evidence.
Contrary to appellant’s assertions, the prosecutor did not give an opinion about the truthfulness of appellant’s alibi witnesses nor did he state that appellant was currently in jail. The prosecutor’s comments were simply a hypothetical example to illustrate something about human nature, to ask the jury to think about what actions a person might take to exonerate an accused loved one arrested for a crime and, accordingly, what motivations appellant’s alibi witnesses may have had when testifying for him. It was not misconduct to pose such an analogy, much less an event that obliged counsel to object.
In addition, even supposing the prosecutor’s comments were improper, appellant’s own testimony about the events that evening did more to undermine the credibility of his alibi. Appellant claimed that he was chased home by a gun-wielding man on the night of the murder, but he said that *538he did connect the gunshots he heard a few minutes later to that individual. He further claimed that he never told his father or girlfriend about the man chasing him with the gun; that he remembered exactly what he did the day of the murder, when the first time he was questioned about his activities was a month and a half later; and that he never talked to his two alibi witnesses, his father and his girlfriend who was pregnant with his child, about his murder case. N.T. 7/11/1995 at 151, 153, 157. In light of appellant’s own testimony, which weakened his alibi witnesses’ credibility, the prosecutor’s exploration of human nature was not prejudicial.
Next, appellant argues that the prosecutor violated the “golden rule” and placed the jury in the shoes of the victim when he explained the doctrine of transferred intent. The prosecutor explained: “Regardless of whether you hit your target, you are still liable for that person’s death to the same degree as if you had hit the target. If I[am] aiming at Juror Number Two and I hit Juror Number Twelve, I am still liable to the same degree.” N.T. 7/12/1995 (p.m.) at 47-48. The Commonwealth dismisses appellant’s argument as odd, because appellant never explains how the prosecutor violated the “golden rule” with this comment and a prosecutor is permitted to make accurate statements on applicable law to the jury. We agree. Given that the Commonwealth accurately characterized this Court’s precedent on the doctrine of transferred intent, Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025, 1034 (1996), cert. denied, 520 U.S. 1231, 117 S.Ct. 1825, 137 L.Ed.2d 1032 (1997); see Commonwealth v. Gwaltney, 479 Pa. 88, 387 A.2d 848, 850 (1978), appellant has failed to identify anything objectionable in the prosecutor’s summation of the law. Therefore, the issue lacks merit.
Eighth on appellant’s list is a claim that the prosecutor introduced extra-record evidence when declaring appellant had committed other crimes, but received no punishment. The prosecutor stated in his closing:
I am urging you to use your common sense because when you think about everything, of why he did what he did, do not let him out of this one. Don’t let him out of this one, *539Ladies and Gentlemen. Don’t give him a slap on the wrist. Don’t let him out of this one. No, No, No. First degree murder, Ladies and Gentlemen. The evidence tells you it’s first degree murder and nothing, nothing less.
N.T. 7/12/1995 (p.m.) at 49. The Commonwealth reads this argument as the prosecutor’s promotion of a first-degree murder verdict and notes the irony in appellant’s argument, as appellant freely admitted he was a drug dealer on direct examination.
Again, appellant has misconstrued the prosecutor’s closing remarks, since the prosecutor never mentioned in his closing that appellant had committed other crimes or had been lightly punished for past wrongdoing. The prosecutor’s focus on this “one” does not ineluctably suggest that there were “other” crimes, much less crimes for which he escaped punishment. Moreover, trial counsel was not constitutionally obliged to assume some nefarious intention behind the remarks— particularly since counsel was there, and heard how they were delivered. Finally, appellant cannot show prejudice from the argument under his own theory, since appellant himself repeatedly acknowledged that he sold drugs: “I am not a killer. I am drug dealing [sic].” N.T. 7/11/1995 at 106; e.g., id. at, 113, 114, 115, & 118.
The next claim on this list of complaints is that the prosecutor argued extra-record evidence, thereby painting appellant as a callous criminal, by maintaining that appellant’s gun jammed and that he then returned to the scene of the crime to fire more shots. Conversely, the Commonwealth finds no harm in the prosecutor’s conjecture during his closing because a prosecutor is permitted to make reasonable inferences from the record evidence.
Here, the murder weapon was never found and the prosecutor argued that: (1) people who commit murder do not keep the fatal weapon; and (2) appellant may have thrown the gun away if it were defective. N.T. 7/12/1995 (p.m.) at 34.9 The *540prosecutor merely offered reasonable explanations for why the murder weapon could not be found, a relevant point since it could not be produced at trial. Trial counsel was not obliged to object.
In his penultimate claim, appellant asserts that the prosecutor disparaged defense counsel’s integrity and prejudiced him with the following argument:
I was also very interested to see how outraged Mr. Greene got. How self-righteous he got up here, the way he pounded the desk, the way he pretended that this was the most outrage[ous] miscarriage of justice he had ever seen in the course of his life, until his next case comes along. What was he so outaged [sic] about? There is an eyewitness to a murder? Okay. He tried to poke holes in the case, but why does he act outraged? Because he has nothing else to go on, Ladies and Gentlemen.
Id. at 30-31. The Commonwealth denies the efficacy of appellant’s claim considering that defense counsel first personalized matters by attacking the prosecutor’s morality. In particular, the Commonwealth notes that defense counsel stated in his closing that district attorneys sometimes may “step out of bounds and will do anything and say anything in order to engineer a guilty verdict in a case.” Id. at 5.
While we certainly do not condone reciprocal — or initial — assaults on counsel’s character, we have previously recognized that not every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial. E.g., Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 38-39 (1991), cert. denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673, 674 (1973). A new trial should only be granted where the remark was prejudicial to the jury such that it was incapable of rendering a true verdict. Chmiel, 889 A.2d at *541542. In this instance, the remarks were reciprocal and personal to each lawyer. There was nothing particularly prejudicial and counsel would have been hard-pressed to object, having broached the subject himself.
Taking each of the prosecutor’s comments together, appellant last contends that the prosecutor tainted the trial with such unfairness as to render his conviction a denial of due process. Appellant, however, is not entitled to relief on his cumulative claims of prosecutor misconduct when none of his individual claims entitles him to relief. Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716, 721 (1992).
3. Comments to Examining Witnesses
Appellant next claims that the prosecutor unacceptably bolstered the testimony of Commonwealth witness Ms. Beverly, the sole testifying eyewitness to the crime, as well as portraying her as a victim of the shooting that killed William Lloyd. Specifically, appellant objects to the prosecutor’s statement during the cross-examination of Commonwealth witness Monique Wylie:10
DEFENSE COUNSEL: Tell the members of the jury why you went to see Raymon [sic] Burton?
MS. WYLIE: To buy narcotics from him.
DEFENSE COUNSEL: To buy narcotics from him. And how often did you buy narcotics?
THE COURT: What’s the relevancy of that question?
DEFENSE COUNSEL: Judge, the District Attorney is going to call Mr. Burton as a witness, and when he calls Mr. Burton as a witness and I have an opportunity to cross examine you will certainly see the relevancy.
PROSECUTOR: I don’t care if the guy [Ramon Burton] does narcotics. Everybody in the case did with the exception of the eyewitnesses.
*542N.T. 7/10/1995 at 29-30. The Commonwealth argues that the prosecutor’s comment was based on the established evidence in the case and that appellant freely admitted that he was a drug dealer when he testified in his own defense.
Appellant makes a leap in logic in characterizing the statement above as bolstering of Ms. Beverly’s testimony. First, the prosecutor’s statement was made in response to a discussion initiated by the trial court because defense counsel’s line of questioning seemed irrelevant. Second, Ms. Beverly had yet to testify and, when she did, she admitted on cross-examination to having been addicted to narcotics in the past. Id. at 154-56. Ms. Beverly’s admission effectively eviscerated any supposed validation of her testimony by the prosecutor and, as a result, could not have prejudiced appellant by rendering the jury incapable of reaching a fair verdict. In any event, counsel cannot be faulted for failing to forward this strained interpretation.
Appellant also accuses the prosecutor of painting Ms. Beverly as a victim of the shooting that killed William Lloyd. The Commonwealth does not respond to this specific sub-claim. During cross-examination by defense counsel, Ms. Beverly stated that “bullets don’t have no name on it so I stayed down there until after I heard the gun fire.” N.T. 7/10/1995 at 175. The trial court then commented, “[t]hat’s what I would be concerned about,” and the prosecutor responded, “I’m concerned about those too.” Id. Although appellant frames this exchange as objectionable vouching for Ms. Beverly’s testimony by the trial court and prosecutor, the irrelevant comment by the prosecutor does not legitimize a portion of Ms. Beverly’s testimony or even comment on testimony directly relevant to appellant’s guilt. The prosecutor’s comment, albeit unnecessary, merely verbalized humanity’s universal fear of gunfire. As such, trial counsel was not obliged to object.
Appellant next complains that the prosecutor “sought to ingratiate himself at Appellant’s expense,” Appellant’s Brief at 24, by stating: “[s]ir, you are [sic] man with an IQ of 120 to *543130, which is higher than mine.” N.T. 7/11/1995 at 151. The Commonwealth questions how such a statement would help the prosecution, as appellant does not explain why the prosecutor would seek to “fawn” in front of the jury by saying he was less intelligent than appellant, and argues that the prosecutor merely wished to demonstrate the implausibility of appellant’s story. Commonwealth’s Brief at 29-30.
Appellant, yet again, omits the trial context from his brief, as this allegedly unfitting statement was followed by the prosecutor asking with respect to appellant’s testimony:
If a man is chasing you with a gun a block and a half from your house, and you ran in your house and you hear a series of gunshots and your first reaction is that it’s just a random firing and not coming from the corner. Your first immediate reaction is not that it is coming from the corner, but it’s random?
N.T. 7/11/1995 at 151. This question was an appropriate follow-up to appellant’s earlier testimony on direct examination that his IQ was “in the range of 125 or 130,” id. at 116, and his recollection of hearing random gunshots on the night of the murder, but which he testified he did not attribute to being chased by an armed man a short time prior to the shooting. Id. at 150. In the context of appellant’s implausible account and self-proclaimed intelligence, the prosecutor’s statement was nothing more than oratorical flair aimed at persuading the jury not to credit appellant’s version of events. Counsel was not obliged to object to the prosecutor’s statement.
Since each of these claims have no validity, appellant’s overarching layered ineffectiveness claims, which are reliant on the independent merit of the claims of prosecutor impropriety, also fail. McGill, 832 A.2d at 1023.
Jp. Brady Violations
Appellant next claims that he was prejudiced under Brady when several pieces of evidence were not disclosed to him by the Commonwealth. Before addressing appellant’s specific *544claims and the Commonwealth’s respective responses, we explain the relevant case law.
A Brady violation has occurred when: (1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant; and (3) the suppression prejudiced the defendant. Collins, 888 A.2d at 577-78; Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002). The evidence must be material, such that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001). The prosecutor’s duty to turn over exculpatory or impeachment evidence to the defense exists even in the absence of a defense request for such material, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), and includes evidence found in the police files of the same government bringing the prosecution. Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 853 (2005); Burke, 781 A.2d at 1142 (citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). No Brady violation can occur where the evidence is available to the defense through non-governmental sources, or, with reasonable diligence, the defendant could have discovered the evidence. Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 696 (2003); Paddy, 800 A.2d at 305.
a. Monique Wylie
First, appellant complains that the prosecution pressured Monique Wylie to testify and a police officer paid her for her statement. Appellant offers a signed declaration from Monique Wylie,11 stating that she received money from Police Officer Glen Keenan for providing him information about appellant, as proof the prosecutor must have withheld Brady *545material from him. The Commonwealth disputes that Ms. Wylie’s recantation can form the basis of a Brady claim.
Even if Ms. Wylie’s signed statement were true, the evidence does not help appellant unless such information was within prosecution or police files and could only be found there. Appellant fails to assert, however, that there was any evidence in police or prosecution files relating to any payments made to Ms. Wylie. Furthermore, appellant does not explain why it was only possible for him to obtain this alleged information after trial. Accordingly, appellant is not due relief under this claim.
b. Edgar Clarke
Appellant’s second claim under Brady is that Mr. Clarke gave the police two different statements, but the prosecution only divulged one. This claim, like the last is based on a signed declaration, this time one obtained from Mr. Clarke. In the declaration, Mr. Clarke states that he first told police he knew nothing about the crime and then, in a break in the questioning at the police station, he saw the wife of his friend Ramon Burton in the station. Edgar Clarke Signed Declaration at 1. Because Mr. Clarke was concerned with what the police might already have been told by his friend’s wife and the police told him that they knew he was present at the scene of the crime, he states that he then told the police what he knew about the night of William Lloyd’s murder. Id. at 1-2.
The Commonwealth argues that Mr. Clarke only provided one statement to the police.
The very words of Mr. Clarke’s declaration do not support appellant’s claim that he gave the police two statements, but instead reveal that he only signed one. Moreover, even assuming that Mr. Clarke’s signed statement counts as two, there is no evidence that soliciting this fact at trial would have produced another verdict. The evidence against appellant was ample, as the Commonwealth presented Ms. Beverly’s testimony that appellant committed the shooting and Mr. Burton testified that appellant fired his gun at him a few minutes before the murder. Furthermore, it is not clear that Mr. *546Clarke’s alleged initial denial to the police that he knew nothing would have damaged his credibility considering that he had been selling drugs near the time of the murder and would have been understandably reluctant to divulge such information to the authorities. N.T. 7/7/1995 at 91. Appellant’s claim is without merit.
c. Ramon Burton
Mr. Burton testified at appellant’s trial that on the night of William Lloyd’s death he engaged in a gun battle with appellant and one of appellant’s cohorts, whom Mr. Burton wounded. Appellant claims that the prosecutor withheld evidence that appellant could have used to impeach Mr. Burton at trial and he disputes the Commonwealth’s argument that Mr. Burton had no motive to lie. First, appellant alleges that Mr. Burton had a 1992 drug conviction under his alias, John Smith, and was sentenced to one year of probation. Appellant asserts that this sentence had not been completed at the time of trial and, as a result of the non-disclosure, appellant was unaware that Mr. Burton had a potential motive to testify favorably for the Commonwealth. Moreover, appellant asserts that he should have been informed that Mr. Burton had an unregistered weapon on the night of the murder, that he was never prosecuted for carrying that weapon, that he did not supply his business records to the Internal Revenue Service (IRS), and that he was in the United States illegally. Appellant’s Brief at 26.
The Commonwealth counters that it could not have disclosed an Immigration and Naturalization Service (INS) file that did not exist at the time of trial and, even if it did exist, the defense would have had equal access to it. While the Commonwealth does not specifically respond to appellant’s allegation that appellant should have been told of Mr. Burton’s 1992 conviction under an alias, it argues that the jury probably did not believe a drug dealer such as Mr. Burton would file his taxes or register his firearm. The PCRA court found that appellant did not demonstrate that the Commonwealth knew of Mr. Burton’s drug conviction under his alias and could not *547be responsible for producing an INS file that had not yet been created.
We see no error in the PCRA court’s rejection of this claim. When Mr. Burton testified at appellant’s trial that he was selling drugs out of his business, N.T. 7/10/1995 at 81-83, the jury could have reasonably surmised that Mr. Burton was not filing the proper paperwork with the IRS, nor would they have been surprised to learn that an admitted drug dealer was carrying an unregistered firearm. As to Mr. Burton’s immigration status, appellant offers an INS record from 2000, which would not have been available at trial given that it was made five years after appellant was found guilty. See INS Record of Ramon Burton. Any immigration records that existed in 1995 for Mr. Burton were not in the exclusive possession of the prosecution. Respecting Mr. Burton’s drug conviction, under an alias, appellant has not shown that the Commonwealth knew of that conviction, or that it was in a better position than he to uncover it. Instantly, appellant has not demonstrated that any of the evidence of purported impeachment material on Mr. Burton was in the exclusive knowledge and possession of the Commonwealth. Equally importantly, he has not shown that the outcome of the trial would have differed if only this mere impeachment material had been introduced. Accordingly, his Brady claim fails as meritless.
5. Failure to Investigate and Discover Impeachment Evidence
At the end of his list of prosecutorial misconduct complaints, appellant inserts three sentences which argue that his trial counsel was ineffective for neglecting to investigate and discover impeachment evidence on Ms. Wylie, Mr. Burton, and Mr. Clarke and, thereafter, appellate counsel was ineffective for failing to argue trial counsel’s ineffectiveness. Appellant’s Brief at 27. This boilerplate argument fails as appellant does not mention what specific impeachment evidence his trial counsel failed to adequately investigate and discover, but instead cites to trial counsel’s “declaration” in which he professes his failure to adequately impeach the aforementioned *548witnesses on various subjects. Appellant’s Brief at 27. Appellant’s thin argument runs counter to his Brady claims, in which he contends that certain impeachment evidence was in the exclusive possession of the prosecution. More crucially, we cannot evaluate his insubstantial claim, as we are left to guess what relevant and material evidence trial counsel should have uncovered and how this evidence was so easily within his grasp.
C. Misconduct of Trial Court12
1. Alleged Bias During Questioning of Witnesses
a. Ruth Beverly
Appellant accuses the Honorable Paul Ribner, the judge presiding over his trial, of impermissibly bolstering the testimony of Ms. Beverly by answering questions for her and coaching her responses. According to appellant, the trial court essentially told the jury that he found Ms. Beverly’s testimony credible and, thereby, usurped an exclusive function of the jury. He claims prior counsel were ineffective for failing to object to the trial court’s behavior. Appellant’s specific citations will be discussed infra.
The Commonwealth denies that appellant’s cited instances of alleged judicial misconduct have any merit and notes that appellant never suggests what action his trial counsel could have taken to cure the trial court’s bias. The Commonwealth states that the trial court provided appellant’s trial counsel wide latitude to question Ms. Beverly, but the trial court was forced to curb defense counsel’s questioning when counsel began to badger the witness.
The PCRA court, without addressing any one of appellant’s individual claims of impartiality toward witnesses, found that the trial court had not exhibited any bias during the trial. Moreover, the PCRA court ruled that even if the trial court had overstepped its bounds, any potential prejudice was cured by instructions to the jury that they were to disregard any *549perceived bias that the trial court might have exhibited and render their own decisions as to witness credibility.
The first portion of the transcript appellant cites to support his claim involves the end of defense counsel’s repetitive cross-examination of Ms. Beverly, wherein Ms. Beverly displayed obvious distain for defense counsel’s tactics and the trial court had told her to wait until defense counsel was finished asking a question before beginning to answer it. N.T. 7/10/1996 at 167-68. Defense counsel questioned Ms. Beverly as to how long she was lying on her stomach when the trial court volunteered, “[u]ntil she got up again.” Id. at 174. Defense counsel then asked the question again and Ms. Beverly answered it. Id.
Ms. Beverly had already testified on direct examination that she was lying on the ground until the police reached the scene, id. at 145; and on cross-examination, a few moments before the trial court’s comment, she said that she stayed on the ground until the police arrived at the scene, id. at 169-70. The record reveals that the trial court continually permitted defense counsel to ask the same question more than once, but apparently, the court eventually lost its tolerance for defense counsel’s style of questioning and, ungracefully in this instance, attempted to curb the repetitive questioning. Although it would have been better not to employ apparent sarcasm, Ms. Beverly was not hindered in answering the question repeatedly asked, and appellant has not shown that the exchange was so prejudicial that counsel was obliged to object.
Appellant next cites as improper a comment a few lines later in the transcript, when the trial court commented that it, too, would be concerned about flying bullets in response to Ms. Beverly’s explanation of why she did not recall how long she was lying on the ground. Id. at 175. The trial court’s statement, albeit unnecessary, was harmless.
In the third instance of alleged improper conduct, appellant accuses the trial court of coaching Ms. Beverly’s answers. Specifically, appellant cites the trial court’s state*550ment that Ms. Beverly did not know how much time had elapsed between the shooting of William Lloyd and a prior series of gunshots at a nearby location. This claim also has no merit.
The court’s comment occurred after defense counsel asked Ms. Beverly for the third time how much time had elapsed between two series of gunshots. Id. at 175-76. Ms. Beverly had already answered the question twice, stating she was unsure how much time had gone by, before the trial court accurately summarized, “She doesn’t know.” Id. at 176. Ms. Beverly then stated, “I don’t know.” Id. Certainly, Ms. Beverly was not “coached” in an answer she already provided twice. It was not judicial “misconduct” for the trial court to step in here.
b. Anthony Troy Powell
Next, appellant claims that the trial court sought to discredit defense witness Anthony Powell, who claimed that he was with Ms. Beverly when the gunfight began a few blocks from where William Lloyd was murdered. Appellant argues that the trial court’s partiality was shown in his questioning of Mr. Powell. Appellant cites the following passages:
THE COURT: Was there a reason why you wanted to say something about [Ms. Beverly], why you were trying to get some thought across to the jury?
MR. POWELL: No, nothing like that.
THE COURT: Do you have some reason why you wanted to say something about [Ms. Beverly’s] conduct?
MR. POWELL: No, Your Honor.
THE COURT: You just blurted it out because you wanted to blurt it out.
THE WITNESS: Yeah, I guess you could say that.
THE COURT: Alright, go ahead.
N.T. 7/12/1995 (a.m.) at 12-13. Also, appellant cites:
PROSECUTOR: Sir, sir, you were asked did you see [Ms. Beverly at the murder scene],
MR. POWELL: Yes.
*551PROSECUTOR: And you said no.
THE COURT: Wait a minute. You say she probably wasn’t there because, otherwise, they would have taken her down to homicide like they took you down.
MR. POWELL: They sure did. They sure picked — .
THE COURT: Maybe you looked suspicious and she didn’t. There are a lot of reasons why they would have taken you and not her; is that right?
MR. POWELL: We were all together.
Id. at 17-18.
While a trial judge should normally leave questioning of witnesses to counsel, justice may require that a trial judge ask questions when absurd, ambiguous, or frivolous testimony is given or testimony is in need of further elucidation. See Commonwealth v. Roldan, 524 Pa. 366, 572 A.2d 1214, 1215 (1990) (citing Commonwealth v. Myma, 278 Pa. 505, 123 A. 486, 487 (1924)).
To properly evaluate the questioning conducted by the trial court, we must consider it in context. The Commonwealth argues that the trial court’s questions were aimed to highlight that Mr. Powell’s assertions about Ms. Beverly’s absence at the scene of the murder was not based on firsthand knowledge. Mr. Powell was asked whether he was on drugs at the time of the murder and he responded that Ms. Beverly was on drugs as well. N.T. 7/12/1995 (p.m.) at 9-10. On cross-examination, the prosecutor attempted several times to question Mr. Powell about his motives for interjecting his opinion on Ms. Beverly’s sobriety, but Mr. Powell once answered “[bjecause she was high” and then responded “[t]hat was in my mind.” Id. at 12. Given this context, respecting the first set of questioning appellant cites, the trial court did not abuse its discretion in seeking a more pointed explanation for Mr. Powell.
As to the trial court’s questioning of Mr. Powell concerning his recollection that Ms. Beverly was not at the murder scene, the court’s intervention was again justified in *552context. The prosecutor had repeatedly asked how Mr. Powell knew Ms. Beverly was not at the murder scene, resulting in an argumentative cross-examination. Id. at 16-17. The trial court’s intervention ended this line of unproductive questioning, but also made it clear to the jury that the police did not simply arrest everyone at the scene. Moreover, appellant’s accusations that the trial court wanted to help the prosecution are belied by the court’s admonishments of the prosecutor. Just a few lines before the latter questioning that appellant cites, the trial court twice instructed the prosecutor to stop interrupting Mr. Powell with questions before he had finished speaking. Id. at 16 & 17. This record squarely belies appellant’s hindsight claim of partiality.
Appellant additionally accuses the trial judge of directly questioning Mr. Powell’s credibility:
THE COURT: This in no way indicates anything on my part as to your credibility. I’m just a judge. I’m in no way expressing an opinion. Did you take anything this morning that makes you a little light-headed?
MR. POWELL: No. That’s just me.
THE COURT: That’s the way you always are. I’m not being derogatory; I wanted to know so I know whether we should go on or have a recess or what.
Id. at 20. Appellant speculates the trial court’s above disclaimer and question was calculated to diminish Mr. Powell’s testimony, which was harmful because he was the only defense witness offered to discredit the lone eyewitness to the murder, Ms. Beverly.
The Commonwealth disputes appellant’s claim. When the trial court asked if Mr. Powell had taken anything that would make him light-headed, the Commonwealth asserts the court’s question was a logical response to Mr. Powell’s odd demeanor and responses on the witness stand. The Commonwealth also notes that the court prefaced his question to Mr. Powell by stating that he was not commenting on Mr. Powell’s credibility-
*553Even laying aside the fact that the cold record does not reveal demeanor, the record shows that Mr. Powell’s testimony had been peculiar. Mr. Powell asserted that Ms. Beverly had been “totally lost in space” at the scene of the murder and, just prior to the question at issue, his answer was odd and rambling. For instance, Mr. Powell’s prior uninterrupted answer included the following statements: “giving me feedback, feedback, crazy questions. That does not make no sense to me, that you asking me to answer crazy questions;” “Think about it. Duh. Think about it;” “Let me know who would go back, please. Please somebody let me know. Would anybody here go back, please raise your hand, please let me know;” and “Does it sound logical? Am I right or am I wrong? Does it sound logical?” Id. at 19-20. Considering Mr. Powell’s lengthy and strange response and the fact that counsel, who was present and could observe the demeanor and assess whether the trial court was acting out of “partiality,” this hindsight claim fails. We see no evidence of judicial impropriety.
2. Prior Relationship with the Prosecutor
Appellant next alleges that the trial judge must have acted in a biased manner, favoring the prosecutor, because the prosecutor had testified on behalf of Judge Ribner in an unrelated legal matter. Appellant states that Judge Ribner revealed during the proceedings in Commonwealth v. Christopher Williams, Crim. Div., April Term, Nos. 1770-96 & 1825-46 (Pa. C.C.P., Philadelphia County 1992) that the prosecutor had testified on his behalf in another legal matter. Appellant does not identify the case in which the prosecutor supposedly testified on the trial judge’s behalf, or how it reveals bias at this trial.
The Commonwealth notes that this attack on the trial judge is frivolous since appellant failed to provide any affidavits or documentary evidence to support his claim. Appellant’s omission, the Commonwealth maintains, dictates that his claim should be dismissed.
*554Appellant did not attach any document or any evidence to his PCRA petition to substantiate his insinuation. Likewise, in his reply brief before this Court, appellant did not address the Commonwealth’s argument that his claim was frivolous or provide other evidence to support his claim. Pennsylvania Rule of Criminal Procedure 902(D) requires that a PCRA petitioner “attach to the petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the petition shall state why they are not attached.” Appellant, however, did not attach a record of the supposed proceeding where the prosecutor testified on behalf of the trial judge, a signed declaration of a witness willing to testify to the proceeding, or any other document that would support his attack on the trial judge. This claim is both frivolous and reckless.
D. Miscellaneous Failures of Trial Counsel During Guilt Phase13
1. Impeachment of Commonwealth Witnesses
Appellant broadly argues that trial counsel did not properly impeach Edgar Clarke, Ramon Burton, and Ruth Beverly, making direct appeal counsel ineffective for not raising trial counsel’s missed impeachment opportunities. The Commonwealth, of course, denies that any of appellant’s impeachment claims have merit.
In respect to each of these witnesses, the PCRA court, without specifically addressing any particular argument appellant advanced, found that appellant’s complaints merely implicated the “depth and angle” of impeachment areas already explored by defense counsel at trial. PCRA ct. slip op. at 12. Due to the’ nature of the proposed failures, the PCRA court held that appellant could not demonstrate prejudice such that there was a reasonable probability that the verdict would have been different without the alleged errors.
The PCRA court was correct, as consideration of appellant’s specific claims in respect to each witness demonstrates.
*555a. Edgar Clarke
Appellant claims that counsel was ineffective in his impeachment of Mr. Clarke, in that counsel did not (1) elicit that Mr. Clarke was never charged for selling drugs on the day that William Lloyd was murdered and (2) establish that Mr. Clarke failed to appear for an August 1994 court date for a theft charged under another name.
The Commonwealth characterizes appellant’s claims as baseless and frivolous. The Commonwealth points out that appellant never offered any proof by way of supporting documentary evidence that Mr. Clarke evaded drug charges in exchange for his testimony against appellant. As to the theft charge, the Commonwealth notes that Mr. Clarke did testify about the charge. Moreover, the only proof appellant cites as to particular aspects of Mr. Clarke’s theft case comes from a hearing dated after appellant’s trial and in an unrelated case.
As we noted earlier, Criminal Rule 902(D) requires a PCRA petitioner to attach supporting documentary evidence for his claims or an explanation as to why such evidence was unavailable. When evidence is easily obtainable and would provide necessary support for a petitioner’s claim, we have rejected claims that were unsupported by documentary evidence. See Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605, 630-31 (2001) (rejecting claim due to absence of affidavit stating witness would have been available to testify at trial); Commonwealth v. Collins, 546 Pa. 616, 687 A.2d 1112, 1115 (1996) (claim fails in absence of document showing petitioner requested appeal).
Here, appellant never offered to prove that the Commonwealth bargained with Mr. Clarke in exchange for his testimony. Moreover, Mr. Clarke expressly denied at appellant’s trial that he was promised any benefit from the Commonwealth in exchange for his testimony. N.T. 7/7/1995 at 76. On this record, appellant has failed to prove that defense counsel had a basis in fact to impeach Mr. Clarke’s testimony in relation to the alleged lack of drug charges. Nor does appellant prove prejudice.
*556Regarding the circumstances of Mr. Clarke’s theft charge, appellant has not begun to establish that he was prejudiced by-trial counsel’s alleged failure to extract further details. At appellant’s trial, Mr. Clarke admitted that he had an open theft charge pending against him. Id. We are unconvinced that Mr. Clarke’s credibility would have been undermined to a materially greater degree if only trial counsel had also proven Mr. Clarke failed to attend a hearing in the case or that he had an alias. Neither of appellant’s impeachment claims involving Mr. Clarke succeeds.
b. Ramon Burton
Appellant next argues that trial counsel was ineffective for failing to impeach Mr. Burton, listing virtually the same evidence appellant claimed earlier in his Brief the Commonwealth was guilty of withholding from defense counsel. See supra at Section B(4)(c). Specifically, appellant argues that trial counsel should have impeached Mr. Burton with evidence that: (1) he was carrying an unregistered handgun on the night of the murder, yet faced no criminal charges for the act; (2) he operated a narcotics business out of his store and escaped prosecution in relation to that illegal business; (3) he failed to file IRS business records; (4) he entered the country illegally as a “Minister of Religion;” and (5) he used aliases.
The Commonwealth revives its arguments from appellant’s Brady claim. It notes that the jury would not be surprised that Mr. Burton had an unregistered weapon or did not file business records with the IRS. Additionally, the Commonwealth argues appellant never offered to prove that Mr. Burton’s gun was unregistered or that Mr. Burton had not filed IRS records. As for the INS file, the Commonwealth again contends that it would not have been available to trial counsel since it did not exist at the time of appellant’s trial. Finally, the Commonwealth notes that appellant never demonstrates how any of this information, if presented at trial, would have altered his verdict.
*557We agree that appellant has not shown that he was prejudiced by trial counsel’s alleged impeachment lapses. Establishing that Mr. Burton was involved in other illegal activities would not ineluctably alter the jury’s opinion of him, much less lead to a different verdict. The INS record appellant cites did not exist at the time of trial; any accusation against counsel on that basis is frivolous. To the extent that appellant implies that Mr. Burton provided testimony in exchange for a promise of favorable treatment from the Commonwealth, appellant’s allegations are unsupported by proof. These claims are baseless.
c. Ruth Beverly
Appellant next claims that trial counsel should have impeached Ms. Beverly on the basis of false statements she gave to the police on the night of the murder. Since Ms. Beverly gave false statements to the police, appellant argues, she had a motive to lie at appellant’s trial to avoid prosecution for her crime, contrary to the prosecutor’s contentions at trial. Appellant also argues that his trial counsel should have elicited testimony from Ms. Beverly concerning the “coercive pressure” the police applied to produce her eventual statement against him. Appellant’s Brief at 36.
The Commonwealth argues that the record does not reflect that the police applied undue pressure on Ms. Beverly to force her to give a statement. Moreover, the Commonwealth notes, Ms. Beverly’s displeasure with the police enhances her credibility because she cooperated with them despite that displeasure. As for appellant’s charge that Ms. Beverly gave a false statement to police on the night of the murder, the Commonwealth notes that this is another of appellant’s unsupported accusations. However, even if Ms. Beverly did give such a false statement, the Commonwealth asserts, such would be understandable given her frightened state. The Commonwealth notes that Ms. Beverly moved out of Philadelphia because she was threatened by appellant’s friends to stay silent, which thoroughly undercuts appellant’s speculation that she testified against him to escape criminal sanction.
*558Appellant’s trial counsel attempted to impeach Ms. Beverly on several counts, most notably, accusing her of having sexual relations with appellant for drugs and uncovering Ms. Beverly’s former drug addiction. E.g., N.T. 7/11/1995 at 141-43; 160-61. Despite Ms. Beverly’s admitted drug use, appellant was convicted of murdering William Lloyd. The additional impeachment evidence that appellant now argues should have been used at trial would not have changed that outcome.
Indeed, the alleged impeachment evidence may well have bolstered Ms. Beverly’s credibility. Ms. Beverly testified that she feared for her life after witnessing the crime and, after receiving threats not to talk to police, she decided to move her family away from Philadelphia. N.T. 7/10/1995 at 148, 180. Her fear would explain appellant’s accusation, if only it were true, that Ms. Beverly lied to the police on the night of the murder about her identity. There is no evidence, however, that Ms. Beverly was threatened with or feared being prosecuted for making false statements to the police. Furthermore, had defense counsel established that Ms. Beverly gave a false statement to the police at the scene of the murder, this testimony would have undermined defense witness, Mr. Powell, who asserted that Ms. Beverly was not in the location where the murder occurred.
Addressing appellant’s accusation that the police coercively obtained a statement from Ms. Beverly, the record of the hearing that appellant cites to support his argument does not reflect that she was so compelled by the police. N.T. 2/22/1994 at 52-53. Instead, it illustrates that Ms. Beverly was angry with the police for bringing her to the police station when she had not eaten or bathed, but she nevertheless told the police what she observed. Once again, even if appellant’s fictitious allegations were accepted as true, he has not proven that there is reasonable probability that the verdict would have been different had counsel presented these accusations to the jury.
2. Use of Commonwealth Discovery
Appellant next claims that trial counsel was ineffective for failing to call Penny Hairston to testify that he did not *559see appellant on the night of the murder and, instead, saw Ike Jones with a .22 caliber gun, a gun capable of firing the bullets that killed William Lloyd.14 Appellant argues that Mr. Hairston’s testimony would have supported his claim that he did not commit the murder, especially since Mr. Hairston did not tell the police that he saw appellant on the street once the shooting began. To support this claim, appellant cites separate statements that Mr. Hairston gave the police. Appellant asserts that Mr. Hairston was available to testify, but was never called.
The Commonwealth responds that the testimony from Mr. Hairston would merely have been cumulative evidence of the gun battle that occurred outside of Mr. Hairston’s home and which involved several individuals. Testimony from Mr. Hairston, the Commonwealth states, would not have been exculpatory given the number of people involved in the shootout and given that an eyewitness saw appellant murder William Lloyd.
The PCRA court found that Mr. Hairston could not have provided significant impeachment evidence relevant to appellant’s guilt. As such, the court ruled that appellant did not show a reasonable probability that if the evidence had been presented, the verdict would have been different.
Mr. Hairston’s testimony would have only validated the testimony of Mr. Clarke and would not have been exculpatory. The jury heard testimony that several men were involved in the initial gun battle prior to the murder. Also, proof that Mr. Jones had been carrying a .22 caliber handgun does not prove that appellant did not have a similar gun. Therefore, appellant’s claim is without merit.
3. Oral Statement by Monique Wylie
Appellant next assails his trial counsel for failing to object to Officer Glenn Keenan’s testimony concerning what Monique Wylie told him about the robbery at Mr. Hairston’s on the *560night of the murder and for failing to object to the prosecutor’s use of Officer Keenan’s statement during his summation. Specifically, appellant notes that Ms. Wylie testified to being asked by Mr. Jones on the night of the murder to help him rob Mr. Hairston’s home, but did not name any other individuals who would be involved. Appellant objects to Officer Keenan’s contrary testimony that Ms. Wylie told him that appellant was going to be involved in the robbery with Mr. Jones. Appellant contends that Officer Keenan’s account of Ms. Wylie’s oral statement to police was inadmissible for its substantive purpose. Officer Keenan’s testimony was highly prejudicial, appellant argues, because the prosecutor utilized it in his closing. Moreover, appellant claims that trial counsel was ineffective for failing to introduce the portion of Ms. Wylie’s official police statement that contradicted Officer Keenan’s recollection.
The Commonwealth disputes that Ms. Wylie’s oral statement to Officer Keenan was offered as substantive evidence and, instead, argues that the statement was introduced to impeach Ms. Wylie’s testimony. During direct examination, the Commonwealth notes that Ms. Wylie denied that Mr. Jones had told her that appellant and a third man would also rob Mr. Hairston’s home. According to the Commonwealth, Ms. Wylie’s testimony was contrary to what she had told the prosecutor before testifying, namely, that Mr. Jones told her appellant would participate in the robbery. The Commonwealth further notes that the prosecutor’s purpose for introducing the statement is supported by his closing, where he remarked that Ms. Wylie had not been completely truthful on the witness stand. Furthermore, the Commonwealth argues that appellant cannot show prejudice by the admission of the statement, because there was substantial other evidence to tie him to the robbery.
Appellant also makes an additional layered ineffectiveness argument related to Ms. Wylie’s statement, claiming that the jury should not have found the sentencing aggravator under 42 Pa.C.S. § 9711(d)(6) (murder committed in the pérpetration *561of a felony) because it was based on the improper admission of Ms. Wylie’s statement to Office Keenan.
The credibility of a witness may be impeached by the party calling that witness. Pa.R.E. 607(a); see Commonwealth v. Kimbell, 563 Pa. 256, 759 A.2d 1273, 1276-77 (2000). Any evidence relevant to the impeachment issue may be used against a witness, except that which is prohibited by the rules of evidence. Pa.R.E. 607(b). Hearsay, which is a statement made by someone other than the declarant while testifying at trial and is offered into evidence to prove the truth of the matter asserted, is normally inadmissible at trial. Pa.R.E. 801(c) & 802. Impeaching a witness through the introduction of an inconsistent out-of-court statement will not be considered hearsay if the statement is: (1) under oath subject to the penalty of perjury at a trial, hearing, other proceeding, or deposition; (2) in writing and adopted by the declarant; and (3) a verbatim contemporaneous recording of the oral statement. Pa.R.E. 803.1(1).15
We agree with appellant that there was a basis to object to Officer Keenan’s recollection of Ms. Wylie’s statement, as it was an oral recollection of what Ms. Wylie told him and did not comport with the requirements of Rule 803.1(1). However, appellant has not shown prejudice because there was ample independent evidence that appellant was a co-conspirator in the robbery that occurred befo're William Lloyd’s murder. Mr. Burton testified that appellant was shooting at his car shortly after Mr. Hairston’s house had been robbed. Mr. Clarke recalled appellant being present at Mr. Hairston’s house earlier in the day with the two men who robbed him at that location a short time later. Additionally, Ms. Wylie testified that appellant was with Mr. Jones at a local bar when Mr. Jones asked her to participate in the robbery on the day of the murder. This evidence alone would have been sufficient to convict appellant of conspiracy to commit robbery and, therefore, has not proven Strickland prejudice.
*562 I. Failure to Object to Reasonable Doubt Instruction
Appellant next accuses trial counsel of ineffectiveness for failing to object to the reasonable doubt instruction given at both the guilt and penalty phases. Specifically, appellant says that the trial court improperly instructed the jury that a reasonable doubt is a “a doubt that would restrain a reasonably careful and sensible person from acting upon [a] matter of importance in his or her own affairs.” N.T. 7/13/1995 at 6. Instead of using the word “restrain,” appellant argues that the trial court was required to use the word “hesitate,” which is employed in the non-binding Pennsylvania Standard Criminal Jury Instruction § 7.01(3).
The Commonwealth argues that trial counsel did not err when he failed to object to the use of the word “restrain” in the reasonable doubt instruction, since this Court has repeatedly approved the use of the word in such instructions. The PCRA court agreed.
When evaluating jury instructions, this Court must consider whether the instructions as a whole were prejudicial. Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292, 301 (2001). A trial court is not required to use any particular jury instructions, or particular forms of expression, so long as those instructions clearly and accurately characterize relevant law. Id. (citing Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273, 1274 (1990)). We have previously approved of jury instructions that describe a reasonable doubt as something that would “restrain a reasonably careful and sensible person from acting.” Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390, 401 (1999); see also Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258, 263 (1974); Commonwealth v. Donough, 377 Pa. 46, 103 A.2d 694, 697 (1954). In Commonwealth v. Porter, we held that “the distinction between ‘hesitate before acting’ and ‘restrain before acting’ is de minimis and clearly such a subtle variation in phrasing would not be an abuse of the trial court’s discretion.” 556 Pa. 301, 728 A.2d 890, 900 (1999). In light of this existing authority, the notion that counsel was ineffective is frivolous.
*563 5. Handgun Associated with Appellant’s Arrest
Appellant’s final claim under this category is that trial counsel and appellant counsel were ineffective for not challenging the testimony of the ballistics expert concerning the .38 caliber handgun found with appellant at the time of his arrest, which the expert noted could have fired some of the bullets found in Mr. Burton’s car. Appellant argues that the probative value of this testimony was outweighed by its prejudicial effect, because: (1) the gun is akin to bad acts evidence; (2) the gun was not the same caliber as the .22 caliber bullets that killed the victim; (3) there was a distinct time interval between the bullets that were fired at Mr. Burton’s car and at the victim; and (4) bullets that could be attributed to a .38 caliber handgun were found where Mr. Burton was fired at and not at the murder scene. Moreover, appellant notes that the jury had no basis to judge the importance of the testimony from the ballistics expert and should have been told how may other guns were capable of firing the bullets that killed the victim.
The Commonwealth devotes little argument in response, claiming in a single paragraph that appellant’s argument is baseless because the .38 caliber gun found at the time of appellant’s arrest could have been the source of several bullet fragments found in Mr. Burton’s car. Agreeing with the Commonwealth, the PCRA court found that the factual circumstances surrounding the gun made testimony concerning it admissible.
The ballistics expert testified that the gun recovered from appellant on the day he was arrested could have fired a bullet fragment found in Mr. Burton’s car. N.T. 7/11/1995 at 74. On cross-examination, however, appellant’s trial counsel clarified that the bullet fragments found near William Lloyd’s body did not match any of the weapons recovered by the police in their investigation. Id. The recovered gun certainly was relevant to establish a possible link between appellant and the vicinity of the murder scene and, as such, was admissible. Appellant’s argument goes to the weight of the evidence. *564Moreover, appellant has not proved prejudice resulting from its admission, particularly because trial counsel, far from being incompetent, established that the gun recovered on appellant at the time of his arrest did not match the murder weapon.
E. Jurors Saw Appellant in Handcuffs16
Appellant next claims that his trial and appellate counsel were ineffective for neglecting to take sufficient steps to establish that he had been prejudiced at trial when several jurors saw him outside of the courtroom in handcuffs, largely resurrecting a claim he argued on direct appeal. Appellant cites signed declarations obtained from juror Duwan Lang and alternative juror Cynthia Wright as evidence that jurors did see him in handcuffs during the trial, noting at least one of the jurors thought appellant looked dangerous. Appellant argues that the trial court’s instructions did not cure any resulting prejudice and, instead, actually suggested that appellant was a dangerous individual with past convictions. Moreover, he accuses trial’counsel of being ineffective for not requesting that the trial court poll the jury, conduct a hearing, or issue a proper instruction in connection with the purported incident. Appellant labels his appellate counsel as ineffective for failing to litigate these issues on direct appeal in the manner that current counsel prefers to pose the issue.
The Commonwealth argues that appellant’s claim was previously litigated, just as the PCRA court decided below, because direct appeal counsel argued that the trial court abused its discretion in denying appellant’s motion for a mistrial on the basis that some jurors may have seen him in handcuffs. However, since appellant’s claim was not previously litigated as an ineffective assistance of counsel claim, we will not dismiss it out of hand. See Collins, 888 A.2d at 573.
In Commonwealth v. Evans, this Court found that the possibility that jurors saw the defendant in handcuffs would not necessarily “contaminate the jury’s decision-making process.” 465 Pa. 12, 348 A.2d 92, 94 (1975). Over a decade *565later, this Court declared that a brief viewing of the defendant in handcuffs “is not so inherently prejudicial as to strip the defendant of the presumption of innocence.” Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 501 (1988).17
Appellant makes no effort to explain how his trial and appellate counsel can be deemed to have acted unreasonably in light of this Court’s prior holdings that a jury’s brief viewing of a defendant in handcuffs is not so prejudicial as to destroy a jury’s objectivity in rendering a verdict. Even though this Court’s case law clearly indicated that appellant could not expect more than a cautionary instruction from the trial court in the event jurors observed him in handcuffs, in point of fact trial counsel here requested, but was denied, relief in the form of a mistrial. Trial counsel was not incompetent in failing to ask the trial court to poll the jury or conduct a hearing.
Similarly, the trial court’s instruction in response to appellant’s request for a mistrial did not harm appellant. The trial court instructed the jury that:
The fact that someone is arrested and accused of a crime or even the fact the he might be held in custody, that is not any evidence against him and you should not draw any conclusion from those facts.
Sometimes a person is held in custody for reasons which have nothing to do with guilt or innocence.
You cannot in anyway consider that as evidence one way or the other.
N.T. 7/13/1995 at 4. Prudently, the trial court did not alert the jury’s attention to the specific reason why appellant requested a mistrial and instructed the jury that it could not consider the possibility that appellant might be held in custody as evidence of his guilt or innocence. Appellant’s contention that the trial *566court’s instruction necessarily suggested that he committed past crimes is not supported by the record. Moreover, even if one could construe the trial court’s instruction as appellant does, the trial court instructed the jury that they could not consider appellant’s possible custodial detention as evidence. There would have been no merit in an objection to the instruction from appellant’s prior counsel.
F. Admission of Evidence from Officer Joseph Thomas18
Appellant claims that it was improper for the trial court to admit hearsay testimony from Officer Joseph Thomas and, accordingly, his prior counsel were ineffective for not objecting to the testimony. Particularly, appellant contends that Officer Thomas should not have been allowed to testify that an announcement on police radio, on the night of the murder, informed him that William Lloyd’s shooter had run toward the 2100 block of Catherine Street. Appellant asserts that this testimony violated his Confrontation Clause rights and that he was prejudiced by admission of the information, as the prosecutor argued in his closing that the police were informed that William Lloyd’s murderer ran in the direction of where appellant lived on Catherine Street.
The Commonwealth argues that Officer Thomas’s testimony was properly admitted as course of conduct evidence, permitted for the purpose of establishing that the police followed a specific course based on information transmitted to the police. The Commonwealth argues that the police found and arrested appellant based, in part, on the information disseminated on the radio. Additionally, the Commonwealth notes that appellant cannot show that the verdict would have been different if the statement had been excluded. For its part, the PCRA court accepted the Commonwealth’s instant argument and denied appellant’s claim.
The Confrontation Clause affords the accused in criminal prosecutions the right to confront adverse witnesses. U.S. Const, amend. VI. Made applicable to the states via the *567Fourteenth Amendment of the U.S. Constitution, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965), the Confrontation Clause may be violated by the admission of harmful hearsay testimony as substantive evidence against the defendant. Collins, 888 A.2d at 576. However, it is elemental that, “[a]n out of court statement which is not offered for its truth, but to explain the witness’ course of conduct is not hearsay.” Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987) (citing Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032, 1035 (1980)); see also Chmiel, 889 A.2d at 532. Moreover, of course, the purpose for which evidence is offered determines its admissibility. See Commonwealth v. Dejesus, 584 Pa. 29, 880 A.2d 608, 615 (2005).
In the instant matter, Officer Thomas testified that he heard on the police radio that the individual who shot William Lloyd ran toward Catherine Street. He then requested that another officer arriving on the scene check the area. Since the evidence was introduced for course of conduct, and not for its truth, it was not hearsay, and counsel cannot be deemed incompetent for failing to object.
G. Consolidation of Robbery and Murder Cases19
Appellant argues both in consolidating the robbery and murder charges into a single case, and in presenting two different theories of the case during the proceedings against him, the Commonwealth’s actions were improper and that his prior counsel were ineffective when they did not argue judicial estoppel prevented the Commonwealth from making inconsistent arguments. Appellant cites the Commonwealth as arguing in its motion for consolidation that appellant and a co-defendant shot William Lloyd during a gun battle with Mr. Burton. Then, at trial, appellant argues, the Commonwealth characterized William Lloyd’s murder as a separate shooting appellant singularly committed. Appellant contends that his trial counsel was ineffective for failing to publish to the jury the Commonwealth’s admission that two people struck the victim in the shootout, because such evidence would have *568provided the jury with reasonable doubt, and direct appeal counsel should have argued this claim.
The Commonwealth responds that consolidation of the murder and robbery cases was proper, as the Commonwealth proved that appellant and his co-conspirators robbed a house, engaged- in a gun battle outside of the house, and, as defendant fled, he committed murder. The Commonwealth says appellant falsely alleges that the Commonwealth claimed at trial that the shooting stemmed from two separate incidents.
The PCRA court held that there was no error in the trial court’s consolidation of the cases because there was ample evidence to show that the charges were related.
Offenses charged in separate indictments may be joined together if the “offenses charged are based on the same act or transaction.” Pa.R.Crim.P. 582(A)(1)(b). The trial court has discretion to decide whether separately charged offenses should be joined together at trial, and its decision will only be overturned where the trial court abused its discretion or the consolidation clearly prejudiced the defendant. Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 481 (2004), cert. denied, — U.S. -, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005) (citing Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275, 277 (1991)).
Here, the Commonwealth consistently maintained in the motion for consolidation, oral argument for the motion for consolidation, and trial that appellant was solely responsible for killing William Lloyd, the innocent bystander in a gunfight that began shortly after the robbery at Mr. Hairston’s house. Appellant’s argument that the Commonwealth presented two theories of the ease is refuted by the very documents that he attached to his Supplemental PCRA petition. Although the prosecutor said during his oral argument on the motion that “[t]hey strike a bystander,” in his next breath he asserted that an eyewitness saw appellant shoot the decedent. N.T. 3/20/1995 at 24. Appellant blatantly quoted the prosecutor’s statement out of context, in an attempt to characterize a poor choice of words as the Commonwealth’s intentioned admission. *569Appellant’s prior counsel was not ineffective, but was instead ethical, for failing to forward a similarly frivolous argument.
H. Jury Instruction Regarding a Permissible Inference20
Appellant claims that the trial court gave an improper permissible inference instruction related to the doctrine of transferred intent when it allowed the jury to infer appellant’s specific intent to kill William Lloyd from the use of a deadly weapon on a vital organ; thereby, allegedly relieving the Commonwealth from its burden of proof to establish intent. The wounds on the victim’s body, appellant maintains, are irrelevant to the determination of whether appellant had the 'specific intent to kill someone else. Appellant argues that it is only rational to infer a specific intent to kill when the victim is the person that the defendant intended to shoot. Lastly, appellant contends his trial counsel was ineffective when he did not object to the instruction and, thereafter, appellate counsel was ineffective for not raising trial counsel’s ineffectiveness on direct appeal.
The Commonwealth asserts that appellant’s claim was previously litigated, since he challenged the appropriateness of the transferred intent charge, albeit on alternate theories of relief, on direct appeal. The PCRA court accepted this argument below, but we will review appellant’s claim within the context of the layered ineffective assistance claim he presents to us, a claim which he did not raise on direct appeal. See Collins, 888 A.2d at 573.
A permissive inference is an evidentiary tool that permits a fact-finder to proceed on inferential reasoning, such that a fact-finder may infer an elemental fact from proof of a basic fact. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 389 (2000). When a permissive inference leaves the fact-finder free to accept or reject the inference, a permissive inference does not affect the burden of proof and it only affects the beyond a reasonable doubt standard when, under the facts of the case, there is no way the fact-finder could arrive at the conclusion permitted by the inference. County *570Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979); see also Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537, 547-48 (2003). We have opined that a “[s]pecific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim’s body.” Commonwealth v. Damon Jones, 530 Pa. 591, 610 A.2d 931, 938 (1992).
Here, the trial court instructed the jury that, if it found that appellant used a deadly weapon on a vital part of the victim’s body, it was free, but not required, to infer that appellant had a specific intent to kill. The evidence presented at trial permitted this inference because the Commonwealth presented testimony that appellant shot at Mr. Burton shortly before William Lloyd was killed. Consequently, the trial court did not erroneously shift the burden of proof for specific intent away from the Commonwealth. Furthermore, it bears noting that appellant’s theory is novel (and indeed unsupported by existing authority). Counsel cannot be faulted for failing to advance novel (and as yet unaccepted) theories.
II. PCRA DISCOVERY21
Appellant renews his request for discovery, which was denied by the PCRA Court. He makes a broad request that the Commonwealth be ordered to replicate all discovery provided to trial counsel, because PCRA counsel claims uncertainty whether they received all discovery materials from trial counsel and current counsel received nothing from direct appeal counsel. More specifically, hoping to dispute that the gun recovered from appellant at his arrest could be linked to the instant crime, appellant desires all ballistics reports and evidence for ballistics testing. Appellant also asks for school records from Glen Mills, where appellant was placed in detention as a juvenile, and his corresponding juvenile files, since he says they show that he performs well in detention. Appellant next requests Officer Keenan’s disciplinary file and any other evidence showing a history of payments to witnesses. Finally, appellant seeks any information in the Commonwealth’s files *571related to Ramon Burton, including information on his 1991 criminal prosecution under another name, because, he says, Mr. Burton’s credibility was important to the case against him.
The Commonwealth contends that appellant’s claim is unreviewable, as he did not sufficiently develop how the requested discovery relates to his PCRA appeal. The Commonwealth calls appellant’s request a “boilerplate laundry list” that is insufficient to establish good cause for the production of the materials he desires.22
“On the first counseled [PCRA] petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.” Pa.R.Crim.P. 902(E)(2). A denial of a discovery request is reviewed for abuse of discretion. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 591 (2000). In Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1175 (1999), this Court held that general requests for PCRA discovery are insufficient to establish good cause, especially when it is unclear why PCRA counsel was unable to obtain discovery materials from former counsel. Furthermore, a PCRA petitioner is not entitled to discovery where he has not shown the existence of requested documents, Commonwealth v. Bridges, 584 Pa. 589, 886 A.2d 1127, 1131 (2005), as speculation that requested documents will uncover exculpatory evidence does not satisfy the requirements of Rule 902(E)(2). Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 750 (2004).
Appellant’s discovery requests are nothing more than a fishing expedition for possible exculpatory evidence. He has not demonstrated that the ballistics results were erroneous, that Officer Keenan was disciplined for paying witnesses, or that the Commonwealth possessed the purported impeachment evidence on Mr. Burton. Moreover, he does not explain why his PCRA counsel may not have received a complete set of trial counsel’s discovery files or why the Glenn Mills records he was given at the sentencing hearing, as he admits in a later *572penalty phase claim (III.B.), are now missing. Even if PCRA counsel has been unable to contact direct appeal counsel, appellant has not explained why trial counsel’s files would differ. Appellant has not demonstrated good cause to require granting his speculative discovery request pursuant to Rule 902(E)(2).
III. PENALTY PHASE CLAIMS
A. Death Qualified Jurors23
Declaring that he is entitled to a new sentencing hearing, appellant claims that his sentencing jury was partial because the jury was not life-qualified and that death-qualified jurors were improperly excluded for cause. Appellant argues that his trial counsel was partially responsible for the jury’s supposed partiality because he did not conduct any voir dire concerning jury bias against imposition of a life sentence or rehabilitate jurors whom the trial court dismissed. Appellant also contends that his trial counsel was ineffective when he accepted jury members without specifically life-qualifying them. Appellant also argues that direct appeal counsel should have litigated these issues, and declares he 'had no strategic or tactical reason for doing otherwise.
In response, the Commonwealth argues that the trial court properly dismissed jurors for cause who expressed an inability to impose the death penalty or to follow the trial court’s instructions on the law. The Commonwealth asserts that there is no legal authority to support appellant’s claim that his trial counsel was constitutionally obliged to specifically life-qualify all jury members.
The PCRA court held that the record revealed no instance where the trial court abused its discretion in dismissing a juror for cause, as each of the specific jurors appellant cites expressed doubts about his or her ability to vote for the death penalty. As to appellant’s claim that all jurors must be life-qualified, the lower court noted this Court’s authority that a selection of a fair and impartial jury does not require such an *573inquiry. Moreover, the court found that appellant offered no evidence that the jury ultimately seated in fact was unfair or partial.
The decision to disqualify a juror is within the discretion of the trial court, a decision which will only be reversed for an abuse of discretion. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 299 (1996). Any person may be excluded from a jury who holds views on capital punishment that prevents or substantially impairs that person from adhering to the trial court’s instructions on the law. Robinson, 864 A.2d at 488; Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 48 (1997). “A juror’s bias need not be proven with unmistakable clarity.” Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 525 (1997). For instance, in Morales, we held that a juror expressed sufficient doubt about his ability to impose the death penalty when he said, “I’m not certain that I could judge someone fair enough to give them the death penalty.” Id. We also found no error in excluding a juror who did not “feel comfortable having to make a decision about someone else’s life” and who “always” doubts whether imposing the death penalty is correct. Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130, 137 (1996).
If a defendant wishes to life qualify jurors on voir dire, he must be permitted to do so. Morgan v. Illinois, 504 U.S. 719, 735, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992); Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806, 813 (2004). However, there is no requirement that trial counsel life-qualify jury members and counsel cannot be rendered ineffective for failing to do so. Robinson, 864 A.2d at 487-88; Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 79-80 (2004); Commonwealth v. Speight, 578 Pa. 520, 854 A.2d 450, 459 (2004); Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 50 (2002).
Here, the trial court was within its discretion to exclude jurors who expressed reservations about imposing the death penalty and trial counsel had no constitutional obligation *574to attempt to change the jurors’ views.24 Furthermore, since existing precedent does not impose a requirement that trial counsel must life-qualify each juror, appellant’s claim that counsel was ineffective in this regard is frivolous.
B. Glen Mills Records25
Next, appellant argues that the trial court committed constitutional error, violating both the Eighth and Fourteenth Amendments, as well as Article I, Section 13 of the Pennsylvania Constitution, when it refused to admit appellant’s Glen Mills records into evidence without authentication. Appellant contends that his performance at Glen Mills, a school for delinquent youth, demonstrates his positive performance in an institutional setting, making the records vital mitigating evidence. Appellant asserts that the trial court’s ruling prevented him from presenting a defense to the death penalty. He also declares that the prosecutor committed a Brody violation by not disclosing the records to appellant earlier. Appellant then attaches these claims of trial court and prosecutor error to boilerplate allegations of counsel ineffectiveness.
The Commonwealth responds that appellant has previously litigated this claim and, therefore, it does not deserve redundant review. The PCRA court agreed with the Commonwealth, stating it was bound by this Court’s previous resolution of the claim on appellant’s direct appeal.
*575On direct appeal, appellant argued that his trial counsel was ineffective for failing to produce witnesses to authenticate the Glen Mills records and introduce the records into evidence. Carson I, 741 A.2d at 707. This Court found that appellant did not demonstrate that he was prejudiced by the absence of the records, because he failed to show witnesses were willing and available to testify on his behalf and he neglected to establish that the records would have been helpful to him. Id. Thus, any ineffectiveness claim appellant now makes in respect to his trial counsel’s failure to present witnesses to authenticate the records is previously litigated. 42 Pa.C.S. § 9544(a)(2). However, to the extent that appellant argues that appellate counsel was ineffective for failing to make certain arguments to the Court on direct review, we accept the claim as a distinct ineffectiveness claim and will conduct a substantive review. See Collins, 888 A.2d at 573.
Appellant’s argument that appellate counsel should have raised a Brady argument on direct appeal is curious, since he previously acknowledged on direct appeal that trial counsel could have become aware of the Glen Mills records simply by questioning his client and gathering appellant’s criminal history through discovery. Carson I, 741 A.2d at 707. In discussing appellant’s Brady claims, supra at Section I.B.4, we explained that there is no Brady violation where the information is available through non-governmental sources and can be obtained through defense counsel’s own reasonable investigation. Morris, 822 A.2d at 696; Paddy, 800 A.2d at 305. Obviously, appellant’s attendance and performance at Glen Mills was not information exclusively within the government’s knowledge such that it qualifies as Brady material. Consequently, this portion of appellant’s argument is frivolous.
