Berks County Judge Says Jury Picks Who It Wants To Believe

Posted by John J. Miravich on May 09, 2012

In a recent case, Judge John A. Boccabella, who handles, among other things, all of the Driving Under the Influence of Alcohol (DUI) cases in the Berks County Court of Common Pleas, denied post-trial relief to a DUI defendant based upon an equation used to calculate blood alcohol content.  See Commonwealth v. Pillado, No. 10-00057 (Ct. Com. Pls. Berks, April 25, 2012).

In Pillado, an officer with the Reading Police Department stopped the defendant after he was observed traveling the wrong way on a one-way street.  The officer detected the smell of alcohol and asked defendant to perform a series of field sobriety tests, which the defendant failed.  The officer placed the defendant under arrest, and defendant subsequently submitted to a blood test at a local hospital.

The test results showed that defendant’s blood alcohol content was .199%, which was above the legal limit.  The defendant was charged with DUI and a jury found him guilty based, at least in part, on the testimony of the hospital’s manager of laboratory services, who testified to the testing procedures for a whole blood sample on an Abbott TDX Analyzer.  Defendant offered the testimony of an expert forensic toxicologist who testified that the Abbott TDX Analyzer actually tests blood plasma, rather than whole blood.  Therefore, the defendant argued, the Commonwealth was required to provide the jury with information concerning how to convert and/or interpret the calculation from the test. 

In fact, Pennsylvania law does require that if the test is done on plasma, the Commonwealth must present evidence to the jury on how to convert the alcohol level percentage from plasma  to a whole blood percentage.  See Commonwealth v. Newsome, 787 A.2d 1045 (Pa. Super. Ct. 2001).  Although the Commonwealth failed to present such evidence, Judge Boccabella nevertheless refused to overturn the jury’s verdict.  The Judge reasoned that it was up to the jury to weigh the credibility of defendant’s expert against the testimony of the hospital’s laboratory services manager.  Because the manager testified that the machine actually tested whole blood, the Judge reasoned that no evidence of a conversion factor was necessary.

            Interestingly, the Abbott TDX Analyzer has been used for over 30 years.  It would seem that two scientific minds would be unable to differ on what the machine actually does.  In fact, a quick Google search reveals at least one article apparently stating that Abbott TDX Analyzer does test whole blood. http://heinonline.org/HOL/Page?handle=hein.journals/cjust8&div=42&g_sent=1&collection=journals    But we suppose an issue like that must be left to the experts.

 

Berks County Analyzes New Pennsylvania Relocation Statute In Child Custody Dispute

Posted by J. Benjamin Nevius on April 25, 2012

Judge Scott E. Lash of the Berks County Court of Common Pleas recently had occasion to interpret Pennsylvania’s new Child Custody Statute (the “New Statue”), 23 Pa. C.S.A. Section 5321, in considering a mother’s request for relocation.  See K.A.T. v. B.A.T., Berks County Civil Docket No. 07-3168 (Mar. 21, 2012).  Plaintiff (“Mother”) and defendant (“Father”) are natural parents of a daughter born in 2005 (“Child”).  Mother filed for divorce in 2007, obtaining a formal custody Order from the Court in the process. 

In November 2011, Mother filed an Petition to Modify the existing Order, asking the Court for permission to move to New England with Child.  According to the Court, Mother’s stated primary basis for wanting to move to New England is to provide her with the potential for upward mobility in her employment.  Mother further testified that she does not enjoy residing in Berks County, and that she has developed a strong network of friends in New England.  In addition, Mother testified that she is dating a man from Massachusetts and wants to cultivate that relationship.  Father filed an objection to the Petition, arguing that the move would prohibit him from taking an active role in Child’s life, and would result in alienation.

In considering Mother’s request, the Court interpreted the New Statute, which sets forth ten “Relocation Factors” to be considered in determining whether to grant a proposed relocation.  See 23 Pa. C.S.A. § 5337(h).  The Court examined each factor, weighing the interests of the parties and tallying factors in favor of, and against, relocation.  The Court concluded that the proposed relocation would be destabilizing, and that Mother’s reasons for relocation were insufficient to warrant a significant disruption of the Child's relationship with her Father:

Father would no longer be able to stop by and see the [Child] during the week. He could not call Mother to ask to take the [Child] to the playground, stop by to see her cheerleading or engaging in sports, dancing or girl scouts.  It would be difficult for him to travel for presentations such as plays, chorus, or even ceremonial matters.  Medical concerns, even trips to the hospital, would be outside Father’s presence.  A psychological, as well as physical, distance between Father and [Child] would be established which both of them would be required to assimilate into their thinking.

                                 *          *          *

Mother has suitable employment, she simply wants more.  Mother has friends in Berks County, but prefers her friends in New England.  Mother also prefers the neighborhoods, the lifestyles, and the ambience of New England over Berks County.  People have relocated for lesser reasons, but here, the relocation also permanently impacts on a parent-child relationship and is, therefore, ill advised. 

See K.A.T. v. B.A.T., pp. 13, 15.