Regarding appellant’s additional argument that the trial court’s exclusion of the records violated his constitutional rights and his right to present a defense against the imposition of capital punishment, the United States Supreme Court has stated that a defendant’s “disposition to make a well-behaved and peaceful adjustment to life in prison” is a rele*576vant factor in sentencing determinations. Skipper v. South Carolina, 476 U.S. 1, 7, 106 S.Ct. 1669, 1672, 90 L.Ed.2d 1 (1986). However, before evidence may be admitted at a sentencing hearing, the trial court must determine whether the evidence is “relevant and admissible on the question of the sentence to be imposed.” 42 Pa.C.S. § 9711(a)(2). Business records, which include records from non-profit institutions,26 are:
competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
42 Pa.C.S. § 6108(b); see also Pa.R.E. 808(6) (amended in 2001 to allow business records to be authenticated by certification).
Here, appellant has never accused the trial court of erroneously ruling that an individual needed to authenticate the Glen Mills records before they could be deemed admissible. Instead, appellant argues that evidentiary rules should not operate to prevent introduction of what he feels is reliable and critical sentencing evidence from being presented to the jury.27 Counsel was not obliged to invent this novel argument, *577which has yet to be accepted by any controlling tribunal. Appellant is, furthermore, ill-suited to demonstrate prejudice from the exclusion of the Glen Mills records when the jury found four aggravating factors28 and no mitigating factors.29 Most notably, appellant’s sentencing jury opted not to find any mitigating factors after appellant’s presentation of arguably more compelling mitigation evidence than his delinquency school records — namely, testimony from the mother of appellant’s child and his cancer-stricken father that depicted appellant as a loving family man. Because appellant has not proved his argument has merit or that he was prejudiced, he is not due any relief on this claim.
C. Presentation and Investigation of Mitigating Evidence30
Appellant next claims that his trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence of his alleged organic brain damage, traumatic childhood, and prior positive adjustments to incarceration. Direct appeal counsel, appellant contends, was subsequently ineffective for failing to argue trial counsel’s ineffectiveness. Appellant specifically notes that trial counsel did not present evidence at his sentencing hearing that: (1) he grew up in an unstructured environment in which he was neglected by his parents; (2) his dysfunctional childhood influenced his psycho*578logical and emotional development; (3) his organic brain impairments explain his poor impulse control; and (4) he adjusts favorably to a structured environment.
Appellant asserts that trial counsel never researched and uncovered evidence of his difficult childhood, citing trial counsel’s failure to interview his mother or brother on any matter and trial counsel’s limited questioning of his father and the mother of his child. This lack of investigation, appellant argues, prevented trial counsel from learning that appellant’s mother operated a speakeasy and illegal gambling out of her home. Appellant contends that his mother’s activities and his father’s absence left him with little parental supervision, leaving him primarily in the care of his siblings.
Appellant claims that due to his childhood environment he developed psychological problems. For proof of this assertion, he offers a 2001 signed declaration from Richard Dudley, M.D., stating that his lack of adequate parenting caused him to be immature, developmentally delayed, extremely impulsive, and lacking in self-esteem. Additionally, appellant argues that Dr. Barry Crown, a neuropsychologist, found that he had significant emotional and intellectual impairments, with extremely impaired impulse control, possibly stemming from fetal alcohol syndrome. Appellant argues that trial counsel was ineffective for failing to consult with a mental health expert and develop evidence of his organic brain damage.
Appellant also reiterates that the Glen Mills records were potentially mitigating in that they established his positive response to structured environments, since he performed well academically and was voted “Most Valuable Player” of the school basketball team during his time in juvenile detention. Appellant maintains that trial counsel should have investigated his performance at the juvenile facility in advance of trial and presented the records as mitigation evidence. To support the validity of these claims, appellant provides a signed “declaration” from trial counsel, in which trial counsel summarily admits to failing to adequately prepare for the penalty phase of appellant’s trial, claiming that the lapse resulted from his expecting a verdict less than first-degree murder. Appellant *579includes no declaration or other proffer respecting appellate counsel.
The Commonwealth contends that appellant’s arguments ignore the substantial mitigating evidence that prior counsel actually presented on his behalf and accuses appellant of attempting to retry his sentencing case on a new theory of law. Contrary to appellant’s current hindsight mitigation theory, the Commonwealth argues, the evidence appellant presented at the sentencing hearing indicated that he was raised by a caring family. Moreover, the Commonwealth points out that trial counsel had no reason to suspect that appellant had a traumatic upbringing. Even if the jury had heard evidence of appellant’s supposedly “unstructured environment,” the Commonwealth posits, it is doubtful the jury would have viewed such evidence as mitigating, especially when many people are raised in such environments and do not become murderers.
The Commonwealth further notes that neither of appellant’s experts explained how they may be assured that appellant’s mental state during their evaluations was the same as it was eight years before, when appellant murdered William Lloyd. Moreover, the Commonwealth deems it significant that appellant’s experts did not attempt to explain two contrary mental health examinations of appellant, one three years prior to the murder and one during the penalty phase of appellant’s trial. Not only did these more timely mental health exams indicate no signs of brain damage, the Commonwealth argues, but appellant’s argument is also directly contrary to his testimony at trial that he had a minimum IQ of 125. In the face of appellant’s self-proclaimed high intelligence, the Commonwealth surmises that the jury would have viewed appellant’s brain damage claim with disdain. As for appellant’s argument pertaining to the Glen Mills records, the Commonwealth argues that that aspect of the claim was previously litigated on direct appeal.
The PCRA court rejected this claim without a hearing. In the PCRA court’s view, appellant’s mitigation claim was nothing more than “Monday morning quarterbacking” of a thor*580oughly reasonable mitigation presentation by counsel. PCRA ct. slip op. at 18. The court also noted that appellant’s sentencing witnesses did not support his current belated claim that he grew up in a home without structure and that trial counsel had no reason to suspect appellant had cognitive defects.
With respect to penalty phase mitigation evidence, counsel has a duty to conduct reasonable investigations or to make reasonable decisions that make certain investigations superfluous. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1079 (2006); Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 784 (2004); Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 475 (2004). Likewise, the U.S. Supreme Court has recognized that counsel for a capital defendant has a duty to “conduct a thorough investigation of the defendant’s background.” Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000). When counsel makes a strategic decision to present a particular penalty phase defense after a thorough investigation of law and facts, his decision is virtually unchallengeable. Bridges, 886 A.2d at 1132 (citing Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2052). Strategic decisions made after a less thorough investigation are reasonable to the extent that reasonable professional judgment supports the limited investigation. Id. The key to our evaluation of counsel’s investigation is not focused on whether counsel should have presented a mitigation case or specific evidence, but rather questions whether the investigation supporting counsel’s decision not to present a particular mitigation case or evidence was reasonable. Malloy, 856 A.2d at 784. In evaluating the reasonableness of counsel’s investigation, this Court must remember that counsel’s decisions may depend heavily on the information that his client provides to him. Gribble, 863 A.2d at 476.
We have previously affirmed the denial of ineffectiveness claims similar to the one presented by appellant here where a petitioner had an opportunity in a PCRA hearing to demonstrate the merit of his claim, but failed to do so. Thus, in Bridges, 886 A.2d at 1132, this Court affirmed the denial of *581the petitioner’s claim that his trial counsel was ineffective for failing to present mitigation evidence of his traumatic childhood after the PCRA court conducted a hearing on counsel’s stewardship. See also Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 303-04 (2005) (affirming PCRA court’s denial of claim that trial counsel was ineffective in presentation of mitigation evidence after PCRA court held evidentiary hearing); Williams, 863 A.2d at 520-21 (same). In Brown, 872 A.2d at 1150-51, this Court affirmed the denial of the petitioner’s claim that trial counsel was ineffective for failing to present mitigation evidence concerning his organic brain damage and traumatic childhood. Although no evidentiary hearing was held in the case, the PCRA court afforded the petitioner several opportunities to demonstrate the possible merit of his claim during hearings that the court held to determine the need for an evidentiary hearing. Id. at 1151 n. 9. Conversely, when the PCRA court has held no evidentiary hearing on a claim that trial counsel was ineffective in failing to present this sort of mitigation evidence, but essentially found counsel effective as a matter of law on the mere pleadings, we have remanded the matter for a hearing at least in cases where we deem the question not resolvable, either way, on the pleadings. Gribble, 863 A.2d at 476.
Here, the PCRA court did not conduct an evidentiary hearing on the reasonableness of trial counsel’s investigation. We, therefore, possess only the trial record to evaluate the substance of appellant’s mitigation claims. During appellant’s mitigation case, trial counsel presented testimony from his sister, father, paramour, and childhood friend to demonstrate that appellant was an intelligent and generous man. No testimony at the penalty hearing hinted at the traumatic upbringing appellant claims his trial counsel failed to uncover. In 1990, appellant participated in a court-ordered mental health evaluation where he was labeled as having a Mixed Personality Disorder and was described as exhibiting average intelligence, fair social judgment, and some impulsive tendencies. Psychological Evaluation by Jules De Cruz at 2. This evaluation was not presented at appellant’s mitigation hearing. *582Although appellant had one other mental health evaluation immediately following his conviction in this case, appellant refused to cooperate with the licensed psychologist, Lawrence Bryne, M.Ed. Trial counsel attempted to introduce appellant’s Glen Mills records at his sentencing hearing, after being given a copy of them by the prosecutor just before the hearing, but was prevented from doing so without a witness to authenticate them.
Now, appellant offers medical opinions supporting his claim of brain damage, in the form of signed declarations, from Dr. Barry Crown, a licensed psychologist, and Dr. Richard Dudley, licensed in psychiatry, each post-dating the conclusion of appellant’s direct appeal. Appellant also offers signed declarations from his mother, father, sister, and brother asserting that trial counsel did not question them about appellant’s childhood, which allegedly may have contributed to appellant’s purported medical condition. Most notably, appellant’s trial counsel signed a declaration essentially admitting he was ineffective.
While the PCRA court summarily dismissed appellant’s underlying claim as meritless, we are unable to reach such a judgment where no hearing was held on appellant’s factual proffer or the reasonableness of trial counsel’s investigation. Although the proffer in this case is not as strong as in some others, and counsel here did put on a case in mitigation which attempted to portray appellant in a positive light, we cannot agree with the PCRA court that the claim respecting trial counsel fails as a matter of law. The deficiencies in appellant’s proffer are certainly fair game, both as a matter of credibility and as a matter of assessing the ultimate question. But they are matters that should be assessed only after a hearing where the credibility of appellant’s experts, his family members, and his trial counsel can properly be evaluated. Accordingly, we find that the appropriate course is to remand this layered ineffectiveness claim to the PCRA court for an evidentiary hearing. In remanding, we make no predetermination concerning the ultimate strength of the claim; that is for the PCRA court in the first instance. We remind the *583parties, as well, that this claim is layered, and that appellant bears the burden of proving appellate counsel ineffective.31
D. Prosecutorial Misconduct During the Penalty Phase32
Appellant accuses the prosecutor of engaging in misconduct during numerous junctures during his penalty phase arguments. Then, appellant attaches these claims to a skeletal layered ineffectiveness claim. We will address each of these claims in turn, after a brief review of the focus of our analysis in like claims.
When arguing to the jury during the sentencing phase of a defendant’s trial, a prosecutor must be afforded reasonable latitude and may invoke oratorical flair. Williams, 863 A.2d at 522; Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 231-32 (2003). During the sentencing phase, the prosecutor has more latitude to make arguments because the presumption of innocence is no longer applicable. Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786, 790 (1998).
1. Prosecutor’s Reference to His Oath
Appellant first argues the impropriety of the following statement of the prosecutor:
12 years ago I took an oath to uphold the law and have done that consistently for 12 years. About a week and a half ago you were asked to do the same thing, to uphold the law and every one of you is posed the question, can you and would you in the appropriate circumstance impose the death penalty. And I submit to you, ladies and gentlemen, this is the appropriate circumstance.
N.T. 7/17/1995 at 76. Appellant contends that the jury was more predisposed to believe the prosecutor’s words when he referenced the oath he took. Appellant asserts that the prosecutor vouched personally and professionally for the ap*584propriateness of the death sentence. Appellant poses that the prosecutor’s reference to his experience served to remove from jurors responsibility for his sentence. Finally, appellant maintains that the prosecutor’s reference to the jurors’ oath implied that the jury was compelled to return the death sentence.
The Commonwealth dismisses appellant’s contentions, citing this Court’s precedent finding no error in asking the jury to abide by its promise to follow the law. As to the prosecutor’s reference to his own oath, the Commonwealth argues the reference was simply placed beside the prosecutor’s recollection of the jury’s oath. Even if the prosecutor’s remark could be construed as vouching for himself, the Commonwealth maintains that appellant cannot show prejudice in light of the four aggravating circumstances the jury found and his failure to establish a single mitigating factor.
The PCRA court ruled that each objection appellant raises respecting the prosecutor’s closing argument was fair comment on the record and did not constitute error.
In Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 450 (1999), this Court found no error where the prosecutor asked the jury to “live up to” the promise it made under oath to follow the law. Here, the prosecutor’s request of the jury was nearly the same. Although the prosecutor placed that request after recalling the oath he took himself, the prosecutor’s reference to both oaths was nothing more than a simple comparison. No doubt, trial counsel could have leveled an objection to the extent the prosecutor personalized his argument. But counsel is not obliged to lodge any and every objection, particularly given that the jury was reminded that the attorneys’ arguments were not evidence, but argument. It cannot be said that the reference in this context was so ineluctably prejudicial that the Sixth Amendment required an objection.
2. Reference to Fourth Aggravating Circumstance
Appellant next argues that the prosecutor committed misconduct by suggesting that the jury should invoke the *585death penalty in this case to protect society. The Commonwealth retorts that the passage appellant quotes is taken out of context. The Commonwealth argues that the prosecutor’s remarks were related to the proffered fourth aggravating circumstance that the murder was committed in connection with a drug felony. We agree.
Just before the passage appellant quotes, the prosecutor argued:
The fourth aggravating circumstance in this, ladies and gentlemen, probably makes it the most heinous because it is indicative of everything and it characterizes this entire case, that this whole thing took place because this guy wanted a place to deal his drugs.
N.T. 7/17/1995 at 83. Appellant, however, only singled out the underlined section of the prosecutor’s subsequent argument:
And I want you to listen to the definition of that aggravating circumstance because the whole case is shrouded, shrouded in that decay, that cancer that is decaying this city and that part of that state and what’s pervaded every aspect of this case and gave complete motive to this man to blow away William Lloyd. And that’s what the legislature said that is so heinous that when a man does that in and of itself is just cause to pursue the ultimate penalty of death.
Id. at 83-84.
When evaluating the prosecutor’s statement in the context of his argument on the fourth aggravator, it is evident that the prosecutor merely emphasized that William Lloyd was senselessly killed over a drug dispute, a common enough circumstance that the General Assembly specifically created an aggravator for it in capital cases. Moreover, the prosecutor’s reference to the drug crime that is decaying Philadelphia was an isolated reference to the purpose of the aggravator, not a pervasive image repeated throughout the prosecutor’s argument.
3. References to Victim
Appellant accuses the prosecutor of intentionally inflaming the passions of the jury by reminding it of the *586constitutional rights and experiences appellant will continue to experience, but that William Lloyd cannot. Specifically, appellant cites the following passage:
But when you do think about this case and think about the circumstances under which William Lloyd was shot you may consider the fact that this man does not have 12 people sitting in judgment that night in a nice orderly courtroom, with a record being taken and a fair-minded, impartial Judge and the representation of a very, very competent defense attorney and the fact of the United States and Pennsylvania constitutions. William Lloyd didn’t have that when he was gunned down. Remember that.
And if Mr. Carson does serve a penalty of life in prison, he is going to be in the prison. He is going to be in general population. He will be confined and his freedom will be restricted, taken away. But he will be in general population and he will get his cable TV and he will have his weights and he will get his chance to exercise and he will eat 8 meals a day and he will be able to shower. And he will be able to do many, many things which is a far cry from the trash heap that William Lloyd fell in when he was shot. All of the rights he has now, Mr. Carson, are the rights that will follow him.
Id. at 77-78. According to appellant, this line of argument is inappropriate because it perpetuates a misguided belief that convicted criminals have too many protections. Appellant notes that the prosecutor neglected to mention all of the hardships that he would experience in prison.
The Commonwealth, in turn, cites several cases where this Court has upheld a prosecutor’s arguments that ask the jury to show the defendant the same mercy showed to the victim. Additionally, the Commonwealth cites a host of other cases in which this Court found no error with arguments that utilized more oratorical flair than the passage appellant cites.
We have upheld a prosecutor’s explicit request of a jury to show the same mercy to a defendant as the defendant showed to his victim. Commonwealth v. Jacobs, 556 Pa. 138, 727 A.2d *587545, 554 (1999) (citing Commonwealth v. Basemore, 525 Pa. 512, 582 A.2d 861, 870 (1990), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992)). The prosecutor reminded the jury that, thanks to procedural safeguards, imposing the death penalty was not the same as killing someone on a street corner and that life in prison is not comparable to death. The ultimate issue for the jury in the penalty phase is life in prison or death, and there is certainly nothing inappropriate in discussing and contrasting the two. Moreover, given that this Court has permitted a more passionate form of argument by allowing a prosecutor to describe a defendant with a number of deprecating adjectives, see Commonwealth v. Kemp, 562 Pa. 154, 753 A.2d 1278, 1287 (2000), abrogated on other grounds by, Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003) (prosecutor did not exceed allowable scope of penalty phase argument where he characterized defendant as “callous,” “demented,” “inhuman,” “sick,” and “sordid”), counsel cannot be deemed ineffective for failing to object here.
A Characterization of Mitigation Evidence
Next, appellant claims that the Commonwealth improperly diminished his mitigation evidence with the following argument:
Well, there were many, many children, there are thousands of children in this city who grew up without parents, let alone single parents, who have managed to crawled [sic] and climb under out of that, that ring of poverty and make something out of themselves. And not to be just people who obey the law but people who prevail and go above the law.
There are thousands of them who prevail and any argument to say that Mr. Carson didn’t have that opportunity is a slap in the face to any one of those children who managed to succeed, to have managed to climb out of the gutter and make something of themselves instead of putting a bullet through some 53-year-old man’s head.
N.T. 7/17/1995 at 82. Appellant contends that it is irrelevant whether other people succeeded under similar circumstances. *588Arguing that the prosecutor violated his Eighth Amendment rights, appellant asserts that the above remarks prevented the jury from giving full effect to his mitigation evidence.
We find appellant’s claim is without merit, as we agree with the Commonwealth that this Court has expressly permitted a prosecutor to rebut mitigation evidence. See, e.g., Rollins, 738 A.2d at 449 (no error in stating that defendant’s mitigation evidence was of too little weight to influence the verdict); Basemore, 582 A.2d at 869 (prosecutor was permitted to dispute that defendant’s age and occupation did not constitute mitigating evidence); Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178, 1189 (1988) (no harm in prosecutor’s argument that defendant’s epilepsy should not constitute mitigation factor). The prosecutor permissibly argued against appellant’s catchall mitigator, which appellant supported by offering testimony from his family that appellant provided monetary support for his family and friends.
5. Reference to Appellant’s Opportunities for Rehabilitation
In his penultimate claim involving penalty phase argument, appellant claims that the prosecutor referred to facts not in evidence by referring to therapy and rehabilitation that appellant had undergone. Appellant also objects to the prosecutor’s theory that, during the nine years between his murder conviction and other most recent conviction, appellant was “biding his time” and “building a wave of arrogance.” Appellant’s Brief at 73; N.T. 7/17/1995 at 86. Appellant posits that this argument prevented the jury from considering the aggravating and mitigating evidence that was actually presented.
The Commonwealth denies that the prosecutor argued facts not in evidence, for appellant’s previous adjudications and commitment at a juvenile rehabilitation facility were made part of the record. From these facts, the Commonwealth argues that one could infer that appellant would receive rehabilitation during his commitment. The Commonwealth also gives no weight to appellant’s characterization of the *589prosecutor’s argument as suggesting that appellant waited for nine years to Mil an innocent bystander.
As we have said before, a prosecutor is permitted to argue reasonable inferences from the evidence. Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 231 (1995). Evidence of appellant’s previous crimes as a juvenile was admitted into evidence at his sentencing hearing, including mention of his two separate commitments to Glen Mills following adjudications of delinquency, N.T. 7/17/1995 at 50-51. Based on this evidence, it was reasonable for the prosecutor to refer to appellant’s unrealized opportunities for rehabilitation while in detention as a juvenile. Lastly, we consider the prosecutor’s comment that appellant was “biding his time” nothing more than a reference to appellant’s failure to improve himself following his juvenile convictions. Counsel was not obliged to object to the prosecutor’s argument.
6. Victim Impact
Appellant’s final claim relates to the prosecutor’s reference that William Lloyd would not have the opportunity to bury his parents. He argues that in conjunction with the testimony from William Lloyd’s mother at trial, the prosecutor’s argument improperly engendered sympathy for the victim. Appellant asserts that victim impact evidence was neither admissible nor relevant in a capital case at the time of his trial in 1995.
The Commonwealth rejects the notion that the prosecutor made this statement to create sympathy and declares that it was made in response to defense witness testimony that appellant would not get to see his children again if he were sentenced to death. Furthermore, the Commonwealth argues that appellant could not be prejudiced by the prosecutor’s statement since the jury, which found no mitigating circumstances, did not have to weigh the aggravating factors versus a mitigating factor.
The mother of appellant’s son, Aisha Johnson, made a passionate plea to spare appellant’s life during the sentencing *590hearing, lamenting that appellant had not had the opportunity to know his son and that she did not want her son growing up not knowing his father. N.T. 7/17/1995 at 57. In response, the prosecutor argued in his closing that while appellant would like to see his children again, William Lloyd would not have the opportunity to survive his parents. Id. at 82-831. Therefore, the prosecutor’s argument was permissible rebuttal argument to this aspect of appellant’s emotional mitigation defense. See, e.g., Rollins, 738 A.2d at 449.
E. Simmons Charge33
According to appellant, his trial counsel was ineffective for failing to request a Simmons instruction following the prosecutor’s closing argument and, thereafter, direct appeal counsel was ineffective for not raising trial counsel’s error. Appellant argues that the prosecutor should not have injected the issue of future dangerousness while arguing the significant history of felony convictions aggravator, because future dangerousness is not a statutory aggravating circumstance. Because this Commonwealth requires the jury to weigh aggravators and mitigators, appellant argues, his Eighth Amendment rights were violated by an argument that skewed the “weighing process towards death.” Appellant’s Brief at 76. Appellant further claims that the prosecutor “opened the door” to the instruction when he argued the amenities appellant could utilize in prison. Id. at 77.
The absence of a Simmons instruction, appellant continues, constituted a violation of due process because the trial court: (1) allowed his penalty to be imposed by a sentencer acting upon an erroneous understanding of the law; (2) violated his liberty interest in being sentenced by a jury choosing between life without parole and death; and (3) violated the proscription against being sentenced to death based upon information the defendant was not allowed to rebut or explain. Appellant also argues the Eighth Amendment was violated when he was sentenced by a jury that did not have complete and accurate information before it.
*591The Commonwealth disagrees that the prosecutor addressed appellant’s future dangerousness in his closing. Instead, the Commonwealth claims that the prosecutor was discussing the legislative intent behind 42 Pa.C.S. § 9711(d)(9) (significant history of violent felonies aggravator), and “in no way implied that [appellant] posed a future danger.” Commonwealth’s Brief at 74. Because the prosecutor did not make future dangerousness an issue, the Commonwealth contends that a Simmons instruction was not required, especially since appellant did not request such an instruction at the sentencing hearing.
The PCRA court denied appellant’s claim, noting that the “jury was amply informed of the life nature of the imprisonment-even including by the prosecutor.” PCRA ct. slip op. at 20. Moreover, the PCRA court held that appellant did not establish that he was prejudiced by the absence of the charge.
In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), a plurality of the United States Supreme Court would have held that, if a prosecutor argues a capital defendant’s future dangerousness at a sentencing trial, the defendant may request and should be granted a jury instruction that a penalty of life in prison will render the defendant ineligible for parole. Id. at 170, 114 S.Ct. at 2197. This Court has held that a Simmons instruction is mandated only if two events occur: (1) the prosecutor must place the defendant’s future dangerousness in issue; and (2) the defendant must have requested that the trial court issue the instruction. Commonwealth v. Dougherty, 580 Pa. 183, 860 A.2d 31, 37 (2004), cert. denied, -U.S. -, 126 S.Ct. 63, 163 L.Ed.2d 89 (2005); Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1004 (2002) (citing Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1291 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002)). The failure to issue a Simmons charge is no basis for relief where these circumstances are not met. Jones, 811 A.2d at 1004.34
*592Appellant takes issue with trial counsel’s failure to object to the following argument made by the prosecutor:
The third aggravating circumstance is that history of felony convictions and when the legislature passed that they were saying to you and to me enough is enough. Mr. Carson, you had your chance. We are not going to let anymore people be injured.
3 felonies, ladies, and gentlemen, two of them came out of the same circumstance with guns, with knives. One of them a 14-year-old. Enough is enough.
N.T. 7/17/1995 at 81. The prosecutor in this instance focuses on appellant’s history of violent felony convictions and ties his failure to reform his conduct into the purpose served by this statutory aggravating circumstance. In Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 47 (1998), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 L.Ed.2d 676 (1999), this Court found that a Simmons charge was not warranted because the violent felonies aggravator which was argued by the prosecutor focused on the defendant’s past conduct, not his future dangerousness. We have also held future dangerousness was not implicated where a prosecutor argued that if the defendant was not going to conform his conduct to the law, he should not be allowed to live. Commonwealth v. Douglas, 558 Pa. 412, 737 A.2d 1188, 1200 (1999) (Opinion Announcing Judgment of the Court), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). Counsel certainly could have sought to extend the principle in the Simmons case; however, given the context of the prosecutor’s remark, in light of our precedent, appellant’s trial counsel cannot be deemed ineffective for failing to object to this argument.
“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at *593689, 104 S.Ct. at 2065. Here, in addition to the fact that Simmons was a plurality opinion, any assessment of counsel’s performance must acknowledge the difference between the argument that succeeded in Simmons and that which appellant belatedly forwards. In Simmons, the prosecutor argued that the jury should consider the defendant’s future dangerousness as a stand-alone aggravator when considering punishment. 512 U.S. at 157, 114 S.Ct. at 2190. Simmons did not address whether argument pertaining to another aggravating circumstance might raise an inference of future dangerousness which would or should trigger the Simmons rule. Since then, of course, Kelly has expanded the law to include a broader interpretation of evidence that implies future dangerousness, but that case was not decided until well after appellant’s direct appeal was complete. An attorney cannot be deemed ineffective for failing to anticipate a change or development in the law. See, e.g., Sneed, 899 A.2d at 1076.35
*594F. Juvenile Convictions Used to Support Aggravating Circumstance36
Appellant next claims his prior counsel were ineffective in failing to object to the admission of his prior juvenile adjudications to prove the aggravating circumstance that he had a significant history of violent felony convictions under 42 Pa. C.S. § 9711(d)(9), particularly when he had no adult convictions involving the use of violence. While acknowledging that Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 675-76 (1992), held that juvenile adjudications could support this aggravating circumstance, appellant submits that the use of the adjudications in his case violates the Ex Post Facto Clause; the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution; and Article 1, Sections 9 and 13 of the Pennsylvania Constitution. Appellant argues that the use of juvenile adjudications to support the (d)(9) aggravating circumstance is unconstitutionally vague, pursuant to the Eighth Amendment and the Due Process Clause, because: (1) the Juvenile Act, 42 Pa.C.S. § 6354(a), states that an adjudication of delinquency is not a conviction of a crime; (2) the (d)(9) aggravating circumstance relates to a significant history of felony convictions; (3) the pre-1996 amended Juvenile Act, 42 Pa.C.S. § 6354(b), did not permit juvenile adjudications to be used in any court proceeding; and (4) the decision in Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (plurality), upheld Pennsylvania’s death penalty statute, in part, because juvenile adjudications were not used as evidence to support the (d)(9) aggravator. With regard to appellant’s ex post facto argument, he claims that he did not have the fair warning required by the Eighth and Fourteenth Amendments *595of the U.S. Constitution, and Article 1, Sections 9 and 13 of the Pennsylvania Constitution, that a juvenile adjudication could be used to aggravate a murder conviction at the time he was adjudicated delinquent in 1986 and 1987. Finally, he asserts that the expansion of the (d)(9) aggravating circumstance is arbitrary, unreasonable, and unprincipled, which violates the Eighth and Fourteenth Amendment guarantees of heightened procedural safeguards in capital sentencing.
The Commonwealth argues that appellant’s claim is previously litigated, since he challenged the applicability of the aggravator on direct appeal. The PCRA court noted that appellant now offers a different argument with respect to the (d)(9) aggravating circumstance, but nevertheless declared appellant’s claim was previously litigated.37
On direct appeal, appellant argued that trial counsel was ineffective for failing to argue the sufficiency of the evidence used to support the (d)(9) aggravating circumstance. Carson I, 741 A.2d at 706-707. Appellant’s instant ineffectiveness arguments are obviously distinct from those he advanced on direct review, and thus, we will review them. See Collins, 888 A.2d at 573.
We begin by noting that an error in submitting an aggravating circumstance is harmless where the jury finds multiple aggravators and no mitigators. Commonwealth v. Lester, 554 Pa. 644, 722 A.2d 997, 1006 n. 15 (1998). In any event, appellant has failed to acknowledge that this Court has repeatedly rejected the argument that the (d)(9) aggravating circumstance is unconstitutionally vague. In Miller, 746 A.2d at 604, this Court noted that this argument was previously rejected and declined to revisit the issue. See also Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1185 (1999); Commonwealth v. Hill, 542 Pa. 291, 666 A.2d 642, 654 (1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1880, 135 L.Ed.2d 175 (1996); Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689, *596697-98 (1986); Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730, 737 (1984). Moreover, appellant’s approach to settled precedent is novel. Trial counsel was not obliged to challenge settled precedent with this new theory.
The Ex Post Facto Clause prohibits Congress and the states from passing laws which impose punishment for an act that was not punishable at the time it was committed or imposes additional punishment than was previously prescribed. Cimaszewski v. Board of Prob. & Parole, 582 Pa. 27, 868 A.2d 416, 422 (2005) (plurality on other grounds) (quoting Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). An ex post facto law, in other words, applies to events that occur before it was enacted and burden the offender. Cimaszewski, 868 A.2d at 423. In Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), the United States Supreme Court evaluated the Pennsylvania Habitual Criminal Act in respect to a defendant who was sentenced as a fourth offender, even though one of the defendant’s convictions arose before the Act was passed. The Court held that the defendant’s categorization as a fourth offender did not impose an additional penalty for earlier crimes, but rather enhanced a penalty for the latest crime. Id. at 732, 68 S.Ct. at 1258.
Here, the jury found the (d)(9) aggravator based on appellant’s adjudications for crimes that were not considered in capital sentencing deliberations at the time he committed those crimes. For purposes of assessing counsel’s effectiveness, the Gryger case is significantly analogous as to warrant the conclusion that appellant’s novel theory would fail.
Appellant’s final challenge to the (d)(9) aggravating circumstance is a broad, unspecific claim that this Court has expanded the application of the aggravator in an arbitrary manner in violation of the Eighth and Fourteenth Amendments. Since appellant fails to couple this claim with particular explanation as to why the use of his juvenile adjudications represents an arbitrary expansion of the aggravator, excluding his unsuccessful arguments above, and does not explain why he believes *597counsel was obliged to forward this claim, we reject this argument as well.
G. Drug Felony Aggravating Circumstance, 42 Pa.C.S. § 9711(d)(13)38
Appellant submits that direct appeal counsel was ineffective in the manner in which he argued that 42 Pa.C.S. § 9711(d)(13) was inapplicable to this case. Specifically, appellant argues that direct appeal counsel should have asserted that evidence of a “drug turf war” did not constitute a violation of the Controlled Substance Abuse Act, a finding necessary to prove the aggravator at issue. Appellant contends that appellate counsel was ineffective for not informing this Court of the necessity to strictly construe the aggravating factor, establishing the insufficiency of the facts to support the elements of Section 9711(d)(13), and arguing that the jury’s finding violated the requirements of the Due Process Clause and the Eighth Amendment, which mandate that each element of the aggravator must be proven beyond a reasonable doubt.
The Commonwealth claims that appellant’s claim has been previously litigated and the PCRA court agreed, but our holding in Collins prevents us from employing that particular terminology. See Collins, 888 A.2d at 573. On direct appeal, appellant argued that there were insufficient facts to support the (d)(13) aggravating circumstance, because the Commonwealth did not offer evidence that he was engaged in the sale of drugs. Carson I, 741 A.2d at 706. Now appellant argues that direct appeal counsel did not present the insufficiency argument with enough particularity to establish that the aggravator was inapplicable to appellant.
Despite the ineffectiveness gloss, the crux of appellant’s argument remains the same. We previously found that the evidence was sufficient to establish the (d)(13) aggravating circumstance, id., and, as such, we defer to our prior evaluation of the claim. See Collins, 888 A.2d at 574 (although recognizing a defendant’s ineffectiveness claim as a distinct claim for review, refusing to reevaluate the direct appeal *598Court’s holding on the underlying due process issue). Moreover, even if we were to invalidate our prior holding, appellant cannot show he was prejudiced in being sentenced to death when the jury found three other aggravating factors and no mitigating circumstances. See Lester, 722 A.2d at 1006 n. 15.
H. Sufficiency of Notice of Aggravator 42 Pa.C.S. § 9711(d)(6)39
Appellant argues that his prior counsel were ineffective for failing to properly argue that the aggravating circumstance defined in 42 Pa.C.S. § 9711(d)(6) (killing in perpetration of a felony) should have been excluded from the jury’s consideration, because the Commonwealth did not comply with Pa. R.Crim.P. 352,40 in violation of appellant’s right to due process of law. Although trial counsel objected that the Commonwealth provided inadequate notice of its intent to offer this aggravating circumstance, appellant claims his argument was insufficient because no citation to case law accompanied the objection and trial counsel failed to argue that the aggravating circumstance was based on the improper admission of Monique Wylie’s out-of-court statement during the sentencing phase. Thereafter, appellant says, appellate counsel was ineffective for failing to raise the issues in his direct appeal.
The Commonwealth asks us to hold, as the PCRA court did, that appellant’s claim was previously litigated. This Court indeed addressed the adequacy of the notice given to appellant with regard to the instant aggravating circumstance on direct appeal. We found that appellant had constructive notice of the Commonwealth’s intent to introduce the (d)(6) aggravating circumstance when he was arraigned on robbery and aggra*599vated assault charges in connection with the incidents occurring on the night of William Lloyd’s murder. Carson I, 741 A.2d at 705. While appellant’s layered ineffectiveness claim is distinct from the underlying claim we addressed previously, see Collins, 888 A.2d at 573, we decline to revisit the Court’s analysis of the underlying claim when appellant’s argument on the underlying claim is substantially the same. See id. at 574.
Even though this Court did not consider appellant’s argument with respect to the admission of Monique Wylie’s statement, appellant does not specifically cite which statement he is referring to, excluding a citation to the sentencing hearing transcript to a page where only the trial court is generally explaining aggravating and mitigating circumstances. Compare Appellant’s Brief at 91, with N.T. 7/17/1995 at 44.41 Consequently, appellant’s claim is without merit.
I. Instructions to Jury on Responsibility for Determining Death Sentence42
Appellant next claims that the trial court’s instruction erroneously led jurors to believe that they did not have the ultimate responsibility for determining the appropriateness of his death sentence, which violates his due process. First, appellant cites the trial court’s statement that the Supreme Court and Governor review a death sentence from a jury. He also notes the trial court’s instruction that the jury should follow his summation of the law, not defense counsel’s version, because defense counsel has remedies for a trial court’s inaccurate statements of the law. When the trial court thus implied that the jury was not responsible for his death sentence, appellant alleges that it caused the jury to give less consideration to his proffered mitigating evidence. Appellant denies that the trial court’s instruction was necessary to dispel the idea that the prosecutor “is not an execution chamber,” Appellant’s Brief at 92, because such a statement is self-*600evident. Appellant ultimately attaches these arguments to a boilerplate layered ineffectiveness claim.
The Commonwealth argues that the trial court appropriately corrected defense counsel’s reference to the prosecutor as operating the “execution chamber.” The trial court’s correction, according to the Commonwealth, explained that when a defendant is sentenced to death by a jury he is executed by lethal injection. Moreover, the Commonwealth cites Commonwealth v. Beasley, 524 Pa. 34, 568 A.2d 1235 (1990), for the proposition that this Court has approved of a prosecutor’s suggestion that even if a defendant were sentenced to death, he would not be executed.
The PCRA court noted that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), would indicate that the trial court’s statements were improper, but ruled that the jury’s findings on aggravating and mitigating circumstances showed that appellant was not prejudiced by the trial court’s instruction.
In Caldwell, the United States Supreme Court evaluated the propriety of the prosecutor’s response to defense counsel’s sentencing phase argument repeatedly emphasizing that the jury had “an awesome responsibility” in deciding whether to sentence the defendant to life in prison or death. Id. at 324, 105 S.Ct. at 2637. Specifically, the prosecutor responded by stating:
I’m in complete disagreement with the approach the defense has taken. I don’t think it’s fair. I think its unfair. I think the lawyers know better. Now, they would have you believe that you’re going to kill this man and they know — they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it.
Id. at 325, 105 S.Ct. at 2637 (citations and quotation marks omitted). Despite defense counsel’s objection to the prosecutor’s argument, the trial court acquiesced in the prosecutor continuing his argument in the same vein. Id. at 325-26, 105 S.Ct. at 2638. The High Court found the prosecutor’s argu*601ment unacceptable, as it concluded that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639. While the Court acknowledged its decision in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) (capital sentencing juries may be informed of the Governor of California’s ability to commute a sentence of life imprisonment), approving the distribution of accurate post-sentence information to a jury, it disapproved of the Caldwell prosecutor’s inaccurate implications regarding post-sentencing procedure and observed that the argument was not linked to a valid sentencing consideration. Caldwell, 472 U.S. at 336, 105 S.Ct. at 2643.
Evaluating a case under Caldwell, this Court has found error with a trial court’s instruction to the jury that:
Now, with regard to death penalty, you know what that implies. Somewhere down the line, if you do impose the death penalty, the case will be reviewed thoroughly. And after thorough review the death penalty may be carried out. I won’t go into all the various reviews that we have. That shouldn’t concern you at this point.
Commonwealth v. Jasper, 558 Pa. 281, 737 A.2d 196, 196 (1999). The Jasper Court found the following factors particularly troublesome in reaching its decision: (1) the trial court “unduly” emphasized the role of the appellate courts by suggesting that the death sentence might not be carried out; and (2) the jury found two aggravating circumstances and one mitigating circumstance. Id. at 197-98. This Court stated its unwillingness to adopt a per se rule that reference to the appellate process is impermissible, because we recognized that defense counsel’s argument may necessitate a reference to appellate review. Id. at 198. Notably, in Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679, 691 (1998), cert. denied, 526 U.S. 1161, 119 S.Ct. 2052, 144 L.Ed.2d 219 (1999), we found no error with a trial court’s instruction that a defendant had a *602right to appeal his case if he believed an error occurred at trial.
In this case, the challenged instruction resulted from the prosecutor’s objection to defense counsel’s statement that the jury was not in the prosecutor’s execution chamber. The trial court sustained the objection and told the jury:
The prosecutor is not an execution chamber. What it is a place in the State of Pennsylvania that a certain institution behind in where lethal injection is given to those who are committed to death by a jury and when that sentence has been imposed by the Judge and as reviewed by the supreme court and the governor.
And that is the legal place of execution which is referred to in my formal sentencing if the jury were to find it. It’s not the prosecution’s execution chamber.
N.T. 7/17/1995 at 133 (errors in original). Here, the trial court’s instruction was not aimed at explaining to the jury how much responsibility the jury should feel for returning a penalty of death, but rather the trial court explained that the State of Pennsylvania, not the prosecutor, physically executes individuals after a jury imposes a sentence of death. The trial court’s explanation of the place of a defendant’s execution would not be thorough without reference to the procedures that occur before he is executed. Moreover, the instruction did not serve to shift responsibility away from the jury for giving appellant the death sentence by implying it was not the ultimate decision-maker, suggest that the jury should not feel gravely responsible for imposing the death penalty, or imply that any death sentence imposed by the jury might not be carried out.43 Appellant’s jury also did not find any of his *603proffered mitigating factors, unlike the defendant in Jasper. For these reasons, we conclude that the issue underlying appellant’s ineffectiveness claim is without merit.
J. Sympathy for Appellant44
Appellant next accuses the prosecutor of making an improper argument that the jury should not consider sympathy for appellant during its deliberations, citing the prosecutor’s argument that:
Mr. Greene is going to stand up here and he is going to say everything he can possibly say to get you to sympathize as he did with the evidence in this case with this defendant. I don’t want you sympathizing with anybody, the victim or the defendant. It’s not a matter of sympathy.
It cannot be a matter of sympathy because then we are thinking with our guts and we can’t do that. It would render our system of justice meaningless.
N.T. 7/17/1995 at 77. Appellant contends his trial counsel was ineffective when he did not object to the argument or seek a corrective instruction from the trial court, and appellate counsel was ineffective for neglecting to pursue it on direct appeal. Appellant asserts that the prosecutor’s argument was compounded by the trial court’s instruction that: “I don’t want to sound cold blooded, but you must decide [the case] on the evidence, not on any sympathy, not on any prejudice, not on anything that influences you or raises passions in you.” N.T. 7/18/1995 at 25.
The Commonwealth argues that appellant’s “barebones boilerplate” ineffectiveness claim cannot overcome his waiver of the claim, adding further that the underlying claim is frivolous. Commonwealth’s Brief at 80. The Commonwealth includes a lengthy string citation to cases by both this Court and the United States Supreme Court rendering holdings directly *604contradictory to the underlying issue in appellant’s ineffectiveness claim.
The PCRA court rejected appellant’s claim under Commonwealth v. Rainey, 540 Pa. 220, 656 A.2d 1326 (1995), cert. denied, 516 U.S. 1008, 116 S.Ct. 562, 133 L.Ed.2d 488 (1995), reading the case to instruct that a sympathy charge was not required and, if one were given, the trial court is required to state that “sympathy must be based on the mitigating circumstances.” PCRA ct. slip op. at 21.
Just as the United States Supreme Court has ruled, this Court has approved of trial court instructions that command the jury not to be influenced by sympathy in arriving at a verdict. See, e.g., Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415 (1990) (approving an anti-sympathy instruction, by concluding that: “The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a juror.”); Commonwealth v. Blystone, 555 Pa. 565, 725 A.2d 1197, 1208 (1999) (noting anti-sympathy instructions do not generally violate the Eighth Amendment); Rainey, 656 A.2d at 1333-34 (defendant not entitled to blanket jury instruction that he is entitled to mercy without qualification because sympathy must only come from proven mitigating circumstances). This Court is also statutorily required to overturn any judgment that was the result of “passion, prejudice, or any arbitrary factor.” 42 Pa.C.S. § 9711(h)(3)(i).
When the trial court instructed the jury on aggravating and mitigating circumstances, it made clear that the jury could consider any evidence presented at the trial in respect to appellant’s third proffered mitigating circumstance, the catchall mitigator. N.T. 7/18/1995 at 20. The trial court properly told the jury to consider the submitted aggravating and mitigating circumstances according to the evidence presented, but that it may not be abstractly swayed by sympathy or prejudice. Id. at 25. Appellant’s underlying argument that the trial court’s instruction was improper is simply factually *605and legally incorrect. Accordingly, his layered ineffectiveness claim does not entitle him to relief.
K. Trial Court’s Instructions on Aggravating and Mitigating Circumstances45
According to appellant, the trial court violated the Eighth Amendment when it instructed the jury that aggravating and mitigating circumstances are factors that make a murder case more or less terrible. Appellant declares that the trial court’s instruction prevented the jury from thinking of him as an individual, by limiting the jury to considering circumstances only related to the crime, and that this erroneous instruction was compounded by the prosecutor’s argument that the jury should not consider sympathy during its deliberations. He also accuses the prosecutor of telling the jury to ignore mitigating factors. Again, appellant attaches his grievances with the trial court’s instruction to a boilerplate claim of layered counsel ineffectiveness, claiming his prior counsel should have objected to the trial court’s incorrect instructions.
The Commonwealth counters that appellant’s claim is invalid under settled law. Likewise, the PCRA court found no error with the trial court’s instruction.
Addressing arguments similar to those appellant raises here, this Court has approved of the instructions given by the trial court in this case. Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1246-47 (2006); Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 587-88 (2002); Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507, 527 (1999). Furthermore, appellant overlooks the trial court’s instruction to the jury, regarding the catchall mitigating circumstance, that it should consider all the mitigating evidence that appellant presented at the penalty phase and throughout the trial. N.T. 7/18/1995 at 20. In doing so, the trial court gave the jury permission to look at all record-based factors regarding appellant’s life. Finally, we reject appellant’s unsupported argument that the prosecutor told the jury to ignore mitigating evidence or that *606it should not consider mitigating circumstances during its deliberations. Appellant’s claim is unworthy of relief.
L. Instruction on Unanimity of Life Verdict46
In appellant’s penultimate claim, he argues that the trial court erred when it instructed the jury that: “[w]hen you come to your final verdict whether it’s death or life imprisonment it must be unanimous. Each and every member of the jury, all twelve must agree on the final verdict, death or life imprisonment.” N.T. 7/18/1995 at 26. Appellant says that this instruction conflicted with an earlier trial court instruction that if the jury could not agree on one of the aggravating circumstances, the jury could only impose a sentence of life in prison. Id. at 2-3. Before attaching this claim to a layered counsel ineffectiveness claim, appellant asserts that the trial court’s charge deprived him of his due process rights.
The Commonwealth counters by stating that the trial court’s instructions on the unanimity required for aggravating and mitigating circumstances was legally proper, whereas the passage appellant referred to related only to the trial verdict. The Commonwealth’s argument echoes the reasoning offered by the PCRA court in rejecting appellant’s claim.
When reviewing a jury instruction, we must do so by evaluating the instruction as a whole to ascertain whether it fairly conveys the required legal principles at the heart of a dispute. Spotz, 896 A.2d at 1247. An instruction will be upheld if it clearly, accurately, and adequately explains the law. Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 882 (2002). In Chambers, we reiterated that a capital sentence should be vacated if the jury instructions could be interpreted as mandating a unanimous finding as to mitigating circumstances. Id.
Here, at the outset of the trial court’s instructions, the jury was instructed that it must return a life sentence if all twelve jurors could not agree on one aggravating circumstance or that the aggravating circumstances it found was outweighed *607by the found mitigating circumstances. N.T. 7/17/1995 at 2-3. The trial court clearly explained to the jury that it must unanimously find aggravating circumstances, but that it was not required to reach unanimity when evaluating mitigating circumstances. Id. at 23-24, 807 A.2d 872. Although the trial court said that a sentence of life or death must be found unanimously, id. at 26, 807 A.2d 872, it qualified that instruction by explaining that:
Now if you do not agree unanimously on a death sentence or on one of the two general findings that would support the death sentence, then you have 2 options immediately. You can either continue and discuss the case and deliberate the possibility of a sentence, or if you all agree, you may stop deliberating and sentence the defendant to life imprisonment.
If you can come to a point where you have deliberated conscientiously and thoroughly and still cannot all agree to either sentence the defendant to death or to life imprisonment, then you would come back and tell me that you cannot agree.
And if I decide that you are hopefully [sic] deadlocked, under the law I then must, it is my duty under the law to, I must impose a life imprisonment.
Id. at 27-28, 807 A.2d 872. After reviewing the trial court’s instructions in their entirety, this Court is satisfied that the jury was adequately apprised of the legal requirements of unanimity, or implications of its absence, in the capital sentencing process. Additionally, even if we were to find error in the trial court’s instructions, counsel cannot be faulted for failing to object because the jury found four aggravating circumstances and no mitigating circumstances, which mandates that the jury must impose the death sentence. This claim fails.
M. Cumulative Error47
Appellant’s final claim is that even if this Court finds that appellant is not entitled to relief on any of the claims argued *608above, he is nonetheless entitled to relief due to the cumulative effect of the errors, which functioned to deprive appellant of a fair trial and heightened procedural' precautions owed to capital cases. The Commonwealth contends that appellant is not entitled to relief if none of his individual claims entitles him to it. Indeed, it is a proper assessment of the law to state that since we have found no merit to any one of appellant’s individual claims, this Court must conclude that the cumulative effect of the alleged errors does not entitle appellant to relief. E.g., Brown, 872 A.2d at 1158; Blystone, 725 A.2d at 1208-09. Alternatively, since appellant’s claim does not appear to haye been raised before the PCRA court, the claim is waived. See Pa.R.A.P. 302(a); Bond, 819 A.2d at 39.
IV. CONCLUSION
For the foregoing reasons, we affirm, in part, and remand, in part, for an evidentiary hearing consistent with this opinion.
Justice NEWMAN and Justice EAKIN join the opinion. Chief Justice CAPPY files a concurring opinion. Justice BALDWIN files a concurring opinion in which Justice BAER joins. Justice SAYLOR files a concurring and dissenting opinion.
. The factual and procedural history of this case leading up to the direct appeal is set forth in that opinion. Those facts which are necessary to the examination of appellant’s present collateral claims will be discussed herein as necessary.
. Appellant was represented by Daniel H. Greene, Esq., at trial and by Jack McMahon, Esq., on direct appeal.
. Appellant states in a footnote that the PCRA court never filed a letter announcing its intent to dismiss his petition, pursuant to Pa.R.Crim.P. 909(B)(2). Appellant’s Brief at 4 n. 1. This Court has previously noted the importance of a PCRA court’s adherence to Rule 909(B)(2) and has remanded cases where a PCRA court's failure to follow the Rule has impeded a petitioner's ability to obtain meaningful review. See, e.g., Commonwealth v. Hawkins, 583 Pa. 104, 876 A.2d 365 (2005) (per curiam); Commonwealth v. Brown, 574 Pa. 231, 830 A.2d 536 (2003) (per curiam); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517 (2001). Here, there is no argument forwarded for relief premised upon the lapse.
. Because appellant was represented by new counsel on direct appeal, and this case was on collateral review prior to our decision, appellant's current claims are only cognizable as layered claims. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 739 n. 16 (2002).
. The McGill Court cited to the 2001 Pierce case in explaining its holding, McGill, 832 A.2d at 1020. Of course, the seminal case in our ineffectiveness jurisprudence is an earlier case with the same name. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (adopting the United States Supreme Court’s holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
. Appellant’s claim I.
. Indeed, the record gives no indication that juror Spicer would be unfair. When discussing juror Spicer’s responses to her jury questionnaire, the trial court noted that she gave no response that signaled she would be biased and appellant's trial counsel did not dispute that assessment. N.T. 7/5/1995 at 33. It is also worth noting that juror Spicer was excused from the courtroom while appellant's counsel articulated his objection to her, id. at 27, and, therefore, appellant’s specific objections to her could not have caused her to develop a bias against him.
. Appellant's claim III.
. Also, Ms. Beverly’s testimony arguably provided a factual basis for the prosecutor’s inference that the gun jammed, as she testified to appellant *540making particular motions with his hands as he was firing. N.T. 7/10/1995 at 137. While the prosecutor asked Ms. Beverly whether it looked like appellant was “pulling back something,” she answered that she could not tell and mimicked the hand gesture that she saw. That gesture, unfortunately, is not further described in the record. Id.
. In the record, we find Ms. Wylie's name is alternately spelled as: "Willie,” "Wiley,” and "Wylie.” We refer to her as “Ms. Wylie,” as this is the spelling she affixed her signature to in a signed declaration that appellant submitted with his PCRA petition.
. Appellant erroneously refers to the post-trial statements from Commonwealth and defense witnesses as affidavits, even though they have not been confirmed by oath before a judicial officer having the authority to administer that oath. See Black’s Law Dictionary 58 (7th ed.1999); Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1168 (2005) (Castille, J., concurring).
. Appellant's claim IV.
. Appellant’s claim V.
. Ike Jones, a.k.a. Anthony Johnson, and another man entered Penny Hairston’s house to steal drugs shortly before William Lloyd was murdered. Mr. Clarke was in Mr. Hairston’s home at the time of the intrusion.
. Prior statements by witnesses may also be admitted in accordance with Pa.R.E. 613.
. Appellant's claim VI.
. The main cases appellant cites in support of his argument, Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir.1999) (whether keeping leg shackles on defendant at trial was prejudicial), and Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1345-46, 89 L.Ed.2d 525 (1986) (whether security officers may be present at the defendant’s table during trial), do not remotely resemble the factual circumstances underlying appellant's claim.
. Appellant’s claim VII.
. Appellant's claim VIII.
. Appellant’s claim IX.
. Appellant’s claim X.
. The PCRA court did not discuss its reasons for denying appellant's discovery request in its written opinion.
. Appellant's claim II.
. To support his claim that the trial court improperly struck jurors for cause, appellant cites, without quotation or summation, the questioning of five individuals: Nelson Daniels Gregory, Patricia Wade, Ethel Clemmons, Marcille McEntee, and Daniel Cuten. Gregory indicated that he did not know whether he could impose the death penalty and he had repeated difficulty giving an unequivocal answer to the trial court's questions. N.T. 7/5/1995 at 25-26. Wade said it would be hard to convince her to vote for the death penalty, particularly because she felt innocent people are sent to jail simply due to poor representation. Id. at 48-50. Clemmons affirmed that she would never impose the death penalty regardless of the evidence. Id. at 57. McEntee confirmed she had a "problem” with the death penalty. N.T. 7/6/1995 at 10. Cuten twice told the trial court that he would not impose the death penalty and also stated that he was taking medication that would impair his service on a jury. Id. at 14.
. Appellant's claim XI.
. 42 Pa.C.S. § 6108(c).
. Appellant’s only cited support for this proposition is Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam) and Rupe v. Wood, 93 F.3d 1434, 1441 (9th Cir.1996). First, this Court is not obligated to follow the decisions of the lower federal courts. Hall v. Pa. Bd. of Prob. & Parole, 578 Pa. 245, 851 A.2d 859, 865 (2004). Second, Green is readily distinguishable, as it concerned the admission of evidence at a penalty hearing that the petitioner did not participate in the murder. The issue on appeal was the propriety of the exclusion of a statement from the petitioner’s separately tried co-defendant, who admitted to another individual that he was solely responsible for murdering the victim that the pair had raped. Green, 442 U.S. at 96, 99 S.Ct. at 2151. Even though the statement may have resulted in a lesser sentence for petitioner, it was originally excluded from his sentencing trial because Georgia did not have a hearsay exception for statements against penal interest. Id., 99 S.Ct. at 2151. The Supreme Court *577reversed and remanded for a new sentencing trial. Id. at 97, 99 S.Ct. at 2152.
. The jury found that appellant committed a killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); in the commission of the offense, appellant knowingly created a grave risk of death to another person in addition to the victim, 42 Pa.C.S. § 9711(d)(7); appellant has a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9); and appellant committed the killing while in the perpetration of a drug felony, 42 Pa.C.S. § 9711(d)(13).
. Appellant unsuccessfully presented the following mitigating factors: the defendant has no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); the age of the defendant at the time of the crimes, 42 Pa.C.S. § 9711(e)(4); and the catchall mitigator, 42 Pa.C.S. § 9711(e)(8).
. Appellant’s claim XII.
. We make no determination on the Commonwealth’s argument that appellant’s sub-claim concerning the Glen Mills records is previously litigated, noting that the Commonwealth is free to raise the argument on remand.
. Appellant's claim XIII.
. Appellant's claim IV.
. More recent Supreme Court authority has suggested that a Simmons instruction is required where the evidence raises an inference of future dangerousness. See Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. *592726, 151 L.Ed.2d 670 (2002). Trial counsel's conduct, however, must be evaluated under the law prevailing at the time of trial, which was the non-precedential plurality in Simmons.
. Madame Justice Baldwin’s concurrence misapprehends our analysis of the state of the law surrounding Simmons at the time of appellant's trial. The concurrence cites Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995) (plurality), for the proposition that this Court interpreted Simmons to require an instruction on the meaning of life in prison whenever a capital defendant’s future dangerousness is "at issue” and the defendant requested the instruction. Respectfully, the analysis is not so certain, as the concurrence would have it, to second-guess counsel, Christy was decided by a six-Justice court, with only three Justices joining the majority opinion. Additionally, as the concurrence recognizes, the issue in Christy was whether the rule announced in Simmons applied retroactively, and not the extent to which Simmons established grounds to object to various aspects of a prosecutor's penalty phase argument.
More importantly, we cannot agree that the Simmons case alone made clear that an instruction was required where argument on a distinct aggravating circumstance may have implied future dangerousness, such as in the instant case where the Commonwealth asked the jury to find the (d)(9) aggravating circumstance. Indeed, the U.S. Supreme Court itself recognized the'difficulty in ascertaining the reach of Simmons three years after it was decided: “[t]he array of views expressed in Simmons itself suggests that the rule announced there was, in light of this Court’s precedent, 'susceptible to debate among reasonable minds.'” O’Dell v. Netherland, 521 U.S. 151, 159-60, 117 S.Ct. 1969, 1975, 138 L.Ed.2d 351 (1997) (citations omitted). The Court certainly provided eventual guidance on what type of evidence constituted argument on a defendant's future dangerousness in Kelly, 534 U.S. at 254, 122 S.Ct. at 732 ("Evidence of future dangerousness under *594Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms."), but this statement of the law was long after the conclusion of appellant’s direct appeal. If no reasonable attorney at the time of appellant's trial would have acquiesced to argument concerning the (d)(9) aggravator on the ground that it raised an inference of future dangerousness, as the concurrence suggests, then one must conclude that the U.S. Supreme Court’s decision in Kelly was superfluous.
. Appellant’s claim XV.
. We observe that, in disposing of this claim, the PCRA court erroneously cited to the aggravator at issue as relating to 42 Pa.C.S. § 971 l(d)(13), which refers to killings committed while in the perpetration of a felony. PCRA ct. slip op. at 18-19.
. Appellant's claim XVI.
. Appellant’s claim XVII.
. Rule 352, which has since been renumbered as Rule 802, provides: The attorney for the Commonwealth shall file a Notice of Aggravating Circumstances that the Commonwealth intends to submit at the sentencing hearing and contemporaneously provide the defendant with a copy of such Notice of Aggravating Circumstances. Notice shall be filed at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of an aggravating circumstance after arraignment or the time for filing is extended by the court for cause shown.
. Appellant actually cites the transcript date as being recorded in 1997, two full years after his sentencing trial.
. Appellant’s claim XVIII.
. During the trial court’s formal sentencing instructions to the jury, it further emphasized the weight of the jury’s responsibility:
I want you to remember that your verdict is not here for recommendation. It actually fixes the punishment in either death or life imprisonment....
You're not just telling me what you think ought to be done. You’re telling me what I'm going to have to do. The law says must. I must impose the verdict that you bring in.
*603N.T. 7/18/1995 at 26. If the jury had any doubt about its responsibility after the trial court’s passing reference to the review process, that ambiguity was eradicated with this instruction.
. Appellant’s claim XIX.
. Appellant's claim XX.
. Appellant's claim XXI.
. Appellant's claim XXII. |
9,645,469 | 2023-08-22 21:26:00.086118+00 | Cappy | null | Chief Justice CAPPY,
concurring.
I join the majority opinion save for footnote 35 on pages 593-94, 913 A.2d at 274. Respectfully, I disagree with the interpretation the majority forwards regarding “future dangerousness” as that concept has evolved in Pennsylvania. Although Simmons1 itself may have narrowly limited the instruction requirement to instances when “future dangerousness” arose as a stand-alone aggravator, I believe that any *609inquiry regarding Simmons must be informed by Pennsylvania law following Simmons.
Accepting that the state of the law in Pennsylvania remained uncertain at the time of this court’s plurality decision in Commonwealth v. Christy, any lack of clarity was rectified in its immediate aftermath. Following Christy, our case law spoke in terms of “future dangerousness” being placed “at issue” by either party, and did not place a restriction on the rule that it was limited to those circumstances when future dangerousness was raised as a stand-alone aggravator. See, e.g., Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998) (pointing out that a Simmons instruction was not required when “the issue of future dangerousness was not before the jury. At no time during either phase of trial did the prosecutor argue or suggest that the death penalty should be imposed because Appellants could potentially hurt someone else ....”) (emphasis added); Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040, 1046 (1998) (noting that a Simmons instruction was required “[ujnder the current state of the law, where future dangerousness is at issue and a specific request is made by a capital defendant”) (emphasis added); Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 36 (1998) (extending rule in Christy to include either counsel and noting that in Christy, “this court acknowledged the applicability of Simmons to cases in Pennsylvania decided subsequent to Simmons, where the issue of the defendant’s future dangerousness was raised”); Commonwealth v. Smith, 544 Pa. 219, 675 A.2d 1221, 1232 (1996) (noting that “[t]his court held in Christy that Simmons mandates that where future dangerousness is at issue and a specific request is made by the capital defendant, it is a denial of due process to refuse to tell a jury what the phrase ‘life sentence’ means”); see also Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243 (2000)(0pinion Announcing the Judgment of the Court) (concluding that it was error for prosecutor to argue future dangerousness as part of the criminal history aggravator). Accordingly, I tend to agree with Madame Justice Baldwin that defense counsel would be obliged to request a Simmons instruction whenever the prosecutor injected “future dangerousness” into the penalty phase after Christy.
*610Nevertheless, I join- the majority’s analysis of this issue, since I agree that the statement at issue related to past conduct and did not implicate Appellant’s “future dangerousness.” See Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1186 (1999); Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 355 (1998).2
. Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality).
. We have implied in the past that statements allegedly implicating "future dangerousness” must be read in context, and when read in context, I agree with the majority that the statement related to past conduct. See Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234, 1244 (1999). |
9,645,470 | 2023-08-22 21:26:00.090609+00 | Baldwin | null | Justice BALDWIN,
concurring.
I join the majority opinion, with the exception of Part III, Section E, entitled “Simmons Charge,” where I only concur in the result. I write separately because I disagree with the majority’s analysis in that section. I believe the prosecutor’s use of language that stated “enough is enough,” “you had your chance,” and “[w]e are not going to let anymore people be injured” unquestionably placed Appellant’s future dangerousness at issue in this case. Nevertheless, I fail to see how prejudice necessarily resulted from trial counsel’s failure to request the instruction in this case. Consequently, while we employ different approaches, I am compelled to reach the same result as the majority.
In order to succeed on a claim of ineffective assistance of counsel, Appellant must demonstrate that: (1) the underlying claim has arguable merit; (2) counsel had not reasonable basis for his action or inaction; and (3) prejudice resulted from counsel’s deficient performance. Commonwealth v. Pierce, 515 Pa. 153, 157-59, 527 A.2d 973, 975-77 (1987). Here, Appellant alleges that his trial counsel was ineffective for failing to request a jury instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), which would have instructed the jury that life imprisonment means life in prison without the possibility of parole. Appellant further argues that appellate counsel was ineffective for failing to raise this alleged error by trial counsel.
*611In Simmons, a plurality of the United States Supreme Court held that “where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. at 2190. As the majority correctly notes, this Court has held that a Simmons instruction is mandated only when: (1) the prosecutor places the defendant’s future dangerousness in issue; and (2) the defendant requests the instruction. See Majority Opinion at 591, 913 A.2d at 273. (citations omitted). The majority goes on to find that Appellant’s future dangerousness was not placed at issue, and, therefore, Appellant’s claim is without arguable merit. I disagree.
The contested language was part of the prosecutor’s closing argument. It reads as follows:
The third aggravating circumstance is that history of felony convictions and when the legislature passed that they were saying to you and to me enough is enough. Mr. Carson, you had your chance. We are not going to let anymore people be injured.
[Three] felonies, ladies, and gentlemen, two of them came out of the same circumstances with guns, with knives. One of them a [fourteen]-year-old. Enough is enough.
N.T. 7/17/1995 at 81.
The majority relies on Commonwealth v. May, 551 Pa. 286, 710 A.2d 44 (1998) in finding that the above language did not inject Appellant’s future dangerousness into the case. Rather, the majority concludes that the prosecutor merely focused on Appellant’s past conduct and linked that conduct to the purpose of the statutory aggravating circumstance of significant history of violent felony convictions.1 See Majority Opinion at 592, 913 A.2d at 273. To the contrary, May was not a case that addressed the question before us in the instant matter, because the Appellant in May failed to challenge, or even identify, specific language used by the prosecutor that placed his future dangerousness at issue. We held that no Simmons *612instruction was required. Stated otherwise, although we rejected the “future dangerousness” argument in May as “meritless,” that determination resulted from the legal argument presented in that case. May contended that simply arguing the aggravating circumstance of a significant history of violent felony convictions necessarily injected future dangerousness of a criminal defendant into the case. Id. at 291, 710 A.2d at 47. We did not hold, nor infer, however, that language used while arguing that specific aggravating factor could never amount to placing a defendant’s future dangerousness at issue. Thus, May is not dispositive of the matter sub judice. If that were the case, a prosecutor could essentially place future dangerousness at issue, but couch it in an argument pertaining to his history of felony convictions, and do so with impunity. May requires no such result.
In my view, as aforementioned, the prosecutor’s argument placed Appellant’s future dangerousness at issue. The use of the phrase, “[w]e are not going to let anymore people be injured,” coupled with an argument regarding Appellant’s prior, felonies can only be interpreted to mean that Appellant has committed violent felonies in the past, and unless he is executed, he will continue to commit violent felonies. Together with the use of the words “enough is enough,” and “... you had your chance,” the undeniable effect of the prosecutor’s closing argument was to place Appellant’s future dangerousness before the sentencing jury. While the prosecutor did not specifically state that Appellant would be a danger if he was not executed, such language is not required to warrant the instruction. See Commonwealth v. Chandler, 554 Pa. 401, 414-15, 721 A.2d 1040, 1046 (1998) (Simmons instruction was necessary even though the prosecutor did not use specific future dangerousness language. The absence of precise wording could not overcome the effect of the prosecutor’s statements). Consequently, I would find that Appellant’s claim has arguable merit, meeting the first prong of the Pierce standard for reviewing claims of ineffective assistance of counsel.
I also depart from the majority’s finding that even if Appellant’s future dangerousness was implicated,- “it is doubt*613ful that reasonable attorneys would have believed a Simmons instruction would be warranted under the state of the law at the time [A]ppellant was on trial.” See Majority Opinion at 593, 913 A.2d at 274. The majority seemingly interprets Simmons to encompass only the situations where a prosecutor argues future dangerousness as the sole aggravating factor in a capital sentencing phase, and that this concern was unknown prior to the decision in Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), which was decided years after Appellant’s trial. Kelly expanded Simmons to include a broader array of circumstances that place future dangerousness at issue and require the instruction. The language in Simmons, however, does not support the majority’s narrow interpretation.
Although Simmons was a plurality opinion, the core holding is not unclear. Indeed, seven Justices found that due process required informing the jury, either by an instruction or by defense rebuttal, that life in prison means life without parole if future dangerousness of the defendant is injected into the case. See Simmons, 512 U.S. at 156, 114 S.Ct. at 2190;2 id. at 172, 114 S.Ct. at 2198 (Souter, J., concurring);3 id. at 174, 114 S.Ct. at 2199 (Ginsburg, J., concurring); id. at 178, 114 S.Ct. at 2201 (O’Conner, J., concurring).4 In my view, a reasonable attorney, particularly one who undertakes the immense responsibility of representing a capital defendant, should have understood Simmons as warranting a request for a “life means life” jury instruction, if future dangerousness is at issue. Further, Simmons was decided over one year before the commencement of Appellant’s trial. Moreover, prior to Appellant’s trial, this Court expressly discussed Simmons in Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995) (holding that Simmons did not apply retroactively). In Christy, we stated, “Simmons mandates that where future *614dangerousness is at issue and a specific request is made by the capital defendant, it is a denial of due process to refuse to tell a jury what the term ‘life sentence’ means.” Christy, 540 Pa. at 216, 656 A.2d at 889. Therefore, at the time of Appellant’s trial, trial counsel had the benefit of the Supreme Court’s decision in Simmons and a decision from this Court interpreting the Simmons holding to require a “life means life” instruction. Trial counsel failed to do so in this case. For these reasons, the majority’s conclusion that Appellant’s claim lacks arguable merit is puzzling to say the least.
More importantly, the text of Simmons does not support a limited application of the case to only situations where a prosecutor specifically argues future dangerousness or where it is the sole aggravating factor argued. Rather, the Court reached its decision based on general arguments of a prosecutor. The lead opinion employed the following language, “... particularly when the prosecution alluded to the defendant’s future dangerousness in its argument to the jury ...” Simmons, 512 U.S. at 164, 114 S.Ct. at 2194 (emphasis added); “[t]he state raised the specter of petitioner’s future dangerousness generally ...” id. at 165, 114 S.Ct. at 2194 (emphasis added); and “[t]he [s]tate may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness ...” id. at 171, 114 S.Ct. at 2198 (emphasis added). See also Chandler, supra.
In light of the above, I do not agree that the state of the law at the time of Appellant’s trial was in such a state of flux that no reasonable attorney would have believed a Simmons instruction would have been warranted. To the contrary, a competent capital defense attorney should have requested the instruction, particularly when armed with the Simmons decision decided over a year prior to trial and a subsequent decision by this Court. Accordingly, I would find that trial counsel’s failure to request a “life means life” instruction was without a reasonable basis. However, I concur in the result because Appellant failed to demonstrate that he suffered prejudice as a result of his counsel’s failings. Appellant merely states that he was prejudiced because his sentence was *615not reversed. Brief for Appellant, at 79. Such a bald assertion is insufficient to meet the prejudice prong of the Pierce standard.
Therefore, while I recognize that this is case is not a direct appeal, rather a claim of ineffective assistance of counsel under the PCRA,5 I still write separately to restate, and adopt, the position taken by former members of this Court in the past, that a Simmons instruction should be mandated in every capital case, regardless of whether the prosecutor expressly or impliedly places a defendant’s future dangerousness at issue, or whether capital defense counsel formally requests the instruction. See Commonwealth v. Clark, 551 Pa. 258, 283-86, 710 A.2d 31, 43-44 (1998) (Nigro and Zappala, J.J., concurring).6 I announce my position here because I believe that mandating the instruction will eliminate the endless stream of litigation that accompanies this issue, including claims of ineffective assistance of counsel.
As the United States Supreme Court has recognized, “a defendant’s future dangerousness bears on all sentencing determinations made in our criminal justice system.” Simmons, 512 U.S. at 162, 114 S.Ct. at 2193, citing Jurek v. Texas, 428 U.S. 262, 275, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and Stevens, J. J.) (noting that “any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what sentence to impose.”). I do not find it necessary to require the prosecutor to inject future dangerousness into the case or require defense counsel to make a formal request for an issue that, I believe, is implicated in any death penalty sentencing hearing. Mandating the instruction in every case would not be an absurdity. In fact, at the time Simmons was decided, Pennsylvania was only one of three states that had a life without parole sentencing alternative that did not mandate the instruction. See Shafer v. South Carolina, 532 U.S. 36, 49 n. 4, 121 S.Ct. 1263, 1271 n. 4, 149 L.Ed.2d 178 (2001). Pennsylvania’s status remains unchanged. Lastly, it is not *616only reasonable, but also likely, that whether a capital defendant will be released on parole if given life imprisonment will enter into the minds of deliberating juries. I see no reason to hide the fact that life imprisonment, in Pennsylvania, means life without parole. I cannot accept the premise that the prosecution would be prejudiced by this simple, relevant truth. Hiding the truth is antithetical to our system of justice. This is of the utmost concern in capital cases.
Justice BAER joins this concurring opinion.
. See 42 Pa.C.S. § 9711(d)(9).
. Justice Blackman announced the judgment of the Court, which was joined by Justice Stevens, Justice Souter, and Justice Ginsburg.
. Justice Souter’s concurring opinion was joined by Justice Stevens.
. Justice O’Conner's concurring opinion was joined by Chief Justice Rehnquist and Justice Kennedy.
. 42 Pa.C.S. §§ 9541-9546.
. Former Chief Justice Flaherty joined J. Nigro's concurring opinion. |
9,645,471 | 2023-08-22 21:26:00.094968+00 | Saylor | null | Justice SAYLOR,
concurring and dissenting.
I join the majority in remanding for a post-conviction evidentiary hearing concerning the sufficiency of trial counsel’s stewardship connected with the presentation of mitigation circumstances in the penalty phase of Appellant’s trial, but I would broaden this remand to include at least some ineffectiveness claims arising from the guilt phase of trial. Notably, Appellant’s post-conviction evidentiary proffer includes a declaration from his trial counsel indicating that counsel failed to attempt to locate a material witness and to pursue available avenues for impeachment of the testimony of critical Commonwealth witnesses. In his declaration, counsel further indicates that he had no strategic or tactical reasons for such failures. In light of such a proffer, it is my position that it is appropriate for the PCRA court, in the first instance, to hear the relevant testimony and issue appropriate findings of fact and conclusions of law on a developed record.
The majority proceeds, without the benefit of evidence concerning the extra-record claims, to evaluate the cold trial record and to offer various conclusions concerning the potential impact of better performance by trial counsel. For example, with regard to the potential impeachment of one Commonwealth witness, the majority indicates “[establishing that Mr. Burton was involved in other illegal activities would not ineluctably alter the jury’s opinion of him, much less lead to a different verdict.” Majority Opinion at 557, 913 A.2d at 252. It is not a post-conviction petitioner’s burden, however, to *617establish conclusions ineluctably (or inescapably). According to the United States Supreme Court, whose decisions this Court follows in the ineffectiveness arena:
Although a defendant need not establish that the attorney’s deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], a defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S., at 694, 104 S.Ct. at 2068. According to Strickland, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Ibid. The Strickland Court noted that the “benchmark” of an ineffective-assistance claim is the fairness of the adversary proceeding....
Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986).
Pursuant to this standard, I maintain my perspective that these cases involving allegations of serious constitutional violations with supporting evidentiary proffers should be assessed on a developed evidentiary record. Accord Commonwealth v. Bryant, 579 Pa. 119, 164, 855 A.2d 726, 752 (2004) (Saylor, J., dissenting) (“My position is that the Court would give better effect to the values of regularity and fairness that are essential to the judicial function by requiring closer and more consistent adherence to the procedures that have been designed to ensure the reliability of criminal convictions, particularly in the capital arena, where the need for reliability is at its greatest.”). Further, relative to these fact-sensitive inquiries, I believe that a fact-finder (here, the PCRA court) should determine which, if any, of the instances of asserted ineffectiveness are true in light of the post-conviction evidence before the collective impact of any deficient stewardship upon the fairness of the trial proceedings can be reasonably evaluated.
I also differ with the majority opinion to the degree that it suggests that counsel cannot be deemed ineffective for failing to advance arguments merely because supporting theories *618have not yet been accepted by any controlling tribunal, see Majority Opinion at 569-70, 576, 913 A.2d at 260, 264. In this regard, I maintain the perspective that competent counsel should pursue reasonably available theories that are likely to vindicate client interests, regardless of whether those theories have been definitively accepted by the courts. Cf. Commonwealth v. Hughes, 581 Pa. 274, 334-35 n. 40, 865 A.2d 761, 797-98 n. 40 (2004) (“We decline to accept ... the proposition that an ineffectiveness challenge based on counsel’s failure to pursue vindication of generally prevailing precepts in the capital sentencing context is necessarily foreclosed solely because the Court had not at the time announced that those salient prevailing and generally applicable principles should apply in capital sentencing determinations.”). However, to the degree that the theories have no merit, or are not readily available, I agree with the majority that counsel should not be faulted. |
1,516,224 | 2013-10-30 06:32:51.567582+00 | Kaplan | null | 955 F. Supp. 37 (1997)
GREATER MIAMI BASEBALL CLUB LIMITED PARTNERSHIP, Petitioner,
v.
Allan H. "Bud" SELIG, etc., Respondent.
No. 96 Civ. 8989 (LAK).
United States District Court, S.D. New York.
February 18, 1997.
*38 Robert Berson and Thomas Kinzler, Kelley Drye & Warren, New York City, for Petitioner.
Robert J. Kheel, Lizbeth Parker, and Bruce A. Albert, Willkie Farr & Gallagher, New York City, for Respondent.
Adam Liptak, New York City, for Intervenor the New York Times Company.
MEMORANDUM OPINION
KAPLAN, District Judge.
The New York Times Company (the "Times") moves to intervene for the limited purpose of seeking access to and unsealing the deposition of Allan H. "Bud" Selig in this litigation, which concerns the constitution of an arbitration panel charged with resolving a dispute about the compensation to be paid by the Florida Marlins to the petitioner, the owner of the Fort Myers Miracle, a minor league baseball team the territory of which was "drafted" when the Marlins entered the major leagues. Selig opposes public access to his deposition.
Facts
It is unnecessary for the resolution of this motion to go into the details of the dispute between Selig and the Miracle beyond saying that the agreements governing professional baseball contain provisions permitting major league teams to take, or "draft," territories belonging to minor league teams subject to the requirement that compensation be paid for doing so. Failing agreement on the compensation to be paid, the amount is to be fixed by a seven member Board of Arbitration. The Board shall consist of one representative each of the minor league, the minor league team, the major league, and the major league team, the president of the organization of minor league baseball teams, the Commissioner of Baseball, and a seventh arbitrator who is to be an impartial appraiser selected by the preceding six or, absent such selection, by the Commissioner of Baseball.
A Board of Arbitration for the resolution of this dispute was constituted on the premise that the office of Commissioner of Baseball is vacant. Accordingly, the Professional Baseball Executive Council ("PBEC"), which *39 is charged with carrying out the responsibilities of the Commissioner when that office is vacant, designated someone to sit on the Board on its behalf and selected the seventh arbitrator. The Miracle contends, among other things, that Selig is at least the de facto Commissioner and that he therefore should sit on the Board and select the seventh arbitrator.
Selig has moved to dismiss the petition on a variety of grounds. The motion is sub judice. The Court nevertheless permitted limited discovery, including a deposition of Selig, on Selig's status. The parties agreed to a protective order permitting either side to designate material confidential and providing that information so designated would be held in confidence absent contrary order of the Court. (Stipulation and protective order, Jan. 14, 1997) Selig's deposition was so designated.
On January 23, 1997, the Court conducted an evidentiary hearing at which the transcript of Selig's deposition and the exhibits thereto were received in evidence.
Discussion
Judicial records are presumptively subject to public inspection. United States v. Amodeo, 71 F.3d 1044, 1047 (2d Cir.1995) ("Amodeo II"); United States v. Amodeo, 44 F.3d 141, 146 (2d Cir.1995). As the Times contends, the presumption is at its strongest when the document in question, as here, has been submitted as a basis for judicial decision making. See Joy v. North, 692 F.2d 880, 893 (2d Cir.1982), cert. denied sub nom. City-trust v. Joy, 460 U.S. 1051, 103 S. Ct. 1498, 75 L. Ed. 2d 930 (1983). Only where countervailing considerations of privacy are sufficient to overcome the presumption may the press be denied access to such documents. Amodeo II, 71 F.3d at 1050.
Selig's first argument is that the presumption of access to the deposition transcript is minimal because the deposition's role in the determination of the parties' substantive rights is limited. As Selig puts it, the deposition was offered "solely to insure [its] irrelevance." (Resp.Br. 6) (quoting Amodeo II, at 1049). The argument, however, is without merit. Selig cannot be sure that he will prevail on the pending motion to dismiss; the matter may well be decided on the merits. If it is, the deposition testimony which was offered by petitioner, not Selig may well play an important role in the decision. Accordingly, the presumption of access cannot be dismissed as readily as Selig would have it.
Nor is the fact that the deposition was designated confidential under the protective order entitled to any weight. If courts were obliged to make determinations, item by item, as to the justification for confidentiality of every piece of evidence as to which any party or witness made such a claim during the conduct of discovery, see FED.R.Civ.P. 26(c), there would be little time in which to do anything else. In consequence, parties frequently agree, with the courts' approval, that they will maintain in confidence anything produced in discovery as to which the producing party or witness makes such a claim, subject to the right of the party seeking discovery to contest the designation. See, e.g., Lachica v. City of New York, No. 94 Civ. 7379 (LAK), 1995 WL 77928 (S.D.N.Y. Feb. 23, 1995). The issue whether the material really should be kept from public view, is left for another day, which fortunately seldom arrives a circumstance that spares the courts much time which may be devoted to other litigants and the parties many dollars that otherwise would be spent litigating academic questions. That is exactly the sort of protective order entered here. This point is of singular importance. Given the lack of any litigated determination of whether there was good cause for Selig's testimony, which had not yet even been given, to be sealed from public view, Selig had no justifiable basis in assuming that the testimony would remain confidential unless Selig could establish good cause for such treatment.
Selig next contends that public access to Selig's testimony "could result in ... an impairment" of the performance of the Court's Article III functions. (Resp.Br. 8) The argument presupposes justifiable reliance by Selig on the protective order, the theory evidently being that disclosure would make future litigants more reluctant to comply *40 with discovery requests. (Id.) In view of the lack of any justifiable reliance, not to mention the fact that litigants refuse compliance with discovery obligations at their peril, the argument is baseless.
The final point advanced by Selig is the contention that the deposition "contains numerous inquiries into and disclosures of commercially sensitive, confidential information about his private finances and the internal affairs of the twenty-eight Major League Clubs who are not parties to this action." (Id. 9) The statement is artfully phrased. While there were inquiries into Selig's private finances, Selig's counsel directed his client not to answer them so the private information is not in the record. Beyond that, Selig has not favored the Court with any more specific explanation of what in the deposition he regards as sensitive or why. His blunderbuss approach, if accepted, would require the permanent sealing of matters including newspaper clippings. Given that the burden is on the party seeking confidentiality protection to establish the need for it, the failure to do so with any degree of specificity requires the conclusion that good cause has not been shown. In any case, the Court has reviewed the entire transcript and the exhibits and finds that there is no good cause except with respect to one of the exhibits to the deposition, which relates to personal estate planning of a major league owner and which therefore will be protected.
Conclusion
As the Selig deposition transcript and exhibits are parts of the trial record, they are presumptively matters to which the public is entitled to access. Selig has failed to demonstrate any legally sufficient reason for their continued confidentiality with the exception of Exhibit 16 to the deposition. Accordingly, the motion of The New York Times Company to intervene and for access to and the unsealing of the transcript and exhibits is granted in all respects save that Exhibit 16 to the deposition will be retained under seal.
SO ORDERED. |
1,516,246 | 2013-10-30 06:32:51.867661+00 | Chapman | null | 420 S.W.2d 160 (1967)
John H. JONES, Appellant,
v.
UNITED STATES FIRE INSURANCE COMPANY, Appellee.
No. 7732.
Court of Civil Appeals of Texas, Amarillo.
June 26, 1967.
Rehearing Denied September 5, 1967.
*162 Merchant & Barfield, J. Jerry Merchant, Amarillo, for appellant.
Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for appellee.
CHAPMAN, Justice.
Appellant, John H. Jones, sued United States Fire Insurance Company, insurer for Will Rogers Range Riders, Inc., a riding and roping club (his employer on January 2, 1966), to recover workman's compensation benefits for accidental injuries sustained when his pickup driven by his minor son collided with a train as he and his son were proceeding from Amarillo to Hereford. Appellee insurer's motion for summary judgment was granted by the trial court and this case represents the appeal therefrom. The sole legal question before us is whether the pleadings, depositions and affidavits established as a matter of law that such injuries were not sustained in the course of his employment for assured. We hold they established as a matter of law that such injuries were not sustained in the course of his employment.
The record made by the summary judgment components shows appellant was hired in July 1965 to care for the club's grounds, horses and roping steers and he and his family lived on the second story of the Range Rider's Clubhouse located on the grounds.
For the purpose of this appeal only, appellee admitted: "The employment contract required Jones to furnish his own work-horse to be used in caring for Range Rider's property and in working the club's livestock." They furnished him one stall for his horse. The club members' horses and steers were out on pasture at times and had to be rounded up and brought into their stalls to be fed and watered. LeRoy Foster, supervisor of work activities at Range Riders, had told Jones he had to own his own horse. Soon afterwards he bought an eight-year old mare but when he learned Range Riders did not permit mares on the premises, he traded her for a stallion. He later acquired other horses but at the time in question he owned only a fifteen-month old colt he was grazing on wheat pasturage at Hereford. A week or two previous to January 2, 1966, he had sold the last horse he owned and kept at Range Riders for working the club's animals. On the morning of the accident he "probably borrowed a horse from Mr. McMenamin," president of the club, to round up animals for feed and water.
Jones was on call seven days a week and it was understood his two teenage boys who lived with him would help around the grounds when needed. They started feeding the horses and steers about 8:00 o'clock a. m. on the named date, Sunday, January 2, 1966, and by approximately 10:00 o'clock a. m. had completed the morning's chores for Range Riders. Appellant then decided he wanted to go to Hereford and pay for wheat pasturage on two colts, one ten months of age owned by his son and one fifteen months of age owned by him. They were travelling in appellant's pickup, he was furnishing his own fuel, Range Riders did not own or have any interest in the two colts they were going to Hereford to pay pasturage on and the colts were too young to ride or serve any purpose in performing appellant's services of employment.
Mrs. Jones' deposition showed that she had no reason to believe her husband was going to Hereford on the Sunday morning of January 2, 1966, to do anything for Range Riders or to do anything for them on the way back, but only to pay pasturage on the two colts.
In the supplemental affidavit of appellant shown in the record he stated he would not have had any horses if he had not gone *163 to work for Range Riders, "* * * because other than my job out there, I had no use at all for these horses." He also stated:
"Although Mr. Foster did not personally and orally direct me to go to Hereford on the particular day that I went I understood that it was part of my job to go over there and take care of my own horses, as the club had already told me, through Mr. Foster, that I had to own my own horses. I sure felt like that I had been directed by the club to go over to Hereford on that day.
"To my knowledge, I was working for the club at the time the accident happened, taking care of my own horses, and that was part of my job."
Mr. Foster's affidavit shows he hired appellant "* * * to take care of the club grounds, horses and livestock, and to do general maintenance work about the premises."
"* * * Plaintiff was under my supervision and control as to the work to be done and the details thereof at the club * * * I had no knowledge that Plaintiff was going to Herford, Texas, or why he was going. The pickup in which Plaintiff was riding at the time of the accident was his personal pickup. The club furnished Plaintiff a pickup to use in his work and about the club grounds. At the time of the accident the trip to Hereford was not a part of the Plaintiff's contract of employment with the club. The expense of the trip to Hereford on the occasion in question was not paid for by the club. I did not direct or request the Plaintiff to go to Hereford on the occasion in question for any purpose. I did not exercise any control or supervision over the Plaintiff in his going to Hereford at the time of the accident.
"To my knowledge Plaintiff was not on any mission for or business of the club at the time of the accident."
"Words and phrases defined" in Article 8309, Section 1, Vernon's Tex.Civ.St., states:
"The term `injury sustained in the course of employment,' * * * shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer's premises or elsewhere."
In 1957 the legislature enacted Section 1b under Article 8309. The first sentence thereof provides:
"Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment."
Since this is a summary judgment case, we must follow certain rules laid down by the Supreme Court of Texas. Mr. Justice Greenhill speaking for that court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965) has recently spelled out a number of those rules in the following language:
"The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat'l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup. *164 1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the movant's position is not considered unless it is uncontradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 136 S.W.2d 207 (1940). After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law."
There are also other rules in connection with a summary judgment case we must observe. "* * * affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence." Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).
Obviously, the statements by appellant that, "* * * I understood that it was part of my job to go over there and take care of my own horses," * * * "I sure felt like that I had been directed by the club to go over to Hereford on that day," "To my knowledge, I was working for the club at the time the accident happened," would not be admissible in evidence upon the trial of the case. "* * * opinions which are the result of a conscious process of deductive reasoning are usually rejected. The results of this ratiocinative process may appear in the form of a statement of the witness' understanding, impression, or belief, or it may appear in the form of what he thinks, supposes, or considers." Texas Law of Evidence, McCormick and Ray, 2d Edition, Section 1398, p. 228. See also Hammond v. Hough, 52 Tex. 63, 73 (1879).
If the affidavit, or other summary judgment components, showed such statements sworn to by appellant were facts from his own observation but that his observation was uncertain, or his recollection was unclear, the textual authority from which we have just quoted indicates a witness "* * * may qualify his testimony by the use of such phrases as `I believe,' `I think,' `It is my impression,' without detracting from its admissibility." Such exceptions to the first quoted general rule under such textual statements do not apply here and appellant's statements as used in his affidavit that "* * * I understood," "I sure felt like," and "To my knowledge" would in our opinion not be admissible on the trial of the case on its merits and are therefore not proper for us to consider on this appeal. Tobin v. Garcia, supra.
It is uncontradicted in the record that the horse appellant was required to keep should be useable for the purpose of working the club's livestock and that the fifteen-month old colt was not such an animal on January 2, 1966. It is also uncontradicted that Mr. Foster was appellant's supervisor as to the work to be done and *165 the details thereof; that he had no knowledge appellant was going to Hereford on said day, or why he was going; that the club furnished him a pickup for his duties in connection with his employment; that he was in his own pickup when injured and the expenses of the Hereford trip were not paid by the club; that he did not direct Jones to go to Hereford on the occasion in question and he exercised no control or supervision over appellee in his going to Hereford. We are not considering Mr. Foster's statement to the effect that at the time of the accident the trip was not a part of the contract of employment. Such statement was a legal conclusion and would not suffice in establishing grounds for a summary judgment. Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App.-Dallas, 1953, writ ref'd); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962).
Applying all the rules that have been established by our Supreme Court on inferences that must be indulged against a movant for summary judgment, and the rules of evidence above related, this record reveals by all the summary judgment components that there is no genuine issue as to any material fact in the record before us. It is without contradiction in the record that the requirement for furnishing a horse by appellant was for its use in and about the pasture and premises in working the livestock belonging to Range Riders. One stall was furnished him for such type horse. The fifteen-month old colt simply served no purpose in that connection. This being without contradiction, assuming the hazards of street and highway travel to pay for his pasturage was outside the course and scope of his employment. As a general rule an injury received while using public streets and highways by an employee is not compensable because not incurred in the course of employment as required by the statute. Texas General Indemnity Company v. Bottom, 365 S.W.2d 350 (1963). "The rationale of this rule is that in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer." Texas General Indemnity Company v. Bottom, supra. None of the prerequisites of either Section 1 or Section 1b of Article 8309 are present in this record. Under the rules announced in Agricultural Insurance Co. v. Dryden, 398 S.W.2d 745 (Tex. 1965) and Texas General Indemnity Company v. Bottom, supra, construing Sections 1 and 1b of Article 8309, appellant at the time of his injury was not in the course of employment for Range Riders on his trip to Hereford to pay pasturage on a fifteen-month old colt which contributed nothing to his employment.
The summary judgment rendered by the court below is affirmed. |
9,645,472 | 2023-08-22 21:26:13.416867+00 | Woodley | null | OPINION
WOODLEY, Presiding Judge.
The petition for writ of habeas corpus was filed October 27, 1967, and set for submission.
The facts set out in support or the allegation that he is unlawfully restrained of his liberty by the Texas Department of Corrections and upon which he requests that, after hearing, this court order his release from his present confinement are:
“Petitioner is incarcerated as a result of a 1954 robbery conviction in the Criminal District Court of Tarrant County, Texas. Petitioner was an indigent defendant at the time and had made this fact known to the Court. After sentencing, petitioner gave notice of appeal to The Court of Criminal Appeals and did not waive the appointment of an attorney. No attorney was appointed for ■petitioner and no statement or facts was prepared for petitioner’s appeal.”
The petition has not been presented to the judge of the trial court and does not reflect a compliance with Art. 11.07 of the 1965 Code of Criminal Procedure as amended, which this court construed in Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.
A petition was presented to this court prior to the enactment of Art. 11.07 Vernon’s Ann.C.C.P. attacking the 1954 life sentence for robbery by assault under which petitioner is confined, upon similar grounds, which has been misplaced. Said petition resulted in a hearing before the present judge of the convicting court on August 30, 1967, at which petitioner was represented by court appointed counsel.
The facts ascertained by this court from prior petitions attacking the life sentence; court records; the evidence adduced at the hearing and the findings and conclusions of Judge Byron Matthews, who conducted the hearing, reflect the following:
Petitioner was convicted of felony theft in Tarrant County on September 19, 1939, and for forgery in Dallas County on May 8,1948. He was indicted in Tarrant County on November 2, 1954, for the offense of robbery and the prior convictions for felony theft and for forgery were alleged for enhancement.
On November 16, 1954, petitioner’s affidavit that he was without counsel and wholly destitute of means to provide counsel, and praying that counsel be appointed to represent him, was filed.
Although Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, had not been written and there was no Texas Statute requiring appointment of counsel for an indigent other than in capital cases at the time, the able District Judge Willis McGregor, now deceased, appointed Hon. Joe Shannon of the Fort Worth Bar to represent petitioner and the case was called for trial on December 1, 1954.
It is apparent that petitioner not only asserted in the trial court his constitutional *934right to counsel, but also asserted his constitutional right to refuse counsel and to represent himself. He refused to permit his court appointed counsel Joe Shannon to conduct the case, ask the questions or make the oral argument before the jury. Mr. Shannon obtained process for his witnesses and was allowed to remain at his side in the courtroom during the trial of the case on its merits, but petitioner “told him what I wanted to challenge in this trial,” and petitioner examined the witnesses and argued his case before the jury.
The jury having returned its verdict and judgment having been pronounced thereon, a motion for new trial was filed. Hon. John E. McLean, of the Fort Worth Bar, acted as counsel for petitioner at the time the motion for new trial was overruled and notice of appeal was given.
Petitioner testified at the hearing before Judge Matthews, in part, as follows:
“Q. In any event, Mr. Shannon was there with you during the entire course of that trial, was he not?
“A. During the trial. Yes.
“Q. He was there the date you were sentenced, was he not?
“A. I am not positive whether he was there or not. Personally I don’t think he was at the sentencing.
“Q. Was Mr. McLean present at the time you were sentenced?
“A. Mr. McLean was there.
“Q. At that time you gave notice of appeal ?
“A. Mr. McLean gave notice of appeal.
“Q. The attorney. How did Mr. McLean get into this lawsuit?
“A. To be honest, I don’t know. I never spoke to him before the hearing, during the hearing or after the hearing.
“Q. As a matter of fact, hadn’t your sister employed Mr. McLean to represent you at that time?
“A. That, I don’t know.
,* * * * * *
“Q. And a written Motion for New Trial was filed?
“A. I have no way of knowing that; only the oral notice.
“Q‘. You were there when the Court overruled it and Mr. McLean gave notice of appeal at that time?
“A. Yes, sir.
“Q. At that time when Mr. McLean appeared into that lawsuit did you request or make any request of the Court that an attorney be appointed on the appeal?
“A. I don’t recall. I am not sure.”
Mr. McLean testified that he had no recollection of representing petitioner but his signature was on the motion for new trial and on the affidavit signed by Mrs. May Vaughn on December 30, 1954, that he (Breen) was of unsound mind. He further testified: “Q. Do you recall whether the court appointed or directed you to do any work on the appeal ? A. No, sir, but in answer to that question I can say if I had been appointed, I would have perfected the appeal.”
Judge Matthews, who conducted the hearing directed by this court, found “That at the time of the appeal from said conviction the record shows that John E. McLean was not appointed by the court but acted as counsel for the petitioner at the time the petitioner was present when his motion for new trial was overruled and notice of appeal was given * * and concluded that Mr. McLean “appeared at the request of someone other than petitioner or the court * * * and determined that the record did not contain sufficient error upon which to appeal.”
*935Paul F. Burris, official court reporter since 1951 for the court in which petitioner was tried and the hearing was had, testified at the hearing that he certainly did recall reporting the trial in December 1954 and that he knew for a fact that no one requested a statement of facts on that trial. He further testified that it had always been his practice, when notice of appeal was given and a transcript was not ordered at the time, to contact the attorney or litigant either personally or by telephone to determine if he wanted a statement of facts, and that in this case he was not requested and did not prepare a statement of facts and it would be impossible to do so now.
The fact that the notice of appeal was given by counsel for petitioner who was not court appointed disposes of any contention that he was denied any constitutional right by the failure of the trial court to appoint counsel to represent him on appeal. The failure of petitioner or his counsel to request that a statement of facts be prepared while the court reporter’s notes were available forecloses a delayed consideration of the appeal and any valid claim as to the denial of appellant’s rights to a record on appeal.
In the recent case of Evans v. State, 401 S.W.2d 602, we held that the state was not bound to prove that the attorney who entered a plea of guilty for the defendant in a misdemeanor case was authorized by his client to do so.
Applying the same rule and reasoning, the burden was on petitioner and not the state to prove that Mr. McLean, who was not court appointed, who presented his motion for new trial and gave notice of appeal for him, was not authorized by petitioner to do so.
Competent counsel was appointed by the court to represent petitioner at his trial and competent counsel who was not court appointed represented him in presenting his motion for new trial and gave notice of appeal for him. This counsel not being court appointed, any incompetency or lack of effective assistance on the part of such counsel cannot be imputed to the state. Howard v. Beto, 375 F.2d 441 (5th Circuit); Breedlove v. Beto (U.S. District Court Southern District of Texas), 276 F.Supp. 635, decided August 30, 1967.
The Supreme Court held, in Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, that a state may avoid the obligation of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, where, without fault of the state, no transcript can be made available, the indigent having had a lawyer at the trial and no remedy having been sought at the time, and that where transcripts are no longer available Illinois might rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal.
A much stronger case is made here than in Norvell v. State of Illinois, supra. Nor-vell’s petition was denied though he and his counsel attempted to obtain a transcript and to appeal but were unable to do so because of the death of the court reporter, whereas neither petitioner nor his counsel requested that a statement of facts be prepared and the state did nothing to hinder.
Judge Taylor’s opinion in Turman v. Beto, 271 F.Supp. 808, dated August 2, 1967 (U.S. District Court for Northern District of Texas) construing Norvell v. State of Illinois, supra, supports our conclusion that the state was not at fault in regard to the failure of petitioner or his counsel who gave notice of appeal to obtain a statement of facts.
There are other facts which sustain the conclusion that petitioner was not denied effective aid of counsel or a review of his claim of error on appeal.
The life sentence under attack is the same that was before this court in Ex parte Breen, 171 Tex.Cr.R. 669, 353 S.W.2d 233, *936cert. denied, 375 U.S. 841, 84 S.Ct. 89, 11 L.Ed.2d 69; before the United States District Court for the Southern District of Texas in In re Breen’s Petition, 237 F.Supp. 575; and before the 5th Circuit Court of Appeals in Breen v. Beto, 341 F.2d 96, in each of which petitioner presented his petition pro se, though his testimony at the hearing before Judge Matthews was to the effect that he petitioned each of said courts and the United States Supreme Court for an attorney (but not the trial court) and “a volunteer lawyer” took his case from the 5th Circuit to the Supreme Court where certiorari was denied, 386 U.S. 926, 87 S.Ct. 867, 17 L.Ed.2d 798.
The conviction for robbery was affirmed by this court in Breen v. State, 280 S.W.2d 752. The opinion reflects that there was no attorney on appeal and no statement of facts.
We set out in the Order of the Court of Criminal Appeals pursuant to which Judge Matthews conducted the hearing:
“From a document filed by petitioner in this Court in December 1966, and the opinion in In Re Breen’s Petition, 237 Fed.Sup. 575, it is shown that petitioner stated that he was convicted and sentenced to life as an habitual offender, after entering a plea of not guilty and asserting his right to defend himself, the document filed in this Court stating as his reasons:
“ ‘Lawyers refuse to challenge the practice because it makes their work easier and because to do so would put the court in disrepute,’ and ‘Because Lawyers refuse to challenge the practice; I elected to try to defend myself at my trial also because I was without funds to hire a lawyer even if he would.’ ”
The significance of these facts is that they not only show that petitioner chose not to rely upon counsel, but that the matter about which he desired to complain was such that no statement of facts was necessary for appellate review.
It should be remembered that prior to the effective date of the 1965 Code of Criminal Procedure there was no requirement that the ground of error of which a defendant desired to complain on appeal be assigned or set forth in a brief.
It is significant to note, also, that the grounds which petitioner stated lawyers refused to assert were those he advanced in attacking his conviction by habeas corpus. These grounds have been considered and decided against petitioner in the cases above cited, by this court and the Federal Courts, without a hearing and without a statement of facts.
The petition for writ of habeas corpus is denied. |
9,645,473 | 2023-08-22 21:26:13.421392+00 | Onion | null | DISSENTING OPINION
ONION, Judge.
Our brethren deny petitioner’s application for habeas corpus. Judge Morrison and this writer have concluded that the recent decisions of the Supreme Court of the United States require that we vigorously dissent to such action.
The record reflects that the petitioner was convicted of the offense of Robbery and assessed a punishment of life imprisonment as a habitual criminal in the Criminal District Court of Tarrant County on December 31, 1954. This conviction was affirmed on appeal. 280 S.W.2d 752. The appellate record before this Court contained no statement of facts, bills of exception or appellate briefs. No attorney appeared of record.
On June 26, 1967, prior to the effective date of the 1967 amendment of Article 11.07, V.A.C.C.P. and the decision of this Court in Ex parte Young, 418 S.W.2d 824 (Sept. 14, 1967), this Court ordered .the Honorable Byron Matthews, present Judge *937of the Criminal District Court of Tarrant County, to conduct a hearing upon the petition for habeas corpus in which the petitioner alleged that at the time of his appeal he was indigent, not represented by appellate counsel and that he did not waive the same. In ordering the hearing, we specifically called the trial court’s attention to Douglas and Meyes v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; Entsminger v. State of Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501.
At such hearing, the petitioner was present and represented by appointed counsel, Hon. Grady Hight, and Judge Matthews has now transmitted the facts developed together with his findings of fact.
At the conclusion of the hearing, Judge Matthews found that the petitioner was indigent (the pauper’s oath on file was not brought forward in the original appellate record); that he was represented by court appointed trial counsel, Hon. Joe Shannon, Sr., but desired to represent himself with appointed counsel remaining at his side during the trial.
It further appears from the record that another attorney, Hon. John E. McLean, who was not present during the trial, signed the motion for new trial (merely stating, “verdict contrary to the law and evidence.”), with said court appointed counsel; that McLean and Shannon were both present at the hearing on motion for new trial, the sentencing, and when notice of appeal was given. Judge Matthews toncluded that McLean’s appearance was at the request of some undetermined person other than the petitioner or the court, though the memory of all was hazy on this issue.
Douglas and Meyes v. People of State of California, supra, established the right of an indigent appellant to counsel on his first appeal, and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, holds that it is a violation of the Fourteenth Amendment to deprive a person because of his indigency of any rights of appeal afforded all other convicted defendants, including a free transcript or record.
While the record does not reflect that the indigent petitioner requested court appointed appellate counsel, neither does it reflect an affirmative waiver by him. Petitioner’s actions at the trial indicating a desire to represent himself with appointed counsel at his side would not constitute a waiver of his right to counsel on appeal. See Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. Further, there is no indication that he evidenced any wish to represent himself on appeal.
In Swenson v. Bosler, supra, the United States Supreme Court said:
“It is now settled ‘that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend upon a request.’ Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70. When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.”
It appears from the record that at the time of the sentence, court appointed counsel considered an appeal in the case to be “a very frivolous thing.” Attorney McLean also reached the same conclusion. It appears to have been the practice and custom in Tarrant County at the time for appointed counsel not to take the case beyond sentencing without further orders *938of the court.1 In all fairness to the appointed counsel and the trial judge then presiding, there was at the time no requirement that appointed counsel follow the case on appeal. Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315; Spalding v. State, 137 Tex.Cr.R. 329, 127 S.W.2d 457.
Such practice, however, flies into the teeth of the recent holding in Anders v. State of California, supra, where the Supreme Court stated:
“Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court— not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.”
It should be re-emphasized that in the petitioner’s appeal from his 1954 conviction, no statement of facts, bills of exception, or briefs were filed. It appears no effort was made by either attorney to obtain a statement of facts or to discuss the matter of appeal with petitioner. The petitioner was confined in jail and was transferred 2 or 3 days after sentence to the Dallas County Jail during the period prescribed by law in which to request a statement of facts.
“Such procedure automatically deprived him of a full record, briefs, and arguments on the bare election of his appointed counsel, without providing any notice to him or to the reviewing court that he had chosen not to file the complete record in the case.”
Entsminger v. State of Iowa, supra.
This Court affirmed petitioner’s life sentence after having seen only what the Supreme Court denominates as a “clerk’s transcript” in Entsminger.2 There is no showing on the original appeal or at the writ hearing that this is all that petitioner desired to have forwarded on appeal. And at such time it clearly was the general rule, that in absence of a statement of facts, only fundamental errors will be revised and every presumption will be in favor of the regularity of the conviction, the charge of the court, and of the sufficiency of the evidence. 1 Branch’s Anno.P.C.2d Ed., Sec. 622, p. 598.
We simply cannot conclude from the record before us that petitioner should be denied an adequate and effective review of his conviction on his first appeal on the ground that some attorney in addition to his court appointed counsel appeared at the hearing on the motion for new trial and at the sentencing either as an amicus curiae or at the request of some undetermined person. This is particularly true under the circumstances here presented *939where neither attorney McLean or court appointed trial counsel or petitioner could recall the nature of McLean’s connection with the case, and there is no showing that petitioner accepted him as his counsel. In fact it is petitioner’s undisputed testimony that he never talked to McLean or his court appointed counsel before, during or after the hearing on motion for new trial.
The majority assumes that attorney McLean was not court appointed. Judge Matthews found that McLean appeared at the request of some undetermined person other than the petitioner or the court, but he did add that the memory of all was hazy on this issue. The record appears to us to be just as consistent with the fact that attorney McLean was court appointed as with the conclusion that he was not. Nevertheless, the majority seeks to equate McLean’s status with that of employed counsel of appellant’s own choice. The record does not support such equation. Regardless of McLean’s status, we observe that court appointed counsel did not withdraw, or attempt to withdraw, and was still representing the indigent petitioner at the time of sentence and notice of appeal.
Further, we cannot agree that the result reached in Evans v. State, Tex.Cr.App., 401 S.W.2d 602, without citation of authority or reasoning, should be extended and applied in the case at bar. To do so would cast the burden upon this indigent petitioner and others like him to show, while still represented by court appointed counsel, that any other lawyer who injects himself into the case without request, is not counsel of his own choice. In Evans it was undisputed that the appellant had employed the attorney following her arrest for prostitution, and the only question involved was his authority thereafter to have entered a plea of guilty for her to such misdemeanor charge without her being present.
Still further we cannot agree that the fact that this indigent petitioner while confined in the Texas Department of Corrections filed his applications for writs of habeas corpus, pro se, in Federal Court constitutes an adequate substitute for his right to counsel on appeal or constitutes a waiver thereof. There can be no waiver of a right which can no longer be exercised. Crawford v. Beto, 385 F.2d 156 (5th Cir., October 9, 1967). Cf. Williams v. State of Alabama, 5th Cir., 1965, 341 F.2d 777.
Applying the relevant considerations which were decisive in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and Pate v. Holman, 5th Cir., 341 F.2d 764, there can be little question but what Anders, Swenson and Entsminger are to be applied retroactively just as Gideon v. Wainwright, supra, Douglas and Meyes v. People of State of California, supra, and Griffin v. People of State of Illinois, supra, have been.
To recapitulate, it is undisputed that the petitioner (1) was indigent at the time of his appeal, (2) that he manifested his desire to appeal, (3) that his appeal was without benefit of counsel, statement of facts or appellate briefs. We cannot find anything in the record to constitute an intelligent waiver of an effective review of his conviction on appeal. Certainly the appearance “out of the blue” of an attorney not requested by the petitioner, who does not discuss the case with him, is of the opinion that an appeal would be frivolous and who takes no further action after notice of appeal is given cannot constitute a waiver by the appellant.
The case at bar represents a much stronger case than Crawford v. Beto, supra. Crawford, a state prisoner, based his petition for habeas corpus on the fact that he sought to appeal his state court conviction but was without the aid of counsel. He was represented by retained counsel at his trial and through a motion for new *940trial. He requested the trial judge to appoint appellate counsel but his request was denied. Crawford appealed his own case, preparing the appellate brief with the aid of a fellow jail inmate. His conviction was affirmed on appeal. Crawford v. State, 162 Tex.Cr.R. 95, 282 S.W.2d 222. Crawford’s family then borrowed money to employ an attorney to file a motion for re-hearing in this Court! The motion was denied. In Crawford, the 5th Circuit Court of Appeals said:
“We hold that appellant was denied his constitutional right to counsel on appeal. We further hold that the employment of counsel to prepare and file the motion for rehearing was not an adequate substitute for his right- to counsel on appeal. There can be no waiver of a right which can no longer be exercised. Cf. Williams v. State of Alabama, 5 Cir., 1965, 341 F.2d 777.”
It is interesting to note that the Court does not discuss the question of indigency, but apparently assumes such fact from the record before it.
In the case at bar we would hold that petitioner was denied his constitutional right to counsel on appeal. He is entitled to an out of time appeal. Crawford v. Beto, supra; Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417; Mixon v. State, Tex.Cr.App., 401 S.W.2d 806.
We are not unmindful of the reporter’s testimony at the writ hearing that the shorthand notes of petitioner’s trial were misplaced in 1964 in the move from one courthouse building to another. It may well be that these notes may have now been located, or that in an out of time appeal the parties will be able to agree upon a statement of facts.
We need not decide until the perfection of the out of time appeal whether the petitioner is entitled to a new trial.
We respectfully dissent.
MORRISON, J., concurs.
. The abandonment by a court appointed attorney of an indigent defendant’s appeal may well deprive a convicted defendant of his constitutional rights. Swenson v. Bosler, supra; Loper v. Beto, 383 F.2d 400 (5 Cir., 1967); United States ex rel. Maselli v. Beincke, 383 F.2d 129 (2 Cir., 1967); Wainwright v. Simpson, 360 F.2d 307 (5 Cir., 1966); Edge v. Wainwright, 347 F.2d 190 (6 Cir., 1965); Pate v. Holman, 341 F.2d 764 (5 Cir., 1965).
. Compare present Article 40.09, Sec. 1, V.A.C.C.P. as to matters that the clerk must include in record on appeal, whether designated or not. |
9,645,474 | 2023-08-22 21:26:18.634225+00 | Greenhill | null | GREENHILL, Justice.
In this damage suit growing out of a two-car collision, the jury answered all the liability issues in favor of the defendant, W. H. Winn, and found that the plaintiffs, Mr. and Mrs. Henry Eubanks, had been damaged in a sum considered by them to be grossly inadequate. The jury’s answers totaled $1,600 for plaintiffs’ pain and suffering, medical expenses, loss of earnings, and inability to perform household duties. As will be developed below, a judgment was ultimately entered for the plaintiffs for the amount found by the jury plus the stipulated property damages. The plaintiffs were dissatisfied and appealed. The Court of Civil Appeals affirmed. 411 S.W.2d 60. The plaintiffs Eubanks are petitioners here. We shall refer to the parties as they were in the trial court.
The jury found that the defendant was not negligent in any respect. Following the jury’s verdict, several moves and counter-moves were made. Upon the court’s receipt of the verdict, the plaintiffs moved to disregard the answers of the jury favorable to defendant, and that having done so, they moved the court to declare a mistrial. In the alternative, they moved to disregard such findings and for a judgment based on the jury’s answers to the damage issues. On April 18, the court entered a judgment overruling these motions and decreeing that plaintiffs take nothing.
The plaintiffs filed an original and an amended motion for new trial. The amended motion contended that there was both no evidence and insufficient evidence to support the jury’s answers to the issues absolving the defendant of negligence as to lookout, speed and brakes. It also had assignments, among other things, based on defendant’s jury argument, jury misconduct, and as to alleged grossly inadequate damages. The prayer of the amended motion for new trial was that “the judgment heretofore entered, and the verdict of the jury, be in all things set aside, and that plaintiffs be granted a new trial upon all issues herein” and for general relief. [Emphasis ours.] It will be noted that the prayer was not for judgment for $1600 or any other sum upon disregarding the answers to the liability issues.
Thereafter the defendant made a motion to set aside the judgment entered in his favor, and he moved that judgment be rendered in plaintiffs’ favor for the amount of damage found by the jury. In it he waives the jury findings favorable to him on the liability issues and “moves the Court not to consider the answers of the jury. *700to the liability issues.” It will be noted in the “order and final judgment” set out below, the court granted this motion of the defendant. The parties are at odds as to the legal effect of the order. Ultimately, it set aside the take-nothing judgment of April 18 and entered judgment for plaintiffs. The plaintiffs contend that it granted a motion for new trial and then entered a new judgment. The defendant disagrees. The order reads :
“ORDER AND FINAL JUDGMENT
“BE IT REMEMBERED that on the 30th day of May, 1966 came on to be heard plaintiffs’ amended motion for new trial and matters related thereto, and came the plaintiffs by and through their attorney of record and came the defendant by and through his attorneys of record and full hearing thereon was had in open court, and it appearing to the court that the said motion should be granted on the grounds assigned in paragraphs I, II, and III of plaintiffs’ amended motion for new trial, relating to the jury’s answers to Special Issues No. 1, 3 and 5 concerning the liability of defendant, only and overruled as to all other grounds alleged therein, it was therefore ORDERED, ADJUDGED and DECREED by the court that the judgment heretofore entered on April 18, 1966 should be and is hereby cancelled, vacated and set aside. Plaintiffs’ amended motion for new trial is in all other respects overruled.
“Further be it remembered that on the said 30th day of May, 1966 came defendant, William H. Winn, by and through his attorneys of record, and after the court had made known its intention to sustain plaintiffs’ amended motion for new trial on certain grounds as set out above but before the court had made any docket entry or éntered any written order the defendant filed a written motion to set aside the judgment previously rendered on April 18, 1966 that plaintiffs take nothing and in writing waived the advantage gained by the ‘we do not’ answers of the jury to Special Issues Nos. 1, 3 and S and consented to and moved the court to enter a judgment for plaintiffs for the amount of damages found by the jury in answer to Special Issues Nos. 7, 8 and 9 and for costs of court, irrespective and regardless of the other findings of the jury, and the court being of the opinion that said waiver and motion had the effect of admitting liability and confessing judgment herein for the purposes of this hearing only, and the same as if the jury had answered ‘we do’ to Special Issues Nos. 1, 2, 3, 4] 5, and 6 instead of ‘we do not,’ and being further of the opinion that said motion of defendant should be in all things granted.
“It is accordingly, ORDERED, ADJUDGED and DECREED by the court that the said motion of defendant referred to in the preceding paragraph be and the same is hereby in all things granted; that plaintiffs, Henry Eubanks and wife, lia Ruth Eubanks, do have and recover of and from defendant William H. Winn, the sum of * * [The order entered judgment for the amount of damages found by the jury plus the stipulated property damages and taxed court costs against defendant.] [The emphasis above is ours.]
Because of the alleged gross inadequacy of the award, plaintiffs strenuously objected to this order granting them judgment. They have maintained their objections on appeal. In affirming the judgment, the Court of Civil Appeals at Waco held that the court’s order did not grant a new trial, but merely indicated that the trial judge set aside the previous judgment, then gave effect to defendant’s motion waiving favorable jury findings and granted judgment for plaintiffs. The court further held that the damages were not inadequate, and that the trial court did not err in rendering judgment for plaintiff under these circumstances, despite the jury verdict favoring defendant.
*701The order and judgment set out above is unique and difficult to interpret. The judgment recites that it was the trial court’s opinion that plaintiffs’ motion for new trial should be granted on certain grounds; and it is capable of the construction that the motion was granted in part but overruled in part. Then the judgment proceeds to grant defendant’s motion and to set aside the previous judgment. It set aside the jury’s answers to the liability issues. Then based on the defendant’s waiver of the answers in his favor, the court enters judgment for plaintiffs on the damage issues. Such an order is foreign to our practice and cannot stand.
The issues of liability and of damages in cases such as these are elements of an indivisible cause of action and may not be tried piecemeal. Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956). The problem was reviewed at length in Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958); and the Court wrote that contested issues of liability and damages were to be tried together. The logic of that opinion is that damages in cases such as these should be fixed by the same jury which decides the issues of liability.
The holdings in the Waples-Platter Co. and Iley cases would preclude a trial court from granting a motion for new trial on either the issue of liability or damages alone. We are not here dealing with other severable issues. If a new trial is to be granted in a case such as this, it must be a complete new trial, even though the motion for new trial was granted on points relating solely to liability and not to damages, or vice versa. In this case, the trial court stated in his judgment that he had made known his intention to grant plaintiffs’ motion for new trial at least in part, and his order stated that this motion should be granted on certain grounds. If the plaintiffs were entitled to a new trial, they should not be compelled to accept the damages findings of the jury in the first trial.
Under this rationale, it is immaterial that judgment was entered for plaintiffs on the basis of defendant’s confession of liability. The legal effect of the order was to sever the issue of damages from the contested issues of liability, which were found by the trial court to be subject to such question as to be grounds for the granting of a new trial to the plaintiffs. While a party against whom a cause of action is asserted can confess his liability and proceed to trial on the issue of damages alone, such a confession of liability cannot be made over the objections of the plaintiffs after the jury verdict in order to prevent the granting of a new trial. Such confession of liability came too late.
Nor was the judgment correctly entered under Rule 301, Texas Rules of Civil Procedure. That rule provides that upon motion and notice given, judgment may be entered notwithstanding the verdict or upon disregarding one or more special findings. A judgment notwithstanding the verdict is authorized under Rule 301 only when a directed verdict would have been proper; and special issue findings may be disregarded which are immaterial or have no support in the evidence. It clearly appears that an instructed verdict would not have been proper in this case; and there is evidence to support the answers to the material liability issues which were disregarded.
The cases cited by the Court of Civil Appeals do not support the proposition that a “waiver of all favorable jury findings” or a confession of liability after the verdict is a sufficient basis upon which to enter judgment contrary to the jury verdict. The cases citéd in the opinion of the Court of Civil Appeals are those in which a party waived a particular favorable finding in order to resolve a conflict in jury answers, such as Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955 (1940). They are not controlling here. In those cases the judgments were not rendered contrary to the *702jury verdict, but were based on that part of the verdict which was not destroyed by the conflicting answers. The other case cited, Malone v. Pioneer Bus Co., 315 S.W.2d 311 (Tex.Civ.App.-Waco 1958, writ ref’d n.r.e.) is hereby disapproved to the extent that its holding conflicts with the holding in the instant case.
We do not consider that the plaintiffs invited the error here. In their motion for judgment, they did have an alternative motion for judgment based upon the disregarding of the answers to the liability issues. This motion was overruled and a take-nothing judgment entered. The amended motion for new trial did contain points of no evidence and insufficient evidence to support the liability issues. These were a necessary predicate for an appeal on these phases of the case. But the prayer was for a new trial on “all issues made herein.” There was no prayer for judgment by disregarding the liability issues. This did not invite the error, nor do we consider that it was plaintiffs’ prayer for general relief which invited error. It was the motion of the defendant “not to consider” the answers to the liability issues which was sustained in the court’s “final judgment.”
We conclude that there is no authority under the Rules of Civil Procedure to support the action of the trial court in giving effect to defendant’s confession of liability after the jury’s verdict and entering judgment contrary to the jury verdict over plaintiffs’ objections. The judgments of the trial court and the Court of Civil Appeals are reversed; and the cause is remanded to the district court for further proceedings not inconsistent with this opinion. |
9,645,475 | 2023-08-22 21:26:18.638286+00 | Hamilton | null | DISSENTING OPINION
HAMILTON, Justice.
I respectfully dissent.
On the state of the record in this case I think the trial court entered a correct judgment, and I would affirm the judgment of the Court of Civil Appeals. In the first place, I know of no sound reason why a Defendant cannot confess liability at any time before final judgment. Second, I cannot agree that the granting of the judgment notwithstanding certain jury findings has the legal effect of severing the issues of damages from the issues of liability so as to make applicable this Court’s holdings in the cases of Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956); and Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958). Such a judgment may be wrong because there is evidence to support the disregarded jury findings, but it should not be wrong because the judgment has the legal effect of severing the liability issues from the damage issues.
I agree with the Court that if the Respondent’s admission of liability is ignored there is evidence to support the jury findings on liability, but I do say that the Petitioners have never in the trial court, the Court of Civil Appeals, or in this Court attacked the judgment on that ground. In fact, Petitioners have at all times contended that there was no evidence to support the findings of the jury on the liability issues. Petitioners in their brief before the Court of Civil Appeals, in its argument under a jury misconduct point makes this statement:
“The jury returns a verdict on liability contrary to all the evidence, and even contrary to the judicial admissions of appellee that he could not avoid the collision although he had applied his brakes for possibly 90 feet, and he admitted that the speed he was traveling prevented him from avoiding the collision.”
Whatever may be said about the judgment entered by the court, it was the identical judgment requested by both parties at one time or another, and if ever a trial court could be safe in entering a judgment it should have been in this situation. After the verdict came in and before judgment, *703Petitioners filed a motion to disregard the findings on the liability of the Defendant (Issues 1, 3 and 5), and having done so, to declare a mistrial, and in the alternative to enter judgment for the Petitioners in the amount of damages found by the jury, plus the amount of property damages as stipulated by the parties.
As a basis for this alternative request they stated in their motion that each of the liability Issues 1, 3 and 5, should be disregarded “when considered as a whole for the undisputed facts of this case, reflects as a matter of law that the Defendant was guilty of one or more of such facts of negligence, and that same was the proximate cause of the collision.” This motion of the Petitioners was overruled by the trial court and judgment was entered on the verdict for the Defendant.
Petitioners amended motion for new trial states in regard to Issue No. I:
“The Court erred in refusing to disregard the negative finding of the jury to Issue No. 1, and in denying plaintiff a judgment based thereon, for each of the following separately assigned reasons”:
“ * * * ” (Here follows a statement of facts supporting such contention.)
In regard to Issue Number V the motion states:
“The Court erred in failing to disregard the finding of the jury to Issue No. 5, and in denying recovery of damages based thereon, for each of the following separately assigned reasons”:
“ * * * ” (Here follows a statement of facts supporting such contention.)
It thus appears that Petitioners at all times, up until the very time the judgment was entered for them, were maintaining that they were entitled to judgment for the damages found by the jury, plus those, as stipulated. Here the Petitioners sought two inconsistent methods of relief and the Respondent requested that one of them be granted. The trial judge granted that relief on which both concurred. Therefore, Petitioner may not complain of the denial of the other, for if there was any error in granting the judgment entered, it was invited error. Harris v. Christianson-Keithley Co., 303 S.W.2d 422, 427-428 (Tex.Civ.App.1957, error ref’d n.r.e.).
I would affirm the judgments of the Court of Civil Appeals and of the trial court. |
9,645,476 | 2023-08-22 21:26:19.482964+00 | Palmore | null | PALMORE, Judge.
Incident to the construction of Interstate Highway 75 the appellant highway department in this proceeding condemned 3.2 acres of the appellee Genevia Hess’ 84-acre farm located on U. S. Highway 25 near Wil-liamsburg, in Whitley County. The department appeals from a judgment entered pursuant to a verdict awarding the landowner $6,000, based on a before-value of $15,500 and an after-value of $9,500.
Grounds on which it is contended the judgment should be reversed are: (1) The award was excessive and not supported by sufficiently probative evidence; (2) Improper questioning by counsel for the landowner prejudiced the jury; and (3) The court erred in permitting the county judge and county court clerk to testify as valuation witnesses for the landowner. We shall discuss them in reverse order.
On the last point the arguments are that county judges and county court clerks are officers of the Commonwealth and should not be allowed to appear as witnesses against it; and that the county judge, in whose court the proceeding originated and who appointed commissioners and entered a judgment reflecting their award of $3100, should be estopped to testify contrary to the judgment of his own court.
No authority is cited for the proposition that an officer of the public cannot testify against it. Barring those situations in which privileged communications may not be divulged, our view is that any person whose testimony is otherwise relevant and competent and may assist in arriving at the truth can testify for or against any party.
If the county judge were required to perform a fact-finding function in determining the amount of compensation to be awarded in the county court, there might be good reason for a policy that would forbid his impeaching his own verdict, but that is not the case. Under KRS 177.083 and 177.086 he merely appoints three disinterested housekeepers for that purpose and is limited to finding that their report conforms to the statute. He has no discretion to modify or reject their award be*662cause the amount does not accord with his opinion. His duties in this respect are purely mechanical. Though we do not encourage the practice, we perceive no reason why he should be disqualified as a valuation witness when the litigation proceeds to a trial in the circuit court.1
With respect to the interrogation of certain of the Commonwealth’s witnesses by counsel for Mrs. Hess, it does appear that many of the questions were more testimonial than inquisitive, and more argumentative than appropriate. Whether prejudice resulted from it is doubtful, as it would seem more likely that the average juror’s sympathy under such circumstances would favor the unfortunate witness. Be that as it may, the record reflects that in most of the cited instances the trial court sustained objections and admonished the jury in the customary manner. If counsel for the Commonwealth felt that opposing counsel’s persistent transgressions in this regard reached the point at which the jury was likely to be prejudicially affected, the proper avenue of relief was a motion to discharge the jury. No such motion was made.
In both Byrd v. Commonwealth, Ky., 283 S.W.2d 191, 194 (1955), and Thomas v. Commonwealth, 196 Ky. 539, 245 S.W. 164, 166 (1922), the defendant objected to improper argument by opposing counsel and the court duly admonished the jury to disregard the argument, but the defendant did not move to discharge the jury, and it was held that the court had done all it had been asked to do, and that a failure to discharge the jury when there is no motion for such action is not an error. These were criminal cases, but the reason for the rule applies equally, if not more strongly, in a civil trial. Cf. Lawler v. Copelin, Ky., 258 S.W.2d 913, 915 (1953); Moore v. Lyons, Ky., 386 S.W.2d 717, 719 (1965); Standard Sanitary Mfg. Co. v. Brian’s Adm’r, 224 Ky. 419, 6 S.W.2d 491, 493 (1928).
1-75 is a limited access highway. In Whitley County it follows generally the same path as U. S. Highway 25. Before the taking Mrs. Hess’ property fronted 255 feet on U. S. 25. As best we can tell from the record, which contains the wrong map, for all practical purposes her frontage on U. S. 25 has been eliminated, and the driveway from a dwelling house located on the remainder tract to a new access road is less advantageously situated than was the original driveway leading directly to U. S. 25.
Robert Knight, a real estate appraiser employed by the department, testified that the highest and best use of the property before the taking was for farming and that it contained about 10 acres of tillable land with a frame dwelling and several outbuildings. No buildings were taken. In his opinion the market value was $15,500 before the taking and $14,500 afterward. He cited as comparable a 1958 transaction in which Mrs. Hess had sold 7.5 acres off the rear of the property to a lumber company for $1,000, a 1959 sale of seven acres nearby (but not fronting on the highway) at $3,700 for strip-mining purposes, and a 1963 sale of 35 acres “across the road” 'at $25,000 for industrial purposes. It was brought out on cross-examination that several commercial properties were situated in the near vicinity.
Ray Wells, a district right-of way agent for the department, using the same comparable sales, testified to a before-value of $15,500 and an after-value of $14,200. His evidence was much the same as the witness Knight’s except that he was of the opinion that with some filling and grading the front part of the property would have been adaptable to use for a residence or small business.
Valuation testimony given in behalf of the landowner was as follows:
Edward Moses, county welfare director, who buys and sells real estate and makes *663appraisals for a local bank, insurance agencies, loan companies and other individuals and agencies, and who owns seven parcels of real estate in Whitley County, was of the opinion that the Hess property was worth $15,000 before and $6,500 after the taking. He said that vacant property in Williams-burg is scarce and that the outlying area to the south of the city, where the tract in question is located, has been increasing in demand and value since 1958. In his opinion the sale made by Mrs. Hess in 1958 was not comparable because that property was several hundred feet back from the highway. He thought also for the same reason that the 1959 sale of 7 acres for $3,700 was not comparable.
Everett Rains, county court clerk and former sheriff, is a farmer and trader by profession, lives in the neighborhood and has been familiar with the property in question all his life. He has had experience in buying and selling land and observes the prices at which real estate in Whitley County is bought and sold. It was his opinion that the Hess tract was worth $15,200 before and $8,250 after the taking, and that the 1958 and 1959 transactions cited by the department’s witnesses were not comparable.
William Morton Bennett, the county judge, grew up on a farm adjoining the Hess place and has been well acquainted with it all of his life. He has had extensive experience in the purchase and sale of real estate and now owns 23 dwellings and a store building in the county. He testified that the value of property in the area in question had been on the increase, to the extent of four or five times its former value, prior to the taking, by reason of increasing population. His opinion was that the Hess place was worth $16,-000 before and $9,000 after the taking. He said the most valuable part was taken, but was not able to give any specific case in which property located in the same vicinity along U. S. 25 had brought $2,000 per acre.
It will be noted that the principal differences between the testimony of the department’s appraisers and the witnesses for the owner lay in their opinions as to the value of the remainder left after the taking and in the fact that the former relied on comparable sales whereas the latter did not.
Since the witnesses substantially agreed on the before-value, the alleged comparable sales can have no decisive significance except as to the after-value. The 1959 purchase for strip-mining purposes simply is not comparable without a showing that the Hess property can be strip-mined. Certainly the highway frontage tract sold in 1963 for industrial purposes cannot be equated with the Hess property as it was left after the taking. If the 1958 sale by Mrs. Hess be given the probative weight claimed by the witnesses who cited it as comparable, the value ascribed by the jury to the property remaining after the taking may be somewhat low, but it is not so grossly out of line that a court would be justified in repudiating the verdict.
In conclusion, we are unable to say that the amount of the award appears excessive at first blush.
The judgment is affirmed.
WILLIAMS, C. J., and MILLIKEN, EDWARD P. HILL and STEINFELD, JJ., concur.
. As a matter of fact, even the commissioners are allowed to testify. Cf. Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766, 770 (1962). |
9,645,477 | 2023-08-22 21:26:19.487315+00 | Osborne | null | CONCURRING OPINION
OSBORNE, Judge.
This case and Commonwealth, Department of Highways v. Rowland, et al., Ky. 420 S.W.2d 657 were stated and voted on as companion cases. In my opinion they share a common fault which this court should immediately proceed to correct. In both cases the properties involved were situated upon U.S. Highway 25 near Williamsburg in Whitley County. The properties were *664basically one-family mountain farms of modest value. However, in recent years, being located upon a major highway with unrestricted access to the highway and near a residential community they have taken on added value. This value results from the fact that the property is adjacent to Highway 25 and enjoys unlimited access to that highway making the property desirable for both residential and business purposes. The value of the property being greatly enhanced as a result of this adjacency it was therefore greatly diminished when 1-75 was built where it cut' off much of the property from free access to U.S. 25, leaving it with only limited access to 1-75. We have held that one can not recover for loss of access where the property is reduced from a status of unlimited access to one of limited access, if the owner still has “reasonable” access. Rowland v. Commonwealth, Department of Highways, Ky., 414 S.W.2d 880 and Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72. I can see no real distinction between this case and those above cited. In both instances the question is whether or not to compensate the owner for diminution in value resulting from loss of adjacency to a free access road. Whenever property derives a portion of its value from the fact that it is adjacent to a free access road it does not seem reasonable to deny recovery for diminution in value occasioned by altering the highway (either widening or raising) thereby limiting its access and allow recovery such as we are doing here where the free access to the old highway ⅛ abolished and replaced by limited access to a new highway. The owner of property either has a compensable interest in its adjacency to a highway or he does not. If he does, then any act that diminished his access should be compensa-ble. If he does not, then the state should be permitted to remove the highway without paying compensation. If loss of access is not a compensable item then the award in this case should be set aside. It is a matter of common knowledge that mountain farmland is not worth $2000 per acre, therefore it becomes obvious that we are compensating the owners for their loss of adjacency to an open access highway.
I concur in the action of the majority affirming the judgments in these cases because I believe the owners have a property interest in the adjacency of their land to an open access highway and, therefore, I would compensate them for any loss of value suffered as a result of curtailing or limiting such access. I would overrule those cases holding otherwise. As the matter now stands, we are compensating some and denying others for identically the same loss. The rule denying recovery for access has its genesis in the decisions of this court. See Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117, wherein a county sought to close a rural road. Flood claimed he was damaged by the closing and insisted he was entitled to compensation under sections 13 and 242 of the Constitution. This court held:
“A careful reading of the evidence convinces us that there was no special damage to appellee’s property differing in kind and not merely in degree from that which might have been sustained by the general public when this section of the road was discontinued. That part of the road contiguous to appellee’s property which connects his private entrance with the Cropper-Cull road which in turn connects with all of the principal public roads in the vicinity was not discontinued * * *.
“ ‘ * * * the general weight of authority in requiring compensation to an owner of private property for a taking or damage under similar constitutional provisions is that the damage suffered must be to contiguous property and the direct and immediate consequence of the act complained of. Recovery cannot be had for remote or contingent injury.’ ”
It will be noted that the specific holding is to deny recovery because damage suffered was not to “contiguous” property. There, seems to be little doubt but what damages would have been allowed had the property *665been contiguous. The question was next before this court in Ex parte Commonwealth of Kentucky, Ky., 291 S.W.2d 814. This case like the Flood case was an action to close a rural road. On the question of damages this court said:
“This brings us to the question of liability for damages. We think it is fairly well established that a property owner on a road proposed to be closed is entitled to damages (for depreciation in the value of his property) only when the closing of the road will deprive him of his sole or principal means of ingress and egress. Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498.”
The holding here is that a property owner has no compensable property right in the road to be closed even though his property be contiguous to the road, if he has another means of ingress and egress. It is interesting to note that the court cites the Flood case as authority for its holding, when the Flood case actually stands for the opposite. Here we have witnessed the disappearance of the constitutional right of the citizen to be compensated for property taken for public use. The right seems to have vanished like the rabbit from the magician’s hat, now you see it, now you don’t. As if to further allay any doubt as to whether the right had been completely annihilated, the court again wrote in Department of Highways v. Jackson, Ky., 302 S.W.2d 373:
“It is argued by amicus curiae that if a landowner suffers a depreciation in the value of his land as a result of the closing of a road, he necessarily has sustained a property damage, which is damage differing in kind from that suffered by the public generally, and for which he should be compensated, regardless of whether he continues to have a reasonable way of ingress and egress. The simple answer to this is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys (whether such convenience is from the extent to which the surface of the road is improved or from the geographical location) is something which does not inure to the landowner as property.”
The rule has been reaffirmed and repeated many times since and today remains as finalized in this case, to wit, a contiguous property holder has no financial interest in the adjacency of his property to the highway and can not recover from its alteration, abandonment or closing so long as he is left “reasonable” access to the road system generally. Commonwealth, Department of Highways v. Rowland, Ky., 414 S.W.2d 880; Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72; Commonwealth, Department of Highways v. Cleveland, Ky., 407 S.W.2d 417; Sloan v. Commonwealth, Department of Highways, Ky., 405 S.W.2d 294; Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466; Commonwealth, Department of Highways v. Merrill, Ky., 383 S.W.2d 327; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104; Department of Highways v. Jackson, Ky., 302 S.W.2d 373 and Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117.
In the case now before us we are tacitly permitting recovery for loss of access or adjacency whichever you choose to call it. Otherwise there would be no justification for the size of the verdict. What we have said could not be done by direct means, we now permit to be done by indirect means. Our very actions amount to a confession that the rule announced in Ex parte Commonwealth, supra, is wrong. Therefore, that case and those following should be overruled. A property owner has a pecuniary interest in the adjacency of his property to a public highway for which he should be allowed to recover. The rule is stated in 26 Am.Jur.2d 929, § 241 as follows:
“The general rule is that persons specially injured by the vacation of a *666street or highway are entitled to recover such damages as they may sustain, even in the absence of a statute providing therefor. The discontinuance of a public street upon which a parcel of land abuts, if such street constitutes the only means of access to the parcel in question, would in legal effect be the same as the construction of an impassable barrier around such land, and discontinuance in such a case is generally held to constitute a taking of the property so cut off, inasmuch as total deprivation of access is equivalent to a taking, especially when the easement of access to the street is recognized by the substantive law of the state.”
For the foregoing reasons I concur in the results reached by the majority opinion but not for the reasons stated therein. |
9,645,478 | 2023-08-22 21:26:21.398526+00 | Steinfeld | null | STEINFELD, Judge.
Gay Marcum, individually and as administrator of the estate of Ada B. Mar-cum, his deceased wife, and as administrator of the estate of Stevie Marcum, his deceased son, recovered judgments totaling $54,389.22 in an action against Ernest Earl Bell. State Farm Mutual Automobile Insurance Company, the appellant, was the liability insurance carrier of Bell but the maximum limit of the policy was $20,000.00. After the above judgments were rendered, State Farm paid $20,000.00 into Court. Marcum individually, and in the capacities mentioned, sued State Farm to recover the difference between the amount paid and the total amount of the judgments, on the claim that the insurance company was guilty of bad faith in failing to settle these claims when it had an opportunity to do so. Upon a verdict of a jury, the lower court found in favor of the appellees for the full amount. State Farm appeals.
*115The original judgments for Marcum were awarded after a determination that Bell was wholly at fault in negligently operating his truck at the time it collided with the automobile owned and operated by Marcum. Riding with Marcum were his wife, Ada, and their infant son, Stevie, both of whom were killed. Other passengers in the car were Teresa Marcum, Dale Henry Marcum and Randy Marcum, young children of Gay Marcum. Teresa was cut on the head and fourteen stitches were required to close the wound. Dale Henry lost three teeth and Randy was “banged up.” No action for the three surviving children had been filed at the time this suit was tried. Marcum was injured seriously.
State Farm claims that it was entitled to a directed verdict. It asserts that it acted in good faith; that Marcum and “Bell presented no claim against State Farm” and that they did not prove any act of bad faith on the part of State Farm. The appellant argues that the action was brought under the garnishment statute, KRS 426.381, and that Marcum had no right to proceed under that statute. It also contends that Marcum, in his various capacities, is not an “implied assignee” of Bell, the assured. State Farm argues that even if Marcum had a cause of action it is in tort and that it was incumbent upon him to prove the damages which each claimant sustained and that none were proved.
State Farm also alleges that many prejudicial errors were committed during the trial, among which were improper admission of certain evidence, misconduct of counsel and that erroneous instructions were given.
The first suit was filed in the Federal Court by Marcum in his various capacities against the United States of America under the Federal Tort Claims Act on the theory that Bell, at the time of the accident, was acting as an agent of the United States. The United States filed a third party complaint against State Farm alleging that it insured Bell. The district court dismissed upon a finding that Bell was not acting as agent for the government. Marcum, et al. v. United States of America, (D.C.Ky.) 208 F.Supp. 929. That decision was affirmed. Marcum, et al. v. United States of America, (CA 6) 324 F.2d 787, 789.
The second action was in the Ohio Circuit Court wherein Marcum, individually and as administrator of the estate of his wife and son, demanded damages in the amount of $15,000.00 for himself, $200,-000.00 for his wife’s estate and $70,000.00 for his son’s estate. State Farm notified Bell that the claims exceeded the policy limits and that he should employ his own attorney if he desired to do so. Bell did not employ his own attorney until after Marcum sued State Farm. Bell, through the attorney supplied by State Farm, answered denying that he was negligent and alleging that the accident resulted from the sole or contributory negligence of Marcum and he counterclaimed for the damage to his truck. At the conclusion of the evidence, but over Bell’s objection, the court directed that the jury enter verdicts against him for Marcum in his various capacities. It found for Marcum individually $10,-000.00, for the estate of Ada Marcum $31,075.00 and for the estate of Stevie Mar-cum $13,314.22, a total of $54,389.22. The court did not submit to the jury the claim for punitive damages. A motion for a new trial was filed but was overruled. Judgments were entered pursuant to that verdict but no appeal was taken.
State Farm paid into the registry of the circuit court $20,000.00 and moved that an order be entered “adjudging that it has complied with the terms of its insurance policy covering * * * Bell, and that it is now released from any and all liability by the payment into Court of the sum of $20,000.00”. Executions were issued to the sheriff, who promptly returned each one with the notation “no property found.” Marcum filed an “Amended and Supplemental Complaint, and Response to Motion *116of State Farm * * * An order of distribution was entered directing that the $20,000.00 be distributed to apply on the adjudged claims but that it be without prejudice to the rights of Marcum to seek recovery from State Farm and its insured, Bell, the balance of the judgments rendered .and without prejudice to State Farm to contest any further liability. State Farm claims that its liability has been satisfied,.
The proceedings came to trial on the amended and supplemental complaint and the other pleading which we will discuss. After hearing evidence on the issues presented the jury found against State Farm in the amount of $34,389.22.
State Farm moved for a judgment notwithstanding the verdict or alternatively for a new trial. These motions were not sustained. The court entered judgment that Marcum individually, and as administrator of the two estates and Bell recover from State Farm $34,389.22, interest and ■costs.
One of the contentions for reversal is that Marcum, in his various capacities as a judgment creditor of Bell who was insured by State Farm, had no right to bring this action under KRS 426.381. Mar-cum’s theory is that as a creditor of Bell he is attempting to subject an indebtedness owing from State Farm to Bell. That statute provides that after the return of an execution by the proper officer, showing that no property was found to satisfy the execution, the execution plaintiff, “may by an amended and supplemental petition filed in the action have the same re-docketed and join with the execution defendant or ■defendants any person believed to be indebted to him or them, or to hold money or other property in which he or they have any interest, or to hold evidences or securities for the same.” The statute also authorizes that the property be “subj ected to the satisfaction of the judgment.”
Marcum’s amended and supplemental complaint followed a form of pleading long outmoded. He completely ignored CR 8.01 which directs that “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled.” The pleading Marcum filed is subject to that rule. Fact after fact was stated until 10i/> pages of typing had been used to charge that the insurance company had not acted in good faith and was indebted to Bell and Marcum. This type of pleading has been condemned. Capdevielle v. American Commercial Alcohol Corp., D.C.N.Y., 1 F.R.D. 365; 6 Kentucky Practice, Clay 127, 132.
CR 41.02 provides that “for failure of the plaintiff * * * to comply with these rules * * * a defendant may move for dismissal of an action or of any claim against him.” Bell and State Farm jointly moved to dismiss but restricted that motion to the alleged failure of Marcum to state a claim against the defendant; therefore, the violation of CR 8.01 was not raised.
Among other things Marcum alleged:
“ * * * defendant insurance company contracted and agreed to defend said Ernest Earl Bell from all claims and demands arising out of the operation of a pickup truck involved in said accident, and providing that it, the insurance company, would have exclusive control of the handling of any claim that might arise under said policy and prohibiting said Bell from making settlement or otherwise compromise or adjust any claims that should be made against him for any act done or omitted to be done in the purview of said policy of liability insurance issued as aforesaid.”
“Said insurance company refused to settle said claims or to negotiate a reasonable settlement thereof at a time when it knew that should judgments be rendered in said action that they probably would be far in excess of said policy coverage *117and, therefore, violated the terms and provisions of said policy of insurance, in that it gave no consideration to the welfare of its insured, Ernest Earl Bell, but took into account its own selfish interest in failing and refusing to thus settle said claims as it could have done as aforesaid and, therefore, failed to act in good faith as the insurer of said Ernest Earl Bell, which resulted in said verdict and judgment against said Ernest Earl Bell far in excess of said insurance coverage provided in said policy, and said loss to said Bell was a direct and proximate result of said acts and conduct of bad faith of and on the part of the defendant, State Farm Mutual Automobile Insurance Company, * * * ”
“Thus * * * insurance company is * * * indebted to Bell in * * * amount of $54,389.22, an indebtedness * * * within the meaning * * * of KRS 426.381.”
“ * * * as such third party beneficiary and real party in interest, plaintiffs have the right to prosecute this claim against the * * * insurance company * * *''.
“ * * * they are subrogated to the rights of Bell to require * * * insurance company to make full payment of said judgment, * * * ”.
The claim against the insurer was predicated both on the failure of the insurance company to fulfill its obligations of the policy and upon bad faith.
Marcum sought personal “judgment against said State Farm Mutual Automobile Insurance Company in the full amount of said judgments, to wit, $54,389.22 and their costs expended * * * ” and for discovery.
Bell, for the first time employed his own counsel who moved that the action be dismissed because the “Amended and Supplemental Complaint did not state a claim against Bell.” This motion was overruled and Bell was given thirty days within which to answer. His answer was filed and again he demanded that the action be dismissed, hut this demand was never ruled on.
The trial court overruled the motion of State Farm to dismiss. Meanwhile, depositions were taken and various motions were made not germane to the issues now before this court. A pretrial hearing was conducted. With leave of Court granted over objection of State Farm, Bell filed an amended answer. Stewart v. Burks, Ky., 384 S.W.2d 316.
It was discretionary with the court below to permit the filing of the amendment and it was not error to overrule an objection to its being filed. CR 15.01. Kentucky Home Mut. Life Ins. Co. v. Hardin, 277 Ky. 565, 126 S.W.2d 427; and Bradford v. Billington, Ky., 299 S.W.2d 601.
Bell admitted the allegations of Marcum’s pleadings and demanded “that judgment be granted to the plaintiffs against the defendant State Farm * * * ” for the amount claimed and “that he and his estate be relieved of any and all liability on account of the judgment of $54,389.22 previously rendered against him * * * ”. CR 13.07; CR 18.01; CR 20.01. Stewart v. Burks, supra.
The action then proceeded to trial with Marcum and Bell joining in their effort to recover, to the end that State Farm be required to satisfy the balance of the judgment.
Marcum and Bell, to hold State Farm liable, rely on a provision in the policy which obligates State Farm “to defend any suit against the insured alleging such bodily injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent, but the company may make such investigation; negotiation and settlement of any claim or suit as it deems expedient; * * * ”.
State Farm denies that it failed to fulfill its obligations under the terms of the policy. It interposes certain defenses which we-discuss herein.
*118State Farm claims that the procedure is incorrect and relies upon Wittenauer v. Kaelin, 228 Ky. 679, 15 S.W.2d 461. The facts in that litigation were entirely different from those which exist herein. It is not applicable.
Appellant cites 7 Am.Jur.2d 491, 492, Automobile Insurance, but that text refers to a garnishment on an unliquidated claim. Here we have liquidated claims and no garnishment.
It is contended that Marcum had no cause of action against State Farm. We are referred to Tabben v. Ohio Casualty Ins. Co., D.C.Ky., 250 F.Supp. 853. In Tabben the judgment debtor was adjudicated a bankrupt without assigning his rights to the creditor. It was there held that since “ * * * the creditor has no such cause of action in his own right, * * * ” recovery was denied. Tabben is not analogous for here the insured is claiming against State Farm.
Whether the amended complaint stated a cause of action on behalf of Marcum against State Farm, we need not decide because the action was pending when Bell asserted a valid cause of action based on “bad faith”.
“It is well established in Kentucky that a liability insurer which exercises bad faith in refusing to settle a claim against its insured within the policy limits may become liable to the insured for amounts in excess of the policy limits. Lemons v. State Auto Mut. Ins., Co., 171 F.Supp. 92 (E.D.Ky.1959); Harrod v. Meridian Mut. Ins. Co., 389 S.W.2d 74 (Ky.1965); American Surety Co. v. J. F. Schneider & Son, 307 S.W.2d 192 (Ky.1957); Georgia Cas. Co. v. Mann, 242 Ky. 447, 46 S.W.2d 777 (1932).” Tabben v. Ohio Casualty Ins. Co., supra.
Appellant claims that Marcum is not an “implied assignee” of Bell and is not subro-gated to any rights which Bell did not assert against State Farm. It has been held that a claim of the type asserted here is transferable Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; Critz v. Farmers Insurance Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401, 12 A.L.R.3rd 1142. Also see annotation 12 A.L.R.3rd 1158. This question is moot for the reason just expressed.
State Farm argues that Marcum’s cause of action is in tort; therefore, it was incumbent upon him to prove the damages alleged, and that he failed to do so. It asserts that Bell was not damaged because he has not paid the judgment. It cites cases from without Kentucky to support this contention.
However, we find the great weight of authority is that the entry of a final judgment, rather than satisfaction of it, gives rise to the cause of action. Southern Farm Bureau Casualty Ins. Co. v. Mitchell (CA 8 Ark.) 312 F.2d 485; Lee v. Nationwide Mut. Ins. Co. (CA 4 Md.) 286 F.2d 295; Jessen v. O’Daniel (D.C.Mont.) 210 F.Supp. 317; Alabama Farm Bureau Mut. Casualty Ins. Co. v. Dalrymple, 270 Ala. 119, 116 So.2d 924; Farmers’ Ins. Exchange v. Henderson, 82 Ariz. 335, 313 P.2d 404; Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 P.2d 69, 66 A.L.R.2d 1202; American Fire & Casualty Co. v. Davis (Fla.App.) 146 So.2d 615; Henke v. Iowa Home Mut. Casualty Co., 250 Iowa 1123, 97 N.W.2d 168; Sweeten v. National Mut. Ins. Co., 233 Md. 52, 194 A.2d 817; Alford v. Textile Ins. Co., 248 N.C. 224, 103 S.E.2d 8, 70 A.L.R.2d 408; Murray v. Mossman, 56 Wash.2d 909, 355 P.2d 985. We adopt the view expressed in those cases and others which we cite herein.
If it be found that State Farm did not fulfill its contractual obligation or was guilty of bad faith as claimed, in failing to negotiate and bring about a settlement before judgment, the damage to Bell is apparent. It is the difference between the total amount of the judgments and the limit of the policy. “The normal recovery, *119where the insurer’s actionable bad faith or negligence is established and an excess judgment is recovered, is the amount for which the insured becomes charged in excess of his policy coverage.” 29A Am. Jur. 561; section 1446. Ballard v. Citizens Casualty Co. (CA 7th Ill.) 196 F.2d 96; American Fidelity & Casualty Co. v. G. A. Nichols Co. (CA 10th Okl.) 173 F.2d 830; American Fire & Casualty Co. v. Robert, 186 F.2d 921; Hartford Acc. & Indemn. Co. v. Vanderbilt University, 218 F.2d 818; National Mut. Cas. Co. v. Britt, 203 Okl. 175, 200 P.2d 407, 218 P.2d 1039; Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785. See Noshey v. American Auto. Ins. Co. (CA 6th Tenn.) 68 F.2d 808, and other cases cited in 131 A.L.R. 1500.
In order to determine whether or not the judgment against State Farm shall stand it is necessary that we examine the facts with respect to the accident and related occurrences subsequent thereto. Bell was driving his truck and Marcum was driving his automobile in opposite directions on the same highway. Bell made a left turn directly in front of the Marcum automobile and a collision occurred. The highway was damp and the sky was overcast. Marcum was coming out of a dip immediately before the impact. On one occasion Marcum testified that Bell’s truck was approximately 405 feet away from him when he first saw it but on another occasion he testified that it was only 200 feet away. When the collision occurred Marcum was traveling about 40 miles an hour and Bell was going quite slowly. Mar-cum admitted that he did not apply his brakes until he was within about 20 feet of the point of impact and that had he attempted to stop when he first saw the Bell truck indicating that he was about to make a left turn he would have been able to do so, but did not see any reason to stop.
Marcum also testified that when he looked ahead after he came out of the dip he saw the left turn blinkers of Bell’s truck operating to indicate that a left turn would be made, but he did not anticipate that Bell would turn directly in his path. Bell admitted that he did not see the Mar-cum automobile until just before the impact. Failure to see under the conditions related reveals failure to keep a proper lookout. Potts, et al v. Krey, Ky., 362 S.W.2d 726; Hollar Truck Lines, et al v. Harrison, et al, Ky., 323 S.W.2d 219. The facts make it perfectly clear that Bell was negligent as a matter of law and the trial court so held. Wandling v. Wandling, Ky., 357 S.W.2d 857; Smith v. Sizemore, Ky., 300 S.W.2d 225; Hollar Truck Lines v. Harrison, Ky., 323 S.W.2d 219; Miles v. United States (D.C.Ky.) 205 F.Supp. 728.
Bell’s negligence was a proximate cause of the accident. The alleged contributory negligence of Marcum was not imputed to his wife or his children. McCallum v. Harris, Ky., 379 S.W.2d 438; Reed v. Hostetler, Ky., 245 S.W.2d 953; McGuire v. East Kentucky Beverage Co., Ky., 238 S.W.2d 1020 and McFarland v. Bruening, 299 Ky. 267, 185 S.W.2d 247.
In Marcum, et al v. United States of America, supra, the court stated: “There is no question about Bell’s negligence being a proximate cause of the accident which gave rise to this lawsuit.” The fact that there were strong cases against Bell may be considered on the issue of bad faith. See 40 A.L.R.2d 196-205.
Ada Marcum, the wife of Gay Marcum, was 29 years of age, in good health and the mother of eight children. Stevie, a healthy and normal child, was then eleven months old. The other three children were injured as heretofore stated, although fortunately the injuries were not critical. This case is unusual in that the liability of Bell for the death of the two passengers and the injuries to three more was certain. Liability to Marcum for his injuries was likely. Even disregarding the injuries to the three children and the very serious injuries to Gay Marcum, it should have been obvious to the insurance company that *120the judgment would be far in excess of the insurance policy limit of $20,000.00. State Farm was confronted with a dilemma because the claims of the three surviving children were not being asserted. It could have extricated itself by filing an inter-pleader action, and paying the policy limits into court but none was filed. CR 22. The proof showed that it could have settled the claims in litigation for less than the coverage, and thereby restricted its liability to the policy limits. Augustin v. General Acc. Fire & Life Ins. Corp. (CA 7 Wis.) 283 F.2d 82; Alford v. Textile Ins. Co., 248 N.C. 224, 103 S.E.2d 8, 70 A.L.R.2d 408. These failures, in the unusual circumstances existing in this case, are evidence of bad faith. Comunale v. Traders & Gen’l Ins. Co., 50 Cal.2d 654, 328 P.2d 198, 68 A.L.R.2d 883.
State Farm objected to the introduction of testimony given by Marcum concerning how the accident happened and the injuries he sustained. It contends that the only proof admissible, material or relevant is concerning the evidence introduced and what transpired before and during the trial of the Marcums against Bell. We find no merit whatsoever in this contention. The issue was the claim of bad faith, and the failure of State Farm to fulfill its contractual obligations. The jury could not reach a verdict without being informed of all facts germane to those issues. Vital were the manner in which the accident happened; the injuries sustained and the age, condition of health and relevant facts pertaining to the various claimants; the negotiations with respect to settlement and the verdict reached by the jury in the original trial.
There were some negotiations toward a settlement but none was reached. After the decision in the Federal Court the attorney for Marcum offered to settle the two death claims and the personal injury claim of Gay Marcum for a total of $18,500.00. Later, by letter, he offered to settle those claims for $20,000.00. These offers were not accepted although they were not withdrawn. During the trial, but before the verdict, there was an opportunity to settle those three claims for $18,500.00, and while the jury was deliberating, for $20,000.00. At that time State Farm offered to pay $15,000.00 in settlement of all claims including those of the three injured children but never offered more. Being confronted with these very substantial claims based upon a finding by the court that Bell was liable, the refusal to settle the three very substantial claims is sufficient evidence upon which the jury could find a failure of the insurer to properly perform its obligation. Noshey v. American Auto Ins. Co., supra.
The insurer, as a professional defender of law suits, is held to a standard higher than that of an unskilled practitioner. 7A Insurance Law and Practice, Appleman, 562 section 4712. While it is an independent contractor (Bratton v. Speaks, Ky., 286 S.W.2d 526) and is not bound to act to the prejudice of its own interest, nevertheless, it must not abuse the power it has to negotiate and make settlements and refuse to settle within the limits of the policy if the damage to the insured is reasonably certain. American Surety Co. of New York v. J. F. Schneider & Son, Inc., Ky., 307 S.W.2d 192. Fidelity and Casualty Co. of New York v. Stewart Dry Goods Company, 208 Ky. 429, 271 S.W. 444, 43 A.L.R. 318. It must not be guilty of fraud or bad faith. Georgia Casualty Co. v. Mann, 242 Ky. 447, 46 S.W.2d 777; Best Building Company, Inc. v. Employers’ Liability Assurance Corp., Ltd., et al, 247 N.Y. 451, 160 N.E. 911, 71 A.L.R. 1464.
In Harrod v. Meridian Mutual Ins. Co., Ky., 389 S.W.2d 74, 76 we wrote:
“To support a recovery it was incumbent upon appellant to allege and prove that Meridian’s conduct was of such an arbitrary and reprehensible nature as to constitute bad faith. In the case of Spiegel v. Beacon Participations, Inc., *121297 Mass. 398, 416, 8 N.E.2d 895, 907, it was said:
‘ “Bad faith” is a general and somewhat indefinite term. It has no constricted meaning. It cannot be defined with exactness. It is not simply bad judgment. It is not merely negligence.
It imports a dishonest purpose of some moral obliquity. It implies conscious doing of wrong. It means a breach of a known duty through some motive of interest or ill will. It partakes of the nature of fraud. * * * It means “with actual intent to mislead or deceive another.” * * * ’
See also Slater v. Motorists Mutual Insurance Company, 174 Ohio St. 148, 187 N.E.2d 45; Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 286, 187 A. 788, 796.”
It was proper for the court to submit the claims to the jury under appropriate instructions. United States Fidelity & Guaranty Co. v. Canale, (CA 6) 257 F.2d 138; Brown v. United States Fidelity and Guaranty Co., (CA 2) 314 F.2d 675.
The instructions to the jury contained a narration of certain facts. Appellant claims that these instructions “were prejudicially erroneous because they imposed the standards of negligence and prophecy in addition to ‘bad faith’ * * * ”, and contained evidentiary matters favorable to the appellees. The instructions contained certain statements of fact, but these facts were so clearly established that the statements were not prejudicial. There was no instruction as to presumption of law or fact such as we condemned in Pacific Mutual Life Ins. Co. v. Meade, 281 Ky. 36, 134 S.W.2d 960, 965; Massachusetts Mutual Life Ins. Co. v. Bush, 236 Ky. 400, 33 S.W.2d 351, 353. Lowe v. McMurray, Ky., 412 S.W.2d 571 decided March 10, 1967. No erroneous standards regarding bad faith of any prophecy were imposed. The duty of State Farm was expressed “to exercise good faith in determining whether said offer of settlement should be accepted or rejected; and ‘to exercise good faith’.” The jury was told that “good faith, * * * required said defendant insurance company to investigate the accident and claims in suit to such an extent that it would be in position to exercise an honest judgment as to their merits and whether the claims should be settled, considering the interests of its insured Bell as well as its own.” The duties were correctly stated. Radio Taxi Service, Inc. v. Lincoln Mutual Ins. Co., 31 N.J. 299, 157 A.2d 319; Cotton States Mutual Ins. Co. v. Phillips, 110 Ga.App. 581, 139 S.E.2d 412. The explanation was proper. Insurance Law and Practice, Appleman, Vol. 7A 565.
The jury also was instructed that in order for it to find against State Farm it had to believe that the conduct of State Farm “in negotiating about and failing to settle the plaintiff’s claims for the amount of the policy limits was of such an arbitrary and reprehensible nature as to constitute bad faith, meaning conscious doing of wrong, or breaching a known duty through some motive of interest or ill will.” The court continued:
“Now if the jury believe that said defendant Insurance Company failed to perform the duties above set out and acted in bad faith within the meaning of these instructions, and shall further believe from the evidence that the facts and circumstances of said accident known to said Insurance Company or could have been known by due diligence on its part were such as to cause said defendant Insurance Company to reasonably conclude and believe that a verdict against said Bell on a trial of the issue of liability was probable and that a verdict and judgment would probably be returned and rendered against the defendant Bell exceeding said policy limits of $20,000.00 you will return a verdict for plaintiffs and the defendant Bell against the defendant, State Farm Mutual Insurance Company in the sum of $34,389.22 but *122unless you so believe or if you believe as set out in instruction number 2 you will return a verdict in favor of defendant insurance company.”
Instruction number 2 was as follows:
“The court instructs you that if you believe from the evidence that said Insurance Company acted in good faith and not in bad faith within the meaning of the instructions or that the facts and circumstances of said accident known to said Insurance Company or could have been known to it by the exercise of due diligence were not such as to cause said defendant Insurance Company in the exercise of an honest judgment to conclude and believe that a verdict against said Bell upon a trial of the issue of liability was probable and that a verdict and judgment would probably be returned and rendered exceeding the sum of $20,000.00 then the defendant Insurance Company was under no duty to settle said claims and in those events you will return a verdict in favor of the defendant Insurance Company.”
The instructions clearly submitted to the jury the issue to be decided. There was evidence of probative value sufficient to support the verdict of $34,389.22 which was not flagrantly against the evidence.
We have examined the other contentions of appellant, including the claim that there was misconduct on the part of counsel for Marcum and alleged improper remarks of the trial court. We find that the acts complained of, if erroneous, were not prejudicial.
The judgment is affirmed.
All concur except WILLIAMS, C. J., and HILL, J., who dissent. |
9,645,479 | 2023-08-22 21:26:21.404173+00 | Williams | null | WILLIAMS, Chief Justice
(dissenting).
I respectfully dissent from the majority ■opinion for two reasons: First, appellant did not at any time have a bona fide opportunity to settle all of the claims which might have been made against it; second, Bell failed to avail himself of the opportunity to employ his own counsel although appellant specifically authorized him to do so. His failure to obtain special counsel was his implied consent for appellant’s counsel to represent his personal interest and he cannot now be heard to complain. Furthermore, he never at any time requested the appellant to settle.
HILL, J., joins in this dissent. |
1,516,272 | 2013-10-30 06:32:52.287598+00 | Van Antwerpen | null | 955 F. Supp. 392 (1997)
Jayne E. COOVER, Plaintiff,
v.
SAUCON VALLEY SCHOOL DISTRICT, Susan Baxter, Claudia Gilman, Michael Karabin, Michael Lazar, and Robert Osmun, Defendants.
Civil Action No. 95-7303.
United States District Court, E.D. Pennsylvania.
February 26, 1997.
*393 *394 Keith O. Brenneman, Philip H. Spare, Mechanicsburg, PA, for plaintiff.
Michael I. Levin, Mark W. Voigt, Huntingdon Valley, PA, for defendant school district.
Stuart L. Knade, Harrisburg, PA, for individual defendants.
OPINION AND ORDER
VAN ANTWERPEN, District Judge.
I. BACKGROUND
A. Factual History
We have before us a defense motion for summary judgment filed on September 17, *395 1996. Mindful of the standards of review[1] we will begin with the history of this matter.
Effective October 25, 1993, Saucon Valley Board of School Directors ("School Board") entered into an employment contract with Plaintiff Jayne E. Coover ("Coover"). Under the terms of her contract, Coover was to serve as the Superintendent of Schools (a position tantamount to chief executive officer) of the Saucon Valley School District ("School District") for a term ending July 30, 1997.
On December 5, 1994, as part of a monthly administrative staff meeting, Plaintiff arranged for Reverend Vega-Neel, a citizen of the School District (and a former School Board member), to speak to the administrators. Some of Vega-Neel's remarks focused on citizen groups that allegedly were opposed to public education. According to Plaintiff, near the end of his presentation, Vega-Neel mentioned several School Board members by name, connecting them to the groups allegedly opposed to public education. (Pl.'s Br. at 34, Defs.' Ex. G at 170-171). Plaintiff concedes that she remained silent both during and after Vega-Neel's presentation. (Pl.'s Br. at 34).
The School Board took no action concerning the December 5, 1994 administrative meeting during the months that followed. A letter or e-mail addressed to someone other than Plaintiff written by School District Solicitor Charles E. Steele ("Solicitor Steele") on June 11, 1995 indicated that the School Board had learned of the December 1994 meeting only a week earlier. The correspondence contained a description of some of the evidence that formed the basis for charges to be made against Plaintiff. It also noted that the School Board wanted to fire Plaintiff and that a press release was being prepared to educate the public about Plaintiff's "self dealing with her political activity." An internal memo dated June 8, 1995 from Solicitor Steele noted that "Coover is being asked to investigate another Policy 321 violation. She will have to lie to avoid implicating herself."
A letter dated June 9, 1995 from School Board President Susan Baxter and Vice President Michael Karabin gave Plaintiff a personal, nondelegable directive to investigate a violation of Policy No. 321 associated with the distribution of political material into school mailboxes by the teacher's association. The letter directed Plaintiff not to show the memorandum to anyone and to make a complete written report by June 19, 1995 detailing (among other things) "whether any other employee of the District has violated Policy 321 by using school time or property for political purposes." Plaintiff made a written response dated June 16, 1995 which reported on the incident with the teacher's association but which did not implicate herself in a violation of Policy No. 321. At a School Board meeting held on June 19, 1995, the School Board, on the advice of Solicitor Steele, voted by 5-4 to suspend Plaintiff with pay pending further investigation of charges against her. On that date the School Board voted 5-3 to order Plaintiff to leave the executive session of the School Board over her strenuous objections. The School Board majority authorized Solicitor Steele to issue a letter he had drafted suspending Plaintiff. He gave it to her immediately following the meeting. According to Plaintiff, she attempted to explain her side of the story to Solicitor Steele at that point, but was told not to say anything. The letter ordered Plaintiff to turn in her keys and directed her not to report for work.
The letter suspended Plaintiff with pay. It informed her that she would be suspended without pay and that formal charges would be filed against her if she did not articulate a convincing reason why they should not be filed within less than three days. Specifically, the letter stated in pertinent part:
You are hereby notified that pursuant to Section 1080 of the Public School Code, the Board of School Directors of the Saucon Valley School District ("District") plans to *396 consider charges for your discipline and/or dismissal from employment as District Superintendent for neglect of duty and intemperance. These charges are based upon recently discovered allegations that you were responsible for scheduling Tom Vega-Neel as a guest speaker at a regularly scheduled administrative meeting on December 5, 1994 ... This meeting was held during school hours in flagrant violation of District Policy No. 321 which prohibits District employees from using school time for political purposes and further provides that discipline, including dismissal, may be imposed for such violations ... At 11:00 a.m. on Thursday, June 22, 1995, you and/or your legal counsel are invited to informally respond to this letter by meeting with me at my offices in Quakertown. If you do not accept this invitation to informally respond, I will assume you have elected not to communicate your position in connection with this matter. Please notify me by the end of the business day on June 21, 1995, whether you intend to meet with me on June 22, 1995 ... If you do not articulate a convincing reason why charges should not be filed or resign by noon on Thursday, June 22, 1995, I will present formal charges against you to the School Board. If the School Board approves charges against you, such charges will be presented or mailed to you or your identified legal counsel in anticipation of the July 17, 1995, hearing. In the event that charges are leveled against you by the School Board, you will be suspended without pay pending disposition of the same effective June 23, 1995.
(Defs.' Ex. F-2). Plaintiff read and understood Solicitor Steele's letter of June 19, 1995. On June 21, 1995 Plaintiff's counsel sent a letter to Solicitor Steele declining the invitation to meet with him, stating that "She is innocent of the allegations made in your letter. In light of the threatened litigation, Dr. Coover will not discuss her position except in accordance with law." Neither Plaintiff nor her counsel asked for more time before meeting with Solicitor Steele, nor did they ask for the details of the evidence against her, nor for access to her office files. Solicitor Steele's deposition stated that he would have acceded to a request for more time and that he would have shared all the evidence he had with Plaintiff during the meeting. On June 22, 1995 the School Board majority issued more extensive formal charges and suspended Plaintiff without pay effective the following day. Plaintiff did not attend this public meeting. Also, on June 22, 1995, on the recommendation of Solicitor Steele, the School Board appointed attorney Merle K. Mermelstein to be legal advisor to the School Board at Plaintiff's dismissal hearing and to preside over the hearing. This hearing commenced on July 17, 1995 and continued through subsequent sessions held on July 31, August 1, August 9, August 24, and September 19, 1995. Solicitor Steele acted as the prosecutor and all members of the School Board acted as factfinder. At the hearing, Plaintiff was represented by counsel and testified before the School Board. She exercised her opportunity to cross examine each of the witnesses presented against her. Plaintiff submitted testimonial and documentary evidence on her own behalf, including numerous documentary exhibits.
On September 19, 1995, at the conclusion of the hearings, and after deliberation, the School Board found by a 5 to 3 vote that Coover was "guilty" of "neglect of duty" and "intemperance." This vote was along partisan lines. After giving Coover's attorney an opportunity to make a further presentation of evidence with regard to the appropriate disciplinary action, the School Board voted to dismiss Coover from her employment. On November 6, 1995, the School Board adopted a written adjudication drafted by Solicitor Steele.
B. Postdismissal Procedural History
On November 21, 1995 Plaintiff appealed her dismissal to the Northampton County Court of Common Pleas, in accordance with Pennsylvania's Local Agency Law, 2 Pa.C.S. § 551 et seq. She noted that she was reserving her rights to pursue her federal claims in federal court and that any constitutional claims were made under Constitution of the Commonwealth of Pennsylvania. The School District was the only respondent in that action. On the same date, she filed this action *397 against the School District and the School Board majority that had voted against her ("Board Members") in both their individual and official capacities (collectively "Defendants"). Jurisdiction was based on 28 U.S.C. §§ 1331 and 1343. Coover made claims under 42 U.S.C. §§ 1983, 1985, and § 1988 in four counts as follows:
Count I (procedural due process),
Count II (substantive due process),
Count III (First Amendment), and
Count IV (conspiracy).
On March 7, 1996, we denied Defendant Board Members' motion to dismiss and permitted additional discovery. On July 10, 1996 Judge Jack Panella of the Court of Common Pleas of Northampton County found that the adjudication and action in dismissing Coover as superintendent must be set aside given the "clear and convincing evidence of an appearance of bias, if not definite bias, in certain members of the Board" and a taint in the proceedings occasioned by Solicitor Steele's actions. On September 4, 1996, Judge Panella, after conducting a de novo review of the merits in accordance with Local Agency Law, entered a decision. In addition to numerous factual findings, Judge Panella concluded as a matter of law that:
1. The Court has properly reviewed the record as certified from the School District, and as supplemented by Dr. Coover on May 24, 1996.
2. Proper notice and an opportunity to defend was provided to Dr. Coover.
3. The evidence presented at the hearings was insufficient to establish a "neglect of duty," therefore Dr. Coover could not be dismissed pursuant to 24 Pa. Stat. Ann. sec. 10-1080.[2]
4. The meeting held on December 5, 1994 violated School Policy No. 321 and warrants a reprimand under School Policy No. 321.
5. Under 42 Pa. Cons.Stat.Ann. sec. 706 and School Policy No. 321 the court has the authority to issue a reprimand to Dr. Coover under the facts of this case.
6. Dr. Coover's request for counsel fees, costs and expenses should be denied as having no foundation in law.
(Defs.' Ex. L-6 at 21).
Accordingly, on September 4, 1996 Judge Panella ordered Plaintiff reinstated as Superintendent with all back pay and fringe benefits since date of suspension and also ordered a reprimand to be entered in her personnel records. The School District appealed Judge Panella's order which operated as an automatic supersedeas, preventing Plaintiff's reinstatement and payment of wages.
On September 17, 1996 all named Defendants filed this motion for summary judgment. Plaintiff moved for an extension of time to respond to Defendants' motion on September 23, 1996. We granted this motion on October 3, 1996. Plaintiff filed her response on November 4, 1996. On November 8, 1996 we permitted Defendants to file a reply brief. After we allowed an extension of time, Defendants' reply was filed on December 4, 1996.
II. STANDARDS OF REVIEW
A. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered where:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Rule 56(e) further provides that, when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial."
In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the nonmoving party. United States v. Diebold, *398 Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). A "genuine issue of fact" is present, precluding summary judgment, "when a reasonable trier of fact, viewing all the evidence, could rationally find in favor of the nonmoving party in light of the burden of proof placed on the nonmover." United States v. Premises Known as RR No.1 Box 224, Dalton, Scott Tp. and North Abington Tp., Lackawanna County, Pa., 14 F.3d 864, 870 (3d Cir.1994). The substantive law identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. See also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir.1993). (summary judgment is precluded if disputed fact exists which might affect outcome of suit under controlling substantive law).
The Supreme Court has held that:
"Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
In a motion for summary judgment, the nonmoving plaintiff's burden is more than insignificant. See J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990) cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (although the moving party has the initial burden of identifying the evidence that demonstrates the absence of a genuine issue of material fact, the nonmovant must establish the existence of each element on which it bears the burden of proof). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S. Ct. at 2512 (1986). See also Coolspring Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir.1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 510 U.S. 994, 114 S. Ct. 554, 126 L. Ed. 2d 455 (1993) (nonmovant must do more than create some metaphysical doubt).
While the nature of its remedy is indeed powerful, the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S. Ct. at 2555 [citation omitted].
B. Civil Rights[3]
Section 1983 provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights, privileges, or immunities secured by the Constitution or the laws of the United States. 42 U.S.C.A. § 1983 (1996). The statute is not a source of substantive rights, but merely provides "`a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S. Ct. 2689, 2694 n. 3, 61 L. Ed. 2d 433 (1979)).
To state a claim under § 1983, a plaintiff must show both that (1) the offending conduct was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiffs of rights secured by the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. *399 1908, 1912-13, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). The dispute in this action concerns the latter.
III. DISCUSSION
A. Count III First Amendment Claims
Plaintiff's First Amendment claims in Count III should be dismissed because there is no dispute of relevant material fact and Defendants are entitled to judgment as a matter of law. Defendants argue that Plaintiff's First Amendment claims should be dismissed on two major grounds. First, they argue that Plaintiff has acknowledged that she has not engaged in any protected speech because she bases her claim upon her silence during Vega-Neel's presentation and acknowledges that Vega-Neel was not expressing her point of view. Second, they argue that the School Board's decision to fire her for violating Policy No. 321 for engaging in political activity during the presentation cannot support a First Amendment claim because it is a viewpoint neutral policy prohibiting on-duty political activity.[4]
Plaintiff opposes Defendants' motion on two grounds. In response to Defendants first argument, Plaintiff argues that because the Board Members purport to have fired her for remaining silent in the face of an illegitimate demand for speech, Policy No. 321 was applied to her unconstitutionally to regulate content. She makes this claim under Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995); and Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). Second, she argues that Policy No. 321 is void for vagueness as applied. While the bulk of this argument stresses the pretextual nature of her discharge, she does cite Connally v. General Constr. Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926) and Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir.1996) for the proposition that Policy No. 321 is vague as applied to her.[5]
1. Protected Speech
Even if we accept Plaintiff's version of the facts, Plaintiff's speech was not protected. The government as employer has far broader powers than the government as sovereign. Churchill, 511 U.S. at 671-73, 114 S. Ct. at 1886. For a public employee's speech to be protected, we must determine as a matter of law whether that employee is speaking as a citizen on a matter public concern. Connick, 461 U.S. at 146-47, 148 n. 7, 103 S. Ct. at 1689-90, 1690 n. 7. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." *400 Connick, 461 U.S. at 147-48, 103 S. Ct. at 1690. In order to be protected, the employee's interest as a citizen in expressing herself on the matter of public concern must not be outweighed by any injury the speech could cause to "the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S. Ct. at 1734-35. See also Watters, 55 F.3d at 892 (citing Churchill, 511 U.S. at 667-69, 114 S. Ct. at 1884). This inquiry is made as a matter of law. Connick, 461 U.S. at 150 n. 10, 103 S. Ct. at 1692 n. 10. "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Id. at 151-52, 103 S. Ct. at 1692. Before taking action, an employer need not allow "events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest." Id. at 152, 103 S. Ct. at 1692. The more the employee's speech involved matters of public concern, the more the employer must show a hindrance to public efficiency. Id.
Even under Plaintiff's version of the facts in this case, she was not acting as a citizen speaking on matters of public concern during the incident with Vega-Neel. While Plaintiff is correct that our courts have recognized that the first amendment has recognized the right to remain silent under Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), Plaintiff's silence in this context indicates that she was not speaking as a citizen on a matter of public concern. Her silence did not impact the interest in having free and open debate vital to informing decision-making by the electorate. See Pickering, 391 U.S. at 571-72, 88 S. Ct. at 1736-37. Her silence was in the context of a presentation on school property during school time which was presented to professional staff. Plaintiff claims that in scheduling Vega-Neel she was fulfilling her duty as a superintendent to direct her professional staff to attend "meetings designed to improve the professional standing of employees ..." under District Policy No. 333. (Pl.'s Br. at 31, 35). Plaintiff has admitted that Vega-Neel was not expressing her point of view. She has admitted that she was only presenting an inservice workshop to administrators to better inform them of their role as public educators. Coover agrees she had no input into Vega-Neel's comments. Thus, by her own admissions, her silence took place in a context in which she acted not as a citizen on a matter of public concern, but as a employee in the private context of administering a program for government staff. By her own admissions she did not hope to contribute to the public debate by remaining silent during a meeting that took place on school time, on school property for school purposes. Thus, her interests as a citizen in speaking on a matter of public concern are not implicated in this matter and her speech is not protected.
Even assuming that such an interest as a private citizen was implicated because of the content of Vega-Neel's speech, the School District's interest in efficient operations would outweigh Plaintiff's interests. Plaintiff has agreed with those elements of her job description that required her to support school board policy and actions to the public and staff and to refrain from criticism of individual board members. (Defs.' Br. at 37). Thus, Plaintiff effectively acknowledges that her position in public employment is such that the appearance of certain forms of public criticism of the superior by the subordinate would seriously undermine the working relationship between them. See Pickering, 391 U.S. at 570 n. 3, 88 S. Ct. at 1735 n. 3. Likewise, the working relationship between Plaintiff and her staff is implicated, because the appearance of criticism of the School Board by Plaintiff at an inservice meeting could undermine working relationships and efficiency at the school by making the staff feel it needed to choose sides. (See Defs.' Ex. 6 at 7-9). We give these interests strong weight. Plaintiff does not dispute that relationships with Board Members deteriorated when they learned of Vega-Neel's speech at a meeting over which Plaintiff silently presided. (See Pl.'s Br. at 37). Even if she did, it is also undisputed that some administrators felt that they needed to choose sides as a result of the incident. (Defs.' Ex. 6 at 7-9). Matters of public concern are only incidentally involved, if at *401 all. See Churchill, 511 U.S. at 681, 114 S. Ct. at 1891 ("An employee who makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements.") Thus, we conclude that the First Amendment does not prevent the Board from removing Plaintiff under these circumstances.
2. Void for Vagueness
Under the undisputed facts of this case Policy No. 321 is not void for vagueness as applied to Plaintiff. In making this determination we look to the challenged section of Policy No. 321, "Political Activities," which states "no employe [sic] shall engage in political activities upon property under the jurisdiction of the Board."[6]
As the Third Circuit has noted, although the "void-for-vagueness" doctrine was originally used in the criminal law arena, it has been "transplanted into a First Amendment setting." Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1266 (3d Cir.1992). That court noted that "a meritorious First Amendment vagueness challenge will annul an unclear law that `chills' protected First Amendment activities. Hence, a vagueness challenge will succeed when a party does not have actual notice of what activity the statute prohibits." Id. The Supreme Court stated that a law is void for vagueness when it is so obscure in its promulgation that a reasonable person could not determine from a reading what the law purports to prohibit. United States v. National Dairy Products Corp., 372 U.S. 29, 33, 83 S. Ct. 594, 598, 9 L. Ed. 2d 561 (1963). Certainly, the challenge can be made in a civil context, and against policies and regulations as well as statutes. See San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir.), cert. denied, 506 U.S. 908, 113 S. Ct. 305, 121 L. Ed. 2d 228 (1992). However, a lesser degree of specificity is required in the civil context because the penalties are less severe. Id.
In the context of public employment, the vagueness doctrine is grounded in notions of fairness, and the concept that individuals must be given fair notice that certain conduct puts them at risk for sanctions. San Filippo, 961 F.2d at 1136. Nevertheless, the Supreme Court has held that the "standards are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge." Id. (citing Arnett v. Kennedy, 416 U.S. 134, 159, 94 S. Ct. 1633, 1646-47, 40 L. Ed. 2d 15 (1974)). Of course, each situation is taken in a case by case manner, and the "void for vagueness" inquiry is always examined to see if it is vague as applied to the affected party. San Filippo, 961 F.2d at 1136 (citing United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 714, 42 L. Ed. 2d 706 (1975)).
With this in mind, we examine the phrase "political activities." Taking its basic definition, we see that "political" means "pertaining or relating to the policy or the administration of government ... of or pertaining to the exercise of rights and privileges or the influence by which individuals ... seek to determine or control public policy; having to do with organization or action of individuals, parties, or interests that seek to control appointment." Black's Law Dictionary 1158 (6th ed.1990); see also Webster's Collegiate Dictionary 769 (5th ed.1941). It is clear that politics does not only refer to national or state elections between the candidates of the two major political parties, but also to local, union, and school discussions of power. The Supreme Court artfully described the political arena as "where partisanship is the hallmark of decisionmaking." Allied Tube & Conduit Corp. v. Indian Head, 486 U.S. 492, 506, 108 S. Ct. 1931, 1940, 100 L. Ed. 2d 497 (1988). As such, the plain meaning of "political activities" includes any action which involves the advocation of partisan decision-making. See United States Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 556, 93 S. Ct. 2880, 2886, 37 L. Ed. 2d 796 (1973) (holding that the prohibition against federal employees being involved in political activities is not void for vagueness, and listing types of political activities *402 appropriately prohibited; prohibition did not chill ability to personally participate in politics via the ballot box).
This plain meaning is not contravened by the policy itself. Policy No. 321 has as its purpose, "The Board recognizes and encourages the right of its employees, as citizens, to engage in political activity. However, school property and school time, paid for by all the people, may not be used for political purposes." As such, the restriction on political activities is merely a "manner or means" facially neutral restriction which does not impinge on Plaintiff's First Amendment rights. It is plain that the policy would prohibit using school property and time for a meeting with partisan content. It is equally plain that the policy would prohibit a superintendent from spending her time presiding over such a meeting without also spending time neutralizing partisan comments. While the policy could certainly have been written in a clearer manner, along the lines of the Hatch Act discussed in Letter Carriers, supra, it does not violate the First Amendment via the void for vagueness doctrine. Thus, Plaintiff's First Amendment claims fail and summary judgment should be granted for Defendants as to Count III.
B. Count II Substantive Due Process Claims
Defendants argue that Plaintiff's substantive due process claims in Count II are invalid under McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994)(en banc), cert. denied, 513 U.S. 1110, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995), because Plaintiff's complaint only asserts the deprivation of state created property interests. The Due Process Clause of the Fourteenth Amendment declares that no state shall deprive any person of life, liberty, or property, without due process of law. The clause has a substantive component that bars "`certain government actions regardless of the fairness of the procedures used to implement them.'" Planned Parenthood v. Casey, 505 U.S. 833, 846, 112 S. Ct. 2791, 2804, 120 L. Ed. 2d 674 (1992) (quoting Daniels, 474 U.S. at 331, 106 S. Ct. at 665). "[U]nder the law of this circuit, `not all property interests worthy of procedural due process protections are protected by the concept of substantive due process.'" Homar v. Gilbert, 89 F.3d 1009, 1021 (3d Cir.1996) (3-2 decision), cert. granted, ___ U.S. ___, 117 S. Ct. 678, 136 L. Ed. 2d 604 (1997) (No. 96-651) (quoting Reich v. Beharry, 883 F.2d 239, 244 (3d Cir.1989)). Instead, plaintiff must have been deprived of "`a certain quality of property interest.'" Homar, 89 F.3d at 1021 (quoting DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 600 (3d Cir.1995)).
This circuit has not decided whether a state-created property interest in employment is worthy of protection under the substantive due process clause. Homar, 89 F.3d at 1021. Instead, the Third Circuit recently remanded this issue to a court in the Middle District of Pennsylvania. Id. We will not decide this issue either, as we believe Plaintiff has conceded this point by citing Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir.1990) for the proposition that "substantive due process protects fundamental interests, not state-created contract rights," Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1351 (6th Cir.1992) for the proposition that "Absent the infringement of a fundamental right, the termination of public employment does not constitute a denial of substantive due process," and McKinney v. Pate, 20 F.3d at 1560.[7] (Pl.'s Br. at 38, 41).
Plaintiff nevertheless argues that this claim should not be dismissed because her fundamental right of free speech was the basis for her termination. Here we are concerned with the deprivation of a liberty interest: "`[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.'" Planned Parenthood, 505 U.S. at 847, 112 S. Ct. at 2804 (quoting Whitney v. California, 274 U.S. 357, 373, 47 S. Ct. 641, 647, 71 L. Ed. 1095 (1927) (concurring opinion)). Most of the substantive liberties of *403 the Bill of Rights have been incorporated into the Due Process Clause of the Fourteenth Amendment against the States. Planned Parenthood, 505 U.S. at 847, 112 S. Ct. at 2804-05. The substantive sphere of liberty extends beyond the Bill or Rights and the specific practices of States at the time of the adoption of the Fourteenth Amendment. Planned Parenthood, 505 U.S. at 848, 112 S. Ct. at 2805 (right to privacy). The substantive liberties in the First Amendment have been incorporated against the states by the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). Thus, Plaintiff's First Amendment claims in Count III of her complaint, because they are alleged against State actors, become substantive due process claims. As our prior discussion of those Count III claims indicates, under the undisputed facts of this case Plaintiff's First Amendment rights were not violated. Thus, Plaintiff has not been deprived of a liberty interest protected by substantive due process on this ground.
Plaintiff also appears to argue that selective enforcement of Policy No. 321 violated her equal protection rights pursuant to the Fourteenth Amendment, thereby violating her substantive due process rights. This argument is also without merit.
Plaintiff's brief in its section on substantive due process cites Esmail v. Macrane, 53 F.3d 176 (7th Cir.1995) for the proposition that selective enforcement of Policy No. 321 "is a violation of Dr. Coover's rights to equal protection under the law pursuant to the Fourteenth Amendment." (Pl.'s Br. at 40). However, Esmail makes clear that its decision was based on the Equal Protection Clause of the Fourteenth Amendment, not substantive due process under that same amendment. Esmail, 53 F.3d at 180. As Defendants note, Plaintiff has not pleaded an equal protection claim. (Defs.' Reply Br. at 11). Thus, Defendants will be granted summary judgment with regard to Plaintiff's Count II substantive due process claims and no equal protection claim[8] has been alleged.
C. Count I Procedural Due Process
Defendants have moved for summary judgment on Count I, which contains Plaintiff's procedural due process claims.
A plaintiff may bring suit under § 1983 under the Due Process Clause for a guarantee of fair procedure. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990). For this type of claim, it is necessary to ask what process the state provided, and whether it was constitutionally adequate. Zinermon, 494 U.S. at 126, 110 S. Ct. at 983-84. The violation actionable is not complete unless and until the state fails to provide due process. Id. Due Process is a flexible concept that varies with the particular situation. Zinermon, 494 U.S. at 127, 110 S. Ct. at 984. To determine what procedural protections the Constitution requires in a particular case, we weigh several factors:
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and *404 administrative burdens that the additional or substitute procedural requirement would entail."
Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976)). The Court has usually held that the Constitution requires some sort of hearing before the state deprives a person of liberty or property. Zinermon, 494 U.S. at 127, 110 S. Ct. at 984. A public employee has a property interest in not being suspended without pay with intent to dismiss. Gniotek v. City of Philadelphia, 808 F.2d 241 (3d Cir.1986), cert. denied, 481 U.S. 1050, 107 S. Ct. 2183, 95 L. Ed. 2d 839 (1987). See also Homar, 89 F.3d at 1016.
In determining what process is due, we note that an essential principle of due process is that a deprivation of a protected liberty or property interest "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L. Ed. 865 (1950)). "`The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.'" Id. at 545, 105 S. Ct. at 1495 (quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 786, 28 L. Ed. 2d 113 (1971)). Thus, after balancing the interests of public employees and employers, the Loudermill Court held that "`[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.'" McDaniels v. Flick, 59 F.3d 446, 454 (3d Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1017, 134 L. Ed. 2d 97 (1996) (quoting Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495). In Loudermill these protections were "coupled with post-termination administrative procedures as provided by the Ohio Statutes." Id. (quoting Loudermill, 470 U.S. at 547-48, 105 S. Ct. at 1496-97).
Defendants argue that they are entitled to summary judgment on Plaintiff's procedural due process claim because it is undisputed that Plaintiff was afforded an appropriate predeprivation hearing given the availability of appropriate posttermination administrative procedures. The parties do not dispute that when Plaintiff was suspended without pay on June 22, 1995, she was deprived of a property interest protected by the procedural due process component of the Fourteenth Amendment.[9] There is also no dispute that the process she is due is dictated by Loudermill. (Pl.'s Br. at 43-44, citing Loudermill, 470 U.S. at 547-48, 105 S. Ct. at 1496-97; Defs.' Br. at 18). As discussed above, under Loudermill, prior to being suspended without pay a plaintiff is entitled to notice of the charges against him, an explanation of the employer's evidence, an opportunity to present his side of the story, and adequate postdeprivation procedures. The Third Circuit has held that the postdeprivation procedures available under Pennsylvania's Local Agency Law are adequate under circumstances similar to this case. McDaniels, 59 F.3d at 460-61.[10]
*405 Nevertheless, summary judgment should be denied because issues of material fact exist as to whether Coover received adequate notice of the charges and the evidence against her and as to whether she was afforded an adequate opportunity to respond.
Plaintiff contends that she is entitled to be informed of the substance of the supporting evidence, not merely to have that evidence explained. Her support for this contention is weak.[11] "We have held, however, that pretermination notice of the charges and evidence against an employee need not be in great detail as long as it allows the employee `the opportunity to determine what facts, if any, within his knowledge might be presented in mitigation of or in denial of the charges.'" McDaniels, 59 F.3d at 457 (citing Gniotek, 808 F.2d at 244). "[N]o advance notice of the pretermination hearing is required; `Notice is sufficient, (1) if it apprises the vulnerable party of the nature of the charges and general evidence against him, and (2) if it is timely under the particular circumstances of the case.'" McDaniels, 59 F.3d at 456 (quoting Gniotek, 808 F.2d at 244). Notice may be written or oral. Homar, 89 F.3d at 1014.
The Defendants note that Plaintiff was given a letter on June 19, 1995 that expressly stated and identified (1) the fact that discipline or discharge will be considered; (2) the legal authority for the possible discharge, (3) the School Board policy violated, (4) the date of the violation, (5) the allegation that Plaintiff scheduled Reverend Vega-Neel as a guest speaker and that he made untruthful statements concerning the majority of the School Board, (6) the allegation that she failed to disclose her own violation of Policy No. 321 in her June 16, 1995 memorandum, (7) that no final decision whether to impose discipline had been made, (8) that she can provide reasons why charges should not be filed against her, and (9) the fact that a penalty will be imposed if the allegations are true. The Defendants also present Solicitor Steele's testimony that he intended to use the meeting to give Plaintiff an explanation of the evidence against her and that he would have allowed Plaintiff to respond to the allegations against her and address any issues of bias. Defendants also present affidavits from the Board Members stating that they planned to consider what Plaintiff had to say before deciding what actions to take against her. They also present evidence that Plaintiff, on the advice of her attorney, declined to attend a meeting with Solicitor Steele, including Plaintiff's deposition testimony that she declined to attend the meeting because she felt that attending would be futile because Solicitor Steele was too biased to conduct the hearing.
Plaintiff points to the vague and conclusory statement in Solicitor Steele's letter that the School District planned to consider charges against her for neglect of duty and intemperance *406 and to the fact that when specific charges were adopted by the Board Majority on June 22, 1995 those charges had been expanded to include broad and indeterminate allegations that Plaintiff had engaged in conduct undermining the authority of the Board, was consistently insubordinate to the Board, and consistently violated Policy No. 321. Plaintiff notes that the letter failed to provide an explanation of the Board's evidence against her, not revealing any witnesses or evidence that related to any of the charges. She asserts that the Defendants have conceded that the letter itself was insufficient to explain the evidence. Plaintiff points to evidence that Defendant School District's expert in a suit against Solicitor Steele concludes that instead of confronting Plaintiff with evidence as suggested by Loudermill, Solicitor Steele sent her a surreptitious letter before the June 19, 1996 letter for the purpose of forcing her to lie to avoid implicating herself. Plaintiff also points to evidence that Solicitor Steele did not permit her to respond immediately after she was handed the letter at the conclusion of a School Board meeting she was forced to leave. She also alludes to the limited time she had to respond: she received the letter on the 19th, she was to indicate by the end of the business day on June 21 if she would meet with Solicitor Steele at 11 am on June 22, and Solicitor Steele would present formal charges to the School Board on June 22 if Coover did not resign or "articulate a convincing reason" why charges should not be filed. The letter also mentioned that she would be suspended without pay pending a July 17, 1995 hearing if the charges were filed. She points to the fact that the incident occurred more than six months earlier and that she was immediately suspended with pay and had no access to her files.
We believe that a reasonable jury could find that Plaintiff was not given notice of the charges and evidence against her or an adequate opportunity to respond. We are particularly impressed by the stark contrast in the time lapse between the Vega-Neel incident and the June 19th letter and the short amount of time in which Plaintiff was given to decide if she would respond. A reasonable jury could conclude that an opportunity to respond never existed given the short time period Plaintiff was given to decide on a course of action and to gather evidence, all without access to her files.[12] Likewise, a reasonable jury could find that the expansion of the charges against Plaintiff was substantial and under the circumstances deprived her of notice. Because these material issues of fact exist, Defendants' motion will be denied as to Count I, procedural due process.[13]
*407 D. Qualified Immunity
Defendant Board Members argue that they should be granted summary judgment in their individual capacities because they are entitled to qualified immunity.[14] Because we have dismissed Counts II-IV, we address the issue of whether Defendant Board Members are entitled to qualified immunity on Count I, Plaintiff's procedural due process claim. We hold that they are.
In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), the United States Supreme Court established the standard for a grant of qualified immunity. The Court stated that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. In order to apply this test, the Court concluded that on summary judgment, the trial judge must determine "whether the law was clearly established at the time the action occurred." Id. If the law was clearly established, the Court held that "the immunity defense ordinarily should fail...." Id. at 818-19, 102 S. Ct. at 2738.
The Court of Appeals for the Third Circuit has provided additional guidance on the standard for a grant of qualified immunity. The Third Circuit further defined when a law is clearly established by holding:
[I]n order for the governing law to be sufficiently well established for immunity to be denied, it is not necessary that there have been a previous precedent directly in point.... The ultimate issue is whether, despite the absence of a case applying established principles to the same facts, reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.
Rappa v. New Castle County, 18 F.3d 1043, 1077 (3d Cir.1994) (citing Good v. Dauphin County Soc. Serv., 891 F.2d 1087, 1092 (3d Cir.1989)). Courts make this determination by examining the state of the law at the relevant time and the information available to the defendants in the case. Good, 891 F.2d at 1092.
At the relevant time, the law was unclear as to whether Plaintiff was entitled to a predeprivation hearing. In 1985 the Supreme Court in Loudermill established that before being deprived of the private interest in retaining employment, an employee must be given notice and an opportunity to respond coupled with adequate post deprivation procedures. Loudermill, 470 U.S. at 547-48, 105 S. Ct. at 1496-97. However, the issue of whether under Loudermill a governmental employer may suspend an employee without pay unless that suspension is preceded by some kind of pre-suspension hearing was not "clearly enunciate[d]" by the Third Circuit until 1996 in Homar. Homar, 89 F.3d at 1014-16 (3-2 decision). The Third Circuit in Homar noted that the Federal Circuit had refused to read Loudermill as holding that "`the government must suspend ... with pay.'" Id. at 1015 (quoting Engdahl v. Dept. of Navy, 900 F.2d 1572, 1758 (Fed.Cir.1990)). In addition, the Seventh and Tenth Circuits had not treated a governmental employee's right to a pre-suspension hearing before suspension without pay as being an established principle. Id. at 1015-16 (citing Jones v. City of Gary, Ind., 57 F.3d 1435, 1436 (7th Cir.1995); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558, 1562 (10th Cir.1992), modified on hearing by, 995 F.2d 992 (10th Cir.1993) (en banc)). The Third Circuit majority in Homar noted that it had not "precisely addressed" the issue in the past but had implied that the only constitutional suspension was one with pay in 1990 in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d Cir.1990). Id. at 1016. However, one judge believed that the Bradley panel had expressly reserved decision on the issue. Homar, 89 F.3d at 1009 (Alito, J., concurring *408 in part and dissenting in part). In any case, the Third Circuit had made the inconsistent suggestion that a post-suspension hearing, had one been provided, might have been adequate under Loudermill or FDIC v. Mallen, 486 U.S. 230, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988). Homar, 89 F.3d at 1016 n. 3, 1025 (citing Bradley, 913 F.2d at 1078). Thus, we do not believe that the principle that Plaintiff was entitled to a Loudermill presuspension hearing was clearly established in June 1995.
In addition, the precise nature of the process due Plaintiff was not clear in June 1995. The pretermination requirements set forth in Loudermill itself are neither extensive nor specific. Loudermill, 470 U.S. at 545-46, 105 S. Ct. at 1495 ("the pretermination `hearing' ... need not be elaborate ... In general, `something less' than a full evidentiary hearing is sufficient ... the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.").
Given this standard, the Third Circuit has approached Loudermill suits on a case-by-case basis. In order for Defendant Board Members to forfeit their qualified immunity they would have to have objectively violated a case with a similar fact pattern decided before they took their actions. Plaintiff has cited no case decided before June 19, 1995 that indicates that Defendant Board Members reasonably should have known that they were not affording Plaintiff clearly established constitutionally adequate notice and an opportunity to respond. Defendant Board Members were relying on the advice of Solicitor Steele, who drafted the July 19th letter and presented it to Coover. See Kincade v. City of Blue Springs, Missouri, 64 F.3d 389, 399 (8th Cir.1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1565, 134 L. Ed. 2d 665 (1996) ("Reliance on the advice of counsel is a factor to be weighed in assessing whether a public official is entitled to qualified immunity."). The undisputed evidence establishes that the Board Members tried to afford Plaintiff some notice and an opportunity to respond. In fact, there is no dispute that Plaintiff was provided with proper notice and an opportunity to respond before she was terminated permanently from her position through the hearing conducted on July 17, July 31, August 1, August 9, August 24, and September 19, 1995. In addition, the letter of January 19th did give Plaintiff some notice, apprised her of her rights associated with her dismissal hearing to occur one month later, and provided for a meeting with Solicitor Steele. We believe that reasonable Board Members acting in June 1995 could have believed that their actions were lawful. Accordingly, Defendant Board Members are entitled to qualified immunity in their individual capacities.
E. Res Judicata and Collateral Estoppel
We come now to Defendants' contention that Plaintiff's claims against Defendants School District and Board Members in their official capacities are precluded under the theories of res judicata or collateral estoppel.[15] Because res judicata and collateral estoppel are affirmative defenses,[16] Defendants bear the burden of showing that they apply. United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir.1984); Faison v. Sex Crimes Unit of Philadelphia, 845 F. Supp. 1079, 1085-86 (E.D.Pa.1994); Fed. R.Civ.P. 8(c).
Defendants argue that they are entitled to summary judgment based on the doctrines of res judicata and collateral estoppel in light of Edmundson v. Borough of Kennett Square, 4 *409 F.3d 186 (3d Cir.1993); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85, 104 S. Ct. 892, 898, 79 L. Ed. 2d 56 (1984); and England v. Louisiana State Board of Med. Exam'rs., 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). Plaintiff argues that her claims are not precluded because, unlike the claimants in Migra and Edmundson and in line with England, she preserved her federal civil rights claim for adjudication in federal court. Bradley, 913 F.2d at 1064.
The concepts of res judicata and collateral estoppel are distinct. Res judicata, also known as claim preclusion, gives dispositive effect to a prior judgment if the particular issue although never litigated could have been raised in the prior action. Bradley, 913 at 1070. Collateral estoppel, also known as issue preclusion, bars relitigation only of an issue identical to an issue adjudicated in the prior action. Id. We must give the state judgment the same preclusive effect as would the state. Id. (citing Migra, 465 U.S. at 81, 104 S. Ct. at 896, 28, U.S.C. § 1738). In § 1983 cases, we must apply the same preclusion rules as would the courts of that state. Edmundson, 4 F.3d at 189 (citing Migra, 465 U.S. at 85-87, 104 S. Ct. at 898-99).
1. Res Judicata
a. Claim Splitting
The Defendants argue that all of Plaintiff's claims against the School District and Board Members are res judicata because Plaintiff cannot satisfy four factors that are "necessary for a proper reservation of the plaintiff's rights to separately litigate his federal claim." (Defs.' Reply Br. at 13; see also Defs.' Reply Br. at 14 ("the Bradley decision ... established [that plaintiff must seek an abstention] as a prerequisite to a proper reservation of rights.")). We believe this is a misreading of Bradley.
The Third Circuit in Bradley relied on two separate grounds when it held that claim preclusion did not apply. The Third Circuit first considered whether plaintiff had made a valid reservation under England "[w]ithout deciding the general parameters of an England reservation." Bradley, 913 F.2d at 1072. The court concluded that the reservation of plaintiff's claims for federal adjudication must be recognized in the procedural situation facing that court, that is, where:
(1) the plaintiff initiates an action in federal court, (2) the plaintiff appeals the termination of his employment through state prescribed procedures while explicitly reserving his federal claim, (3) both the defendant and the state tribunal acquiesce in the reservation, and (4) the federal action is stayed pending the outcome of the state proceeding ...
Id. at 1072.
In holding that res judicata did not apply, the Third Circuit in Bradley also relied on the exception in section 26(1) of the Restatement (Second) of Judgments which, in accord with the law of Pennsylvania, permits claim splitting. Bradley, 913 F.2d at 1072 (citing Coleman v. Coleman, 361 Pa.Super. 446, 522 A.2d 1115 (1987)(en banc) ("`[t]he law of Pennsylvania is in accord with the approach taken by [section 26(1)(a) and (b) of] the Restatement.'")). Section 26(1) provides for an exception to the general rule of claim preclusion where:
"(a) the parties have agreed in terms or in effect that the plaintiff may split his claim or that the defendant has acquiesced therein; or
(b) The court in the first action has expressly reserved the plaintiff's right to maintain the second action."
Bradley, 913 F.2d at 1072 (quoting Restatement (Second) of Judgments § 26(1) (1982)).
In the face of Bradley, this court now confronts two issues: (1) whether England would preclude the claims made in this case and (2) whether the Restatement (Second) of Judgments and Pennsylvania law would preclude Plaintiff's claims.
As noted in Bradley, the Supreme Court has never explicitly limited England to the Pullman abstention context, so courts must look to the rationale underlying England: (1) the right of a litigant to choose a federal forum and (2) the duty of the federal court to take jurisdiction over federal claims that have been properly brought before it. Bradley, 913 F.2d at 1071-72.
*410 Here, Plaintiff filed her claims in federal and state court simultaneously. While the case was not remitted to state court, Plaintiff, like the plaintiff in Bradley, was using the procedures of the Local Agency Law. See 2 Pa.C.S.A. § 551 et seq. If she was going to appeal,[17] she had to do so under 2 Pa.C.S.A. § 751 et seq. Although arguably Coover might have been forced to make an election to bypass the state forum and contest the termination solely in federal court, the Defendants did not object in either state or federal court to her express reservation of her federal rights until after the state court decided this case. Plaintiff's state court pleadings contained a reservation[18] of rights to pursue her claims in federal court. Unfortunately, it does not appear that the state court acquiesced in this reservation. We note in particular that the state court judge wrote two opinions which cited numerous cases which relied upon the federal constitution and included a discussion and express finding on federal constitutional issues. He said in his first opinion of July 10, 1996 "Employment in public education is a protected interest which cannot be terminated without adequate and proper notice in a hearing consistent with due process. Perry v. Sinderman [Sindermann], 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)." (Pl.'s Ex. 6 at 4). In his second opinion of September 4, 1996 he reached a conclusion of law that "Proper notice and an opportunity to defend was provided to Dr. Coover." (Defs.' Ex. F-6). There is no express acquiescence in Plaintiff's reservation of federal rights in the state court opinion, and under the circumstances we would be hard pressed to find an implied acquiescence. This court did not abstain from or stay these proceedings at any time and we were never asked to do so by the Plaintiff. To the contrary, the Defendant Board Members asked us in the alternative to stay this matter in a motion to dismiss filed on February 8, 1996.[19] For reasons we do not understand, the Plaintiff responded to the motion on February 28, 1996, stating that "Federal jurisdiction should not be postponed and stayed." (Pl.'s Br. filed Feb. 28, 1996 at 18). The elements outlined in Bradley are not present and we have some difficulty in finding that an England reservation is made out.
We have similar difficulty in finding that the state court had expressly reserved the plaintiff's right to maintain our federal court action. Nevertheless, there remains the issue of whether Defendants have acquiesced in Plaintiff's splitting her claims under Restatement (Second) of Judgments § 26(1)(a).
The comment to Restatement section 26(1)(a) explains that "[a] main purpose of the general rule [against claim splitting] is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim." Bradley, 913 F.2d at 1072 (citing Restatement (Second) of Judgments § 26(1)(a) comment a (1982)). The comment also notes that *411 "[t]he failure of the defendant to object to the splitting of the plaintiff's claim is effective as an acquiescence in the splitting of the claim." Id. Moreover, section 86 of the Restatement (Second) of Judgments "makes clear that the exceptions described in section 26 apply to the effect of a state court judgment in a subsequent federal action." Bradley, 913 F.2d at 1072.
Here Defendants had notice because Plaintiff explicitly reserved her federal rights in her state court complaint and limited her constitutional claims to the Pennsylvania Constitution. In response to Plaintiff's simultaneous complaints in state and federal court, Defendants have not objected. The School District did not file an answer in state court and as the state court noted in its opinion, "the Board filed a six page brief which did not oppose any relief requested by Coover with the exception of Coover's request for costs, expenses, and counsel fees." (Defs.' Ex. F-6 at 4-5). Plaintiff supplemented the certified record in state court with information she obtained through the discovery process in this court without objection by the School District. (Defs.' Ex. F-6 at 5).
Defendant School District filed an answer on April 30, 1996 and did not plead res judicata or collateral estoppel as affirmative defenses. We have already noted that Defendant Board Members asked this court to stay these proceedings in their motion to dismiss. Defendants made no objections until after judgment had been entered in state court. From this record, it appears that Defendants have acquiesced in Plaintiff's claim splitting.
Before ruling for Plaintiff on this matter on the basis of Defendants' acquiescence, we feel constrained to look more closely at the law of Pennsylvania on res judicata than the Third Circuit did in Bradley. Unlike the Third Circuit in Bradley, we have had difficulty in making out an England reservation. Similarly, unlike the Third Circuit in Bradley, we cannot rely on the state court's express reservation of the Plaintiff's right to maintain the federal action. See Bradley, 913 F.2d at 1073.
Whether a claim is precluded in Pennsylvania depends upon the intent of the parties and court:
[W]hether a plaintiff may be permitted to bring a second suit on the undecided claims in the first action, and thereby split a cause of action, turns on the question of the parties' and the court's intent; i.e., where the parties and the court did not fully address the claims in the first suit did they intend the judgment not to be a final adjudication of all the issues? The conduct of the parties and the court, and the language of the decree, may be considered in ascertaining such intent.
Coleman, 522 A.2d at 1121 (citing Keystone Bldg. Corp. v. Lincoln Sav. & Loan Ass'n, 468 Pa. 85, 360 A.2d 191, 195 (1976)).[20]
Here, both cases were filed simultaneously without objection to the splitting of Plaintiffs federal and state claims. Defendants did not object to the splitting of the claim until after the state court decision was handed down. While these actions appear to amount to an acquiescence by Defendants under the Restatement (Second) of Judgment, they do not show a strong intent to permit claim splitting by Defendants.
As discussed above, the state court did not consent to the claim splitting. The state court considered federal constitutional law and expressly found as a matter of law that Plaintiff received proper notice and an opportunity to respond. Thus, the state court did not intend to permit Plaintiff to reserve her federal rights and "fully addressed" the only issue that remains in this case, Plaintiff's Count I, procedural due process.
*412 We believe that under the circumstances of this case, policy considerations weigh in favor of finding Plaintiff's claims res judicata. In addition to being aimed at preventing a multiplicity of suits, res judicata also "`serves the public interest by keeping the courts clear of disputes that have been decisively resolved.'" Coleman, 522 A.2d at 1119 (citing Consolidation Coal Co. v. District 5, United Mine Workers, 336 Pa.Super. 354, 485 A.2d 1118, 1122 (1984)). Here Defendants did not explicitly consent to Plaintiff's claim splitting. Furthermore, the state court opposed it, considering and decisively resolving the only issue that remains in this case. Under these circumstances we are not inclined to disturb that resolution.
b. Finality of Judgment
Finally, we turn to Plaintiff's contention under Bailey v. Ness, 733 F.2d 279 (3d Cir. 1984) that no preclusive effect should be given to Judge Panella's September 4, 1996 decision until the state appeals process has been completed. We do not find this argument persuasive.
Under Pennsylvania law, the doctrine of res judicata holds that "`a final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the parties or their privies, on the same cause of action.'" Keystone Bldg. Corp., 360 A.2d at 194 (citations omitted). In raising Bailey, Plaintiffs only dispute that the Judge Panella's decision was final. The Third Circuit in Bailey stayed a federal § 1983 action rather than dismissing it under the doctrine of collateral estoppel because plaintiff's appeal of her state court criminal conviction was still pending. Bailey, 733 F.2d at 281-83. The court in Bailey cited two conflicting lines of Pennsylvania cases on whether a judgment by a trial court is final if it is appealed. The older line holds that a state court judgment is not final if an appeal is pending. Bailey, 733 F.2d at 281.[21] The second and more recent line holds that a judgment is final "`unless or until it is reversed.'" Id. (quoting Philadelphia Elec. Co. v. Pennsylvania Pub. Util. Comm'n, 61 Pa.Cmwlth. 325, 433 A.2d 620, 626 (1981)).[22] However, since Bailey, the Commonwealth Court of Pennsylvania has "twice unequivocally decided that a state trial court judgment is final unless or until it is reversed." Linnen v. Armainis, 991 F.2d 1102, 1107 (3d Cir.1993) (citing O'Hara Sanitation Co. v. Commonwealth Dep't of Envtl. Resources, 125 Pa.Cmwlth. 441, 557 A.2d 453, 455 (1989); Bassett v. Civil Serv. Comm'n of Philadelphia, 100 Pa.Cmwlth. 356, 514 A.2d 984, 986 (1986)). These decisions are consistent with the Restatement (Second) of Judgments §§ 13, 16 (1982). Linnen, 991 F.2d at 1107.
Moreover, "a close reading of [Bailey] reveals that the linchpin of the decision to stay the proceedings was the Court of Appeal's fear that the statute of limitations might extinguish a civil rights claim of the plaintiff." Kellner v. Aetna Cas. & Surety Co., 605 F. Supp. 326, 330 (M.D.Pa.1984) (concluding that "the judgment on the merits of any Pennsylvania Court of Common Pleas is final for purposes of res judicata until reversed").
We do not believe that the statute of limitations is a concern here. An Appellate court's reversal of Judge Panella's findings in this case would not alter the viability of Plaintiff's claims. We concluded that Plaintiff's claims are res judicata because the state court considered federal issues, not because of the merits of any particular finding. Accordingly, Defendants' motion for summary judgment as to Count I, procedural due process is granted because this claim is res judicata.
*413 2. Collateral Estoppel
Because we have concluded that all of Plaintiff's claims should be dismissed, we do not reach the issue of whether Plaintiff's claims against Defendants School District and Board Members in their individual and official capacities should be dismissed under the doctrine of collateral estoppel.
ORDER
AND NOW, this 26th day of February, 1997 in consideration of Defendants' September 17, 1996 motion for summary judgment, Plaintiff's response filed November 4, 1996, and Defendants' reply thereto filed December 4, 1996, it is hereby ORDERED:
1. Defendants' motion is GRANTED on Count I (procedural due process), Count II (substantive due process), Count III (First Amendment), and Count IV (conspiracy);
2. JUDGMENT is entered in favor of Defendants and against Plaintiff on Counts I-IV; and
3. This case is closed.
NOTES
[1] Our factual discussion presents facts upon which all parties agree. In addition, when there is a conflict we have presented the version set forth in Plaintiff's brief. Pursuant to an oral stipulation of counsel taken over the telephone and recorded by a court stenographer on February 14, 1997 and approved by the court all of the exhibits presented by the parties in support of this motion are authentic and properly before the court with the sole exception of Plaintiff's Exhibit 26. Consideration of Exhibit 26 would not affect our decision.
[2] According to the September 4, 1996 decision of the state court, the School District had withdrawn its position that Coover's conduct amounted to "intemperance." (See Defs.' Ex. F-6 at 6 n. 2).
[3] We will not discuss the standards for liability under 42 U.S.C. § 1985, as Plaintiff withdrew the conspiracy claims set forth in Count VI of her complaint without presenting any evidence or explaining why Defendants were not entitled to judgment as a matter of law. (See Pl.'s Br. at 20 n. 1). Accordingly, we will grant Defendants' summary judgment on Count IV.
[4] Defendants also argue that even if Policy No. 321 had not been in effect the School Board could have dismissed her for campaigning to oust the School Board majority. Because we do not think that what the School Board could have done is dispositive, we will not rest our decision on this ground.
[5] We note that Plaintiff's argument that her discharge was pretextual does not help her argument that her speech is protected under Pickering, Watters, Connick, and Churchill as discussed below. Even if speech is a matter of public concern, Plaintiff must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action. Watters, 55 F.3d at 892. Plaintiff's arguments that her discharge was pretextual appear to concede that the incident with Vega-Neel was not a substantial or motivating factor in her discharge. However, since she appears to be making this argument in the alternative, we will still treat her contention that Policy No. 321 was unconstitutionally vague as applied to her.
We note as well that the School Board's actual motivation would be relevant if Plaintiff was arguing that she was being fired for some activity in addition to her silence during the Vega-Neel incident which was protected by the First Amendment. See Churchill, 511 U.S. at 681-83, 114 S. Ct. at 1891. However, Plaintiff in answer to an interrogatory asking her to factually describe each occasion on which she engaged in speech contended by her to be protected by the First Amendment of the United States Constitution and which was the basis for her dismissal, limited her response to her silence at the administrative meeting with Vega-Neel. (Defs.' Br. at 35). Thus, Plaintiff has conceded that even if her discharge for violation of Policy No. 321 was pretextual, she was not dismissed for other activities protected by the First Amendment.
[6] Apparently, this policy section was revised in October of 1996; however, our concern is only with the section as it was at the time of the alleged violation.
[7] In citing this authority, Plaintiff also concedes that she is not basing a substantive due process claim upon the deprivation of a liberty interest based in tort law, such as damage to her reputation or stigma in attempting to find another position. In fact, Plaintiff does not even discuss this possibility in her brief.
[8] Plaintiff cites our March 7, 1996 memorandum which noted that "[t]here are no facts alleged at this time that support a selective enforcement of the policy," presumably to somehow indicate that we allowed discovery on the equal protection issue. This was not the case. Such facts were relevant to whether Policy No. 321 was used to regulate the content of Coover's speech in violation of her first amendment rights. Since we assumed that Policy No. 321 was used to regulate content in our discussion of whether her speech was protected, any factual dispute in this area is not material.
Nevertheless, we fail to see how Plaintiff Coover could prevail even if Plaintiff Coover had alleged an equal protection claim. As noted in Esmail, plaintiff must be able to prove that the action taken by the state, "whether in the form of prosecution or otherwise, was a spiteful effort to `get' [her] for reasons wholly unrelated to any legitimate state objective." Esmail, 53 F.3d at 180. Leaving aside the fact that Esmail was not decided in this circuit, we doubt that Coover can prove such a violation under the undisputed facts of this case. The School District's interest in the efficient running of the school would appear to impact teachers and an institution's top administrator differently.
[9] As we have noted Plaintiff concedes there was no protection under substantive due process.
[10] Defendants also seem to be arguing that under McDaniels the only process that Plaintiffs are due are the post-deprivation procedures available under Local Agency Law. It is true that "[i]n some circumstances ... the Court has held that a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process." Zinermon, 494 U.S. at 128, 110 S. Ct. at 984. This represents a special case in the general Mathews v. Eldridge analysis, in which the postdeprivation tort remedies are all the process that is due, simply because the value of predeprivation safeguards is negligible in preventing the type of deprivation at issue. Zinermon, 494 U.S. at 128-29, 110 S. Ct. at 984-85. This special case was presented in McDaniels, but only because of the procedural posture of the case. In McDaniels, the Third Circuit first determined that the plaintiff had already been provided with the only predeprivation procedures to which he was entitled the three Loudermill protections. McDaniels, 59 F.3d at 453-58. Thus, the presence of adequate postdeprivation remedies cured the absence of other pretermination protections, such as an impartial predeprivation decisionmaker. Id. at 460-61. Thus, Defendants would be incorrect to assert that McDaniels entitles Plaintiff only to post-deprivation remedies available under Pennsylvania's Local Agency Law.
[11] To support her contention, Plaintiff cites, without explanation, Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S. Ct. 1740, 95 L. Ed. 2d 239 (1987). Although this case did not involve the procedural due process rights of public school personnel, it did follow Loudermill in requiring some sort of predeprivation hearing coupled with post termination procedures. Brock, 481 U.S. at 263-64, 107 S. Ct. at 1748-49. However, this case is of limited use to us because it appears to have required more extensive predeprivation protections than are required for public school personnel under McDaniels. See Brock, 481 U.S. at 264, 107 S. Ct. at 1748-49. In addition, while the case does appear to have required actual notice of the substance of evidence as opposed to the opportunity to be given evidence, unlike the case at bar it did not involve a meeting that a plaintiff declined to attend.
In addition, Plaintiff concedes in her brief that due process does not require the pretermination hearing to be held before an unbiased and impartial decisionmaker. Instead, she argues that Solicitor Steele was not a member of the board and not a decisionmaker. However, Plaintiff has pointed to no evidence that contradicts the School Board's close relationship with Solicitor Steele shown by his drafting of the June 19, 1995 letter to Plaintiff and his being permitted to remain at a meeting at which she was excluded. Given the evidence of this relationship, it is unclear what the additional protection of having the actual School Board preside at an informal hearing prior to her suspension without pay in contemplation of dismissal would have accomplished. On the other hand, given Solicitor Steele's relative expertise in the legal arena it is easy to see the obvious administrative efficiency that would be served by having him preside rather than the full School Board at that stage. Thus, under a Mathews v. Eldridge balance due process was not violated by having Solicitor Steele preside at that hearing.
[12] Defendants have presented us with no case law for the proposition that Coover's decision not to attend the meeting with Solicitor Steel constituted a waiver of her right to notice of the evidence against her and an opportunity to respond. Waiver is a voluntary and intentional relinquishment or abandonment of a known right. Helco, Inc. v. First Nat'l City Bank, 470 F.2d 883, 885 (3d Cir.1972); Moscatiello Constr. Co. v. Pittsburgh Water and Sewer Auth., 167 Pa.Cmwlth. 508, 648 A.2d 1249, 1251 (1994). Waiver is an affirmative defense which a defendant bears the burden of proving. Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 300 (2d Cir.1987). The hearing required by due process is subject to waiver. Boddie, 401 U.S. at 378-79, 91 S. Ct. at 786-87.
It is not clear that waiver has been established as a matter of law, given the time pressure Plaintiff faced. See Pratt v. Thornburgh, No. 85-972, 1987 WL 10707 (E.D.Pa. May 13, 1987) (finding waiver but emphasizing the importance of a voluntary abandonment of position, evidenced by no attempt to contact an employer in the context of ample time to respond and repeated notice of specific actions the employee could take to prevent discharge). Even if we found Plaintiff waived her right to notice of the evidence against her and an opportunity to respond as a matter of law because of her response to the June 19th letter, we could not find that she waived her right to notice and an opportunity to respond to the additional charges the School Board cited when it suspended her without pay. See Comer v. School Dist. of Philadelphia, No. 84-3206, 1987 WL 13088 (E.D.Pa. June 29, 1987) (violation of due process found where plaintiff did not attend a meeting and where the grounds for suspension were broader than both the grounds that plaintiff had been told would be discussed at the meeting and the grounds which plaintiff had discussed with employers under other circumstances). Thus, waiver does not entitle Defendants to summary judgment on Count I, procedural due process.
[13] Note that this case differs in certain important respects from McDaniels. The plaintiff in McDaniels was not suspended without pay almost immediately after the hearing, he actually did respond to the charges, and the school had to act quickly because of its strong interest in protecting students from the sexual harassment of which the plaintiff was accused. McDaniels, 59 F.3d at 456-58.
[14] The defense of qualified immunity is a defense available to each individual defendant in his individual capacity. Bakalis v. Golembeski, 35 F.3d 318, 326-27 (7th Cir.1994).
[15] Defendant Board Members concede that if we had not granted summary judgment to them in their individual capacities because of qualified immunity, they could not be granted summary judgment on the basis of res judicata because they were not a party to the state action and res judicata requires identity of parties. While they do argue that Defendant Board Members are entitled to summary judgment on the basis of collateral estoppel in their individual capacities, our decision that they are entitled to qualified immunity makes it unnecessary for us to consider this issue. Therefore, all references in this section are to Defendant Board Members in their official capacities unless otherwise indicated.
[16] On February 14, 1997 the court approved an oral stipulation on the record of all counsel that the pleadings of the defense would be deemed amended to assert the affirmative defenses of res judicata and collateral estoppel.
[17] 2 Pa.C.S.A. § 754(b) provides that, "the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant ..." Under 42 Pa.C.S.A. § 706 the court may, "direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances." These procedures have been found adequate to protect property rights. McDaniels, 59 F.3d at 461.
[18] In paragraph 25 of Plaintiff's Petition for Review Plaintiff noted, "all statements regarding violations of Petitioner's constitutional rights in this Petition are in reference to violations of the Constitution of the Commonwealth of Pennsylvania." In paragraph 38 Plaintiff stated, "Petitioner hereby reserves her right to litigate violation of her federal constitutional and civil rights in a federal forum pursuant to federal law." The Plaintiff then alleged numerous facts which she maintained demonstrated a violation of her constitutional rights. (Defs.' Ex. F-5 at 28, 46).
The Pennsylvania Constitution does not contain an express due process clause. Nevertheless, although its application has not been as widespread, the broad language in Article I, Section I of the Pennsylvania Constitution has been held to be substantially the same as the property protections afforded by the Fourteenth Amendment to the federal Constitution. Willcox v. Penn Mut. Life Ins. Co., 357 Pa. 581, 55 A.2d 521, 526 (1947).
[19] However, this motion was submitted by attorney Stuart L. Knade who informed this court via a telephone conference on the record on February 14, 1997 that he only represents Defendant Board Members in their individual capacities.
[20] The court in Coleman used this formulation of Pennsylvania's law on claim splitting in the same discussion in which it stated that "The law of Pennsylvania is in accord with the approach taken by the Restatement." Coleman, 522 A.2d at 1120-1121. The latter language was quoted in Bradley. Bradley, 913 F.2d at 1072. As in Bradley, the court in Coleman faced a record which established that the first court had consented to the claim splitting. Coleman, 522 A.2d at 1121. Thus, in stating that the law of Pennsylvania is in accord with the Restatement (Second) of Judgments we believe the court in Coleman was referring specifically to the application of the Restatement to the merits of the case before it.
[21] The Third Circuit cited Bryar v. Campbell, 177 U.S. 649, 20 S. Ct. 794, 44 L. Ed. 926 (1900) (interpreting Pennsylvania law); United States v. Employers Mut. Ins. Co. of Wisconsin, 495 F. Supp. 840, 842 (W.D.Pa.1980); In re Levitt, 18 B.R. 595, 598 n. 11 (Bankr.E.D.Pa.1982); Columbia Nat'l Bank v. Dunn, 207 Pa. 548, 56 A. 1087 (1904); Small's Appeal, 15 A. 807 (Pa. 1888); Souter v. Baymore, 7 Pa. 415 (1848). Bailey, 733 F.2d at 281.
[22] See Bailey, 733 F.2d at 281-82 (citing Rheem v. The Naugatuck Wheel Co., 33 Pa. 356 (1859); Woodward v. Carson, 86 Pa. 176 (1878); Elkin's Petition, 289 Pa. 327, 137 A. 459 (1927); Wallace's Estate, 316 Pa. 148, 174 A. 397 (1934); Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 131 A.2d 622, cert. denied, 355 U.S. 832, 78 S. Ct. 46, 2 L. Ed. 2d 44, reh. denied, 355 U.S. 885, 78 S. Ct. 146, 2 L. Ed. 2d 115 (1957)). |
9,645,480 | 2023-08-22 21:26:23.957492+00 | Hill | null | Hill, J.
This is an action for damages resulting from an accident arising out of and in the course of plaintiff’s employment. Plaintiff originally commenced the action against Duro Metal Products Co., the manufacturer of the injury-causing device. He subsequently moved to amend the complaint and joined Liberty Mutual Insurance Co. (carrier), the workers’ compensation insurer for plaintiff’s employer.
The carrier moved for summary judgment on the ground that 21 V.S.A. §§ 601-709 prohibited actions against an employer’s workers’ compensation insurance carrier. The trial court denied the motion, and certified the following question pursuant to V.R.A.P. 5(a):
Does 21 V.S.A. Section 622 bar an action by an employee, who is entitled to workmen’s compensation under 21 V.S.A. *411Section 601 et seq., against his employer’s workmen’s compensation insurance carrier on account of injuries allegedly suffered as a result of negligent inspections of the workplace by the compensation insurance carrier when the employee allegedly relied upon the inspections of the workmen’s compensation insurance carrier, or when the negligence of the workmen’s compensation insurance carrier allegedly increased the risk of harm to the employee.
For the purposes of this appeal, the carrier concedes that it was negligent, that the plaintiff reasonably relied upon the carrier to conduct inspections, and that the injuries were a proximate result of the negligence.
The question as framed must clearly be answered in the affirmative inasmuch as 21 V.S.A. § 622 excludes “all other rights and remedies of such employee ... at common law or otherwise on account of such injury.” The question which the parties briefed and desire to have answered, however, is whether 21 V.S.A. § 624, creating liability in third parties, permits an action against an employer’s workers’ compensation carrier under the facts and circumstances present in this case. See State v. Carpenter, 138 Vt. 140, 146, 412 A.2d 285, 289 (1980) (“Court will not hesitate to reach issues outside [scope of certified question] where they are fairly raised by the order appealed”). As modified above, the certified question must be answered in the affirmative.
Plaintiff argues that this Court’s holding in Steele v. Eaton, 130 Vt. 1, 285 A.2d 749 (1971), is controlling here. We disagree. In Steele, this Court determined only that there was “nothing in the case to raise, as a matter of law, a duty to make a safety inspection on the part of the insurer, nor [was] there evidence that any such inspection was in fact undertaken and negligently performed . . . .” Id. at 3-4, 285 A.2d at 751.
Vermont’s Workers’ Compensation Act restricts injured employees to the rights and remedies granted thereunder. See 21 V.S.A. § 622. Under 21 V.S.A. § 624, however, “[w]here the injury for which compensation is payable under the provisions of this chapter was caused under circumstances creating a legal liability in some person other than the employer . . . , the injured employee or his personal representative may also proceed to enforce the liability of such third party for damages . . . .” 21 V.S.A. § 624(a) (emphasis added). Thus, the question presented reduces to *412whether, under the facts of this case, the employer’s insurer is “some person other than the employer” for purposes of Vermont’s workers’ compensation scheme.
Although this is a question of first impression in this jurisdiction, it has been the subject of a great deal of litigation around the country. In fact,
[o]f all the developments in the volatile field of third-party litigation under workmen’s compensation, none has been so dramatic and fast-moving as the line of cases in which injured employees have attempted to treat the compensation carrier as a third party for purposes of tort suits, based usually on alleged negligence in either safety inspections or medical services.
2A A. Larson, The Law of Workmen’s Compensation § 72.90, at 14-264 & 14-265 (1983).
Each case necessarily turns on the language of the relevant statutes. According to a leading commentator in the field, Vermont’s statute, providing that the term “ ‘employer’ includes his insurer so far as applicable,” 21 V.S.A. § 601(3), virtually disposes of the issue by express language. See Larson, supra, § 72.93, at 14-288 through 14-290. Courts in other jurisdictions with comparable statutes,1 however, have concluded otherwise,2 and it seems clear that, if the words “so far as applicable” are to have any *413meaning, the employer and his insurer must be considered separate and distinct entities under certain circumstances.
Looking at the cases as a whole in this area, one can identify two approaches to the question before us. Larson, supra, § 72.93, at 14-287. The conceptual approach focuses on the identity of the carrier. “[T]he emphasis is on trying to extract from the language of the act any clues on whether the carrier was meant to be assimilated to the employer, or in any other way excluded from the third-party category.” Id. See, e.g., Horne v. Security Mutual Casualty Co., 265 F. Supp. 379, 383 (E.D. Ark. 1967) (words “employer or carrier” are closely followed by “any third party,” thus identifying the employer and carrier in third-party situations and disassociating the carrier from “any third party”). This focus may be fruitful in cases where the statutes draw a clear distinction between the employer and its insurer. Where the statutes are less certain, however, ascribing special significance to any particular omission or provision is less convincing.
The functional approach, on the other hand, focuses on what the carrier was doing, and draws a distinction between the role of the carrier as guarantor and the role of the carrier as provider of benefits and services. See, e.g., Smith v. American Employers’ Insurance Co., 102 N.H. 530, 533-34, 163 A.2d 564, 567 (1960) (carrier’s liability under the boiler inspection policy had no relation to its concurrent status as the compensation carrier for the employer) (decision later nullified by statutory amendment); see also Larson, supra, § 72.97, at 14-304. Although these two different roles of a carrier have frequently been analyzed as though they were inseparable, there is a crucial difference. “It is virtually impossible to cause physical injury by writing a check. It is very possible to cause physical injury by administering medical treatment to a patient or by making a safety inspection.” Larson, supra, § 72.97, at 14-304.
We conclude that if a workers’ compensation carrier undertakes to provide, rather than pay for, benefits and services, it should be liable in tort as “a person other than the employer.” 21 V.S.A. § 624. Such an interpretation is consistent with the Workers’ Compensation Act as a whole as “it is not of the essence of the compensation process that the carrier should step out of its fundamental role as financial guarantor and payor and go into the safety inspection service or medical clinic business directly.” Larson, supra, § 72.97, at 14-304. Moreover, this interpretation gives *414content to the phrase “so far as applicable” as it recognizes that the insured and the insurer are to be treated as separate and distinct entities under certain circumstances.
The subrogation subsections focused on by the dissent illustrate that the insurer is to be identified with the employer in its role as compensation carrier. As the dissent correctly points out, they each may settle their claims “as their interests appear.” 21 V.S.A. § 624(b). If the amount of any settlement by the employee is less than the compensation benefits payable in the future, the consent of the carrier is required. 21 V.S.A. § 624(b). These provisions, however, merely set forth the procedures to be followed in third-party actions. They do not address the situation where, as here, the carrier wears the hat of an inspector as well as insurer, and they do not preclude the carrier from being sued as a third party in that role.
The dissent is apparently troubled by the seemingly incongruous result that, if the plaintiff is allowed to maintain a third-party action against the carrier, the carrier will end up suing itself as the carrier is subrogated to the injured employee’s cause of action against a third-party tortfeasor. Although this may well be true, the spectre of double recovery is unfounded since the carrier would be entitled to set-off, in a judgment against itself as tortfeasor, the amount of compensation paid as insurance carrier. See, e.g., Smith, supra, 102 N.H. at 534, 163 A.2d at 567.
Some courts have criticized the position adopted herein on the grounds that it will dissuade insurance carriers from inspecting the workplace, and is therefore contrary to public policy. See, e.g., Kotarski v. Aetna Casualty & Surety Co., 244 F. Supp. 547, 558-59 (E.D. Mich. 1965), aff’d, 372 F.2d 95 (6th Cir. 1967);3 Matthews v. Liberty Mutual Insurance Co., 354 Mass. 470, 473, 238 N.E.2d 348, 350 (1968). There are several responses to this argument. In Mays v. Liberty Mutual Insurance Co., 323 F.2d 174, 178 (3d Cir. 1963), for instance, the court noted that inasmuch as carriers derive a financial benefit from safety inspections, they may choose to continue the practice despite the shadow of potential tort liability. The Iowa Supreme Court concurred, and stated that “no inspection is better than a negligent one.” Fabricius v. *415Montgomery Elevator Co., 254 Iowa 1319, 1327, 121 N.W.2d 361, 366 (1963).
The most appropriate response to these policy arguments, however, is that they are properly addressed to the legislature as they involve multi-faceted issues best left to a body of government with factfinding tools at its disposal. While public policy generally favors promotion of safety, it also favors holding tortfeasors responsible for their wrongs. Accordingly, we hold that the statute in its present form does not confer absolute immunity on an insured’s compensation carrier when that carrier undertakes to perform a safety inspection of the workplace.
The certified question, as modified by this Court, is answered in the affirmative.
See Ala. Code Tit. 26, § 262(d) (1958) (“The term ‘employer’ . . . shall, if the employer is insured, include his insurer as far as applicable . . . .”) (current version at Ala. Code § 25-5-1(4) (Supp. 1986)); Ga. Code Ann. § 114-101 (1956) (“ ‘Employer’... if the employer is insured, this term shall include his insurer as far as applicable.”) (current version at Ga. Code Ann. § 34-9-1(3) (1982); see also S.D. Codified Laws Ann. § 64.0101(1) (1939) (“If the employer is insured it shall include his insurer as far as applicable.”) (current version at S.D. Codified Laws Ann. § 62-1-2 (1978)).
See, e.g., Beasley v. MacDonald Engineering Co., 287 Ala. 189, 198, 249 So. 2d 844, 852 (1971) (“In its role of supplying of the financial responsibility required of the employer under the act, [the carrier] is entitled to all of the rights of its insured under the act. In its role of safety engineer it is entitled to no more protection than the law would give to any other in that role.”); Sims v. American Casualty Co., 131 Ga. App. 461, 474, 206 S.E.2d 121, 130 (1974) (“compensation insurer ... is not [immunized from common law suit as third-party tortfeasor] if it occupies the relation of insurer in any capacity other than compensation insurer”). The South Dakota courts have not had occasion to construe that state’s statute.
This federal district court decision was later disavowed by a Michigan appellate court in Ray v. Transamerica Insurance Co., 10 Mich. App. 55, 62-63, 158 N.W. 2d 786, 789-90 (1968). |
9,645,481 | 2023-08-22 21:26:23.962947+00 | Allen | null | Allen, C.J.,
dissenting. I do not agree that the relevant statutes are ambiguous.
The statute creating dual liability permits recovery against some person other than employer. 21 V.S.A. § 624(a). The word “ ‘employer’ ” includes the insurer so far as applicable,” 21 V.S.A. § 601(3), “[u]nless the context otherwise requires.” 21 V.S.A. § 601. There is nothing in the context of § 624(a) or in the Workers’ Compensation Act which requires or even permits a construction contrary to the definition set forth in the statute. “[W]hen the statute’s meaning is plain on its face, [this Court] must enforce it in accordance with its express terms.” Montgomery v. Brinver Corp., 142 Vt. 461, 463, 457 A.2d 644, 645 (1983).
The words “so far as applicable” apply to those duties and prohibitions which extend only to the employer and do not apply to the insurance carrier. These include the obligation to secure compensation to employees in one of the enumerated ways, 21 V.S.A. § 687, the failure to comply with the rules and regulations of the commissioner of labor and industry or to pay compensation as required by law, 21 V.S.A. § 689, the failure to post notice of compliance with the provisions of the act, 21 V.S.A. § 691, or the requirement for the filing of a certificate of insurance, 21 V.S.A. § 690. The provisions of the act requiring payment of benefits also impose that obligation upon the “employer” only, 21 V.S.A. §§ 641-643, 645, but the obligation is imposed upon the insurance carrier as well by virtue of the definitional provision, because payment of benefits is the responsibility of both the carrier and the *416employer. 21 V.S.A. § 618. A construction which concludes that the word “employer” includes the insurer for purposes of payment, but excludes the insurer for purposes of immunity, defies reason and logic.
Further support for the proposition that the legislature intended the word “employer” to include the insurer for purposes of 21 V.S.A. § 624 is found in § 624(e), which provides that any amounts recovered from a third party in excess of the compensation paid or payable to the date of recovery shall be paid to the employee and be treated as an advance payment “by the employer on account of any future payment of compensation benefits.” If an insurer has paid the compensation benefits, the word “employer” must include the insurer for the purposes of this section, and therefore bears the same meaning throughout the remainder of 21 V.S.A. § 624. State v. Welch, 135 Vt. 316, 321, 376 A.2d 351, 354 (1977).
The exclusivity provision of the Workers’ Compensation Act specifically prohibits the plaintiff from exercising any other rights or remedies at common law or otherwise on account of his compensable injury. 21 V.S.A. § 622. An injured employee is permitted, however, to recover against “some person other than the employer” if the injury was caused under circumstances creating a legal liability in that person. 21 V.S.A. § 624 (emphasis added). The word “person” is not defined, but throughout the remainder of 21 V.S.A. § 624 the words “third party” are used in place of “person.” Under this statute, the employee, employer, or its insurance carrier may bring an action against the third party in the name of the employee, 21 V.S.A. § 624(a), and each may settle their claims “as their interests] [may] appear.” 21 V.S.A. § 624(b). If an employee who is insured settles for less than the compensation benefits which would have been payable in the future, the consent of the employer or the insurance carrier is required. 21 V.S.A. § 624(b). A settlement and release by the employee is not a bar to an action by the employer or its insurance carrier against the third party. 21 V.S.A. § 624(c). It is clear from the foregoing that the “person” or “third party” against whom a right of action was restored by the legislature in § 624 is a person or entity other than the insurance carrier. See Horne v. Security Mutual Casualty Co., 265 F. Supp. 379, 381 (E.D. Ark. 1967); Herbert v. Layman, 125 Vt. 481, 484, 218 A.2d 706, 708 (1966).
*417The majority opinion correctly notes that a leading commentator has opined that our statute has virtually disposed of the issue by express language, but nonetheless contradicts this conclusion by stating that two courts in jurisdictions with comparable statutes have concluded otherwise. The opinion from one of those courts is readily distinguished and the other supports the view here expressed.
In Beasley v. MacDonald Engineering Co., 287 Ala. 189, 195, 249 So. 2d 844, 848 (1971), the statutory definition of employer included the insurer “as far as applicable.” The court held that the employer and insurer were not to be equated in third-party actions. The holding, however, turned on the fact that the subrogation statute, which had originally given the right only to the employer, was later amended to specifically give the insurance carrier similar rights. The court concluded that if the legislature had intended the word “employer” to include “his insurer” for all purposes, there would have been no necessity to extend to the insurer subrogation rights which it already had under the definitional statute. By contrast, in Vermont, an insurance carrier having paid or having become obligated to pay compensation benefits has always been subrogated to the rights of the injured employee. Towne v. Rizzico, 113 Vt. 205, 209-11, 32 A.2d 129, 131-32 (1943); Belfore v. Vermont State Highway Department, 108 Vt. 396, 401-02, 187 A. 797, 798 (1936). The reasoning of Beasley, supra, does not apply.
In Sims v. American Casualty Co., 131 Ga. App. 461, 206 S.E.2d 121 (1974), the Court of Appeals of Georgia reaffirmed an earlier holding that a compensation carrier enjoys the employer’s immunity under an “employer” definition identical to ours. Far from concluding that the issue was “concluded otherwise,” the case is clear support for the views expressed in this dissent.
However desirable the conceptual-functional analysis adopted by the majority may be, it is intended to apply only to those states whose statutory language does not expressly identify the carrier with the employer. 2A A. Larson, The Law of Workmen’s Compensation § 72.97, at 14-301 (1983). As that commentator concluded, our statutes clearly identify the carrier with employer. This Court cannot by judicial action in the guise of interpretation achieve a particular result simply because it feels that the thrust of a statute is unjust or unfair. King v. Snide, 144 Vt. 395, 404, 479 A.2d 752, 756 (1984). Justice Peck joins in this dissent.
*418I would answer the question as modified in the negative. |
9,645,482 | 2023-08-22 21:26:26.381209+00 | Kelly | null | KELLY, Judge:
This appeal raises the question of whether a police checkpoint or roadblock set up for the purpose of checking licenses, registrations, inspection violations, or for drivers under the influence of alcohol violates state or federal proscriptions against unreasonable searches and seizures.
In Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1986) (allocatur granted August 20, 1986), President Judge Cirillo opined for a divided panel of this Court that all such roadblocks or checkpoint stops are per se unconstitutional under Article I, Section 8 of the Pennsylvania Constitution. Therefore, the order and judgment of sentence is vacated and the trial court is directed to discharge the appellant.
Although I believe the Tarbert reasoning is factually and legally flawed, nonetheless, I would find that the procedures utilized in the instant case were constitutionally infirm. Consequently, I agree with the result reached by application of the Tarbert rule. I set forth my reasoning and concerns at length.
FACTS
On March 1, 1985, three officers of the Pennsylvania State Police conducted a traffic check on Route 62 in Tionesta Borough, Forest County, Pennsylvania. All vehicles traveling in either direction were stopped and the operators were asked to produce their licenses and vehicle registration cards. The field officers were acting pursuant to the instructions of the station commander that a two hour safety check should be held once a week, weather *52permitting. The date, time, site, and actual duration of the safety check were left to the discretion of the ranking field officer. There were no written guidelines or regulations for the traffic check, nor does the record indicate that specific instructions regarding the operation of the traffic check were given to the field officers by supervisory personnel.
Trooper Daniel Molitoris testified that he and two other uniformed officers of the Pennsylvania State Police selected a location, pulled their cars to the side of the highway and flagged down all cars traveling in either direction. The record does not include any evidence regarding the volume of traffic, safety precautions taken, notice to the public, or advance warning to the motorists approaching the traffic check.
Appellant, Stephen P. Leninsky, passed through the traffic check at approximately 1:00 p.m. Appellant failed to produce a driver’s license when requested to do so. A subséquent check with the Department of Motor Vehicles revealed that appellant’s driver’s license was under suspension. The appellant was charged with Driving Under Suspension, D.U.I. Related, in violation of 75 Pa.C.S.A. § 1543(b).
On May 2, 1985, appellant was found guilty by the District Magistrate, fined one thousand nineteen dollars and fifty cents ($1,019.50), and sentenced to ninety (90) days imprisonment. Notice of appeal from the summary criminal conviction was filed on May 28, 1985. A hearing de novo was conducted before the Honorable Robert L. Wolfe on July 15, 1985. On August 14, 1985, the appeal was dismissed. On August 20, 1985, appellant filed post-trial motions. These motions were argued and denied on September 23, 1985. This appeal followed.
Appellant contends that the trial court erred in failing to dismiss the charges because: 1) the stop was in violation of the appellant’s rights under the Fourth Amendment of the U.S. Constitution; 2) the stop was in violation of the appellant’s rights under Article 1, Section 8 of the Pennsylvania *53Constitution; and 3) the stop was invalid because under the Vehicle Code the officer did not have authority to stop appellant’s vehicle.
I.
Both the United States and Pennsylvania Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. Amend. 4; Pa. Const. Art. 1, Section 8. I note that while federal law establishes the minimum constitutional protections applicable to all citizens, “the state has power to impose standards on searches and seizures higher than those required by the Federal Constitution.” Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979), citing Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
The protections of the state and federal constitutions apply where a police office stops a vehicle, thereby seizing both the vehicle and its occupants for the duration of the detention. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). However, “one’s expectation of privacy in an automobile and freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one’s residence.” United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976); see also Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972). “One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects.” Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1984). “Automobiles, unlike homes, are subject to pervasive and continuing, governmental regulation and controls, including periodic inspection and licensing requirements.” South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). Nonetheless, “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because *54the automobile and its use are subject to government regulation.” Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979).
“The essence of the Fourth Amendment to the federal constitution, and Article I, Section 8, of the Pennsylvania Constitution, is reasonableness; these provisions provide protection against unreasonable searches and seizures.” In re Gartley, 341 Pa.Super. 350, 361, 491 A.2d 851, 857 (1985) (emphasis supplied); see also Zurcher v. Stanford Dailey, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983).
In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), our Supreme Court explained that, “there is no ready made test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entail.” 453 Pa. at 111, 307 A.2d at 878, quoting Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the United States Supreme Court stated:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty____ A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.
433 U.S. at 50-51, 99 S.Ct. at 2640. (Emphasis added).
II.
In Commonwealth v. Tarbert, supra, President Judge Cirillo opined for a divided panel of this Court that:
We hold that roadblocks, which without probable cause or a reasonable suspicion that a crime has been or is being committed, stop all vehicles travelling on a public high*55way for the purposes of checking licenses, registrations, inspection violations, and for drivers operating vehicles under the influence of alcohol are so violative of our citizen’s rights that they must be declared unconstitutional.
348 Pa.Superior Ct. at 316, 502 A.2d at 226. The majority stated, without elaboration, that the decision was based on “bona fide, separate, adequate, and independent state grounds.” 348 Pa.Superior Ct. at 309, 502 A.2d at 222.1 The majority reasoned:
In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), the Court held that in order to stop a single vehicle to check compliance with the Motor Vehicle Code, a police officer ‘must have probable cause based on specific facts which indicate to him either the vehicle or the driver are in violation of the code.’ We can find no compelling reason to deviate from this rule in situations involving a systematic stopping of vehicles.
348 Pa.Superior Ct. at 313, 502 A.2d at 224-225 (citations omitted). I, on the other hand, find compelling reasons not to apply the rule announced in Swanger to cases involving systematic, non-discriminatory, nonarbitrary roadblocks.
First, our Supreme Court in Commonwealth v. Swanger, supra, emphasized that its opinion “should not be read as applicable to systematic stops or roadblocks for detection of Motor Vehicle Code violations.” 453 Pa. at 110 & n. 3, 307 A.2d at 877 & n. 3. Secondly, the Court expressly distinguished the random seizure in Swanger from the searches in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), stating:
*56In See, the ‘search’ was part of a routine, periodic citywide canvas of commercial buildings, and in Camara the ‘search’ was part of an annual inspection of dwelling houses. These situations lack the arbitrariness inherent in the present case. The ‘searches’ in See and Camara were part of a systematic plan, whereas, the seizure here lacked any semblance of being part of a systematic plan.
453 Pa. at 114, 307 A.2d at 879 (footnote omitted). The absence of “absolute, unreviewable discretion and authority” 2 distinguishes roadblocks and checkpoint stops from the random traffic stop which Swanger declared unconstitutional.
III.
Although the state may impose a higher standard of reasonableness than mandated by federal law, DeJohn, supra, the test is similar under both the state and federal constitutions; we must balance the governmental interests served by the seizure, the effectiveness of the seizure in serving the governmental interest, and the severity of the intrusion, on personal liberty caused by the seizure. See Brown v. Texas, supra; Commonwealth v. Swanger, supra.
A. GOVERNMENTAL INTEREST
1) License and Registration
The Commonwealth of Pennsylvania has a vital interest in ensuring that only those qualified are permitted to operate motor vehicles, and that their vehicles are fit for safe operation. Hence, license, registration, inspection, and proof of financial responsibility requirements protect and enforce the state’s compelling interest in maintaining appropriate highway safety standards. Delaware v. Prouse, 440 U.S. at 658-659, 99 S.Ct. at 1398-99. See also Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1938), aff'd 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1939) (affirming states’ right to regulate public highways).
*572) Drunk Driving
The Commonwealth also has a vital interest in deterring, identifying, and removing drunk drivers from our highways; they present a threat to other motorists, pedestrians, and themselves. “The carnage caused by drunk drivers is well documented and needs no detailed recitation here.” South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 919, 74 L.Ed.2d 748 (1983). “The slaughter on the highways of our Nation exceeds the death toll of all our wars.” Perez v. Cambell, 402 U.S. 637, 657, 91 S.Ct. 1704, 1715, 29 L.Ed.2d 233 (1971) (Blackmun, J., concurring). In the past decade, over 250,000 people have died in alcohol related accidents. Each year, 708,000 people are injured, 74,000 seriously. Estimates of the economic loss caused by the drunken driver range from 21 to 24 billion dollars per year.3 In 1981, 950 people were killed in alcohol related accidents on Pennsylvania highways. From 1972 to 1981, the number of alcohol related fatal accidents in Pennsylvania increased 154%.4 It would be feckless to argue that the Commonwealth’s interest in ending this carnage is less than paramount.
B. EFFECTIVENESS
Next we must consider the effectiveness of checkpoints and roadblocks in promoting those governmental interests. In Commonwealth v. Tarbert, supra, the majority opined:
... we cannot sanction ‘random seizures’ based on ‘luck and hunch’ alone ... which inconvenience citizens without any justification of substance.’ State v. Kirk, 202 N.J. Super. 28, 58, 493 A.2d 1271, 1288 (1985) (citations omitted). In short, systematic and random roadblocks are *58nothing more than fishing éxpeditions which ‘constitute police seizures and detention in the absence of the faintest scintilla of criminal wrongdoing.’ Rodgers, [The Drunk Driving Roadblock: Random Seizures or Minimal Intrusion?, 21 CRIM.L.BULL. 197, 214 (1985)].
348 Pa.Superior Ct. at 314, 502 A.2d at 225. However, the weight of authority contradicts this assessment of the effectiveness of checkpoints and roadblocks.
1) License and Registration
In Martinez-Fuerte, supra, the Supreme Court stated: Stops for questioning, not dissimilar to those involved here, are widely used at state and local levels to enforce laws regarding driver’s licenses, safety requirements, weight limits and similar matters ... this practice of stopping automobiles briefly for questioning has a long history evidencing its utility, and is accepted by motorists as incident to highway use.
428 U.S. at 560 n. 14, 96 S.Ct. at 3084 n. 14. (Emphasis added).
Although the Supreme Court later declared random stops of individual vehicles unconstitutional, it explained that states were free to develop “methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion.” Prouse, 440 U.S. at 663, 99 S.Ct. at 1401. The Supreme Court went on to suggest that “[questioning all oncoming traffic at a roadblock-type stop is one possible alternative.” Id. In Texas v. Brown, supra, the Supreme Court held that the appellant’s initial stop at a routine driver’s license checkpoint was valid. 460 U.S. at 739, 103 S.Ct. at 1541.
The facts of the instant case amply demonstrate the need for spot check procedures. The appellant’s driver’s license was suspended for Driving While Intoxicated. In spite of the severe penalties mandated for Driving While Under Suspension, D.U.I. Related (75 Pa.C.S.A. § 1543(b)), the appellant elected to continue driving. Because Driving While Under Suspension is a status offense rather than an observable act offense, it is not detectable by traditional, *59less intrusive means. Without both an actual and a perceived risk of detection, license suspensions become a toothless sanction regardless of the penalties mandated upon conviction.5 On the other hand, checkpoint and roadblock spot checks can provide an effective deterrent and detection mechanism, while at the same time removing the unbridled discretion of random traffic stops.
License and registration checkpoints also help to combat the menace of drunk driving. During a motorist’s brief detention at the checkpoint, trained officers are placed in a position to legally observe drivers and check for signs of intoxication.6 Once the vehicle is legally stopped, there is “no legitimate expectation of privacy, ..., shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either an inquisitive passerby or diligent police officers.” Texas v. Brown, 460 U.S. at 740, 103 S.Ct. at 1542; see also New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). If the officer observes signs or symptoms of intoxication, he may properly detain the suspect for performance of appropriate behavioral or coordination tests. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
2) Drunk Driving
“One of the most effective methods of detection and deterrence of drunk drivers is the DWI roadblock or ‘sobrie*60ty checkpoint.’ ” J.W. Hall, Jr., Search and Seizure, § 10:31.1 at 361 (Cum.Supp.1986). Sobriety checkpoints differ from license and registration checkpoints in that the deterrence, detection and removal of drunk drivers is the primary rather than secondary purpose of the stop. Additionally, they differ in that the justification of the sobriety checkpoint rests on the Commonwealth’s specific interest in deterring, detecting and removing drunk drivers from Pennsylvania highways rather than general interests in highway safety.
Sobriety checkpoints serve the public interest in two ways: 1) they serve as a deterrent to potential drunk drivers by increasing the actual and perceived risk of detection; and 2) they aid in apprehending and removing drunk drivers from the road. Use of sobriety checkpoints and roadblocks for these purposes is recommended by the National Highway Traffic Safety Administration (NHTSA), the Presidential Commission on Drunk Driving, the International Association of Chiefs of Police, and the National Transportation Safety Board (NTSB).7
A 1984 safety study by the National Transportation Safety Board indicated that without sobriety checkpoint programs, many alcohol impaired drivers believe they can avoid police detection by driving carefully. However, with the use of sobriety checkpoints, the general public’s perception of the probability of detection and sanction is increased.8 I note that the public perception has a strong basis in fact. While those drunk drivers arrested by roving patrols average a .169 to .20 blood alcohol content (BAC) level, drunk drivers arrested at Delaware sobriety checkpoints averaged a .14 BAC level. In light of the fact that a driver with a .10 *61BAC level has a six times greater likelihood of causing an accident than a sober driver, the effectiveness of sobriety-checkpoints in detecting and removing drunk drivers with dangerous but significantly lower BAC levels is significant.9
Furthermore, studies in Maryland and Delaware have indicated that the uses of sobriety checkpoints have led to significant decreases in alcohol related accidents, injuries, and fatalities.10 Longer and more comprehensive studies of the effect of sobriety checkpoints programs in Australia, France, Canada, and Sweden indicate that: 1) public perception of the risk of arrest increased; 2) the percentage of drivers with illegal BAC levels decreased; and 3) alcohol related accidents, injuries and fatalities decreased.11
It is important to note that traditional roving patrols searching for observably impaired drivers and sobriety checkpoints are not competing or mutually exclusive alternatives. To the contrary, the National Transportation Safety Board and other organizations urging the use of sobriety checkpoints emphasize that they are efficient and effective only when used in conjunction with existing efforts as part of a comprehensive program of education, deterrence, interdiction and sanction.12
C. DEGREE OF INTRUSION
In Commonwealth v. Tarbert, supra, the majority reasoned that the “intrusion upon the individual in systematic *62stops is no less an intrusion because of the mere fact that all vehicles traveling on the highway are stopped.” 348 Pa.Superior Ct. at 314, 502 A.2d at 225. Again, I cannot agree. To the contrary, “[t]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officer’s authority, and he is much less likely to be frightened or annoyed by the intrusion.” United States v. Ortiz, 422 U.S. 891, 894-895, 95 S.Ct. 2585, 2587-88, 45 L.Ed.2d 623 (1975).13 Moreover, the “regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that stops are duly authorized and believed to serve the public interest.” Martinez-Fuerte, supra, 428 U.S. at 559, 96 S.Ct. at 3083.14
IY.
Based upon the foregoing, I conclude that governmental interests in licensing, registration, and highway safety in general, and specifically in deterring, detecting, and removing drunk drivers from Pennsylvania highways are vital and compelling. Traditional methods are inadequate to protect those interests. Checkpoints and roadblocks have been proven to be effective tools in protecting those interests when used as part of a comprehensive highway safety program. Consequently, I question the reasoning of the majority in Tarbert. See Tarbert, 348 Pa.Superior Ct. at *63314, 502 A.2d at 225 (Wickersham, J., dissenting); Wysocki v. Dept. of Transportation, 91 Pa.Cmwlth. 42, 45-46, 496 A.2d 897, 899 (1985) (allocatur granted) (stop at license and registration check met standards in Prouse, license suspension under 75 Pa.C.S.A. § 1547(b) affirmed); Commonwealth v. Berry, 305 Pa.Super. 8, 14 n. 4, 451 A.2d 4, 7 n. 4 (1982) (stop and weighing of trucks “alternately justifiable as systematic stops____”); see also Commonwealth v. Edwards, 355 Pa.Super. 311, 317 n. 5, 513 A.2d 445, 448 n. 5 (1986) (non-arbitrary systematic roadblock passes federal constitutional muster); Commonwealth v. Dannaker, 352 Pa.Super. 611, 505 A.2d 1030 (1985) (Per Curiam Order and Memorandum per Wickersham, J., C.M. per Brosky, J.) (Allocatur granted) (non-arbitrary systematic roadblock passes federal constitutional muster).
While this Court should not hesitate to invalidate a roadblock or checkpoint which involved an unreasonable intrusion or an impermissible exercise of unbridled discretion by field officers, neither should we prohibit non-arbitrary systematic roadblocks on a wholesale basis.15
*64Y.
Nonetheless, I agree that the procedures utilized in the instant case were constitutionally infirm. Factors which should be considered in determining the constitutionality of license and registration or sobriety checkpoint procedures include: the role of supervisory personnel; the degree of discretion vested in the field officers; the reasonableness and specificity of the established mode of operation; the reasonableness of site selection procedures; the time and duration of the operation; the average length of the initial detention; the reasonableness of secondary detention procedures; the indicia of the official nature of the roadblock; the maintenance of proper safety conditions (as to both motorists and officers); the publicity preceding implementation;16 the comprehensive nature of the local highway safety program; and any other factors relevant under the particular circumstances. See generally Ingersoll v. Palmer, supra; State v. Deskins, supra; Champane, J., The Constitutionality of Drunk Driver Roadblocks, FBI Law Enforcement Bulletin (July 1984); NHTSA, The Use of Safety Checkpoints for DWI Enforcement, supra, at 11-14.
In State v. Deskins, supra, the Kansas Supreme Court stated:
*65Not all factors need to be favorable to the state, but all which are applicable to a given roadblock should be considered. Some of course, such as unbridled discretion of the officer in the field, would run afoul of Prouse regardless of favorable factors.
673 P.2d at 1185. (Emphasis added). I agree, and would find that in the instant case the degree of discretion vested in the field officers rendered the procedures constitutionally infirm. The field officers were permitted to choose the time, date, and location of the safety check. Moreover, there were no written guidelines or procedures, and the record does not indicate that adequate instructions regarding the operation of the safety check were given by supervisory personnel. This is precisely the type of unbridled discretion which the Pennsylvania and United States Supreme Courts have condemned. See Prouse, supra; Swanger, supra. Because the initial stop was illegal, all the evidence derived therefrom must be suppressed. Swanger, 453 Pa. at 114-115, 307 A.2d at 879, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Finally, it is important to note that not all that is constitutional is wise. While it is for the courts to ensure that police practices meet minimum constitutional standards, it is for law enforcement agencies, the legislature, and ultimately the people of this Commonwealth to debate the wisdom of such procedures and the additional conditions, if any, under which they may be employed.17
BROSKY and ROBERTS, JJ., concur.
. Judge Wickersham stated in his Dissenting Opinion that:
I would recognize the validity of non-discriminatory, non-arbitrary roadblocks. See Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). I read nothing in the Pennsylvania Constitution that calls for a different interpretation than that espoused by our United States Supreme Court in the above cited cases.
348 Pa.Superior Ct. at 317, 502 A.2d at 226 (parallel citations omitted).
. Swanger, 453 Pa. at 113, 307 A.2d at 878.
. See H.R.Rep. No. 867, 97th Cong., 2d Sess. 7 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 3367; Federal Legislation to Combat Drunk Driving, Hearing on S.671, S.672, S.2158 Before the Subcomm. on Surface Transp. of the Senate Comm, on Commerce, Science & Transportation, 97th Cong., 2d Sess. 65 (1982); Fell, J., Alcohol Involvement in Traffic Accidents, (May 1982); NHTSA, Fatal Accident Reporting System 1980 Report (October 1981).
. Governor’s DUI Task Force Report (October 14, 1982 Harrisburg, PA); The New Pennsylvania Drunk Driving Law, 87 DICKINSON L.REV. 805, 805 (1983).
. This reasoning is equally applicable to enforcement of 75 Pa.C.S.A. §§ 1101, 1301, 1311, 1371, 1372, 1374, 1375, 1501, 1505, 1511, 1512, 1514, 1532, 1533, 1539, 1540, 1542, 1543, 1547(b), 1573, 1574, 1772, 1773, 4703, 7101, and 7102. I note that violation of 75 Pa.C.S.A. § 3731(a)(4) is also a status offense. At or near the legal limit, an intoxicated driver may not feel or appear intoxicated. Nonetheless, scientific research has established that such drivers are dangerous; and the General Assembly has decreed that a .10 BAC level is sufficient to support conviction.
. While many things can provide an experienced officer with grounds to suspect that a driver may be intoxicated, I would take judicial notice of the following symptoms or signs of alcohol intoxication: 1) odor of breath; 2) flushed appearance; 3) lack of muscular coordination; 4) speech difficulties; 5) disorderly or unusual conduct; 6) mental or visual difficulties; 7) sleepiness; 8) dizziness; and 9) nausea.
. NTSB, Deterrence of Drunk Driving: the Role of Sobriety Checkpoints and Administrative License Revocations, at 20-21,. 31 (Washington, D.C. April 3, 1984); NHTSA, The Use of Safety Checkpoints for DWI Enforcement, at 1-2 (Washington, D.C. September 1983); NHTSA, Dealing With Drinking Drivers: Guidelines for Motor Vehicle Administrators, at 89 (Washington, D.C.1986).
. NTSB, Deterrence of Drunk Driving, supra, at 9, citing A. William, et al., Deterrent Effects of Roadblocks on Drinking and Driving, Insurance Institute for Highway Safety (Washington, D.C.1984).
. See State v. Stroman, Nos. IN83-02-0055T, N83-04-0132T, and N8309-0620T, Slip Opinion at 8 n. 4 (Del.Super.Ct.1984); Borkstein, R., Problems in Enforcement, Adjudication, and Sanctioning, at 655-662 (1983); see generally Alcohol Drugs and Driving: Hearing to Examine What Effect Alcohol & Drugs Have on Individuals While Driving, Before the Subcomm. on Alcoholism & Drug Abuse of Senate Comm, on Labor & Human Resources, 97th Cong., 2d Sess. 1 (1982).
. Traffic Control Section, DUI Monthly Report, Del. State Police (Aug. 1983); Field Operations Bureau, Sobriety Checkpoint Program Evaluation Report, Md. State Police, Traffic Planning Unit (April 20, 1983).
. NTSB, Deterrence of Drunk Driving, supra at 7-8 & nn. 12-18 (citing reports).
. Id., at 2.
. This observation is supported by the results of surveys conducted in conjunction with sobriety checkpoints in Delaware, Maryland, and Washington, D.C. which revealed that motorists stopped at such checkpoints overwhelmingly supported continued use of sobriety checkpoints (Delaware 87.5%, Maryland 86%, and Washington, D.C. 88%). See NTSB, Deterrence of Drunk Driving, supra, at 9-10.
. I note that the degree of intrusion in a sobriety check is no greater than that present in a license check. Drivers are stopped in the same manner and detained for the same amount of time. That either stop may give rise to reasonable suspicion or probable cause to support further detention does not alter the intrusiveness of the initial stop.
. The courts of our sister states have uniformly rejected a per se rule. See e.g. State v. Superior Ct., 143 Ariz. 45, 691 P.2d 1073 (1984); Garrett v. Goodwin, 569 F.Supp. 106 (E.D.Ark.1982) (applying Arkansas law); Ingersoll v. Palmer, 175 Cal.App.3d 1028, 221 Cal.Rptr. 659 (1985) (Review granted April 3, 1986); People v. Andrews, 173 Colo. 510, 484 P.2d 1207 (1971); State v. Smolen, 4 Conn.Cir. 385, 232 A.2d 339 (1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 787, 19 L.Ed.2d 835 (1967); State v. Stroman, supra; State v. Jones, 483 So.2d 433 (Fla. 1986); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984); People v. Bartley, 109 Ill.2d 273, 93 Ill.Dec. 347, 486 N.E.2d 880 (1985); State v. Garcia, 481 N.E.2d 148 (Ind.App.1985); State v. Riley, 377 N.W.2d 242 (Iowa App.1985); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); Kinslow v. Commonwealth, 660 S.W.2d 677 (Ky.Ct.App.1983), cert. denied, 465 U.S. 1105, 104 S.Ct. 1606, 80 L.Ed.2d 136 (1984); State v. Cloukey, 486 A.2d 143 (Me.1985); Little v. State, 300 Md. 485, 479 A.2d 903 (1984); Commonwealth v. Trumble, 396 Mass. 81, 483 N.E.2d 1102 (1985); Miller v. State, 373 So.2d 1004 (Miss.1979); State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (1980); State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977); People v. Scott, 63 N.Y.2d 518, 473 N.E.2d 1, 483 N.Y.S.2d 649 (1984); State v. Trapper, 48 N.C.App. 481, 269 S.E.2d 680 (1980); State v. Goehring, 374 N.W.2d 882 (N.D.1985); State v. Goines, 16 Ohio App.3d 168, 474 N.E.2d 1219 (1984); State v. Smith, 674 P.2d 562 (Okla.Crim. *641984); State v. Shankle, 58 Or.App. 134, 647 P.2d 959 (1982); State v. Olgaard, 248 N.W.2d 392 (S.D.1976); Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981), rev’d on other grounds sub nom. Texas v. Brown, supra; State v. Martin, 145 Vt. 562, 496 A.2d 442 (1985); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985); State v. Frisby, 245 S.E.2d 622 (W.Va.1978), cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 87 (1978); see also LaFave, Search and Seizure, Vol. 3, § 10.8 a, g (1978 & Pocket Part 1986); Ringel, Searches & Seizures, Arrests and Confessions, § 11.6 (1986); Hall, Search and Seizure, § 10:31.1 (Cum.Supp.1986).
. Advance publicity simultaneously decreases intrusiveness and increases effectiveness; motorists will be more wary and less surprised. Its importance should not be overlooked. Accord State v. Ekstrom, 136 Ariz. 1, 663 P.2d 992, 1001 (1983); State v. Deskins, 673 P.2d at 1182; Jones v. State, 459 So.2d at 1076. Of course, it is the use of such procedures which should be announced, and not the precise time and locations where they will be used.
. In order to forestall repeated litigation and prevent abuse, it may be advisable that minimum uniform standards for the operation of vehicle roadblocks be adopted and established by the legislature, attorney general, or another appropriate state official, rather than leaving the determination thereof to local officials. See Ingersoll v. Palmer, supra (guidelines announced in Attorney General’s Opinion, 67 Ops. Cal. Atty. Gen. 471 (1984)); State v. Garcia, supra (guidelines developed by county police departments adopted by State Police Department); State v. Trumble, supra (guidelines developed by Secretary of Public Safety in consultation with other interested parties); accord State v. Deskins, supra (recommending attorney general or *66legislative action); State v. Jones, supra (requiring written set of uniform guidelines). |
9,645,486 | 2023-08-22 21:26:27.195288+00 | Blatt | null | Opinion by
Judge Blatt,
Richard D. Turzai (claimant) petitions for review1 of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referees decision finding him ineligible for benefits on account of willful misconduct.2
The claimant, an enforcement officer for the Pennsylvania Liquor Control Board (PLCB), was dismissed *647for allegedly disclosing the existence of an on-going undercover investigation to a liquor licensee who was the subject of the investigation. The claimants dismissal was upheld by the Civil Service Commission (Commission), which decision was aflirmed by this Court in Turzai v. Pennsylvania Liquor Control Board, 90 Pa. Commonwealth Ct. 374, 495 A.2d 639 (1985).3
At the hearing before the unemployment compensation referee, the PLCB advised the referee that its two key witnesses, the licensee, a Mr. Stavo, and his employee to whom the claimant also allegedly revealed the investigation, had ignored properly served subpoenas4 and would not be present to testify. After the claimant, appearing at this hearing pro se, objected to obtaining the testimony of these witnesses by telephone,5 the referee admitted into evidence, under advisement and subject to the claimants objection, the notes of testimony of the Commission hearing at which both of these witnesses testified. The referee stated that he would *648schedule another hearing if he subsequently determined that the Commission transcript was inadmissible. No decision, however, was rendered by this referee.
A second hearing was held by a different referee and the claimant denied disclosing confidential information to any unauthorized persons. The PLCB presented only a single witness who admitted that he had no first-hand knowledge of the alleged misconduct. The PLCB found itself once again unable to produce the licensee and his employee, although both had been again properly subpoenaed, and so the PLCB again proffered the notes of testimony of the Commission hearing. Over the objection of the claimant, now represented by counsel, the referee admitted the transcript and subsequently determined that the claimant was ineligible for compensation. The Board then reversed the referees determination and awarded compensation. Upon the PLCB’s motion for reconsideration, the Board reversed its prior determination and denied the claimant compensation. The claimants appeal to this Court followed.
Before us, the claimant contends that the referee erred in admitting the notes of testimony from the Commission hearing, in that the proffered notes of testimony consisted of a copy of the transcript, unverified in any manner other than by the verbal representations of counsel for the employer, and, that the conditions precedent required by Section 5934 of the Judicial Code (Code), 42 Pa. C.S. §5934, were not met. We will address the claimants Section 5934 argument first. Section 5934 pertinently provides that:
Whenever any person has been examined as a witness in any civil matter before any tribunal of this Commonwealth ... if such witness after-wards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes in*649competent to testify for any legally sufficient reason . . . properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be after-wards formed between the same parties and involving the same subject-matter as that upon which such witness was so examined. . . . (Emphasis added.)
It is beyond argument that the witnesses necessary to the Commissions case were available; that subpoenas had been properly served on them; and that no effort was made to enforce those subpoenas, despite the referees information as to the appropriate method to do so. Clearly, under such circumstances, Section 5934 operates to bar the admission of the Civil Service Commission transcript in this case.
Without the Civil Service Commission transcript, the record here is devoid of competent evidence to support the Board’s adjudication. In accordance with the limitations on our scope of review,6 we will, therefore, reverse the order of the Board.7
Order
And Now, this 31st day of December, 1986, the order of the Unemployment Compensation Board of Review in the above-captioned case is reversed.
This case was assigned to the author on November 6, 1986.
Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. §802(e), provides for the ineligibility of a claimant who is discharged for willful misconduct connected to his work. The burden of proving willful misconduct is, of course, on the employer. Wideman v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 218, 505 A.2d 364 (1986).
Just cause for removal of a civil service employee is a clearly different standard than willful misconduct. Lebanon County Board of Assistance v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 558, 332 A.2d 888 (1975).
The Board and its referees are empowered by Section 506 of the Act, 43 P.S. §826, to compel the attendance of witnesses by subpoena. And, in this case, the referee at the second hearing, outlined the appropriate subpoena enforcement procedure. See Section 507 of the Act, 43 P.S. §827 and 34 Pa. Code §§101.31—101.34.
Evidence obtained via telephone, to which, as here, a proper objection has been made, may not be admitted into an unemployment compensation hearing record. Knisley v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 519, 501 A.2d 1180 (1985) (On February 20, 1986 the Board filed a Motion to Amend Order to Include Statement Required to Appeal Interlocutory Order in Knisley pursuant to Section 702(b) of the Judicial Code, 42 Pa. C. S. §702(b), and on March 26, 1986, this Court entered an Order denying the Boards Motion).
In reviewing administrative adjudications, we are limited to determining whether or not constitutional rights were violated, errors of law were committed or necessary findings of feet are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. Pennsylvania State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
Due to our holding under Section 5934, we need not address the claimants other argument. |
1,516,552 | 2013-10-30 06:32:56.449349+00 | Clifford | null | 519 A.2d 193 (1986)
STATE of Maine
v.
James RICHFORD.
Supreme Judicial Court of Maine.
Argued November 17, 1986.
Decided December 23, 1986.
R. Christopher Almy, Dist. Atty., Philip Worden (orally), Asst. Dist. Atty., Michael P. Roberts, Deputy Dist. Atty., Bangor, for plaintiff.
Edward C. Russell (orally), Bangor, for defendant.
Before McKUSICK, C.J., and NICHOLS, WATHEN, GLASSMAN and CLIFFORD, JJ.
*194 CLIFFORD, Justice.
The defendant appeals a decision of the Superior Court, Penobscot County, denying his appeal from a conviction in the District Court, Bangor, for operating a motor vehicle while under the influence of intoxicating liquor, 29 M.R.S.A. § 1312-B (Supp. 1985). The defendant contends the District Court erred in failing to suppress evidence derived from a police officer's observations of the defendant in his parked automobile, and in excluding expert testimony tending to show the range of the defendant's blood-alcohol level at the time of his arrest. We affirm the judgment.
At about 1:15 a.m. on July 26, 1985, Officer John Roach of the Bangor Police Department was conducting a routine patrol in his police car. He saw the defendant sitting at the steering wheel of a parked car outside a bar on Franklin Street. It appeared to Officer Roach that the defendant was nodding off to sleep, then jerking up his head as it fell. Noting that it was about closing time for the bar and suspecting that the defendant had been drinking, Officer Roach parked his police car and approached the defendant's car.
The defendant's window was up, so Officer Roach knocked on it. The defendant rolled down his window to talk to Officer Roach. Officer Roach noticed that the defendant's speech was badly slurred and that his eyes were glassy. Officer Roach could smell a strong odor of alcohol coming from the defendant's mouth.
Officer Roach asked the defendant if he was all right, and offered to call a taxi. Declining the offer, the defendant explained that he was not driving and that his girlfriend had the keys. The defendant then left his car without hindrance from Officer Roach, walked to the sidewalk, and stood with his arms crossed facing Officer Roach. Officer Roach noticed that the defendant walked unsteadily and that he rocked back and forth slightly as he stood on the sidewalk.
The defendant declined a second offer to call a taxi. Officer Roach then warned the defendant not to attempt to drive and further advised that he was going to give other police patrols in the area a description of the defendant's car and notify them that he had warned the defendant not to drive. Officer Roach then returned to his police car and drove around the block.
When Officer Roach turned onto Franklin Street, he saw the defendant's car leaving the curb. Officer Roach overtook the defendant's car at the next intersection, and, seeing the defendant at the steering wheel, promptly arrested him for operating a motor vehicle while under the influence of intoxicating liquor, 29 M.R.S.A. § 1312-B (Supp.1985). The defendant refused to take a test to determine his blood-alcohol level.
The District Court denied the defendant's motion to suppress evidence Officer Roach obtained from his observations while the defendant was sitting in his parked car.
At his trial the defendant testified to what he had eaten for supper that evening and how much he had drunk. He also testified how much he weighed when he was arrested. The defendant called Dr. James Young, a qualified analytical chemist, who testified he was able to compute the range of blood-alcohol level in an individual, given certain criteria. The criteria included the individual's weight, a factor based on the ratio of body fluids to body solids, the distribution of the alcohol, the percentage of alcohol in the beverage, the amount of alcohol consumed, and a factor computed by considering the individual's metabolism over time. The limits of the range were established by plotting findings based on no metabolism and slightly-more-than-average metabolism.
The court sustained the State's objection to the defendant's asking for Dr. Young's opinion regarding the range of the defendant's blood-alcohol level when he was arrested. The State based its objection on the ground of relevancy, pointing out that it had not offered any evidence pertaining to the defendant's blood-alcohol level. *195 Rather, argued the State, it sought only to establish that the defendant was operating under the influence of intoxicating liquor. After the court sustained the State's objection, the defendant did not make an offer of proof as to Dr. Young's testimony regarding the probable range of the defendant's blood-alcohol level or the degree of impairment the defendant would have suffered given that range.
From the District Court's judgment of guilty the defendant appealed to the Superior Court, contending the District Court erred in denying his motion to suppress and in excluding Dr. Young's opinion of the range of the defendant's blood-alcohol level when he was arrested. From the Superior Court's affirmance, the defendant raises these issues on this appeal. Where, as here, the Superior Court acts solely as an intermediate appellate court, we directly review the original adjudication in the District Court. State v. Michael Z., 427 A.2d 476, 477 (Me.1981).
I.
The District Court ruled that Officer Roach's encounter with the defendant while he was sitting in his vehicle constituted a stop, and was justified, because the officer had a reasonable articulable suspicion of criminal conduct on the part of the defendant. This court will reverse the District Court's denial of a motion to suppress based on a finding of reasonable suspicion only if that finding is clearly erroneous. State v. Cyr, 501 A.2d 1303, 1305 (Me. 1985); State v. Thurlow, 485 A.2d 960, 963 (Me.1984). If Officer Roach's conduct did indeed rise to the level of an investigatory stop, bringing into play the fourth amendment protections against unreasonable seizures, see State v. Garland, 482 A.2d 139, 142 (Me.1984); Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968), an issue we need not decide, the officer was well justified in approaching defendant, having reasonable grounds to believe that criminal conduct was about to be committed. The defendant was sitting in a car parked outside a bar at closing time. The movement of his head suggested that he was resisting drowsiness while seated at the steering wheel. Taken as a whole, together with the rational inferences that may be taken from them, these facts suggested that defendant was under the influence of alcoholic beverage and about to drive his car away. Such a finding of reasonable suspicion is not clearly erroneous.
Defendant argues that he was not in the process of attempting or conspiring to commit a crime. There is no requirement that the reasonable suspicion be that the defendant is in the act of committing a crime. It is enough if the police officer could reasonably suspect him of intending the imminent commission of a crime. Garland, 482 A.2d at 142; State v. Bushey, 425 A.2d 1343, 1345 (Me.1981); Terry, 392 U.S. at 28, 88 S. Ct. at 1883.
II.
The defendant failed to make an offer of proof of Dr. Young's testimony regarding the range of the defendant's blood-alcohol level when he was arrested. See M.R.Evid. 103(a)(2). Accordingly, we review the record to determine whether exclusion of the testimony was obvious error affecting substantial rights. See M.R. Evid. 103(d). Exclusion of Dr. Young's testimony was not prejudicial error, much less "seriously prejudicial error tending to produce manifest injustice." State v. Walker, 512 A.2d 354, 355-56 (Me.1986).
As we said in State v. Mylon, 462 A.2d 1184, 1187 (Me.1983), the court has scope of considerable breadth in deciding whether to admit opinion testimony of a defendant's blood-alcohol level, and its decision will be disturbed on appeal only on a clear showing of abuse of discretion. See also State v. Collin, 441 A.2d 693 (Me. 1982). Here not only did the defendant fail to make an offer of proof regarding the range of his blood-alcohol level, but the defendant did not produce testimony regarding *196 the degree of impairment the defendant would have suffered given that range. The defendant having failed to establish an essential link between the proffered opinion and the essential matter at issue, there was no reversible error in the exclusion of Dr. Young's testimony.[1]See Collin, 441 A.2d at 695.
The entry is:
Judgment affirmed.
All concurring.
NOTES
[1] It was suggested that 29 M.R.S.A. § 1312(5) (1978 and Supp.1985) provides statutorily mandated relevancy of blood-alcohol level. We do not agree. As its context indicates, evidence of an individual's blood-alcohol content has procedural effect under subsection 5 only when it is obtained as a result of a scientific test administered contemporaneously with an arrest. |
9,645,487 | 2023-08-22 21:26:27.199103+00 | Colins | null | *650Concurring Opinion by
Judge Colins:
I concur in the result reached by the majority of this Court in the instant matter, but would find the notes of testimony of the prior Civil Service Commission (Commission) inadmissible on other grounds.
Assuming arguendo, that the conditions precedent for the admission of notes of former testimony required by Section 5934 of the Judicial Code (Code), 42 Pa. C. S. §5934, had been satisfied, the notes of testimony proffered by the Pennsylvania Liquor Control Board (Board), as the majority indicates, consisted of a mere photostatic copy of the transcript unverified in any manner other than by the verbal representations of counsel. This photostatic copy was devoid of any certification by the Commission, the individual stenographer, or any stenographic service. An alleged verification by the stenographer appended to the transcript was also a photostatic copy. The only statements concerning the accuracy of the transcript were made by counsel for the Board, who was incompetent to testify in this matter and who was never sworn as a witness.
Since administrative proceedings are not governed by technical rules of evidence, 2 Pa. C. S. §505, it is arguable that Section 5934 of the Code does not apply in the instant matter. However, absent proper authentication, the notes of testimony could not be admissible under any statutory or common law exception to the hearsay rule.
This Court has previously held that the hearsay rule is “not a technical rule of evidence but a basic, vital and fundamental rule of law which ought to be followed by administrative agencies at those points in their hearings when facts crucial to the issue are sought to be placed upon the record.” Bleilevens v. Pa. State Civil Service Commission, 11 Pa. Commonwealth Ct. 1, 5, 312 A.2d 109, 111 (1973). Therefore, I would reverse for a different reason than that of the majority. |
1,516,289 | 2013-10-30 06:32:52.593485+00 | Ellis | null | 955 F. Supp. 605 (1997)
RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., Plaintiff,
v.
UTAH DIVISION OF TRAVEL DEVELOPMENT, Defendant.
Civil Action No. 96-788-A.
United States District Court, E.D. Virginia, Alexandria Division.
February 27, 1997.
*606 *607 *608 Stephen M. Colangelo, John F. Anderson, McGuire Woods Battle & Boothe, LLP, McLean, VA (Steven B. Pokotilow, Laura E. Goldbard, Stroock & Stroock & Lavan, New York City, of counsel), for Plaintiff.
Jan Graham, Atty. Gen., Jerrold S. Jensen, Ralph L. Finlayson, Asst. Attys. Gen., Salt Lake City, UT, for Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
ELLIS, District Judge.
This is a trademark dilution suit in which plaintiff, Ringling Bros.-Barnum & Bailey Combined Shows, Inc. ("Ringling") contends *609 that the use of the mark THE GREATEST SNOW ON EARTH by defendant, Utah Division of Travel Development ("Utah"), has diluted Ringling's famous mark, THE GREATEST SHOW ON EARTH, in violation of 15 U.S.C. § 1125(c).
After completion of discovery and pretrial proceedings, the matter came before the Court for a bench trial on February 10, 1997.[1] There, the parties stipulated various undisputed facts and presented additional testimonial and documentary evidence. Each party presented three witnesses. Testifying for Ringling were a marketing and survey expert, Michael Rappeport, and two Ringling executives, Jeff Meyer, a Ringling employee with co-promotion responsibilities, and Arthur Ricker, Ringling's vice-president in charge of marketing. In response, Utah also presented two executives, Dean Reeder, director of Utah's Division of Travel Development, and Mark Menlove, president of Ski Utah, and its own survey expert, William Weilbacher, who, because of illness, appeared by deposition. After hearing the evidence and counsel's oral arguments, the matter was taken under advisement. Set forth here, pursuant to Rule 52, Fed.R.Civ.P., are the Court's findings of fact and conclusions of law.
I. FINDINGS OF FACT
1. Ringling is a Delaware corporation, with its principal place of business in Vienna, Virginia.
2. Since the 1870's Ringling and its predecessors in interest have used and been associated with the mark THE GREATEST SHOW ON EARTH.
3. Ringling is the owner of the service mark THE GREATEST SHOW ON EARTH which bears United States Registration No. 724,946. This trademark issued on December 5, 1961, for entertainment services in the nature of a circus. It remains valid and in full force and effect. Ringling also owns other related registrations for the mark THE GREATEST SHOW ON EARTH and THE GREATEST SHOW ON EARTH & Globe Design for entertainment services as well as products.
4. P.T. Barnum's Circus began using the trademark THE GREATEST SHOW ON EARTH in connection with its circus in 1872. In 1919, Ringling Circus and Barnum & Bailey Circus merged to form Ringling Bros.-Barnum & Bailey Circus. Beginning in 1872 and continuing through the present, Ringling and its predecessors in interest have continuously offered the Circus to the public under the mark THE GREATEST SHOW ON EARTH.
5. Since its inception, Ringling has relied on promotional campaigns using the mark to advertise upcoming Circus performances at a particular location.
6. The tour itinerary of the Circus today, which is similar to the itinerary used in the early years of the Circus, is extensive, taking the Circus, advertised as THE GREATEST SHOW ON EARTH, by rail to cities throughout the United States.
7. Today, the Circus appears annually in major cities for weeks at a time and in smaller cities for two or more days at a time. Approximately 1,000 shows per year are presented to approximately 12 million people in 95 cities. As a result, more than 70 million people each year are exposed to the mark THE GREATEST SHOW ON EARTH in connection with the Circus.
8. Revenues derived from goods and services bearing or using the mark THE GREATEST SHOW ON EARTH, including Circus ticket sales and sales of concession items sold at the Circus are substantial; they exceeded $103 million for the single fiscal year ending January, 1997.
9. The Circus has two units the Red Unit and the Blue Unit. Each Unit includes feature acts and runs for a two-year season. For example, the Red Unit currently features David Larible and celebrates the 127th edition of RINGLING BROS.-BARNUM & BAILEY's THE GREATEST SHOW ON *610 EARTH, and the Blue Unit features Airiana, the Human Arrow.
10. The Circus has been an American entertainment event for more than 125 years.
11. Ringling expends substantial effort to ensure that the mark THE GREATEST SHOW ON EARTH is not used in any altered form. It is Ringling's policy that any promotional activities conducted with third parties are subject to Ringling's guidelines, including the requirement that the mark THE GREATEST SHOW ON EARTH may only be used to describe services and products provided by Ringling and may not be used to connote any other entity or event. Thus, Ringling's mark is used only in reference to the Circus.
12. Ringling also monitors the use of its mark or similar marks through an enforcement program, which notifies alleged diluters or infringers of Ringling's trademark rights.
13. Ringling uses a number of techniques for prominently advertising and promoting the Circus by using the mark THE GREATEST SHOW ON EARTH. This advertising and promotion includes print advertising, radio, television, videos, outdoor billboards, direct-mail pieces, press announcements, posters, program books, souvenirs and joint promotions with other companies. In the fiscal year ending January, 1997, expenditures on advertising using the mark THE GREATEST SHOW ON EARTH totaled approximately $19,000,000.
14. Prior to a Circus performance in a city, Ringling advertises in local media using the mark THE GREATEST SHOW ON EARTH. Typically, Ringling begins to advertise the Circus using the mark THE GREATEST SHOW ON EARTH in the print media and on television and radio for two months prior to the first Circus engagement in a particular city. In 1996 alone, there were 6.5 billion reproductions or impressions of the mark THE GREATEST SHOW ON EARTH in markets where the Circus performed.
15. Through its joint promotion program, Ringling provides Circus tickets to certain retailers for distribution to customers. In return, these retailers pay for print advertising and television and radio advertising of their services in association with Ringling's trademarks including, among others, THE GREATEST SHOW ON EARTH. Virtually all joint promotions include the prominent display of the mark THE GREATEST SHOW ON EARTH, resulting in significant additional exposure of the mark to the public. Ringling has engaged in joint campaigns with companies that provide a wide variety of services. By way of example, there have been joint promotions with restaurants, supermarkets, drug chains, department stores, electronics stores, and clothing stores.
16. The mark THE GREATEST SHOW ON EARTH is currently under a joint sponsorship arrangement with Sears, and under license agreements with the MBNA credit card, Cheeseborough-Ponds, and other parties who produce such diverse goods as calendars, food products, candy, bronze miniatures and Franklin Mint clocks.
17. Because of the Circus' renown, Ringling's mark, THE GREATEST SHOW ON EARTH, receives substantial free publicity, much of which is unsolicited. Such publicity includes newspaper and magazine articles. Moreover, the Circus has been the subject of books, radio and television features, and motion picture productions.
18. Through the advertising and promotion efforts of Ringling, the mark THE GREATEST SHOW ON EARTH is identified in the public mind with the Ringling Circus, and creates good will and publicity value for the mark THE GREATEST SHOW ON EARTH.
19. As a direct result of the promotion and protection of its mark, Ringling, over a period of several decades, has caused the mark THE GREATEST SHOW ON EARTH to be identified in the public mind solely with Ringling and its Circus, thereby creating publicity value for the mark.
20. Utah Division of Travel Development is an agency of the State of Utah, located and doing business in Salt Lake City.
21. At some time prior to the effective date of the Dilution Act, at a time when THE GREATEST SHOW ON EARTH was a famous trademark, Utah began using THE *611 GREATEST SNOW ON EARTH in connection with Utah tourism services.
22. Utah used THE GREATEST SNOW ON EARTH as early as 1962 to advertise its winter skiing facilities.
23. Prior to the time that Utah adopted the mark THE GREATEST SNOW ON EARTH, Ringling advertised and promoted its mark in Utah in connection with the Circus.
24. The Utah Attorney General issued a legal opinion in 1965 concluding that the mark "Utah for the Greatest Snow on Earth" does not impair or violate Ringling's mark THE GREATEST SHOW ON EARTH.
25. Utah registered its mark with the State of Utah in 1975, renewed its registration in 1985 and 1995, and its registration is current.
26. Utah submitted an application to the U.S. Patent and Trademark Office to register its mark THE GREATEST SNOW ON EARTH in 1988. Ringling filed a formal opposition to Utah's right to register its mark. A three-member panel of the U.S. Trademark Trial and Appeal Board rendered a unanimous 16-page decision on December 13, 1995, granting Utah the right to register its mark and dismissing Ringling's opposition. This decision specifically states that dilution is not a valid basis for opposing a trademark application. Ringling filed a notice of appeal of the decision of the Trademark Trial and Appeal Board, but later voluntarily dismissed its appeal. Utah was granted federal registration for its mark THE GREATEST SNOW ON EARTH on January 21, 1997.
27. THE GREATEST SHOW ON EARTH was promoted by Ringling in Utah in connection with its performances and related merchandise on 37 different dates over the years 1905-1958, and since that time, the Circus has performed in Utah on 156 different dates.
28. Utah has used THE GREATEST SNOW ON EARTH in advertisements in the magazines SKI, SKIING, or both, every year from 1962 to the present, except 1963, 1977, and 1989.
29. Utah has consistently used, and continues to use, the mark THE GREATEST SNOW ON EARTH to promote winter tourism in the state of Utah.
30. Utah has authorized the Utah Ski Association ("Ski Utah"), an association of private and governmental entities, to use the mark THE GREATEST SNOW ON EARTH in connection with Ski Utah's promotion of Utah tourism. All of Ski Utah's stationery and business cards bear the mark THE GREATEST SNOW ON EARTH, and have done so since 1991.
31. Utah's entire budget for the 1995-96 winter tourism advertising campaign was $450,000, and Ski Utah's 1995-96 marketing budget was $683,401. For each of the past fifteen years, Utah's budget for winter advertising that includes THE GREATEST SNOW ON EARTH, has ranged from $300,000 to $450,000.
32. Utah received no revenues beyond its legislative appropriation, which covers only Utah's expenses.
33. Ski Utah mailed a media release for Fall/Winter 1995-96 entitled "UTAH STARS AS THE MAIN ACT IN THE GREATEST SNOW ON EARTH." Ski Utah used phrases such as "Utah is the main, show stealing act:", and "Get your tickets to The Greatest Snow on Earth."
34. During the 1996-97 marketing campaign, Utah created a homepage on the Internet. This homepage is linked with another Internet site maintained by Ski Utah which uses the mark THE GREATEST SNOW ON EARTH.
35. Utah has never used its mark THE GREATEST SNOW ON EARTH in connection with, or in the context of, a circus.
36. Ringling has never used its mark in connection with winter sports in Utah.
37. Utah occasionally uses ad copy that does not include THE GREATEST SNOW ON EARTH to promote its winter, ski-related tourism. For example, in the past year, Utah has used "Utah. Winter Wonder Full,"; "Utah. Let The Games Begin"; and "Utah. America's Winter Choice".
*612 38. In an effort to demonstrate dilution of its mark, Ringling retained a marketing firm, RL Associates, to design and conduct a survey of consumers. The goal was to measure recognition and dilution of Ringling's famous mark, THE GREATEST SHOW ON EARTH. The survey was conducted by interviewing individuals at seven malls in geographically diverse locations throughout the country. One of the malls was located in the state of Utah. At each mall location, randomly selected shoppers were presented with a series of three file cards containing typed statements. Each statement was a "fill-in-the-blank", with a key term missing. The first two statements were controls, namely, "I LOVE" ______ and "DON'T LEAVE ______ WITHOUT IT". The third statement was the relevant statement, "THE GREATEST ______ ON EARTH". On being shown each card, the shopper was asked what word or words they would use to complete the statement. If the shopper answered "none", the interviewer moved on to the next card. If the shopper completed the statement, he or she was then asked with whom or what they associated the completed statement. Shoppers completing the statement were asked further whether they could think of any other way to complete the statement, and with whom or what they associated that completed statement.
39. Ringling's expert evaluated the survey results in an attempt to answer two questions: (i) is THE GREATEST SHOW ON EARTH a well known and famous mark associated uniquely with Ringling, and (ii) does Utah's mark lessen the "uniqueness" of Ringling's mark, and its association with the Circus, in Utah.[2] To address the first question, Ringling's expert presented results of the survey by comparing public awareness of THE GREATEST SHOW ON EARTH and the association of the mark with Ringling, with public awareness of the mark DON'T LEAVE HOME WITHOUT IT and American Express. Ringling contends that this comparison is informative because DON'T LEAVE HOME WITHOUT IT has been held by courts to be a famous slogan.[3] To address the second question, Ringling's expert presented results of the survey by comparing the responses to the statement THE GREATEST ______ ON EARTH in Utah with responses from elsewhere in the country.
40. With respect to the fame of the mark and its unique association with Ringling, the survey results reflect (i) that 52% of respondents in Utah and 44% of respondents outside of Utah completed the statement DON'T LEAVE WITHOUT IT with the word HOME, and associated the completed statement with American Express; and (ii) that 46% of respondents in Utah and 41% of respondents outside of Utah completed the statement THE GREATEST ______ ON EARTH with the word SHOW, and associated the completed statement with the Circus.
41. With respect to the question of dilution of Ringling's mark in Utah, the survey results show that within Utah (i) 25% of respondents completed the statement THE GREATEST ______ ON EARTH with only the word SHOW and associated the completed statement with the Circus; (ii) 24% completed that statement with only the word SNOW and associated the completed statement with Utah; and (iii) 21% of respondents completed that statement with SHOW and associated the result with the Circus and also completed this statement with SNOW and associated the completed statement with Utah. So in Utah, a total of 46% of respondents completed the statement THE GREATEST ______ ON EARTH with the word SHOW and associated the completed statement with the Circus, and a total of 45% of respondents completed that statement with the word SNOW and associated the completed statement with Utah. The survey further reflects that outside of Utah (i) 41% *613 of respondents completed the statement THE GREATEST ______ ON EARTH with only the word SHOW and associated the completed statement with the Circus; (ii) 0% completed that statement with only the word SNOW and associated the completed statement with Utah; and (iii) fewer than 0.5% of respondents completed that statement with SHOW and associated the result with the Circus and also completed this statement with SNOW and associated the completed statement with Utah.
II. CONCLUSIONS OF LAW
Ringling claims that Utah's mark violates the Lanham Act ("the Act"), which was amended on January 16, 1996 to include a federal cause of action for dilution, 15 U.S.C. § 1125(c). In a federal dilution action, a plaintiff bears the burden of proving (i) that it owns a famous mark, (ii) that the defendant adopted its mark after the plaintiff's mark became famous, and (iii) that defendant's mark dilutes the famous mark. See Clinique Laboratories, Inc. v. Dep. Corp., 945 F. Supp. 547, 561 (S.D.N.Y.1996).
The facts reflect,[4] and Utah does not contest, that Ringling has demonstrated the first two elements of a dilution claim, namely that Ringling's mark, THE GREATEST SHOW ON EARTH, is a famous mark and that Utah's mark was adopted after THE GREATEST SHOW ON EARTH became famous. Thus, the heart of this dispute is the third element, whether Utah's mark dilutes or has diluted Ringling's mark. And resolution of this dispute requires elucidating the concept of dilution under the Act and determining how this phenomenon can be detected or measured.
When Congress amended the Act in 1996 to allow a dilution claim, it was not venturing into uncharted territory. Several states already allowed such claims. Interestingly, courts applying state dilution statutes have variously observed that dilution is "a somewhat nebulous concept"[5] and that its application involves navigating in the "murky waters" of anti-dilution analysis.[6] Against this background, Congress, in 1996, chose to define dilution as
the lessening of the capacity of a famous mark to identify and distinguish goods and services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.
15 U.S.C. § 1127. While making clear what dilution is, namely, the erosion of a famous mark's power to identify and distinguish goods and services,[7] the Act does not specify how dilution occurs or how it may be detected or measured. Courts applying state dilution statutes recognize that dilution occurs in either of two ways: (i) when a junior mark causes "tarnishment" of the famous mark and (ii) when the use of the junior mark causes "blurring" of the famous mark's power to identify and distinguish goods and services. *614 See, e.g., Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2nd Cir.1989)(applying New York anti-dilution statute). Although the Act does not specifically mention either of these effects, both are appropriate elucidations of the dilution concept given that both were contemplated by the Act's drafters and are consistent with the Act's purpose. See Clinique, 945 F.Supp. at 561 (citing H.R.Rep. No. 374, 104th Cong., 1st Sess. 3 (1995) ("[The amendments] protect famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it. ...")).
Dilution through tarnishing can occur where an accused, junior mark is used on unwholesome or inferior goods or services that may create a negative association with the goods or services covered by the famous mark. Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2nd Cir.1994)(construing New York anti-dilution statute).[8] No tarnishing exists here. Ringling has not produced any evidence of tarnishment of its mark, nor does it contend that Utah's mark creates the risk of negative associations with the Ringling Circus. Accordingly, Ringling cannot recover under the tarnishment theory of dilution.
Blurring is the diluting effect Ringling complains of here. Specifically, Ringling contends that the power of its famous mark has been diluted through blurring caused by the use of Utah's similar, but junior mark. Not every use of a similar mark will blur a famous mark. As Utah's counsel pointed out at trial, the human mind has the capacity to recognize the distinctiveness of a multiplicity of concepts, ideas and images without confusion or association. And this is true even where the concepts are closely related, or where the words signifying different concepts are similar in form or sound. The question presented is what uses of a similar, junior mark dilute a senior mark. And in this inquiry, it is necessary to describe blurring with greater specificity.
Blurring has been variously described by courts as the use or modification of a famous mark "to identify the defendant's goods and services",[9] as "a `whittling away' of the selling power of the mark",[10] and as a use that causes the famous mark to "no longer ... call immediately to mind" the plaintiff's goods or services.[11] These formulations are not helpful in bringing blurring into sharper focus. To define blurring as "a whittling away" begs the question of what uses of a mark blur or whittle away a famous mark and how this effect can be detected or measured. Similarly, simply saying that blurring occurs when the famous mark becomes identified with the goods or services of a junior mark user is to do no more than repeat the words of the Act defining dilution as the lessening of a famous mark's ability to identify goods or services.
Similarly, an examination of the definition of "blurring" does little to advance the analysis. Webster's Third New International Dictionary defines the verb "to blur", in part, as "to make dim, indistinct, or vague in outline or character" and, alternatively, as "to make dim, imperfect or confused (as the senses or mental faculties)". And the term "blurred" is defined, in part, as "characterized by dimness, indistinctness, or obscurity ...: VAGUE, CONFUSED". These definitions parallel the statutory definition of dilution, *615 which focuses on a famous mark's power to identify distinctly goods or services. Interestingly, these definitions also refer to "confusion", a factor that Congress specifically made irrelevant to a dilution claim. Yet, confusion is indeed inherent in blurring dilution and, hence, it is worth distinguishing between the confusion inherent in dilution by blurring and the confusion excluded from the dilution inquiry by § 1127 of the Act.
In a classic infringement action, a plaintiff must demonstrate that a defendant's use of a junior mark "is likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. § 1114. This provision seeks to protect consumers from junior marks that intentionally or incidentally mislead.[12] And in that context, "confusion" refers to a "source confusion", i.e., that consumers seeing the junior mark will believe that the goods or services bearing that mark come from or are in some way affiliated with the owner of the senior mark. "Source confusion" is irrelevant to the dilution inquiry. Dilution is concerned not with protecting consumers, but with protecting a property interest held by the owner of a famous mark. See supra, note 7. Yet, as the definition of blurring reflects, dilution by blurring involves a type of confusion, albeit different from "source confusion". Blurring results from an incorrect association of the marks in consumer's minds. See, e.g,, Mead Data, 875 F.2d at 1031 ("[T]here must be some mental association between plaintiff's and defendant's marks.").[13] And this association is mistaken or confused to the degree that the marks and the goods or services they identify are not and should not be associated. To the contrary, these marks and their owners are distinct, and should be seen and understood to be distinct by persons coming into contact with either mark. To the extent that persons seeing the marks mistakenly associate them, the famous mark's power to identify and distinguish goods or services is diluted. Thus, while "source confusion" is irrelevant to the dilution inquiry, dilution by blurring entails confusion in that the famous and junior marks become wrongly or mistakenly associated in the minds of consumers.
The Act's causation requirement confirms the validity of the insight that dilution by blurring occurs when consumers mistakenly associate (or confuse) the two marks. It is not open to serious dispute that the Act requires a causal nexus between the use of the junior mark and the dilution of the famous mark.[14] It is precisely this causal nexus that is reflected in the mistaken or confused association of the marks in the minds of consumers and which, of course, results in the proscribed dilution of the famous mark. Put another way, famous marks can lose their distinctiveness or power to identify and distinguish goods and services for various reasons other than the use of a junior mark.[15] Absent a demonstration or reasonable inference of the causal nexus between the actionable dilution and a junior mark, a court cannot attribute the dilution to the junior mark's use.[16] This nexus is demonstrated where *616 consumers mistakenly link or associate the two marks.
Dilution by blurring, then, occurs where consumers mistakenly associate the famous mark with goods and services of the junior mark. In this way, the power of the senior mark to identify and distinguish goods and services is diluted. It follows that even if the famous and junior marks are quite similar, no blurring occurs where consumers do not mistakenly associate or confuse the marks and the goods or services they seek to identify and distinguish. An apt example of this occurred in Mead Data, 875 F.2d 1026.[17] There, the provider of a legal research service that used the name LEXIS sought an injunction against Toyota Motor Corporation's use of the mark LEXUS for a line of luxury automobiles. To recover for dilution, Mead Data was not required to show that consumers would mistakenly believe that the luxury automobiles bearing the LEXUS mark were built or supplied by the legal database provider. In other words, Mead Data did not have to show that the similar marks caused confusion as to the source of the products covered by the marks. But to show dilution, Mead Data was required to prove that its mark had lost some of its capacity to identify and distinguish its legal research services because of Toyota's use of LEXUS. This would occur only where a consumer seeing LEXIS does not think exclusively of legal research, but also mistakenly associates that mark with automobiles.[18] This is the harm protected by the dilution statute. If no person ever associates the two uses of the marks, then there is no lessening of the capacity of LEXIS to identify legal research services caused by the use of LEXUS and, thus, no actionable dilution, notwithstanding the substantial similarity of the marks.
Given this elucidation of dilution by blurring, the next question in the inquiry is to consider how blurring can be shown or detected. Because the effect of blurring may manifest itself directly in harm to the selling power of the famous mark, dilution by blurring may be shown by proof that the use of a junior mark has caused a lessening of demand for the product or services bearing the famous mark or for use of the famous mark in co-promotions. Ringling concedes that neither has occurred here.[19] Unable to show any loss of its mark's selling power, Ringling seeks to show dilution by the direct evidence of a survey of consumers and indirectly or circumstantially by the application of a multifactor balancing test. Each is separately addressed.
A. Survey Evidence
Ringling contends that survey evidence demonstrates directly that, within Utah, Utah's mark dilutes Ringling's famous mark. Specifically, Ringling contends that, within Utah, only 25% of respondents, compared to 41% nationwide, associate the incomplete statement THE GREATEST ______ ON EARTH with Ringling alone. Thus, by Ringling's lights, Utah's use of its junior mark has caused respondents in Utah to associate the uses of Ringling's and Utah's marks, thereby diluting THE GREATEST SHOW ON EARTH.
Utah attacks the survey on the basis of the survey's population universe, contending *617 that the survey improperly focuses on shoppers generally in malls and not on wealthy travelers and skiers, the groups targeted by Utah's winter sports promotions. This attack fails. It is Ringling's famous mark that should be the focus of the dilution survey, for it is injury to that mark that is in issue. It follows that the survey's focus on shoppers generally in essence a cross-section of the general population[20] is appropriate because it is this universe of persons that comprises the market for Ringling's goods and services.
Yet, no evidence in the survey demonstrates that Utah's use of THE GREATEST SNOW ON EARTH lessens the capacity of THE GREATEST SHOW ON EARTH to distinguish Ringling's circus and associated merchandise. Instead, the evidence shows that Utah's junior mark THE GREATEST SNOW ON EARTH is virtually unknown outside of Utah, but well known within Utah. Thus, outside of Utah, the survey provides no evidence of dilution of THE GREATEST SHOW ON EARTH. Indeed, the survey seems to show conclusively that in the whole of the country outside of Utah, Utah's mark has caused no dilution of Ringling's famous mark.
Within Utah, the survey provides no evidence that persons associate the mark THE GREATEST SHOW ON EARTH with Utah, snow or skiing. Survey respondents did not fill in the blank with SHOW and associate the result with Utah skiing. Nor did fewer respondents in Utah associate the famous mark with a circus. To the contrary, 46% of respondents in Utah, compared to 41% elsewhere, associated THE GREATEST SHOW ON EARTH with Ringling. Thus, the power of Ringling's famous mark to identify and distinguish the Circus is as strong within Utah, where the junior mark is ubiquitous, as it is outside of Utah, where the junior mark is essentially unknown. This is strong evidence of the absence of dilution, not the presence of it.
Within Utah, 21% of respondents filled in SHOW and SNOW and correctly associated the marks with the Circus and Utah, respectively. Survey data reflects no mistaken or confused association of the marks or the goods or services they identify. Further, 24% of respondents only filled in SNOW, and related the phrase to Utah. Yet, this does not demonstrate that Utah has lessened the capacity of THE GREATEST SHOW ON EARTH to identify and distinguish the circus. Rather it reflects that respondents had no difficulty keeping the two marks separate in their minds in terms of the goods and services each mark identifies and distinguishes.
Ringling contends that dilution is shown because its survey demonstrates that its mark shares "top of the mind" status in Utah with Utah's mark. In other words, Ringling contends that its mark no longer "call[s] immediately to mind" the circus in Utah. See Exxon Corp., 696 F.2d at 550. Even assuming, arguendo, that "top of mind" status is a valid measure of dilution,[21] the survey is unpersuasive on this point. The survey does not demonstrate that Utah shares "top of the mind" in Utah with Ringling for the mark THE GREATEST SHOW ON EARTH. When confronted with the famous mark, respondents in Utah associated that mark with Ringling at a rate higher than the rest of the country, and did not associate the mark with Utah or skiing. The survey demonstrates that Ringling does share "top of the mind" in Utah with respect to THE GREATEST ______ ON EARTH. In other words, when faced with the phrase THE GREATEST ______ ON EARTH, 45% of respondents in Utah associate that incomplete statement with Utah, and 46% of respondents in Utah associate that incomplete statement with *618 Ringling.[22] But Ringling's famous mark is the completed phrase THE GREATEST SHOW ON EARTH, not the incomplete phrase THE GREATEST ______ ON EARTH.[23] And the survey provides no direct evidence that this famous mark is diluted.
Ringling's survey evidence does not demonstrate that Utah's mark lessens the capacity of THE GREATEST SHOW ON EARTH to identify and distinguish the Circus in Utah.[24] In fact, slightly more people associate the famous mark with Ringling in Utah than in areas where Utah's mark is unknown. Moreover, the survey demonstrates that persons confronted with the famous mark associate it only with the Circus and do not associate that mark with Utah, with winter sports, or with any activities that are attributable to Utah's use of THE GREATEST SNOW ON EARTH.[25]
B. Circumstantial Evidence of Dilution
Recognizing that direct evidence of blurring may often be difficult to adduce, courts have also assessed the likelihood of dilution through a multi-factor balancing test originally articulated for use in the New York dilution statute. This test balances factors including (i) the similarity of the marks, (ii) the similarity of the products or services covered by the marks, (iii) the sophistication of consumers, (iv) predatory intent, (v) renown of the senior mark, and (vi) renown of the junior mark. See Mead Data Cent., 875 F.2d at 1035 (Sweet, J. concurring); see also Clinique, 945 F.Supp. at 562 (applying these factors to federal dilution claim); WAWA, Inc. v. Haaf, 1996 WL 460083, *3 (E.D.Pa.1996)(same); Ringling Bros.-Barnum & Bailey v. B.E. Windows, 937 F. Supp. 204, 211 (S.D.N.Y.1996)(same). Balancing these factors may demonstrate circumstantially the likelihood of dilution through blurring.
1. Similarity of the Marks.
For blurring to occur, a junior mark must be substantially similar to a senior mark. See B.E. Windows, 937 F.Supp. at 211 (citing Mead Data, 875 F.2d at 1029). The greater the similarities, the more likely it is that the uses of the two marks will be mistakenly associated and, hence, the more likely it is that the junior mark has caused actionable dilution. There is, indisputably, a substantial degree of superficial similarity in the marks here at issue. Thus, they differ in only one word, have a similar cadence, and the substituted word, SNOW, in the junior *619 mark, rhymes with the word SHOW in the famous mark. Yet, SNOW and SHOW are not invented words. They are a familiar part of the lexicon that persons routinely use and distinguish with presumably little difficulty.[26] In B.E. Windows, the court found that "The Greatest Bar of Earth" was not substantially similar to THE GREATEST SHOW ON EARTH because of (i) the inherent difference between "bar" and "show", and (ii) the common use of the remainder of the mark as a laudatory phrase. 937 F.Supp. at 212. Similarly, while the rhyme between SHOW and SNOW suggests some similarity, the effect of this substitution in creating what are basically descriptive phrases describing markedly different products reduces the importance of the similarity.[27] Thus, the superficial similarity in the marks is undermined by the ease with which people can distinguish SNOW and SHOW, and this factor does not militate in favor of dilution.
2. Similarity of the Products Covered by the Marks.
The similarity of the goods or services covered by the marks is important, despite the fact that competition is not a factor in a federal dilution claim, because "where the products sold under the marks in dispute are alike, there is a greater likelihood that blurring will occur in the mind of the consumer." B.E. Windows Corp., 937 F.Supp. at 212. In the most general terms, both Ringling and Utah use their marks in connection with recreational activities. Beyond this similarity, however, the products are not at all alike. Ringling's product is a circus that travels the country providing an afternoon or evening of spectator entertainment. Utah's product is active winter sport opportunities that participants travel to Utah to engage in usually for several days. The products covered by the two marks in dispute are entirely dissimilar, which points persuasively to the absence of dilution.
3. Sophistication of Consumers.
Blurring is less likely where the consumers of the goods or services covered by the famous mark are sophisticated. Mead Data Cent., 875 F.2d at 1031-32. In other words, where consumers make educated and deliberate decisions to purchase a good or service, they are less likely to be confused by the existence of a similar mark covering a dissimilar product. Id. Ringling's customers doubtless include both sophisticated and unsophisticated persons, but the decision to attend the Circus does not typically entail education or research. Ringling clearly markets and promotes its product broadly to attract all types of people to the Circus. By contrast, Utah's marketing approach targets a much smaller group of consumers, namely affluent skiers interested in extended ski vacations. And these consumers are likely to make researched and educated decisions concerning their winter tourism destinations. In other words, these consumers are sophisticated with respect to Utah's skiing opportunities. Yet, the examination of the "sophistication" factor should generally focus on the famous mark owner's customers, because it is among these consumers that dilution will occur. See, e.g., B.E. Windows Corp., 937 F.Supp. at 212. But where, as here, a junior mark is only targeted at a small subset of a claimant's customers, it is also appropriate to consider the sophistication *620 of this subset of consumers. This is so because only this subset is likely to come into contact with the junior mark, and such contact is essential to demonstrating to any dilution by blurring is caused by that junior mark. Utah's commercial use of the junior mark is confined to a relatively sophisticated group of consumers. These consumers are unlikely to blur the famous mark, THE GREATEST SHOW ON EARTH, with Utah's mark and the winter recreational activities it identifies. In the final analysis, the lack of sophistication of Ringling's customers is mitigated by the sophistication of Utah's customers and, thus, this third factor does not point persuasively one way or the other.
4. Predatory Intent.[28]
The likelihood of blurring is increased where a junior mark is used in hopes of benefiting from its similarity to a famous mark. This is clear because, in that event, a junior mark is adopted specifically to capitalize on a famous mark and to pirate some of its capacity to identify. To demonstrate predatory intent, Ringling relies on (i) Utah's presumed knowledge of Ringling's famous mark before its adoption of THE GREATEST SNOW ON EARTH, and (ii) Utah's alleged efforts to expand its mark notwithstanding its longstanding knowledge of Ringling's trademark. This evidence fails to persuasively demonstrate predatory intent. Utah's adoption and use of its mark notwithstanding its knowledge of Ringling's famous mark cannot, without more, demonstrate predatory intent. Such actions are as consistent with a belief that Utah's mark does not dilute as they are with an intent to benefit from the similarity in the marks. In other words, while knowledge of a famous mark is necessary to demonstrate that a subsequent mark was adopted deliberately to benefit from similarity between the marks, that knowledge, by itself, is not sufficient to demonstrate that a defendant adopted the mark with predatory intent. Utah clearly believes that its mark is not similar to or associated with the famous mark, and Utah has not exploited any similarity of its mark with that of Ringling through the presentation of THE GREATEST SNOW ON EARTH with circus style lettering or circus themes. Moreover, the record reflects that Utah had a good faith, reasonable belief that its use of THE GREATEST SNOW ON EARTH was entirely lawful.[29]
Ringling also points to a Utah Fall/Winter 1995-96 press release as evidence of predatory intent. By Ringling's lights, this press release reflects Utah's intent to benefit from the similarity of the marks because it allegedly evokes Circus imagery, stating, in part, "Utah Stars As Main Act in the Greatest Snow of Earth" and "Get your tickets to the Greatest Snow on Earth now!" Ringling's reliance on this press release is of no avail. Any inference of predatory intent created by the press release is conclusively rebutted by Utah's uncontradicted explanation of the press release as a reference to the theater, not a circus. The press release reports comments made by a Washington, D.C. meteorologist who described "the drama of American skiing." Pursuing this analogy, the meteorologist described the Cascades and Sierra *621 Nevadas as a "prologue", Colorado and New Mexico as the "epilogue", and Utah as "the main, show-stealing act". It is in this context, not in the context of a circus, that the release refers to Utah as a "star" and to buying "tickets". Thus, Ringling's reliance on this press release to show Utah's predatory intent is conclusively rebutted, and predatory intent does not militate in favor of dilution.
5. Renown of the Senior Mark.
The fifth factor, renown of the senior mark, is important because (i) a mark must be famous to be protected by the Act's anti-dilution provision, and (ii) the greater the fame of the mark, the greater the likelihood that consumers will make mental associations between the famous mark and similar junior marks. B.E. Windows Corp., 937 F.Supp. at 213 (citing Mead Data, 875 F.2d at 1038). Ringling's mark is a famous mark, nationwide.
6. Renown of the Junior Mark.
This factor is based on the premise that a less renowned junior mark is less likely to dilute and vice versa. See Clinique, 945 F.Supp. at 562; B.E. Windows, 937 F.Supp. at 214. But for this factor to be meaningful as circumstantial evidence of blurring it is better characterized as the relative fame of the disputed marks or, put another way, the gap in renown between the two marks. The senior mark must be famous to warrant protection under the Act's anti-dilution provision, but even among famous marks there are varying degrees of renown. Thus, for the renown of the junior mark to be meaningful it must be viewed in light of the relative renown of the famous mark. In other words, the likelihood that a junior mark recognized by 30% of the relevant population will cause dilution by blurring depends on whether the famous mark is recognized by 40% of the relevant population or 90% of that population. Presumably, the potential for dilution is greater where the gap in renown is smaller.
Thus, here, in contrast to the fifth Mead Data factor, the renown of the famous mark may militate against the likelihood of dilution. Where, as here, the junior mark has been used for a considerable period of time.[30] the likelihood of dilution is greater as the relative renown of the marks approach. Utah's mark is virtually unknown outside of Utah and, given Utah's modest budget for advertising, is likely to remain that way. Yet, Utah's mark is well known within Utah.[31] And, within Utah, the relative renown of the marks is nearly identical 46% of respondents in Ringling's survey completed the incomplete phrase THE GREATEST ______ ON EARTH with SHOW and associated the completed phrase with Ringling, and 45% of respondents completed the phrase with SNOW and associated the completed phrase with Utah. Thus, within Utah the sixth Mead Data factor suggests a potential for dilution.
Balancing the factors, it is clear that Ringling has not proved by indirect evidence the likelihood of dilution through blurring. The recreational activities covered by the disputed marks are not substantially similar, and their differences are clearly reflected in the marks themselves through the difference in the pivotal terms "show" and "snow". Accordingly, notwithstanding the fame of the marks in Utah, a balancing of the Mead Data factors does not demonstrate that Utah's *622 mark will likely lessen the capacity of THE GREATEST SHOW ON EARTH to distinguish or identify Ringling's circus through blurring. This conclusion is confirmed by the survey results, which show that Utah consumers did not associate the famous mark with Utah's winter tourism opportunities.
In sum, neither Ringling's survey evidence nor a balancing of the Mead Data factors demonstrate by a preponderance of the evidence that Utah's mark lessens the capacity of the famous mark THE GREATEST SHOW ON EARTH to identify and distinguish Ringling's circus. Thus, Ringling cannot recover for dilution of its mark under 15 U.S.C. § 1125(c).[32]
Accordingly, judgment for Utah in this matter is granted.
An appropriate judgment will enter.
The Clerk is directed to send a copy of these Findings of Fact and Conclusions of Law to all counsel of record.
NOTES
[1] Ringling's jury request was denied for the reasons set forth in a Memorandum Opinion dated February 21, 1997. Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Division of Travel Development, 955 F. Supp. 598.
[2] See RL Associates, Recognition Levels and Potential for Dilution of THE GREATEST SHOW ON EARTH 2 (April 1996)(expert report prepared for plaintiff) ("Rappeport Report").
[3] See Rappeport Report, at 10. The Rappeport Report does not cite support for its contention that DON'T LEAVE HOME WITHOUT IT has been held by courts to be a famous mark. Nevertheless, that contention is the report's justification for using DON'T LEAVE HOME WITHOUT IT as a relative measure of the fame of Ringling's mark, THE GREATEST SHOW ON EARTH.
[4] Over 40% of respondents in the United States, both inside and outside of Utah, were able (i) to complete the incomplete phrase THE GREATEST ______ ON EARTH with the word SHOW to form Ringling's mark, THE GREATEST SHOW ON EARTH, and (ii) to associate that mark with the Circus. This percentage is substantially the same as those respondents who were able to correctly associate DON'T LEAVE HOME WITHOUT IT and American Express.
[5] See Sally Gee. Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2nd Cir.1983) (construing New York anti-dilution statute).
[6] See Mead Data Cent., Inc. v. Toyota Motor Sales, 875 F.2d 1026, 1034 (2nd Cir.1989) (Sweet, J. concurring)("construing New York anti-dilution statute").
[7] In creating the dilution action, Congress specified that this erosion is actionable notwithstanding the existence of competition or likelihood of confusion, in contrast to the Act's long-standing cause of action for direct infringement, wherein a famous mark owner is required to demonstrate that the use of an imitative mark "is likely to cause confusion, or to cause mistake, or to deceive." See 15 U.S.C. § 1114. Infringement, then, essentially requires that the protected and imitative marks be used in connection with competing goods and services or that there exists some potential for source confusion. A federal dilution claim, by contrast, shifts the focus away from consumer protection and towards the protection of an owner's quasi-property right in a famous mark, itself. See, e.g., Malla Pollack, Time to Dilute the Dilution Statute and What Not To Do When Opposing Legislation, 78 J. Pat. & Trademark Off. Soc'y 519, 520 (1996).
[8] For example, an adult entertainment provider was found to dilute Hasbro's "Candy Land" mark when it used the name Candyland to identify its sexually explicit Internet site. Hasbro. Inc. v. Internet Entertainment Group, Ltd., 1996 WL 84853, at *1 (W.D.Wash.1996).
[9] See, e.g, Clinique, 945 F.Supp. at 562(construing the Act but citing Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2nd Cir.1994), a case construing New York anti-dilution provision) ("Dilution by blurring occurs where `the defendant uses or modifies the plaintiff's trademark to identify the defendant's goods and services, raising the possibility that the mark will lose its ability to serve as a unique identifier of the plaintiff's product.' ... [B]lurring is concerned with an injury to the mark's selling power ....").
[10] Panavision Intern., L.P. v. Toeppen, 945 F. Supp. 1296, 1304 (C.D.Cal.1996) (construing the Act) ("`Blurring' involves a `whittling away' of the selling power and value of a trademark by unauthorized use of the mark.")
[11] Exxon Corp. v. Exxene Corp., 696 F.2d 544, 550 (7th Cir.1982) (construing the Illinois state anti-dilution statute) ("No longer would the [famous mark] call immediately to mind the [covered product]. The mental image would be blurred....")
[12] See, e.g,, Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2nd Cir.), cert. denied, 368 U.S. 820, 82 S. Ct. 36, 7 L. Ed. 2d 25 (1961)(developing test to determine whether consumers are likely to be confused by junior mark).
[13] The Mead Data panel cited 2 J. McCarthy, Trademarks and Unfair Competition § 24.13 at 213-14 (2d Ed.1984):
[I]f a reasonable buyer is not at all likely to link the two uses of the trademark in his or her own mind, even subtly or subliminally, then there can be no dilution.... [D]ilution theory presumes some kind of mental association in the reasonable buyer's mind between the two party's [sic] uses of the mark.
[14] See 15 U.S.C. § 1125(c)(1) (injunction available if junior mark "causes dilution of the distinctive quality of the [famous] mark").
[15] For example, a famous mark may lose its ability to identify goods or services because it becomes a part of the common lexicon as a generic reference to a type of product.
[16] This required nexus presents an interesting question on the facts of this case. Utah contends, and the record reflects, that its commercial use of the mark targets consumers outside of Utah. And outside of Utah, virtually no one is aware of Utah's mark. on the other hand, in Utah, significant numbers of people are aware of Utah's mark. But Utah's primary use of the mark in Utah is its display on the state's license plates, an allegedly noncommercial use. Significantly, a non-commercial use of a mark is not actionable under the anti-dilution provision of the Act. 15 U.S.C. § 1125(c)(4)(B). Thus, Utah argues, even if Ringling's mark is diluted in Utah, it is diluted by a non-commercial, and thereby unactionable, use. The causal link between Utah's commercial use of its mark and the dilution of Ringling's famous mark is not relevant to the disposition of this case.
[17] In Mead Data, the Second Circuit reversed the district court's holding that the use of LEXUS was likely to dilute the distinctive quality of the `mark LEXIS, concluding (i) that LEXIS did not have a distinctive quality in the general public that LEXUS could dilute, and (ii) that persons for whom LEXIS would have a distinctive quality and meaning were sophisticated consumers and unlikely to associate the two uses of the marks. 875 F.2d at 1031-32.
[18] Thus, an association connotes more than knowledge of both the LEXIS and LEXUS marks. It is possible for a person to hold words and concepts separate in her mind even where the words or concepts are similar in form or sound. An association is created where the similarities are so great that a link between the two marks is formed that makes the famous mark call to mind the junior mark, or the goods and services covered by the junior mark.
[19] At oral argument Ringling conceded that the value of its mark for licensing had not diminished and that it had no evidence of any damages.
[20] This assumes, probably correctly, that in this country's current culture the general population shops at malls and those who escape this experience are few and eccentric.
[21] Ringling's expert referred variously to "top of mind", "initial response", and "call to mind" to describe the immediate recall of goods or services upon seeing a mark. He testified further that this "top of mind" position reflected the goal of a marketer, and was an accurate measure of a mark's capacity to identify and distinguish goods and services.
[22] These figures include the 21% of respondents in Utah who associate the incomplete phrase with both Utah and the Circus, but who do not mistakenly associate or confuse the marks or the goods and services each identifies and distinguishes.
[23] Ringling's counsel suggested at trial that Ringling believes it owns the incomplete phrase THE GREATEST ______ ON EARTH. Thus, Ringling has pursued dilution actions against such varied marks as "The Greatest Bar on Earth", B.E. Windows, 937 F.Supp. at 206, and "The Greatest Used Car Show on Earth", Ringling Bros.-Barnum Bailey v. Celozzi-Ettelson, 855 F.2d 480, 481 (7th Cir.1988). This is not persuasive. Of course, some marks in the form of THE GREATEST ______ ON EARTH may dilute Ringling's famous mark. But this fact does not entitle Ringling to protect this incomplete phrase itself. Instead, Ringling must demonstrate that Utah's mark or any mark using this form dilutes the famous mark THE GREATEST SHOW ON EARTH. For example, had respondents completed the statement with SHOW, but associated the resulting statement, THE GREATEST SHOW ON EARTH, with Utah, snow, or skiing, blurring would be shown. In that event, the famous mark would be mistakenly associated, at least in part, with Utah's goods and services, thereby lessening the distinctiveness of Ringling's famous mark. Similarly, if respondents were shown a card containing the mark, THE GREATEST SHOW ON EARTH, and mistakenly associated that mark with Utah's winter sports, dilution by would be shown.
[24] Because the survey evidence does not demonstrate dilution, it is not necessary to address Utah's contention that the survey evidence is unreliable because respondents were not shown the famous mark in a manner in which the mark normally appears, i.e., with circus style lettering on promotional materials.
[25] The record reflects a few respondents completed the statement with "show", to get the famous mark, but associated the mark in an irrelevant manner. For example, respondents associated THE GREATEST SHOW ON EARTH with "theater" and "movie". These mistaken associations are too few to reflect dilution and, in any event, are not attributable to Utah's use of the mark.
[26] As discussed above, it is possible to be aware of numerous words similar in form or sound without associating these words or losing sight of the distinctiveness of each individual word. See supra, note 18. Thus, in the course of everyday life, people use SNOW and SHOW without associating these words or lessening the capacity of these words to identify and distinguish different things.
[27] The similarity of the products covered by the marks is a separate factor under Mead Data. But where, as here, the marks themselves consist of a description of the products, the similarity of the products described by the mark is also relevant to the first Mead Data factor. Often a mark will not have any meaning independent from the product or any descriptive force. Thus, the products covered by LEXIS and LEXUS are not relevant to an evaluation of those marks' similarity. Yet, where, as here, marks have descriptive effect, the description is relevant to an evaluation of the similarity of the marks. For example, the hypothetical mark THE GREATEST CARNIVAL ON EARTH is more similar to THE GREATEST SHOW ON EARTH than a mark describing a wholly unrelated product, such as THE GREATEST HAMMER ON EARTH or THE GREATEST SNOW ON EARTH.
[28] Some courts construing the Act have concluded that predatory intent is not a factor in the analysis of a dilution claim under the Act. See, e.g., Clinique, 945 F.Supp. at 562. This conclusion is apparently based on the Act's enhanced remedies for dilution where it is shown that a defendant "willfully intended to trade on the owner's reputation or to cause dilution of the famous mark." 15 U.S.C. § 1125(c)(2). Thus, the Act is read to authorize the consideration of "willful intent", a concept similar to predatory intent, with respect to available remedies but not with respect to dilution. This conclusion is not persuasive and not adopted here. An accused diluter's intent can be relevant to the determination of both (i) a circumstantial case of dilution, and (ii) available remedies for such dilution. Thus, the inclusion of "willful intent" elsewhere in the statute is no basis, in and of itself, for ignoring predatory intent as a factor in the analysis of circumstantial evidence of dilution. Moreover, predatory intent the deliberate adoption of a junior mark to benefit from the fame of a senior mark increases the likelihood that a junior mark will be used in a manner that will lessen the capacity of a famous mark to identify goods and services.
[29] This conclusion is supported by (i) Utah's registration of its mark in Utah, (ii) the opinion Utah received from the Utah Attorney General that the use of its mark was appropriate, and (iii) the defeat of Ringling's opposition to Utah's right to federal registration of the mark in 1995.
[30] Courts have correctly observed that the renown of the junior mark will always weigh in favor of a junior mark in the event that this mark identifies a product that has just entered the market unless courts speculate on the expected future renown of the junior mark. See, e.g., Clinique, 945 F.Supp. at 563. Thus, this factor has been ignored in a claim alleging dilution caused by a mark covering a new product. Id. This issue need not be addressed here, where Utah has used its mark to identify its winter tourism activities continuously for over thirty years.
[31] As discussed above, Utah does not target commercial uses of its mark in Utah, but rather on out of state travelers who read ski magazines and buy merchandise from Utah's winter tourism sites. Thus, the inference could be drawn that the renown of Utah's mark in Utah is the result of the presence of the mark on license plates, an allegedly noncommercial use. The question presented by this inference is discussed above, but is not necessary to a resolution of the instant case. See supra, note 13.
[32] Utah contends that, notwithstanding the presence or absence of dilution through "blurring", an injunction against Utah's use of its mark would give the anti-dilution provision of the Act a "retroactive effect" prohibited by Landgraf v. USI Film Prods., 511 U.S. 244, 268-281, 114 S. Ct. 1483, 1499-1505, 128 L. Ed. 2d 229 (1994)(unless statute reflects clear Congressional intent for retroactive application, it cannot (i) impair a right a party possessed when it acted, (ii) increase a party's liability for past conduct, or (iii) impose new duties with respect to completed transactions). Specifically, Utah contends that an injunction would impermissibly deprive it of a property right in the junior mark. Given the conclusion that there is no dilution, the retroactivity issue is not necessary to the resolution of the case. |
1,516,290 | 2013-10-30 06:32:52.599115+00 | Coleman | null | 420 S.W.2d 218 (1967)
The KROGER COMPANY et al., Appellants,
v.
Margie WARREN et vir, Appellees.
No. 15114.
Court of Civil Appeals of Texas, Houston (1st Dist.).
October 19, 1967.
*219 William Key Wilde, Houston, Bracewell & Patterson, Houston, of counsel, for appellants Sam Morrow and The Kroger Co.
Daugherty, Bruner, Lastelick & Anderson, Jerry Lastelick, Dallas, for appellants Delbert Clymer and Hopper & Hawkins, Inc.
Kenneth Bing, Freeport, Miller, Gann, Perdue & Werner, John C. Werner, Houston, for appellee.
COLEMAN, Justice.
This is an appeal from an order overruling the pleas of privilege filed in a suit for damages by reason of assault and battery and false imprisonment. The principal question is whether Sam Morrow, an employee of The Kroger Company, and Delbert Clymer, an employee of Hopper & Hawkins, Inc., committed a crime or offense in the course of their employment while in Brazoria County, Texas, so as to sustain venue in that county under Section 9 of Article 1995, Vernon's Ann.Civ.St.
The Kroger Company is the owner of a retail grocery store located in Freeport, Brazoria County, Texas. Mrs. Margie Warren was employed by that company as a grocery checker or clerk. Hopper & *220 Hawkins, Inc., is a company engaged in checking on employees of various stores for the purpose of rating or grading their efficiency and of checking on the possibility of the misappropriation of company funds. This company had contracted to furnish these services to The Kroger Company and had been performing security checks or surveys for Henke & Pillot and its owner, The Kroger Company, for six or seven years.
Sometime prior to March 31, 1964, a representative of Hopper & Hawkins, Inc., had checked the Freeport store and in so doing had made certain purchases. The purchases were checked out through the register operated by Mrs. Warren. The purchases were turned over to Delbert Clymer and the agent reported that he suspected that a $1.00 item was not rung up on the cash register. Clymer was directed to return the purchases to Sam Morrow, a security officer for The Kroger Company, and to check up on the report. Clymer asked Morrow to check the purchases against the cash register tape. After the tape was checked, Morrow and Clymer decided to question Mrs. Warren and certain other employees of the Freeport store who were suspected of failing to ring up all purchases.
On March 31, 1964, Morrow and Clymer went together to Freeport. Morrow introduced the manager of the store to Clymer and told him that they wanted to question some of the employees. The manager took them to a small, windowless conference room at the back of the store, and, at Morrow's request, he brought Mrs. Warren to the room for questioning.
Mrs. Warren testified that they accused her of taking $1.00 on the occasion of the agent's visit and continued to question her about the number of other times she had taken money. They were trying to get her to write a letter admitting taking money and estimating the amount taken. She testified that Clymer did most of the talking, but that both of them threatened to call the police if she did not write the letter. Morrow also told her that her "family would be exposed in such a way that it would be to my embarrassment." On several occasions she asked to be permitted to leave the room, but Clymer told her she could not go. She was afraid and was crying. When Morrow threatened to call the police, she was agreeable. She offered to call the police herself because she wanted to get out of the room. After about an hour and a half, Morrow left the room and she then tried to leave, but Clymer caught her by the arm and prevented her leaving. Finally she wrote a letter at Clymer's dictation, except for the amount of money taken, and then was permitted to leave. She testified that she did not take any money from her employer. The president of Hopper & Hawkins, Inc., testified that on this occasion it was Clymer's duty to do whatever business was supposed to be done with The Kroger Company.
The testimony with respect to what happened during the questioning was contradicted by the testimony of the defendants. Other testimony which Mrs. Warren gave was weakened or destroyed by the testimony she gave after being confronted by her previous deposition.
The trial court found that Clymer and Morrow were acting in the course and scope of employment and that Hopper & Hawkins, Inc. at all times material hereto was acting as an agent and representative of The Kroger Company. He found that Clymer told Mrs. Warren that unless she signed a statement to the effect that she had stolen money from The Kroger Company, he would call the police and have her arrested and placed in jail. He found that Clymer told Mrs. Warren that they would not permit her to leave the room where the interrogation was being conducted until she signed the statement, and that when she attempted to leave she was physically restrained by Clymer. He found that she signed the statement admitting taking the money because of the threats and abuse to which she had been subjected, in order that she would be permitted to leave the *221 room, and that the statement was untrue. He found that as a result of the treatment she received, Mrs. Warren suffered physical pain and mental anguish.
The trial court concluded as a matter of law, based on his findings of fact that a crime or offense had been committed against appellee by all of appellants in Brazoria County, Texas. He further concluded that venue should be held in that county as to Sam Morrow by virtue of Section 9, Article 1995, R.C.S., as to The Kroger Company by virtue of Sections 9, 23, and 27 of Article 1995, R.C.S., and as to Hopper & Hawkins, Inc., by virtue of Sections 9 and 23, Article 1995, R.C.S.
While the trial court is not required to file findings of fact and conclusions of law in an appeal from his ruling on a plea of privilege, he is authorized to do so at the request of either party by Rules 385(e) and 296, Texas Rules of Civil Procedure. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1954).
In Compton v. Elliot, 126 Tex. 232, 88 S.W.2d 91 (Tex.Com.App. 1935, opinion adopted), the court said: "On appeal from a judgment sustaining or overruling a plea of privilege, the power of the Court of Civil Appeals in reviewing the fact findings made by the trial court is the same as it is in any other appealed case."
The findings of fact filed by the trial court are not conclusive on appeal when a statement of facts appears in the record. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950). It is necessary, however, that material findings of fact be challenged by appropriate points in appellants' brief or else the appellants are bound by the findings of fact. Waters v. King, 353 S.W.2d 326 (Tex.Civ.App., Dallas 1961); Ferrier v. Caprock Machinery Company, 350 S.W.2d 224 (Tex.Civ.App., Amarillo 1961); Thompson v. Larry Lightner, Inc., 230 S.W.2d 831 (Tex.Civ.App., San Antonio 1950, ref., n. r. e.).
There is no point in the brief filed by either of the appellants challenging any of the findings of the court to be without support in the evidence, or to be against the preponderance of the evidence. A detailed discussion of the evidence as applied to the fact findings, therefore, is not required. Downs v. McCampbell, 203 S.W.2d 302 (Tex.Civ.App., Austin 1947).
While the trial court concluded as a matter of law that venue should be held in Brazoria County as to Sam Morrow by reason of Section 9 of Article 1995, R.C.S., no specific finding of fact presented a basis for this conclusion. The court found that Morrow and Clymer interrogated Mrs. Warren for about three hours and falsely accused her of stealing money from her employer; that during the interrogation Clymer told her that she would not be permitted to leave the room until she signed a statement admitting theft; that Clymer told her that unless she signed the statement she would be arrested and placed in jail; and that Clymer forcibly restrained Mrs. Warren from leaving the room. The trial court's conclusion that these acts amounted to the commission of false imprisonment and assault and battery against Mrs. Warren on the part of all of the defendants is also a finding of fact. Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App., Ft. Worth, 1964, ref., n. r. e.).
We are required not only to give effect to the findings as made, but also to presume omitted findings to support the judgment, if such findings are supported by the evidence. Collins v. Tucker, 333 S.W.2d 218 (Tex.Civ.App., Ft. Worth 1960); Waters v. Yockey, 193 S.W.2d 575 (Tex.Civ.App., Dallas 1946).
Articles 65 and 66, Vernon's Ann.P.C., provide that all persons are principals who *222 are guilty of acting together in the commission of an offense; that when an offense is actually committed by one or more persons, but others are present and, knowing the illegal intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders. Lee v. State, 214 S.W.2d 619 (Tex.Crim.App., 1948). See also Francis v. Kane, 246 S.W.2d 279 (Tex.Civ.App., Amarillo 1951).
The asserted elements of the offense of false imprisonment are said to be: (1) a wilful detention of the person, (2) a detention without authority of law, and (3) a detention against the consent of the party detained. 25 Tex.Jur.2d, False Imprisonment, § 3.
A detention is unlawful if it prevents a person from moving from place to place or in the direction he wishes to go. Where it is contended that the unlawful detention is brought about by a threat, it must be shown that the threat was such as would inspire in the threatened person a just fear of injury to his or another's person, reputation, or property. 25 Tex.Jur. 2d, False Imprisonment, § 4.
The findings of the trial court clearly establish false imprisonment and assault and battery as against the defendant Clymer. The evidence is sufficient to support an implied finding that the defendant Morrow was acting with Clymer in wilfully detaining appellee without authority of law and without her consent, and that he aided and encouraged him in so detaining Mrs. Warren.
The evidence shows that the actions taken in this case by Clymer and Morrow were taken as agents of their respective companies and in the furtherance of company business committed to them. The Kroger Company is bound by the actions of their employee Morrow, and Hopper & Hawkins, Inc. is responsible for the actions of its employee Clymer. Magnolia Petroleum Co. v. Guffey, 129 Tex. 293, 102 S.W.2d 408 (Tex.Com.App., 1937, opinion adopted); Rucker v. Barker, 108 Tex. 280, 192 S.W. 528 (Tex.Sup.1917).
The judgment is affirmed. |
1,516,298 | 2013-10-30 06:32:52.718529+00 | Brosky | null | 359 Pa. Super. 531 (1986)
519 A.2d 479
Paul F. ESPERSEN, Appellant,
v.
Sherre DAVIDOW.
Supreme Court of Pennsylvania.
Argued May 22, 1986.
Filed December 23, 1986.
*532 C. James Kutz, Greensburg, for appellant.
Sanford P. Gross, Pittsburgh, for appellee.
Before BROSKY, KELLY and ROBERTS, JJ.
BROSKY, Judge:
This appeal is from an Order directing that custody of appellant's daughter remain with her natural mother, the appellee herein.
Appellant presents three issues for our consideration: (1) whether the trial court's findings of fact were supported by the evidence; (2) whether the evidence presented at trial established a substantial change in circumstances since the entry of the consent custody order; (3) whether the best interests of the child are served by granting custody to the appellant. We have reviewed the entire record, including briefs submitted by counsel and the opinion and findings of fact and conclusions of law of the trial court.
*533 Because we agree with appellant that the evidence established a substantial change of circumstances from the entry of the initial custody order, we vacate the order of court continuing custody in appellee, and remand the case for proceedings consistent with this opinion.
The parties to this appeal were married on September 8, 1962. From this marriage were born three children. The third child, Shannon, born May 5, 1976, is the subject of the custody dispute presently before us. The parties were divorced on March 10, 1981 by decree of the Court of Common Pleas of Allegheny County. Pursuant to the divorce a "Property Settlement Agreement" was entered into and made part of the decree. Paragraph 9 of the "Property Settlement Agreement" entitled "Visitation" established "general care, custody and control" of the minor child in the mother, subject to "regular, reasonable and liberal right of visitation and partial custody" in the husband.
Subsequent to the divorce, Shannon lived in the family residence until November, 1983, when she and her mother moved next door to the residence of Jerry Davidow. Appellee subsequently married Mr. Davidow in July of 1984 whereupon appellee, with Shannon, her new husband and his two daughters, moved to a new residence in North Huntingdon, Pennsylvania. Shannon has resided in her new residence in North Huntingdon with her mother, stepfather and two stepsisters until the present time.
Shannon's father also remarried on December 11, 1981, and subsequently had a house constructed in a suburb of Butler, Pennsylvania, where he currently resides with his present wife. Pursuant to the custody and visitation agreement previously entered, appellant routinely picked up Shannon for weekends and one night a week visits. Subsequent to appellee's remarriage to Mr. Davidow, Shannon began making complaints about her home life during visits with her father. Shannon also stated that she wanted to live with her father and, often, towards the end of visits stated she didn't want to go back home to North Huntingdon. *534 On September 20, 1984 the appellant filed an action for custody of Shannon in Westmoreland County. Several hearings were held wherein testimony of the parties, Shannon, lay witnesses and expert psychologist witnesses was heard. On August 28, 1985, the trial court issued an order maintaining custody in the appellee-mother. This appeal followed.
It is well-established that in any custody proceeding where there exists a valid prior custody order the burden rests upon the party seeking modification of that order to prove a substantial change in circumstances that would justify a court's reconsideration of the custody disposition. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). This burden has not been relaxed nor found any less valid when the custody order is entered into by agreement of the parties and without hearing on the merits. Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985).[1]*535 Nor is the burden lessened or altered when the moving party seeks modification of a partial custody order as opposed to one providing for full custody. Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985). However, once such a substantial change in circumstances has been established, both natural parents share equally the burden of demonstrating that the child's best interests will be served by the granting of custody to them. Daniel K.D. v. Jan M.H., supra.
By imposing upon a challenging party the burden of showing changed circumstances, the doctrine of res judicata is adhered to without unduly prejudicing the interests of either parent or child. As this Court noted in Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa.Super. 22, 24, 184 A.2d 290, 291 (1962):
To permit a party to relitigate [the] relative fitness of parents to have custody of children by an inquiry into the same or other facts existing at the time of or prior to the former decree would lay a foundation for interminable and vexatious litigation.
However, as this Court has also noted several times, the fundamental goal in a custody matter is the rendering of a decision serving the best interests of the child. As such, this interest cannot be fulfilled by adopting a rule which mechanically prevents a parent or other interested party from asserting, and therefore proving, at some point after the initial entry of a custody order, that the child's best interests will be served by a different custody arrangement. When circumstances have changed since the entry of a custody order, some question may legitimately arise as to whether a child's best interests are still being served by the existing custodial arrangement, and justice will not be served by adhering to some notion that the status quo *536 should be maintained or that a party should only get "one shot" at litigating the matter. When the question is then litigated, it does not represent relitigation of the same matter, for the essential inquiry is directed to the best interest of the child at that point in time, not at the time the initial order was entered.
By requiring that the change of circumstance be "substantial" the Court will hopefully discourage an overburdening of the judicary, as well as vexatious or spurious litigation without necessarily trapping a child in a custodial arrangement which may not be in his or her best interests. However, once a substantial change in circumstances is shown, it is important that neither party enjoy a presumption or be saddled with a burden of proof, as this will only divert the court's attention from the true inquiry of importance, that being what custodial arrangement will serve the child's best interests at that point in time.[2]
The trial judge in the instant case, after several hearings and the admission of psychological reports, issued both an opinion and findings of fact and conclusions of law in keeping with the dictates of In Re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) and similar decisions which called for the full development of a record to facilitate judicial review. The trial judge specifically found that the appellant failed in his burden of showing a substantial change of circumstances and, hence, issued the order currently appealed from. Appellant argues that the evidence at trial shows the requisite substantial change in circumstances and cites many facts of record in support of his position. We are inclined to agree with the appellant.
As might be expected, upon a review of past relevant cases one cannot glean a hard and fast rule as to what does and what does not constitute a substantial change of circumstances. However, past relevant cases are helpful in *537 deciding if the present facts will get the appellant through what was described as an "evidentiary gate" in Agati v. Agati, supra to the second but paramount inquiry of the best interests of the child in the custody determination.
In Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983), the court considered a modification petition of a prior custody order entered in Texas where the appellant father and appellee mother had resided. The mother had visitation of her two minor children in her hometown of St. Mary's, Pennsylvania, to which she had returned to live after her divorce. Prior to the pre-arranged time for the children to return to Texas, the appellee filed a custody petition in the Court of Common Pleas of Elk County. The court, after determining it had valid jurisdiction, found appellee's return to St. Mary's to be a change in circumstances warranting reconsideration and granted custody in the mother. This Court, on appeal, while recognizing that the trial court was correct in its determination of the change in circumstances issue, reversed and remanded for additional hearing to provide a fuller development of the record.
In Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984), the appellee mother sought custody of her minor child after a remarriage and after having entered a stipulation granting custody to the appellant father. Appellee testified at trial that she had permitted custody to be placed in the child's father because she was uncertain of her future and was unable, at that time, to afford the child proper care. She argued that her change of residence and remarriage reflected a substantial change of circumstances. The trial court had agreed with appellee and granted custody to her. This Court, making an independent review of the record disagreed with the trial court which found that the best interests of the child would be served by awarding custody to the appellee mother, and reversed on these grounds.
The case of Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985), also found discussion of the substantial change in circumstances standard subsequent to a modification *538 of an existing custody order. The trial court found that a substantial change in circumstances had taken place. This court affirmed on appeal. The record revealed that, following the initial entry of a custody order the appellee mother had remarried and terminated her employment. She now occupied a house sufficient to accommodate the child and her new husband indicated a willingness to accept the child. The new husband and the child also appeared to have a good relationship.
In the present case, there are many factors which lead this court to conclude that a substantial change of circumstances has taken place since entry of the initial custody order. Both the appellant and appellee have since remarried. The appellant, who did not have a residence to take the child to at the time of the divorce, now has a more than adequate residence. His present wife is a full time homemaker and will be available to care for Shannon when the appellant is working or away from the household. Shannon has testified that she gets along with appellant's current wife and there exists no evidence to the contrary. Additionally, since the time of the initial custody order, Shannon has been moved out of the home in which she was raised, and is now situated in a household in a new neighborhood with two stepsisters and a stepfather. In contrast to her relationship with her stepmother, there is abundant evidence that Shannon's relationship with her stepfather is less than desirable and often causes Shannon anxiety. The court pays particular attention to the fact that both psychologists testifying in this case indicate that Shannon is suffering anxiety and self-perception problems which appear causally related to her current living situation. Additionally, Shannon has maintained a stated preference to live with her father throughout the proceedings.
The court does not wish to leave an impression that Shannon's current living arrangement is tortuous or in any way neglectful. The record bears out that Shannon's mother is a loving, caring mother who can and has provided Shannon a suitable environment in which to thrive. Moreover, *539 it would appear that some of Shannon's complaints of her homelife are exaggerated and that perhaps Shannon, for whatever psychological reasons, has prevented herself from fully enjoying her current living situation. Nevertheless, the court has taken cognizance of the fact that Shannon has had difficulty thriving in her current environment, and of the many circumstances which have changed since the entry of the initial custody order, and has deemed them substantial enough to warrant a reconsideration of the preexisting custody order.
In reaching this decision, the Court has kept in mind its previous discussion of the policy behind imposing a burden of showing changed circumstances, or policy which has roots in the doctrine of res judicata and the desire to prevent interminable and vexatious litigation. However, the Court is convinced here that both the appellant and appellee have the best interests of the child in mind, and we do not believe the instant litigation, instituted by the appellant, was motivated by anything less. Nor would reconsideration of the existing custody order represent relitigation of a matter previously decided, as the record indicates that the situations of the parties involved are significantly different than they were when the consent custody order was entered. As such, it is the opinion of this Court that justice will be best served by a reconsideration of the present custodial arrangement with both parties standing in pari causa and both parties sharing equally the burden of proof.
While this Court is empowered to make an independent review of the record and arrive upon an appropriate custody determination, we recognize that the trial court is in at least as advantageous position to make such a determination as is an appellate court. The trial court in this case, finding that appellant failed to show a substantial change in circumstances, stopped its inquiry short of a consideration of the child's best interests with both parties standing in pari causa (see discussion on page 536 supra.). Therefore, we believe that a remand to the trial court for a determination *540 of the child's best interests is appropriate under the circumstances of this case.
Order vacated. Jurisdiction relinquished.
NOTES
[1] We note that this represents the statement of this issue made by several panels of this Court and our decision today does not deviate from those holdings to this effect found in at least the cases of Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985), Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984), Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982).
However, we note some concern over this position. To the extent both parties have previously litigated the custody matter and a determination of a custodial arrangement has been made which serves the child's best interests, sound policy dictates that the matter not be subject to repeated litigation without a showing of a valid reason for the courts to reconsider the existing custodial arrangement. This is what the imposition of the subject burden was intended to accomplish. However, this protective facility presumes that the initial entry of a custody order did in fact serve the child's best interests. When the custody order is entered pursuant to litigation of the matter where both parties are given a full and fair opportunity to present their case, the court can presume this was accomplished, at least to the same degree of certainty which any determination by litigation has. But when the prior entry of a custody order was done by consent or stipulation without a hearing on the merits, it is not as certain that the custodial arrangement serves the child's best interests, for there may be many factors facilitating the entry of a consent custody order. As such, the imposition of a burden, the effect of which is to prevent an inquiry and determination of the child's best interests under these circumstances, may work to maintain a custodial arrangement which has not been serving the child's best interests. Of course, the risk of such an event happening rises proportionately with the degree of difficulty of overcoming the initial burden of showing a substantial change in circumstances: which in turn depends on how stringently that phrase is interpreted by the courts. In light of this, justice may require that a custody order not based upon an adjudication on the merits be given a less conclusive status than one based upon such an adjudication.
[2] This position was illustrated aptly in Daniel K.D. v. Jan M.H. where this court said:
This standard of proof recognizes that to protect children's interests the courts must assess evidence without reliance upon presumptions that prevent the natural parents from standing in pari causa. |
9,645,488 | 2023-08-22 21:26:40.272828+00 | Belcher | null | OPINION
BELCHER, Judge.
Upon a joint trial, the appellants waived a jury, and entered pleas of not guilty to an indictment charging them with the possession of marihuana. They were found guilty by the trial court and the punishment for each was assessed at two years.
The search of the automobile the appellant Hernandez was driving and the appellant Guadian, who was riding in the front seat, and the seizure of twelve marihuana cigarettes found in the glove compartment *951and one marihuana cigarette found in a pocket of the trousers the appellant Guadian was wearing are the bases of this conviction.
For reversal it is contended that the admission of the testimony showing the results of the search of the automobile and the appellant Guadian was error on the ground that the search was illegal. This ground for reversal was first urged on motion to suppress, which was heard and overruled, and then on the trial on the merits.
At the time of the reading into evidence that the chemist, if present, would testify that the cigarettes contained marihuana, appellant’s counsel stated that, “I have no objection.” This was followed by the stipulation by appellant’s counsel that it was “the same marihuana that was obtained from the defendants.” In light of this evidence, the appellant is in no position to complain of the search. Love v. State, Tex.Cr.App., 373 S.W.2d 242; Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199.
However, in view of the contention that the search was illegal on the grounds that it was not reasonable and without probable cause, the facts and circumstances preceding and at the time of the search will be discussed.
Deputy Sheriff O’Donnell, who lived in Fabens, Texas, testified that about 2 a.m., July 7, 1966, he was told by an informer in person in Fabens that he had seen the appellant Hernandez and Porfirio Martinez earlier that night, which was July 6, in Caseta, Mexico, across the river from Fabens, with marihuana cigarettes in their possession, and he saw some of the marihuana, and they would be in Fabens and leaving there about 5 a.m. — early that morning for Van Horn, and showed him the car that would be used which was then parked in the yard at the residence of Hernandez in Fabens; that he had successfully used this informer in burglary and theft cases but in narcotic cases the information had not been sufficient; that he notified U. S. Customs agents Posio and Morgan in El Paso and they arrived in Fabens about 3 a.m., July 7, when he gave them the information he had about Hernandez and Martinez which had come from a mutual informer, that is, one they had used before, and he then showed them Hernandez’ car parked at his residence, and left on another assignment; that Posio already knew Hernandez, and “was working on a case relating to these particular subjects (Hernandez and Martinez).”
U. S. Customs agent Posio testified that Deputy Sheriff O’Donnell telephoned him about 2 a.m., July 7, telling him that he had confidential information that Hernandez and Martinez had been seen with marihuana cigarettes in Mexico and would be leaving Fabens early in the morning; that he knew O’Donnell’s informer, had used him before and knew he was reliable; that he had had previous information connecting Hernandez and Guadian with narcotics; that he and Morgan kept Hernandez and his car under surveillance until he drove alone to a service station where another person entered the car and they drove to a tavern, and upon parking, Posio and Morgan, in separate cars, parked on opposite sides of Hernandez’ car; that the man who had entered the car at the service station and riding in the front seat was the appellant, Manuel Vargas Guadian; that he told them they were Customs officers and wanted to make a customs search of the car, which they did, finding a package containing twelve marihuana cigarettes in the glove compartment and later found one marihuana cigarette in Guadian’s trousers pocket; and that after informing them again of their constitutional “warnings,” “they made statements that they were their cigarettes and had purchased them in Pecos”; that the tavern was located about one mile straight across and about three miles by road from the Mexico border; and that Fabens was within the district officially assigned to him as a Customs officer.
The testimony of Customs agent Morgan was substantially the same as that of Customs agent Posio.
*952The Customs agents had neither an arrest warrant nor a search warrant.
The United States Customs officers have express authority under Title 19, U.S.Code, Section 482, to stop and search any vehicle or person suspected of carrying merchandise subject to duty, or which has been introduced into the United States in any manner contrary to law. The right of border search does not depend on probable cause and is in a separate category from searches generally. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Mansfield v. United States, 308 F.2d 221, 222 (5th Cir.1965). The test is the existence of “a reasonable cause to suspect” that there is merchandise “which * * * shall have been introduced into the United States in a[ny] manner contrary to law.” Valadez v. United States, 358 F.2d 721, 722 (5th Cir.1966). The right of Customs officers to search vehicles and persons does not necessarily stop at the border itself. Marsh v. United States, 344 F.2d 317 (5th Cir.1965). Searches occurring at some distance inland have been upheld where Customs agents had reason to believe the vehicle or person was carrying contraband. Romero v. United States, 318 F.2d 530 (5th Cir.1963); Ramirez v. United States, 263 F.2d 385 (5th Cir.1959); Haerr v. United States, 240 F.2d 533 (5th Cir.); Alexander v. United States, 362 F.2d 379 (9th Cir.1966); Willis v. United States, 370 F.2d 604 (5th Cir.1966); Thomas v. United States, 372 F.2d 252 (5th Cir.1967).
The evidence is sufficient to authorize the conclusion that the search and seizure were reasonable, and that the same were lawful.
Further, it is concluded that the evidence is sufficient to show probable cause and authorize the search and seizure under the state law. Weeks v. State, Tex.Cr.App., 417 S.W.2d 716.
Error is also urged on the ground that the evidence is insufficient to support the conviction of the appellant Guadian in that the one marihuana cigarette taken from him was illegally obtained, and there was no evidence connecting him with the marihuana found in the glove compartment.
The evidence discloses a search of the car in which the appellant Guadian had been riding at the tavern along with a cursory search of the appellants and a search at headquarters a short time later during which the one marihuana cigarette was found in Guadian’s pocket. Further, Posio testified that after giving them their constitutional “warnings” the second time “they made statements that they were their cigarettes and had purchased them in Pecos.” To the admissions of this testimony there was no objection. No error is presented.
The failure of the trial court to make findings of fact and conclusions of law as the appellants requested was not error. Such procedure is not provided for in the Texas Code of Criminal Procedure.
The judgment is affirmed. |
9,645,489 | 2023-08-22 21:26:40.277421+00 | Morrison | null | OPINION ON APPELLANTS’ MOTION FOR REHEARING
MORRISON, Judge.
Appellants strenuously object to that portion of our original opinion in which the Court found that the evidence was admitted without objection. A further review of the record reveals that appellants, though agreeing to certain stipulations, did so with the specific understanding that their objections that the evidence was the fruit of an illegal search were not waived.
This, however, does not affect our disposition of the case, because this was clearly a border search for marihuana predicated upon information that the two male occupants of the automobile in question would have marihuana in their possession, and that they were headed toward a point inland, away from the border.
*953The cases cited in our original opinion authorize this border search. See also King v. United States, 5 Cir., 258 F.2d 754, and United States v. Yee Ngee How, D.C., 105 F.Supp. 517.
The motion for rehearing is overruled. |
9,645,490 | 2023-08-22 21:26:40.566732+00 | Wieand | null | WIEAND, Judge:
This appeal from a judgment entered in favor of a materi-alman and against a corporate surety on a payment bond requires that we interpret and apply the language of the bond requiring prompt notice of claims for unpaid materials.
On March 11, 1981, Pursel Construction Company (Pur-sel) entered into a contract with Lewisburg Elderly Associates for the construction of a housing project known as Lewisburg Elderly Housing in the Borough of Lewisburg, Union County. On the same date, Pursel delivered to Lewisburg Elderly Associates a payment bond which had been executed by Pursel, as principal, and Pennsylvania National Mutual Casualty Insurance Company (Penn National), as surety, and which guaranteed payment to subcontractors and materialmen. Pursel entered a subcontract with Long Electric, Inc. (Long) for the electrical work on the project. This subcontract provided, inter alia, that Long would be responsible for installing an emergency call and intercom system in the housing units. In accordance with the contract, Long issued a purchase order to Morefield Communications, Inc. (Morefield) for an emergency call and intercom system at a price of $6,458. Shop drawings, which Morefield agreed to supply and which consisted of lists and *516diagrams of equipment making up the system, were submitted and approved early in 1981. On April 29,1981, Long also requested a change which was made and which resulted in a price increase of $250.
By a series of shipments between July 29, 1981 and November 4, 1981, Morefield delivered to Long all of the equipment required by the purchase order. Sometime thereafter, Long abandoned the project. In December, 1981, Charles Pursel, the president of Pursel Construction Company, requested Morefield’s salesman to supply him with “authentication diagrams” for the stated purpose of assisting another subcontractor in installing the system. The diagrams were supplied early in January, 1982.
On February 9, 1982, Morefield presented a claim for the unpaid price of the equipment to Penn National. Notice was also given to Pursel. Both Pursel and Penn National refused to pay the claim. They contended that they were relieved of liability by Morefield’s failure to give notice of the claim within ninety (90) days of final delivery, as required by the bond. Morefield then filed an action in assumpsit for $7,118.77, which allegedly was the price which Long had agreed to pay for the emergency call and intercom system. The trial court, following trial without jury, dismissed the claim against Pursel but allowed recovery against Penn National.1 Post-trial motions were denied, and this appeal followed by Penn National.
The payment bond executed by Pursel and Penn National contained the following notice provision:
No suit or action shall be commenced hereunder by any claimant:
(a) Unless claimant, other than one having direct contract with the Principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such *517claimant ... furnished the last of the materials for which said claim is'made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished ... Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety____
It is undisputed that Morefield gave notice of its claim to Penn National for the first time on February 9, 1982. It is also clear that the last delivery of equipment had been made by Morefield on November 4, 1981. Reference to a calendar suggests that the period intervening was ninety-six (96) days. Morefield contended in the trial court, however, that the delivery of authenticated diagrams in January, 1982 was the date on which the ninety (90) day period commenced. The trial court accepted Morefield’s argument and found that notice of the claim had been timely. Penn National argues that this was error. We agree.
Although our research has disclosed no prior appellate court decisions in this Commonwealth which have interpreted similar notice requirements, relevant federal case law is instructive. This body of law has evolved from numerous cases arising under Section 270a of the Miller Act. See: 40 U.S.C.A. § 270a. Section 270a provides that a materialman may call upon the general contractor to answer for the debts of a subcontractor only if the supplier has given notice of its claim within ninety days after the day on which the last materials were furnished or supplied. Federal courts have unequivocally held that “[o]nly work involving the original completion of the contract may be relied upon to toll the ninety day [notice] provision____” United States ex rel. Joseph T. Richardson, Inc. v. E.J.T. Construction Co., 453 F.Supp. 435, 439 (D.Del.1978), citing United States ex rel. Austin v. Western Electric Co., 337 F.2d 568 (9th Cir.1964). See: United States ex rel. Magna Masonry, Inc. v. R.T. Woodfield, Inc., 709 F.2d 249 (4th Cir.1983); United States ex rel. Georgia Electric Supply Co. v. United States Fidelity & Guaranty Co., 656 F.2d 993 (5th Cir. *5181981); United States ex rel. Light & Power Utilities Corp. v. Liles Construction Co., 440 F.2d 474 (5th Cir.1971); United States ex rel. Noland Co. v. Andrews, 406 F.2d 790 (4th Cir.1969). Thus, if the materials supplied are a part of the supplier’s original obligations under the contract, the ninety day period begins to run anew on the date when each additional shipment is made. If, however, the additional shipment is made in order to make repairs or provide replacement parts, the running of the notice period will not be tolled thereby. See: United States ex rel. Magna Masonry, Inc. v. R.T. Woodfield, Inc., supra; United States ex rel. Georgia Electric Supply Co. v. United States Fidelity & Guaranty Co., supra; United States ex rel. Light & Power Utilities Corp. v. Idles Construction Co., supra; United States ex rel. Joseph T. Richardson, Inc. v. EJ.T. Construction Co., supra.
The trial court found that the materialman had not performed his contract of sale fully until he supplied Pursel with diagrams which enabled a new electrical subcontractor to wire and install the system. It is correct, of course, that “[t]he findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of the jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record.” Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983). Our reading of the record, however, fails to support a finding that the supplying of the authentication diagrams by Morefield in January, 1982 was part of Morefield’s original contract with Long. Instead, the record shows that November 4, 1981 was the date upon which Morefield completed its entire obligation under the contract with Long. This contract required Morefield, in exchange for an agreed sum of money, to sell and deliver to Long an emergency call and intercom system. The agreement also required Morefield to supply “shop drawings.” The drawings were supplied, reviewed and approved early in 1981. All equipment purchased was thereafter delivered, the final delivery being on November 4, 1981. As of that *519date Morefield had fully performed its contract. Pursel’s need for authentication diagrams in December 1981 arose, not because Morefield had failed to complete performance of its contract, but because Long had abandoned the project, thereby requiring Pursel to hire another subcontractor to install the system which had already been delivered to the site. The furnishing of additional diagrams may have been in the nature of a courtesy, but it was not required by Morefield’s contract, and it did not serve to start anew the period within which notice of nonpayment was required to be given to the surety under the terms of its bond.
Judgment reversed.
BECK, J., files a dissenting opinion.
. The complaint also included a claim for $1,512.65, which represented Morefield's loss of profits on the sale of certain television equipment which, Morefield alleged, Pursel had agreed to purchase. The trial court found for Pursel and Penn National with regard to this claim, and Morefield has not contested that finding. |
9,645,491 | 2023-08-22 21:26:40.571409+00 | Beck | null | BECK, Judge,
dissenting:
The trial court found that the authentication diagrams were a necessary part of the materials to be delivered on the contract. This finding was crucial to the determination that appellee-materialman’s notice of non-payment was timely because the delivery of essential material pursuant to contract extends the notice period. See United States v. E.J.T. Construction Co., 453 F.Supp. 435 (D.Del.1978).
There was a conflict in testimony. Materialman’s witness testified that Pursel had indicated that the first electrical sub-contractor was not longer on the project and that Pur-sel “needed the diagrams to complete the project so that he could finish it up right on scheduled time____” (N.T. 14-15). This witness’ subsequent testimony during cross-examination supports his initial testimony. Appellant’s witness testified that the diagrams were for purposes of repair. Appellant further argues that the diagrams were insignificant. However, the trial court determined this issue of credibility in favor of materialman.
Since I do not believe the trial court erred in finding timely notice, I reach appellant’s argument for set-off or mitigation of damages. Appellant never filed a counter*520claim. Furthermore in its answer, appellant did not raise an affirmative defense that the intercom system supplied by materialman was defective and that appellant made expenses to correct the defect. See 5 Standard Pa.Practice 2d 508 § 27:102. Failure to raise an affirmative defense constitutes waiver. Pa.R.Civ.P. 1032. Even if the issue had not been waived, the trial court properly found that appellant did not meet its burden of establishing the materials were defective. Although Pursel testified regarding payment to correct an intercom system, his testimony did not establish defective material.
Mindful of our scope of review, I dissent, and would affirm the judgment of the trial court. |
9,645,492 | 2023-08-22 21:26:46.061651+00 | Hoffman | null | *435HOFFMAN, Judge:
This is an appeal from the denial of a petition for writ of certiorari filed with the Court of Common Pleas of Philadelphia County. Appellant was convicted in the Municipal Court of Philadelphia of carrying a firearm without a license, 18 Pa.C.S.A. § 6106, and carrying a firearm on a public street or place in Philadelphia, 18 Pa.C.S.A. § 6108. Appellant contends that certain physical evidence should have been suppressed because the police lacked either probable cause or reasonable suspicion sufficient to justify the seizure of this evidence. For the following reasons, we vacate the judgment of sentence and remand for a new trial.
On May 12, 1984, two Philadelphia police officers responded to a radio call ordering them to investigate a burglary at 317 N. 63rd St. in Philadelphia. These officers met with the complainant, who stated that at 3:20 p.m. two males had tried to kick in his front door, and that one of them, a black male wearing a gray sweatsuit, ran east on Vine St. N.T. July 13, 1984 at 4; id. April 19, 1985 at 4. Within two or three minutes of responding to the radio call, and approximately two blocks from the complainant’s home, the officers spotted appellant, a black male wearing a gray sweatsuit and carrying a blue gym bag, running west on Vine St. towards the scene of the crime. Id. July 13, 1984 at 4-7. The officers stopped appellant, who did not attempt to flee. Without questioning appellant, they patted him down and then searched his opaque, zippered gym bag, within which was found a .32 caliber revolver loaded with one live round of ammunition.1 Id. April 19, 1985 at 5-7. *436During a subsequent on-site identification, the complainant did not identify appellant as one of the perpetrators.2 Appellant was then arrested and charged with the instant offenses.
Appellant filed a motion to suppress the revolver, which was denied by the Municipal Court. In a Municipal Court bench trial, appellant was found guilty of the weapons offenses. Appellant subsequently filed a petition for writ of certiorari with the Court of Common Pleas, seeking suppression of the seized evidence. The court denied the petition, prompting this appeal.
The standard for reviewing the propriety of a suppression ruling is well-established:
Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.
Commonwealth v. Cavalieri, 336 Pa.Superior Ct. 252, 254-55, 485 A.2d 790, 791 (1984). The threshold for a finding of probable cause to arrest exceeds that for justification of a stop and frisk: “[e]ven in the absence of probable cause, an individual may be stopped and briefly detained.” Commonwealth v. Prengle, 293 Pa.Superior Ct. 64, 68, 437 A.2d 992, 994 (1981). Because appellant contends that the evidence should have been suppressed under either standard, we must first determine whether the record supports the lower court’s factual findings and legal conclusions that the search of appellant was justified under the stop and frisk *437doctrine. If the frisk or search of appellant was not justified under the standard first established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), then it follows that this evidence could not properly have been admitted as the fruit of a search incident to a lawful arrest predicated upon probable cause.
We must examine the investigating officers’ actions at two levels of inquiry: the legality of the initial stop, and the propriety of the officers’ actions subsequent to the stop. See Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 460-61, 495 A.2d 554, 555 (1985). “If [the] police have a reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest.” Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 141, 489 A.2d 879, 881 (1985) (citation omitted). The initial stop of a person is legitimate if the investigating officers “[c]an point to specific and articulable facts which in conjunction with rational inferences deriving therefrom reasonably warrant the intrusion.” Commonwealth v. Prengle, supra. Such a stop facilitates the acquisition of information useful to the investigating officers:
Terry recognizes that it may be the essence of good police work to adopt an intermediate response---- A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (citation omitted). The search or frisk of a suspect incident to such a stop, however, must meet a higher threshold of justification
The police officer may legitimately sieze a person ... and conduct a limited search of the individual’s clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others if the police officer observes unusual and suspicious conduct on the part of the individual seized which *438leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous.
Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969).
A police officer need not personally observe unusual or suspicious conduct reasonably leading to the conclusion that criminal activity is afoot and that a person is armed and dangerous; this Court has recognized that “... a police officer may rely upon information which is broadcast over a police radio in order to justify an investigatory stop.” Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 68, 437 A.2d at 994. In such cases, the factors that must be considered in justifying an investigatory stop and subsequent frisk include the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 50 n. 4, 465 A.2d 1043, 1049 n. 4 (1983).
Although specificity of description is only one of the factors examined in justifying a stop and frisk, it is of great importance in situations where the investigating officers have not personally observed suspicious behavior; the police need to have identification information specific enough to reasonably conclude that the party they are stopping is actually the person for whom they are searching. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 465 A.2d 1043 (stop and frisk of robbery suspect justified where defendant matches description as to race, height, weight, age, hair, coat, footwear, and facial characteristics); Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 489 A.2d 879 (stop and frisk justified where defendant matches description of assailant as to face, height, build, skin tone and jacket, acts suspiciously, approaches from scene of crime, is known to be armed, and has bloody hand). Our Supreme Court has held, however, that an overly general description *439will not support a Terry stop and frisk in the absence of suspicious behavior observed by the investigating officer. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). In Berrios, the frisk of the defendant was found improper where police, seeking two blacks in dark clothing and one hispanic in light clothing moving east on a particular street after a shooting, seized a gun from an hispanic man in light clothing, who was accompanied by a black man dressed in dark clothing and was walking east on the specified street within twenty minutes and three blocks of the shooting. Our Supreme Court noted that not only was the defendant acting in a normal manner, but also that the description of the perpetrator was too vague to justify searches of all “[hispanics] wearing light clothing and walking with a negro in this area.” Id., 437 Pa. at 342, 263 A.2d at 344.
Close spatial and temporal proximity of a suspect to the scene of a crime can also heighten a police officer’s reasonable suspicion that a suspect is the perpetrator for whom the police are searching. Moreover, the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985) cert. denied Cortez v. Pennsylvania, — U.S. —, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Commonwealth v. Carter, 334 Pa. Superior Ct. 369, 483 A.2d 495 (1984).
To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating that the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase “for our own protection,” a phrase invoked by the investigating officers in the instant case, becomes meaningless. An expectation of danger may arise under several different circumstances. The police may reasonably believe themselves to be in danger when the crime reported to have been committed is a violent crime, see Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 69, 437 A.2d at 995, *440when a perpetrator is reported to possess or have used a weapon, see Commonwealth v. Capers, supra, 340 Pa.Superior Ct. at 141, 489 A.2d at 881; Commonwealth v. Sheridan, 292 Pa.Superior Ct. 278, 437 A.2d 44 (1981), aff'd 502 Pa. 612, 467 A.2d 1126 (1983), when the police observe suspicious behavior such as sudden or threatening moves, or the presence of suspicious bulges in a suspect’s clothing, see Commonwealth v. Carter, supra, 334 Pa.Superior Ct. at 369, 483 A.2d at 497, or when the hour is late or the location is desolate, see Commonwealth v. Cortez, supra, 507 Pa. at 533, 491 A.2d at 112; Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 70 n. 5, 437 A.2d at 995 n. 5. A frisk might also be implemented to protect innocent bystanders within the vicinity of an encounter. See Commonwealth v. Whelton, supra, 319 Pa.Superior Ct. at 53, 465 A.2d at 1049.
In the instant case, the search of appellant’s bag was improper. Here, the police initially responded to a radio call reporting a burglary in progress.3 The police officers subsequently acquired first-hand information through their interview with the complainant, who stated that one of the perpetrators, a black male wearing a gray sweatsuit, ran east on Vine St. The police were thus certain that criminal activity was afoot. This vague description, however, was no more comprehensive than that which the police acted upon in Berrios, and was insufficient in itself to justify a stop and frisk.
*441Moreover, the investigating officers’ interview with the complainant yielded little evidence that appellant might be armed and dangerous. While the police may have had some expectation of danger básed on the nature of the crime reported over the police radio, the complainant made no mention of the use or presence of weapons, leaving the investigating officer with few, if any, specific or articulable facts suggesting that appellant was armed and dangerous.
The specific facts and circumstances of the encounter between appellant and the police also yield little evidence that the investigating officers’ observations justified the immediate frisk of appellant and search of his sealed bag. Appellant was spotted within several minutes and within a few blocks of the crime. He matched the description supplied by the complainant in that he was a black male wearing a gray sweatsuit, and also in that he was running, albeit towards rather than away from the scene of the crime. In light of appellant’s proximity and conformance with the limited description, the police acted diligently in stopping him. Our difficulty lies in the immediate frisk of appellant and search of his bag without first implementing an intermediate investigatory response that could supply the investigating officers with sufficient articulable facts to justify a frisk or search.
The investigating officers had insufficient information to conclude that appellant was the perpetrator of the crime. He was wearing a gray sweatsuit and running on a city street during an afternoon in May. This is not unusual or suspicious behavior; any number of men in the area might have fit this description.4 Furthermore, appellant was running towards the scene of the crime, rather than in the direction stated by the complainant and dictated by logic.
*442Additionally, there is no evidence that the investigating officers, prior to frisking appellant, had observed any behavior or circumstances suggesting that appellant might be armed and dangerous. He willingly approached the investigating officers, and there is no evidence that he acted suspiciously or had suspicious bulges in his clothing. The encounter took place during the afternoon on a city street, rather than in an unusual or desolate setting that might put the officers in particular fear of danger. Nor did the investigating officers indicate that there was any need to protect innocent bystanders from possible harm. Moreover, appellant was confronted by two officers; this was not a situation where an immediate frisk would be justified to maintain the status quo between suspects and easily overwhelmed patrolmen.
In light of the foregoing, we conclude that although the police justifiably stopped appellant, the immediate frisk of his person and search of his bag were improper. We are not holding that the police must always question a suspect before frisking him; we merely conclude that based on the particular facts of this case, the police should have attempted to elicit some clarifying information from appellant before frisking him and searching his closed bag.
We are mindful that courts should not indulge in unrealistic second-guessing, and that “the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, in itself, render [a] search unreasonable.” U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985) (quoting Cady v. Dom-browski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973)). However, as Justice Rehnquist points out in Sharpe, “[t]he question is not simply whether some alternative was available, but whether the police acted unreasonably in failing to recognize or pursue it.” Id., 105 S.Ct. at 1576. In the instant case, where there was a lack of specific and articulable facts indicating that appellant was armed and dangerous, the use of even minimal investigative questioning would have enabled the police to evaluate *443whether appellant was the individual they were looking for and whether he should be frisked. The use and results of such investigative questioning have consistently aided our courts in justifying Terry stop and frisk procedures or finding probable cause. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111; Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 495 A.2d 554; Commonwealth v. Sheridan, supra; Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977). Furthermore, as this court recently stated “[i]n today’s complex society police are ‘charged with the protection of constitutional rights, the maintenance of order, [and other community caretaking functions].’ ” Commonwealth v. Rehmeyer, 349 Pa.Superior Ct. 176, 183, 502 A.2d 1332, 1336 (1985) (quoting La Fave, Street Encounters and the Constitution; Terry, Sibron, Peters and Beyond, 67 Michigan L.Rev. 40, 61-62 (1968)). Selecting the best means to achieve these goals is often difficult. As Justice Harlan stated in his concurrence to Terry v. Ohio: “[t]here is no reason why an officer rightfully but forcefully confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.” Terry v. Ohio, supra, 392 U.S. at 36, 88 S.Ct. at 1887 (HARLAN, J., concurring). However, the majority stated:
[in assessing] the reasonableness of a particular search or seizure in light of the particular circumstances ... it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate?
Id. at 21-22, 88 S.Ct. at 1880. In the instant case, reasonable caution applies not only to the need of the officers to protect themselves, but also to the degree of certainty that appellant was the perpetrator and that he was armed and dangerous. Given “our own Supreme Court’s expressed policy ‘of scrupulously adhering to the narrow scope of the \Terry ] exception,’ ” Commonwealth v. Cavalieri, supra, 336 Pa.Superior Ct. at 260-61, 485 A.2d at 794 (quoting *444Commonwealth v. Lovette, 498 Pa. 665, 676, 450 A.2d 975, 980 (1982)), and considering the numerous uncertainties inherent in appellant’s encounter with the police, some intermediate investigatory response would have been reasonable and proper in developing a level of suspicion sufficient to justify the search of appellant.
For the foregoing reasons, we vacate the judgment of sentence and remand for a new trial.
Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.
HESTER, J., files a dissenting statement.
. The record contains no evidence of any communication between appellant and the investigating officers between the time he was stopped and the time he was patted down. The record is explicit regarding the lack of investigative questioning subsequent to the pat-down:
Q. And when you discovered the gun did [appellant] offer you an explanation what he was doing with it at the time or subsequently?
A. No, ma’am.
Q. No, he did not say anything to you whatsoever?
A. No, I didn’t ask him any questions.
*436N.T. April 19, 1985 at 7.
. Later that evening, the complainant identified another black male wearing a gray sweatsuit as one of the perpetrators. N.T. July 13, 1984 at 9-10.
. The lower court’s opinion upholding the denial of the motion to suppress states that the police responded to a "flash radio information,” a higher-priority transmission than a regular radio call. Lower Court Opinion at 2. This assertion is unsupported by the record. See also Brief for Appellee at 2. A flash information is based on a report from the initial officers to investigate the scene of a crime and is broadcast to other police units in the district. Despite the urgency connoted by its title, a flash information is of lesser priority than a city-wide “J-band transmission,” such as the broadcast that served as the source of information for the arresting officer in Commonwealth v. Prengte, supra, 293 Pa.Superior Ct. at 66 n. 2, 70 n. 5, 431 A.2d at 993 n. 2, 995 n. 5.
. Both the brief for appellee and the Lower Court Opinion state that there was no one else in the vicinity of the encounter who fit the description supplied by the complainant. Brief for Appellee at 4; Lower Court Opinion at 5. There is no evidence in the record to support this assertion. |
9,645,493 | 2023-08-22 21:26:46.065975+00 | Hester | null | HESTER, Judge,
dissenting:
I respectfully dissent. I would affirm on the opinion of Judge Hirsh of the trial court. |
1,516,329 | 2013-10-30 06:32:53.144899+00 | Parrott | null | 420 S.W.2d 587 (1967)
Dave JONES et al., Plaintiffs in Error,
v.
COCKE COUNTY, Defendant in Error.
No. 22.
Court of Appeals of Tennessee, Eastern Section.
August 2, 1967.
Certiorari Denied November 6, 1967.
*588 Porter & Porter, Newport, for plaintiffs in error.
Myers & Myers, Newport, for defendant in error.
Certiorari Denied by Supreme Court November 6, 1967.
OPINION
PARROTT, Judge.
This suit is an inverse or reverse condemnation action brought in the circuit court. Plaintiffs sue Cocke County for the taking of and damage to their property by flooding, all of which lies in Cocke County.
It is alleged that the construction of a bridge and approaching embankment thereto severely restricted the natural drainage of the flood waters of the Nolichucky River, causing plaintiffs' property to be flooded and suffer damages.
In the court below, as in this court, three principal issues were presented for determination: (1) Was there a taking of plaintiff's property? (2) If there was a taking, was the suit barred by the twelve months statute of limitations (T.C.A. 23-1424)? (3) Did plaintiffs have a right of action against the county where the land lies when all engineering and construction was done by the State of Tennessee, with the alleged cause of the injury (embankment) being located in another county?
The circuit judge, sitting without a jury, in his written memorandum opinion found there was a taking of the property. He deemed it unnecessary to decide the question of the statute of limitations but concluded plaintiffs did not have a right of action against Cocke County. From this action of the circuit judge the property owners have appealed.
In the court below, by agreement of the parties, only the question of liability was determined. Thus, we are not concerned with damages.
The undisputed proof shows that in 1958 the State of Tennessee, through its Department of Highways and Public Works determined it was necessary to relocate a road which ran through Cocke County across the Nolichucky River and into Hamblen County. By similar resolutions, Cocke and Hamblen Counties agreed to provide the rights of way but did nothing else toward the construction. All other work designing, engineering and construction was either done by or under the supervision of the State Department of Highways.
The Nolichucky River, at the point of the bridge, is the boundary line between Cocke and Hamblen Counties. On the Cocke County side there is a high bank or bluff which serves as an approach for the bridge. On the Hamblen County side, which is fairly level, it was necessary to build a fill or embankment some 3900 feet long and approximately 25 feet in height to get an approach to the bridge. Within this embankment there was placed one dry-land bridge or culvert with an opening of approximately 590 feet. This embankment and bridge decreased to about one-sixth the space or area which flood water could flow prior to the construction. All of plaintiff's property lies in Cocke County, upstream from the bridge. The lands are fairly flat and would be termed as river bottoms.
In March 1963 there were heavy rains in the upstream area. As a result of these rains a flood occurred with approximately 200 acres of plaintiffs' 400 acre farm being inundated on March 13th, 14th and 15th. This was the first flooding of the property since the construction of the bridge and embankment but not the first time the property had ever been flooded. In 1935 and 1940 there were similar floods. However, it is shown there was more flood water in the 1935 and 1940 floods than in the 1963 flood but the water reached greater heights on plaintiffs' property in 1963 than in the earlier floods. It is significant that the high *589 water marks of the 1963 flood did not reach as high a level on the property situated below the bridge as the 1935 and 1940 floods. The same is true as to property located some two and one-half miles above the bridge.
From these facts there appears to be little doubt that the embankment on the Hamblen County side served as a dike and caused the flood water to rise to greater heights on plaintiffs' property. Furthermore, this obstruction restricted and impaired the normal runoff, causing the water to remain for a longer period on the property. Consequently, we concur in the circuit judge's finding there had been a taking of plaintiff's property.
Our courts have said for there to be a taking, it is not necessary for the owner to be entirely deprived of the use of the property. Any destruction, restriction or interruption of the common and necessary use may constitute a taking. Lea v. Louisville & N. R. Co., 135 Tenn. 560, 188 S.W. 215.
Actual or physical entry is not necessary. A landowner may have a right of action for the interruption of ingress or egress or from the interference or diverting the natural drainage. Morgan County v. Neff, 36 Tenn.App. 407, 256 S.W.2d 61; Hollers v. Campbell County, 192 Tenn. 442, 241 S.W.2d 523; Donahue v. East Tenn. Natural Gas Co., 39 Tenn.App. 438, 284 S.W.2d 692.
This brings us to the second issue: Was plaintiffs' suit brought in time as set forth by T.C.A. 23-1424 which states: "The owners of land shall, in such cases, commence proceedings within twelve (12) months after the land has been actually taken possession of * * *."
The circuit judge did not pass directly on this question. This precise matter has been before the appellate courts on several instances. In the case of Morgan County v. Neff, supra, this court said:
"In our opinion, if it [one year statute of limitations] is to apply at all to such cases, it should be applied in a manner to afford the landowner the statutory period of one year within which to bring suit after injury or after reasonable notice or knowledge of such injury and damage." (emphasis supplied)
To the same effect see Donahue v. East Tenn. Natural Gas Co., supra; Jones v. Hamilton County, 56 Tenn.App. 240, 405 S.W.2d 775.
Under these authorities we think it is clearly shown that in a suit such as this, the landowner's cause of action does not accrue until an injury has been suffered. Although this suit was not brought until some five years after the completion of the bridge and embankment, it was brought within one year from the date of injury and in our opinion, it was timely filed.
On the final question of whether or not the plaintiffs have a right of action against Cocke County, in the circuit judge's memorandum opinion he made the following finding:
"Cocke County did nothing, did not work, and had no part in the construction of the embankment or fills on the Hamblen County side. Cocke County only furnished rights-of-way through or over Cocke County property. Therefore, if the plaintiffs ever had any right of action, it was against some one other than Cocke County."
We do not agree with this conclusion of the circuit judge. The plaintiffs have brought this suit under T.C.A. 23-1423 which provides that a landowner may bring an action when the land is taken or occupied "for the purposes of internal improvement." This remedy is purely a statutory one and is the exclusive means by which a landowner may recover compensation for injuries to his property when such damage is brought about by a "taking" of property by one who has the right of eminent domain.
*590 It must be noted that the State of Tennessee is not amenable to a suit by a landowner in an action such as this. See Article I, Sec. 17, Tennessee Constitution; T.C.A. 20-1702.
We must assume the legislature was cognizant of this fact when it enacted the statutes pertaining to eminent domain. Also, since the statutes of eminent domain deal with the same subject matter, they must be considered pari materia with T.C.A. 23-1423. Brooksbank v. Leech, 206 Tenn. 176, 332 S.W.2d 210.
In T.C.A. 54-506, which is a part of our eminent domain statutes, it is provided that "[a]ll judgments rendered and other expenses necessarily incurred in such condemnation proceedings shall be paid out of the general funds of the county in which the expenses are incurred * * *."
In the Brooksbank case the Supreme Court considered the above section as well as other sections of the code pertaining to eminent domain. In affirming the trial judge's action in sustaining the demurrer, the Court in effect held that a landowner could not maintain a suit against a Commissioner of Highways for the State of Tennessee but that such action would lie against the county wherein the land was situated for the taking of and damage to their property incident to the construction of a highway by the State of Tennessee. In the court's opinion, speaking through Justice Burnett, now Chief Justice, the Court said:
"It must be remembered though that a County is an involuntary political or civil division of the State which is created by a statute to aid in the administration of the government and is merely an agency or arm of the State government. This being true it is perfectly proper and natural for the Legislature of the State to provide that a County would be liable for roads run through that County. There are many obvious reasons of why this is reasonable and natural. In the first place the land lies in the County; the witnesses as to its value are there and the courts there are open where it is convenient for these witnesses to come and then after a reasonable and fair judgment is entered against the County the County pays for this land. The County may be made to raise the funds to pay for this condemnation as suggested in State Highway Department v. Mitchell's Heirs, supra, [142 Tenn. 58, 216 S.W. 336], where it is suggested that the person owing the judgment against the County had the right to a mandamus to compel the levy of a sufficient tax for the satisfaction of his judgment. Thus it is by statute and judicial interpretation thereof that a fund is provided and a way is also provided for suit to satisfy this claim. In other words the State is not taking the property of these plaintiffs in error without leaving him or providing him with a means of securing adequate compensation for the property taken. He may sue the County in which the land lies and there obtain just compensation for the property as taken."
In Marion County v. Tydings, 169 Tenn. 286, 86 S.W.2d 565, the court held the county is liable for the landowner's damages from construction of a state highway though the county had nothing to do with the construction and had not entered into any agreements with the state incidental to the construction. To the same effect see Dickson Co., et al. v. Wall, 12 Tenn.App. 600.
In the recent case of City of Charleston v. Ailey, 210 Tenn. 211, 357 S.W.2d 339, the landowner brought an action against Bradley County and the City of Charleston to recover damages incident to the taking of their property for a highway constructed by the Highway Department for the State of Tennessee. The court, in construing the eminent domain statutes, including T.C.A. 54-506, said:
"These statutes have been construed and applied in numerous cases, all of which hold that the County in which the highway *591 is constructed is liable for the value of the land taken for highway purposes and for damages incident to the construction of such highway by the State Highway Department."
See the numerous cases cited therein.
In the court's opinion it quoted with approval from Brooksbank v. Leech that "the County is liable to the landowner for the damages to property taken by the State regardless of the fact of whether or not the County was interested in the road being built through that County when the road was taken for State highway purposes alone."
From the above decisions we are of the opinion the courts have construed the statutes to say that a landowner whose property has been taken or occupied as a result of the construction of a state highway may sue the county wherein the land lies for damages to his property. It seems immaterial whether the county wherein the land lies be at fault in any way or is it necessary for the county to have done the act which caused the injury in order for it to be liable for the damages.
At first look this may seem to be somewhat unfair but it cannot be said that the legislature did not have authority to confer this right upon the landowner. By the same token it cannot be said that the legislature did not have power to place this burden or obligation upon the counties. Although the remedy is somewhat fictional, no doubt the legislature, in making these provisions, was cognizant of the constitutional and statutory prohibitions against bringing such a suit directly against the state. By this means it has provided a convenient means of affording the landowner a right to recover. In doing this the legislature might have had in mind that the county where the road was built did receive a benefit therefrom. Therefore, the county would be the natural one to be liable for the damages which might grow out of the benefit bestowed.
It results the circuit judge's decision that these plaintiffs did not have a right of recovery against Cocke County is reversed. A judgment in favor of the plaintiffs shall be entered in this court. The suit is remanded to the circuit court to determine the amount of damages, if any, the plaintiffs are entitled to.
The costs incident to this appeal are taxed to Cocke County.
McAMIS, P.J., and COOPER, J., concur. |
1,516,332 | 2013-10-30 06:32:53.176224+00 | Onion | null | 420 S.W.2d 956 (1967)
Ex parte Charles E. PAUL.
No. 40941.
Court of Criminal Appeals of Texas.
November 29, 1967.
Ben D. Sudderth, Comanche, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
*957 OPINION
ONION, Judge.
This is an appeal from an order in a habeas corpus proceeding refusing appellant bail after indictment for murder with malice of his mother-in-law.
A previous appeal from a denial of bail before indictment was dismissed when such appeal was rendered moot by the return of the indictment. See Ex parte Paul, 419 S.W.2d 867 (October 25, 1967).
At the habeas corpus hearing it was stipulated by the defense and the State that in reaching a decision the court would consider the evidence adduced at the previous habeas corpus proceeding held on September 16, 1967.
The Constitution of this State provides that all prisoners are entitled to bail except in capital cases, when the "proof is evident." Article I, Section 11.
The term "proof is evident" means the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that upon a hearing of the facts before the court a dispassionate jury would, upon such evidence, not only convict but would assess the death penalty. Ex parte Collins, 168 Tex. Crim. 500, 330 S.W.2d 194; Ex parte Thrash, 167 Tex. Crim. 409, 320 S.W.2d 357; Ex parte Washburn, 161 Tex. Crim. 651, 280 S.W.2d 257; Ex parte Shults, 127 Tex. Crim. 484, 77 S.W.2d 877.
In Ex parte Thrash, supra, this Court said:
"The burden is upon the State to establish that the `proof is evident' in order to defeat bail. Ex parte Donohoe, 112 Tex. Cr.R. 124, 14 S.W.2d 848; Ex parte Readhimer, 123 Tex. Crim. 635, 60 S.W.2d 788; and Ex parte Coward, 145 Tex. Cr.R. 593, 170 S.W.2d 754. The trial court has by denial of bail to this appellant construed the facts presented as showing a case of `proof evident.' It is the duty of this Court to determine if the trial court was authorized to reach that conclusion."
In performing this duty it has long been the policy of this Court in proceedings of this nature to refrain from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show the defendant's guilt. The purpose of such policy is that the trial should proceed without pre-judgment by this Court. This policy was departed from in Ex parte Krueger, Tex.Cr.App., 391 S.W.2d 737, but is here reaffirmed.
At the outset appellant's counsel readily concedes that the evidence is sufficient to show that an offense was committed and that appellant is the guilty party, but contends that the evidence does not indicate that appellant would probably be punished capitally if the law is administered.
He points to evidence showing that appellant and his wife had experienced marital difficulties; that she had left their home in Matagorda County taking all the children except their son Don and had moved to DeLeon in Comanche County where her mother and father resided; that a divorce suit was instituted; that appellant was ill the night before he left for DeLeon where the killing took place; that as a result of such illness he had been given a prescription by a doctor in Matagorda County; that he had taken Haldrone pills for arthritis for some time; that he was under mental stress as a result of the separation; that on his trip to DeLeon to see his wife and children he made a wrong turn and had gone 40 or 50 miles out of his way; that when he inquired of his mother-in-law as to the where-abouts of his wife and children, the deceased was heard to say, "It's none of your business"; that following the shooting his eleven-year-old son Don drove him 16 miles to a hospital where he arrived in an unconscious or semiconscious state and was treated for cyanosis (blue skin due to lack *958 of oxygen); that the hospital stay resulted from an overdose of drugs.
It must be remembered that to affirm an order denying bail this Court must find that the facts show a case of "proof evident" including the fact that upon a trial of this case a dispassionate jury would not only convict but would assess the death penalty.
After careful consideration of the evidence in the light of the briefs and oral argument presented, we cannot so conclude. The judgment of the trial court denying bail is reversed and bail is granted in the sum of $25,000.00. |
1,516,317 | 2013-10-30 06:32:52.973462+00 | Belcher | null | 420 S.W.2d 719 (1967)
Carrel Wayne PITCOCK, Appellant,
v.
The STATE of Texas, Appellee.
No. 40644.
Court of Criminal Appeals of Texas.
October 25, 1967.
Rehearing Denied December 6, 1967.
*720 John L. Scott, Jr., Amarillo, for appellant.
Naomi Harney, County Atty., Franklin Killough, Ass't. County Atty., Amarillo, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
BELCHER, Judge.
The conviction is for aggravated assault, with the punishment assessed at two years in jail.
The assaulted party was the wife of the appellant.
The refusal of appellant's motion for a new trial is urged as reversible error upon the ground that the state did not contradict it.
It is not necessary for the state to join issue with the defendant by a written pleading. Art. 40.06, Vernon's Ann. C.C.P.; Cade v. State, 96 Tex. Crim. 523, 258 S.W. 484; Smith v. State, 162 Tex. Crim. 237, 283 S.W.2d 936, 939. Further, the motion for new trial was supported by one affidavit, that of Jerrie Shaw, who testified at the trial. Her affidavit recites that she told appellant's counsel about the statements (those relied on by appellant) on September 21, which was before the trial on September 22. No reasonable diligence is shown to obtain the complained of testimony. No error is presented.
As ground for reversal, the appellant contends in his brief that the trial court erred in refusing his first motion for a continuance for the reason that Alfred Manson, a material witness for him, was by force, threats and intimidation by the assaulted party made to evade process of the court.
The appellant's affidavit in support of his motion states that Alfred Manson was a witness at a hearing held July 23, 1966, on the application of the assaulted party to have him placed under a peace bond; and that after the hearing it was reported to the appellant that the assaulted party "made the statement that her brother would be looking for Alfred Manson and would get him." Appellant's counsel attended the peace bond hearing.
There is no showing of the time the assaulted party made the statement or when the report thereof was made to the appellant.
The complaint and information were filed July 12, 1966. The case was set August 1, 1966, for trial on September 20, 1966, and was passed on motion to September 22. Appellant's counsel knew Manson before the date of the offense charged, and shortly after it was set for trial on August 1, he told Manson to be present as a defense witness on September 20, and talked with Manson subsequent to August 18; and when he began preparing for trial about one week before September 22, he was unable to locate Manson, and for the first time made application for a subpoena for him on September 15, the return thereon showing that he could not be located. Appellant's counsel did not testify that Manson had promised to be present at the trial.
The proper diligence required by law was not used to secure the attendance of Manson.
The trial court did not abuse its discretion in refusing to grant the motion for continuance.
Error is urged on the ground that the photographs of the assaulted party, *721 showing her injuries, were admitted in evidence over appellant's objection that they served no purpose and were inflammatory and prejudicial.
The assaulted party testified that the appellant hit her on the head. While testifying, the appellant denied hitting her on the forehead.
The accuracy of the photographs is not in dispute.
An examination of the photographs in the record reveal a wound on the forehead of the assaulted party. They were admissible on the issue of whether appellant hit her on the head. No error is shown.
It is insisted that the trial court erred in refusing to admit evidence of prior unprovoked attacks and acts of violence by the prosecuting witness upon third persons of which the appellant had specific knowledge.
On the state's written motion the court excluded only the testimony of the complainant's immoral sexual conduct.
The testimony does not reveal that the appellant knew of any unprovoked attacks upon third parties prior to the assault alleged herein. No error is presented. Reid v. State, 80 Tex. Crim. 288, 189 S.W. 483.
Reversal is sought on the ground that appellant was not allowed to cross-examine the assaulted party about whether she intimidated and threatened Alfred Manson, a material witness for appellant, and caused him to evade the process of the court.
An examination of the record reflects that the trial court did not restrict or limit the testimony of the assaulted party concerning whether she intimidated and threatened Alfred Manson, and there is no showing of any offer or attempt to offer or introduce such testimony from her. No error is presented.
The judgment is affirmed. |
1,516,364 | 2013-10-30 06:32:53.635396+00 | Conaboy | null | 916 F. Supp. 432 (1996)
Lawrence SIMMS, Plaintiff,
v.
EXETER ARCHITECTURAL PRODUCTS, INC., Charles D. Flack, Jr. and Harold E. Flack, II, Defendants.
Charles D. FLACK, Jr. and Harold E. Flack, II, Plaintiffs,
v.
Lawrence P. SIMMS, Defendant.
Civil A. No. 3:CV-93-0792.
United States District Court, M.D. Pennsylvania.
February 13, 1996.
*433 *434 Matthew A. Cartwright, Munley, Mattise, Kelly & Cartwright, Scranton, PA, G.F. Blake, Elliott Reihner Siedzikowski North & Egan, Scranton, PA, Thomas I. Vanaskie, Elliott, Bray & Riley, Scranton, PA, for Lawrence P. Simms.
Joseph T. Wright, Jr., McDonnell, O'Brien, & Wright, Scranton, PA, Thomas F. Ford, Smith Ford & Associates, Wilkes-Barre, PA, for Exeter Architectural Products, Inc.
Joseph D. Mancano, Britt, Hankins, Schaible & Moughan, Philadelphia, PA, Richard S. Margulies, Britt, Hankins, Schaible & Moughan, Philadelphia, PA, for Charles D. Flack, Jr., Harold E. Flack, II.
MEMORANDUM AND ORDER
CONABOY, District Judge.
Presently before the Court is the Defendant's, Lawrence P. Simms (hereinafter "Simms"), Motion for Partial Summary Judgement. (Doc. 129). Simms is seeking a partial summary judgment as to whether or not certain statements made by Simms through letters addressed to other shareholders of the corporation, Exeter Architectural Products, Inc. (hereinafter "Exeter"), defamed the Plaintiffs, Charles D. Flack, Jr. and Harold E. Flack, II (hereinafter "the Flacks").
FACTUAL AND PROCEDURAL HISTORY
The facts of this case are well known to all parties involved, and a full recitation of those facts can be found in this Court's published opinions of Simms v. Exeter Architectural Products, Inc., 868 F. Supp. 668 (M.D.Pa. 1994) and 868 F. Supp. 677 (M.D.Pa.1994), as *435 well as this Court's Memorandum and Order dated September 29, 1995 (Doc. 149). However, for purposes of resolving Simms' pending motion, a brief factual and procedural history surrounding this motion follows.
Simms initiated an action pursuant to 28 U.S.C. § 1332 on May 25, 1993, seeking legal and equitable relief. On February 14, 1994, the Flacks filed in state court a civil action against Simms for defamation. The Flacks' defamation claim arises out of numerous letters which Simms had written to other Exeter shareholders. Within these letters, Simms stated, inter alia that: 1) the Flacks committed illegal acts under Pennsylvania Business Law; 2) the Flacks have obstructed the operation of the corporation's board under its own by-laws; 3) the Flacks attempted to remove this case from federal court to state court because the Flacks had influence over members of the state bench; 4) the Flacks have misrepresented the financial condition of the corporation to the shareholders; 5) the Flacks extended a loan to the Exeter corporation at "above market rates"[1]; and 6) that Exeter seems to be paying the legal expenses for the Flacks' lawsuit.
The Flacks also claim that other defamation claims, in the form of slander claims, are based on oral statements made by Simms concerning the Flacks. This defamation case was later consolidated into the above-captioned matter by order of this Court dated June 2, 1994.
DISCUSSION
Pursuant to Fed.R.Civ.P. 56(c), a motion for summary judgment will only be granted if there is no genuine issue of material fact and if the moving party is entitled to relief as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1985). A fact is "material" if proof of its existence or nonexistence would effect the outcome of the lawsuit under the applicable law in the case. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. An issue of material fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.1987).
In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). A moving party is entitled to a judgment as a matter of law if the nonmoving party does not make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1985).
In support of his Motion for Partial Summary Judgement, Simms claims that he is entitled to summary judgement because: 1) he was conditionally privileged to make the statements; 2) there is no evidence that any of the statements in the letters was false; 3) the statements contained in the letters were of his own opinion; and 4) there is no evidence that the Flacks have incurred any damage because of his statements.
After reviewing the pleadings, affidavits and relevant case law, Fed.R.Civ.P. 56(e), we shall deny Simms' Motion for Partial Summary Judgement (Doc. 129). We shall address each claim seriatim.[2]
*436 Simms' Claim of Conditional Privilege To Make the Statements
Simms claims that he "had a duty and therefore a privilege to inform the shareholders of his views of what was happening at Exeter." In essence, Simms is claiming that since he is still a director of Exeter, he had a duty to inform the shareholders of the occurrences at Exeter. The Flacks contend that Simms has no such privilege, and, even if he did have such a privilege, that Simms has abused his conditional privilege, resulting in a loss of that privilege.
It is well established that the publisher of a defamatory statement is not liable if the publication was made subject to a certain privilege. Elia v. Erie Insurance Exchange, 430 Pa.Super. 384, 391, 634 A.2d 657 (1993), appeal denied, 430 Pa.Super. 384, 634 A.2d 657 (1994); Chicarella v. Passant, 343 Pa.Super. 330, 337, 494 A.2d 1109 (1985). "Conditional privileges arise when the communication involves an interest of the publisher, the recipient, a third party or the public." Johnson v. Resources For Human Development, Inc., 860 F. Supp. 218, 222 (E.D.Pa.1994) (citing Elia, 634 A.2d at 660).
A review of Pennsylvania case law reveals that, in the past, corporations and directors of corporations have been allowed to claim a conditional privilege when publishing allegedly defamatory statements. See Montgomery v. Dennison et al, 363 Pa. 255, 69 A.2d 520 (1949); Bargerstock v. Washington Greene Community Action Corporation, 397 Pa.Super. 403, 580 A.2d 361 (1990). Furthermore, a defendant may claim such a conditional privilege if the published statement concerns an interest of the publisher, recipient, or a third party. Johnson, supra. The statements which Simms published to the Exeter shareholders deal with allegations of wrong doing by the Flacks as directors of Exeter, which could affect the shareholders and the corporation. Since the statements, if true, could affect the shareholders' interest in Exeter, we are of the opinion that Simms did have a conditional privilege to make the statements.
The Possibility of Simms Abusing the Conditional Privilege
That Simms had a conditional privilege does not end our analysis. Once the conditional privilege has been raised and established, the burden of proving abuse of that conditional privilege then shifts to the plaintiff. Banas v. Matthews Intern Corporation, 348 Pa.Super. 464, 468, 502 A.2d 637 (1985) (quoting Rutt v. Bethlehem Globe Publishing Co., 335 Pa.Super. 163, 185, 484 A.2d 72 (1984)). The holder of a conditional privilege can lose the conditional privilege it is shown that the publisher abused the privilege. Burns v. Supermarkets General Corp., 615 F. Supp. 154, 159 (E.D.Pa.1980).
Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.
Beckman v. Dunn, 276 Pa.Super. 527, 537, 419 A.2d 583 (1980) (citations and footnotes omitted). "Legal malice consists of a wrongful act, done intentionally without cause or excuse...." Beckman, 276 Pa.Super. at 537, n. 3, 419 A.2d 583 (citing Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971)).
Although it is a question of law as to whether or not the conditional privilege applies, it is a question of fact as to whether or not that privilege has been abused. Johnson, 860 F.Supp. at 223; Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 309, 483 A.2d 456 (1984) (citing Montgomery v. City of Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958)). It would be outside our province to decide whether or not Simms maliciously published the statements, and we therefore leave this issue for the determination of the jury.
Falsity of Simms' Statement
Simms next claims that he is entitled to partial summary judgement because the Flacks have failed to show that any of *437 the statements he made are false. Pursuant to Pennsylvania law, truth is an absolute defense, Corabi, 441 Pa. at 449, 273 A.2d 899, and the defendant has the burden of proving that the statement is substantially true. Chicarella v. Passant, 343 Pa.Super. 330, 341, n 5, 494 A.2d 1109 (1985); Corabi, 441 Pa. at 450, 273 A.2d 899.
Simms claims that "there is simply no evidence to support a claim that what Simms wrote to the shareholders was false." Simms claims that absent the Flacks pleading the issue of falsity in their original complaint, the statements cannot be defamatory. However, the Flacks are correct in stating that they do not have to prove falsity in their defamation case. See Corabi, 441 Pa. at 449, 273 A.2d 899.
The Flacks submitted to this Court portions of the transcript from Simms' deposition, at which he was questioned about the basis for making the statements. When asked whether he was speculating that the Flacks had influence over the state courts, Simms responded "[a]bsolutely." Doc. 133, App. A, 134. When asked what facts he had in his possession that the Flacks had influenced the local courts, Simms responded: "I had no facts one way or another relating to that. I made clear that I could not fathom the reason that they took that action." Doc. 133, App. A, 136.
When asked whether he believed that the Flacks could have gone to another lending institution and obtained a loan at an interest lower than what Exeter received from the Flacks, Simms responded: "I don't know. I have no way of knowing. I didn't try to do it." Doc. 133, App. A, 132.
When asked whether he knew for a fact that Exeter's counsel was paying the Flacks' legal expenses, Simms stated that all he could do was speculate, and that "it strongly indicated to me without actually looking at invoices and checks that the company was paying for all legal action in defense of this lawsuit." Doc. 133, App. A, 139; 138. It appears from a review of the pleadings and affidavits that Simms has not met his burden of showing that the statements are true.
Simms' Claim that the Statements Were Merely Opinion
Simms next claim that "expressions of opinion are not actionable." It is true that generally, an opinion is not actionable as defamatory. Elia v. Erie Insurance Exchange, 430 Pa.Super. 384, 390, 634 A.2d 657 (1993), appeal denied, 537 Pa. 662, 644 A.2d 1200 (1994). However, "an opinion can be defamatory if there are certain undisclosed facts justifying the opinion that are understood to be defamatory." Fort Washington Resources, Inc. v. Tannen, 846 F. Supp. 354, 365 (E.D.Pa.1994). Additionally, if the underlying facts are false, the opinion is not protected. Burns v. Supermarkets General Corporation, 615 F. Supp. 154, 158 (E.D.Pa. 1985) (quoting Redco Corporation v. CBS, Inc., 758 F.2d 970, 972 (3d Cir.), cert. denied, 474 U.S. 843, 106 S. Ct. 131, 88 L. Ed. 2d 107 (1985)).
Whether the statement or writing constitutes fact or opinion is a question of law for the court to determine. Elia, 430 Pa.Super. at 390, 634 A.2d 657. After reviewing the transcripts, we feel that Simms' statements contained in the letters are not based on his opinion.
For example, Simms stated during his deposition that he was speculating when he stated that the Flacks had certain influence over the state courts. When asked about whether he thought that Exeter could have received a loan from a commercial lender at a lower rate than that obtained from the Flacks, Simms stated that "he had no way of knowing." Doc 133, App. A, 132; 136. If there were no facts from which Simms could formulate an opinion that the Flacks were receiving a financial benefit at the expense of Exeter, then Simms' statement could not have been in the form of an opinion. Simms also stated that he was speculating that Exeter was paying the legal expenses which the Flacks incurred in defending this case. Doc. 133, App. A, 138-9.
The Flacks' Proof of Harm
Lastly, Simms claims that the Flacks have not suffered harm to their reputation. In a defamation action, the plaintiff must prove, inter alia, special harm resulting from the *438 publication of an allegedly defamatory statement. 42 Pa.C.S.A. § 8343(a)(6).
The meaning of harm encompasses impairment of reputation and standing in the community, personal humiliation, or mental anguish or suffering. Agriss, 334 Pa.Super. at 316, 483 A.2d 456 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789 (1974)).
Pennsylvania courts have ruled that a plaintiff need only prove injury to his reputation in order to recover. "A plaintiff in Pennsylvania need not prove special damages or harm in order to recover; he may recover for any injury done [to] his reputation and for any other injury of which the libel is the legal cause. Agriss, 334 Pa.Super. at 328, 483 A.2d 456.
In this case, the Flacks contend that their reputation has been tarnished by Simms, since some shareholders have contacted Simms and further inquired about the Flacks' alleged actions. Doc. 129, App. A, letter dated January 7, 1994. Harold E. Flack, II also stated in his deposition that he felt that their (both his and Charles Flacks') reputation has been damaged by Simms' statements because the Simms' accusations. We agree with the Flacks that the shareholders' further inquiry into the "`improper' and `self-dealing' loans" is enough to establish harm to the Flacks' business reputation. Furthermore, Simms accused the Flacks of interfering with his personal mail. Doc. 129, App. A, document dated April 2, 1993, page two (2) encaptioned "some anticipated shareholder questions." This is an allegation of an indictable offense, 18 U.S.C. § 1708, and statements imputing the commission of an indictable offense are defamatory meaning as a matter of law. See Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1078 (3d Cir.), cert. denied, 474 U.S. 864, 106 S. Ct. 182, 88 L. Ed. 2d 151 (1985). We are of the opinion that libelous statements such as these would definitely harm one's standing in the community.[3]
An overall review of the facts surrounding this motion reveal too many conflicting facts for us to grant Simms' Motion for partial Summary Judgement. The record and pleadings reveal that both parties view Simms' intentions in publishing the statements contained in the shareholder letters rather differently. Therefore, summary judgement is not appropriate where such an essential fact is in dispute. "Because a jury is particularly well suited to deciding factual issues concerning a parties' intent or the reasonableness of a parties' conduct, such issues are generally not appropriate for summary adjudication by the court." Wittekamp v. Gulf & Western, Inc., 788 F. Supp. 246, 248 (W.D.Pa.1992). In this instance, where so many essential facts are being interpreted differently, the facts must be decided by the trier of fact, and not by this Court.
CONCLUSION
For the foregoing reasons, Simms' Motion for Partial Summary Judgement (Doc. 129) is denied. An appropriate Order is attached.
ORDER
AND NOW, THIS 10th DAY OF FEBRUARY, 1996, IT IS HEREBY ORDERED THAT the Defendant's [Simms] Motion for Partial Summary Judgement (Doc. 129) is DENIED.
NOTES
[1] The Flacks contend that this allegation is interpreted to mean that the Flacks were unduly profiting from the loan to Exeter.
[2] In ruling on Simms' motion for partial summary judgement, we must first determine a whether or not the statements in the letters are defamatory. Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1078 (3d Cir.), cert. denied, 474 U.S. 864, 106 S. Ct. 182, 88 L. Ed. 2d 151 (1985). A statement which tends to associate one with conduct, character or a condition which would tend adversely affect the conduct of his lawful business or profession is defamatory. Walker v. Grand Central Sanitation, Inc., 430 Pa.Super. 236, 242, 634 A.2d 237 (1993), appeal denied, 539 Pa. 652, 651 A.2d 539 (1994) (citations omitted). Also, statements which tend to harm or harass one's reputation are also defamatory. Id. (citations omitted). For the reasons enunciated infra, we find that the statements contained in the letters may be defamatory. However, whether the statements can be taken as defamatory on the part of the recipient is a question of fact for the jury to determine. Corabi v. Curtis Publishing Company, 441 Pa. 432, 442, 273 A.2d 899 (1971).
[3] Our opinion is bolstered by the fact that imputation of commission of a criminal act is one of the four (4) types of slander per se, of which damages are presumed without proof due to the severity of the statement. See Walker v. Grand Central Sanitation, Inc., 430 Pa.Super. 236, 634 A.2d 237 (1993), appeal denied, 539 Pa. 652, 651 A.2d 539 (1994). |
1,516,365 | 2013-10-30 06:32:53.638709+00 | Doyle | null | 102 Pa. Commw. 519 (1986)
519 A.2d 528
Donna K. Snyder
v.
Kenneth C. Harmon, individually; et al.
v.
William J. Dombrowski and Kathleen A. Dombrowski, his wife et al.
v.
William J. Dombrowski and Kathleen A. Dombrowski, his wife, individually and trading and doing business as Sky View, a/k/a Sky View Lounge.
Susan R. Fleming
v.
Kenneth C. Harmon, individually; et al.
Mitchell R. Johnson
v.
Kenneth C. Harmon, individually; et al.
Mitchell R. Johnson, an incompetent, et al., Appellants.
No. 2160 C.D. 1985.
Commonwealth Court of Pennsylvania.
Argued October 9, 1986.
December 19, 1986.
*520 Argued October 9, 1986, before Judges CRAIG and DOYLE, and Senior Judge BLATT, sitting as a panel of three.
*521 Nicholas F. Lorenzo, Jr., for appellants, Mitchell R. Johnson, an incompetent, Susan R. Fleming and Donna K. Snyder.
Robert A. Weinheimer, with him, Arthur J. Murphy, Jr., Arthur J. Murphy, Jr. & Associates, P.C., for appellees, William J. Dombrowski and Kathleen A. Dombrowski, his wife, individually and trading and doing business as Sky View, a/k/a/ Sky View Lounge.
J. Elise Tourek, Deputy Attorney General, with her, Frank J. Micale, Sr., Deputy Attorney General, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees, Office of Attorney General, Departments of Transportation and Environmental Resources.
OPINION BY JUDGE DOYLE, December 19, 1986:
Donna K. Snyder, Susan R. Fleming and Mitchell R. Johnson (Appellants) appeal from an order of the Court of Common Pleas of Armstrong County granting summary judgment to Appellees Department of Transportation (DOT) and Department of Environmental Resources (DER) on the ground that Appellants' cause of action against these parties did not fall within any of the exceptions to sovereign immunity listed in Section 8522(b) of the Judicial Code (Code), 42 Pa. C. S. §8522(b). We affirm in part, reverse in part and remand this case for further proceedings not inconsistent with this opinion.
*522 The facts as alleged indicate that alongside Legislative Route 33060 (L.R. 33060) in Oliver Township, Jefferson County, Pennsylvania, is a piece of property owned by Bruce Poole. Just prior to or during 1973, Poole entered into a lease with the Harmon Mining Company (Harmon), allowing Harmon to operate a strip mine on the property. In order to fully exploit the coal seams located on the Poole property, Harmon needed to mine closer to the roadway. In 1973, Harmon sought a variance from the DER allowing it to mine within 100 feet of L.R. 33060.[1] DER granted the variance, but imposed some conditions upon Harmon. Since there was an 80 foot vertical drop from the top of the "highwall" (the wall of the mine) which was approximately level with the roadbed of L.R. 33060, to the bottom of the strip mine, DER required Harmon to put an earthen embankment approximately four feet high on top of the mine highwall where it bordered L.R. 33060. This was required in order to prevent cars from driving off L.R. 33060 and into the pit.
After 1974, when Harmon commenced strip mining on that portion of the Poole property, the earthen embankment moved progressively closer to L.R. 33060. By 1980, the embankment even encroached at some points along the highway's right-of-way. This earthen embankment in 1980 was six to seven feet wide and 3.7 feet high and composed of loose dirt, rock and shale. The embankment appeared to be a small upward slope from L.R. 33060, and gave no indication that it was at the top of a strip mine highwall. The DER never required Harmon to post fences along the embankment before the accident involved in this case took place.
*523 During the late evening hours of November 1, 1980 and early morning hours of November 2, 1980, the three Appellants were drinking in the Sky View Lounge on Route 36 in Punxsutawney, Pennsylvania. Also present in the Sky View with Appellants were Joyce Van Horn and Jerry Barrett. The Appellants, Van Horn and Barrett decided to leave the Sky View Lounge around 2:30 a.m. on November 2. Outside of the bar they met William Schaffer, and the six of them decided to take Barrett's car to some undisclosed location.
The Barrett vehicle drove along L.R. 33060 until one of the passengers mentioned that he had to relieve himself. Barrett stopped the car on the berm of L.R. 33060, directly adjacent to the Harmon embankment. Shortly thereafter, a large four wheel drive vehicle driven by defendant Gary Gruver pulled onto the berm in front of the Barrett vehicle and then proceeded to drive, in reverse, at a high rate of speed, toward the Barrett vehicle. Appellant Johnson, who was apparently out of the Barrett vehicle, scrambled up the embankment in an attempt to avoid being hit by the Gruver vehicle, and fell to the bottom of the strip mine. He was left a paraplegic by the fall. The sudden appearance of the Gruver vehicle also caused the female Appellants and Van Horn to exit the Barrett vehicle. Gruver then drove behind the Barrett vehicle on the berm and then drove forward towards the Barrett vehicle and the women on the berm. The women scrambled up the embankment and fell into the strip mine. Snyder and Fleming sustained serious injuries and Van Horn was killed. The spot where Appellant Johnson fell was approximately seven feet outside L.R. 33060's right-of-way and the spot where the women fell was approximately 12 feet outside the right-of-way. Subsequently, DER ordered Harmon to fence the portion of the highwall along L.R. 33060.
*524 Appellants[2] filed suit in the Court of Common Pleas of Armstrong County. Defendants DOT and DER each moved for summary judgment on the ground that Appellants' cause of action against them did not fall within any of the exceptions to sovereign immunity contained in §8522(b) of the Code. The trial court granted both motions.
Appellants first contend that the trial court erred in holding that their cause of action against DER did not fall within any of the eight exceptions listed in Section 8522(b) of the Code. Appellants claim that DER was negligent in, inter alia, failing to require Harmon to put a fence around that portion of the highwall which bordered L.R. 33060; allowing Harmon to use the highway drainage ditch to prevent water from running into the strip mine; failing to warn of the existence of the strip mine highwall at that location; failing to inspect Harmon's operations and enforce applicable strip mining regulations, and allowing the embankment to encroach upon Commonwealth property at points along L.R. 33060. Appellants' argument is that DER, by its negligence, allowed a dangerous condition to exist on Commonwealth real estate, thereby bringing Appellants' cause of action within Section 8522(b)(4) of the Code, which creates an exception to the Commonwealth's immunity. This exception was, in pertinent part, as follows:
(4) Commonwealth real estate, highways and sidewalks. A dangerous condition of Commonwealth agency real estate and sidewalks, including *525 Commonwealth-owned real property . . . and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).
42 Pa. C. S. §8522(b)(4).
Appellants' cause of action against DER does not fall within this Section. The mere fact that certain property or operations are subject to licensing and inspection by a Commonwealth agency is not, in and of itself, sufficient to state a claim cognizable under Section 8522(b). Walters v. Department of Transportation, 81 Pa. Commw. 478, 474 A.2d 66 (1984); Shakoor v. Department of Transportation, 63 Pa. Commw. 571, 440 A.2d 647 (1981); Consolidated Rail Corp. v. Ingersoll-Rand Corp., 47 Pa. Commw. 304, 408 A.2d 183 (1979). To fall within this Section, Appellants would have to show that DER had title, ownership, physical possession or actual control over Harmon's property or had jurisdiction over the legislative route, and Appellants have not done so. Walters, 81 Pa. Commonwealth Ct. at 482, 474 A.2d at 67. Moreover, the gravamen of Appellants' averments is that DER negligently failed to enforce applicable strip mining laws and regulations, not that it permitted the existence of a dangerous condition on property DER owns or leases. DER's alleged negligent failure to enforce its governing statutes and rules in this case, therefore, does not fall within Section 8522(b)(4). Shakoor, 63 Pa. Commonwealth Ct. at 573-74, 440 A.2d at 649.
With respect to DOT, however, we hold that Appellants have pled facts sufficient to show that a dangerous condition may have existed, so as to fall within the terms of Section 8522(b)(4). We have stated that the word "condition", as it is used in the phrase, "a dangerous condition of Commonwealth agency real estate.. . .", refers to a state of affairs that hampers or impedes *526 or that requires correction. Mistecka v. Commonwealth, 46 Pa. Commw. 267, 273, 408 A.2d 159, 162 (1979); Wyke v. Ward, 81 Pa. Commw. 392, 399-400, 474 A.2d 375, 379 (1984). The absence of a guardrail along L.R. 33060, an allegation specifically pled by Appellants (R.R. 34(a)), is something which if corrected would have reduced the risk that travelers on the highway would fall into the strip mine. The absence of the guardrail alongside the roadway on land owned or under the jurisdiction of DOT is, therefore, a dangerous condition on Commonwealth property, as the lack of the guardrail increases the danger of falling off an 80-foot precipice into the strip mine.
This case is similar to Lutzko v. Mikris, Inc., 48 Pa. Commw. 75, 410 A.2d 370 (1979). In Lutzko, a home owned by Lutzko was continually flooded during rainstorms due to the negligent construction of a subdivision that altered the contour of the land, thereby changing its natural drainage and causing the flooding of Lutzko's property. Some of the defendants in that case sought to join DOT as an additional defendant for failing to maintain proper drainage along a road under DOT's jurisdiction abutting Lutzko's property, and negligently changing the grade of the road without installing appropriate drainage. This Court allowed joinder of DOT in that case because, although the injury to Lutzko occurred in an area off Commonwealth property, the dangerous condition which caused the injury, the lack of proper drainage along the state road, was on Commonwealth property. The instant case presents a similar situation in that, although the fall into the strip mine off Commonwealth property was the immediate cause of Appellants' injuries, the lack of a guardrail on the legislative route was the dangerous condition that might also have caused the injury to happen. The trial court erred, then, in holding that Appellant's cause of *527 action against DOT did not fall within any of the eight categories contained in Section 8522(b).
DOT urges us to affirm the summary judgment on two other grounds. First, DOT argues that having to relieve oneself on the side of the roadway is not an incident of ordinary highway travel and therefore is unforeseeable as a matter of law. Biearman v. Allegheny County, 145 Pa. Super. 330, 21 A.2d 112 (1941). Second, DOT claims that the conduct of defendant Gruver was a superseding, intervening cause of the injury to Appellants, thus relieving DOT of liability. Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968). These issues, however, pertain to a defense on the merits which have not yet been addressed by the trial court, and will be properly presented to the trial court upon remand.
That portion of the order of the Court of Common Pleas of Armstrong County granting summary judgment to DER is affirmed; that portion of the same order which granted summary judgment to DOT is hereby reversed and the case is remanded for further proceedings not inconsistent with this opinion.
ORDER
NOW, December 19, 1986, the Order of the Court of Common Pleas of Armstrong County, dated July 22, 1985, granting summary judgment to the Department of Environmental Resources is hereby affirmed; the portion of the aforementioned order of the Court of Common Pleas granting summary judgment to the Department of Transportation is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Jurisdiction relinquished.
NOTES
[1] Section 4.2 of the Surface Mining Conservation and Reclamation Act, Act of November 30, 1971, P.L. 554, as amended, 52 P.S. 1396.4b(c).
[2] A separate action arising out of the same set of facts has been filed in the Court of Common Pleas of Jefferson County by the estate of Joyce Van Horn. DOT and DER have filed motions for summary judgment in that case, but that court has stayed determination of DOT's and DER's motions pending our determination of this appeal. |
Subsets and Splits