In closing, the Court cautioned the litigants not to fall into the same trap as many other parents in custody dispute cases:

It is the sincere hope of this Court that the parties continue to work together with the schedule so that [Child] never experiences what other children have endured, namely, parents engaging in petty arguments over custody time. 

Id., p. 16.

Judge Lash is known for showing empathy and respect for litigants in custody cases.  Recurring themes in his decisions are familiarity and stability of familial relationships.  He has routinely found the "because I want to move" justification unavailing.

This decision is one of the first in Berks County interpreting the New Statue, which replaces the three prong best interest test set forth in Gruber v. Gruber, 583 A.2d 434 (Pa. Super. Ct. 1990), and codifies a weighed factor test in relocation disputes.  It remains to be seen whether the New Statute makes it easier or more difficult for a party to relocate.

Superior Court Quashes Appeal from Berks County Court Holding that Declaration of Valid Marriage is Not a Final Order

Posted by John J. Miravich on March 27, 2012

In a rather strange circumstance, a wife needed to have the Berks County Court of Common Pleas declare that she was married so that she could file for divorce.  After a finding that a common law marriage did exist, husband filed an appeal. On March 6, 2012, the Superior Court of Pennsylvania quashed husband’s appeal from an order entered by Berks County Judge Mary Ann Ullman, declaring that a common law marriage existed between husband and wife.  Moser v. Renninger, 2012 PA Super 59 (2012). 

In late 2010, wife initiated divorce proceedings against her husband pursuant to a Complaint in Divorce.  Wife subsequently filed a motion with the Court, seeking to amend her Complaint to claim the existence of a common law marriage.  One day later, husband filed a Petition for Declaratory Relief, seeking a declaration that no common law marriage existed.  Judge Ullman held that “after hearing held on [husband’s] action for Declaratory Relief, the Court finds the parties entered into a common law marriage…”

In quashing the husband’s appeal as premature, the Superior Court reasoned that, some fourteen years earlier, it decided that an order entered during an action in divorce pursuant to a petition for declaratory relief is not final, but instead is interlocutory.  See Caplan v. Caplan, 713 A.2d 674 (Pa. Super. Ct. 1998).  The Court reasoned that, if the order below declares that a marriage exists and further action in the case is necessary, such as equitable distribution, alimony, and alimony pendente lite, then the matter is not final and an appeal is not appropriate.  Had Judge Ullman held that there was no common law marriage, then the matter would have been over at the trial court level, and ripe for appeal to the Superior Court.           

Berks County Court Finds Insufficient Evidence Presented to Show Property Should Be Tax Exempt

Posted by John J. Miravich on March 14, 2012

Last week, on March 6, 2012, Judge Scott E. Lash issued an opinion holding that a property, now being used as an office building by a non-profit corporation, was not exempt from real estate taxes.  Orange Stones Co. v. Berks County Board of Assessment Appeals, Berks Co. No. 10-21637 (March 6, 2012).  Judge Lash issued his opinion in support of an order entered by Judge Albert A. Stallone on December 14, 2011.  Judge Stallone, after 25 years of dedicated service to Berks County as Judge, President Judge and then Senior Judge, reached mandatory retirement age at the end of 2011. 

Judge Lash reasoned that “the pivotal question on whether tax exempt status should be granted is whether Orange Stone donates a substantial portion of its services.”  Opinion, p. 7.  Orange Stones claimed that it donated 10 percent of its services to those in need suffering from addiction to drugs and alcohol. 

Although recognizing that courts have held that determining whether a substantial portion of services has been offered gratuitously is not based on a “fixed percentage,” and is not undermined by the fact that fees are charged to others, Judge Lash reasoned that there was insufficient evidence to prove that a substantial portion of Orange Stone’s services were charitable.  Judge Lash reasoned that Orange Stone’s evidence, in the form of testimony, was only an estimate, which he reasoned was no probative, and in the form of documentation, lacked actual data showing the amount of charitable work. 

Finally, Judge Lash found that Orange Stones had failed to present any evidence of its expenses in providing the charitable services, and therefore, the Court could not determine what out-of-pocket costs for these services were actually incurred by Orange Stones.  Base on this, Judge Lash held that Orange Stones had not met its burden of providing that its property was entitled to be exempt from real estate taxes.

Ownership Is 100% Of The Law- No Ownership, No Standing

Posted by John J. Miravich on March 12, 2012

On a new twist on the old adage, "possession is nine-tenths of the law," last month, the Commonwealth Court affirmed Judge Jeffrey K. Sprecher of the Berks County Court of Common Pleas in a land use appeal. There, a developer failed to establish on the record before the township board that it had standing to proceed with its curative amendment application.  Radnor Development Company v. Hereford Township 556 C.D. 2011 (Pa. Commw. February 7, 2012).

In addition to holding that the developer lacked standing, Judge Sprecher ruled in favor of the township on the merits.  However, in an unpublished opinion, the Commonwealth Court reasoned that it did not need to consider the merits because the developer had failed to prove that it had standing to apply for a curative amendment to a zoning ordinance as a legal or equitable owner of affected real estate. 

In June 2008, the developer filed its curative amendment application.  During the hearings before the township board on the application, in September of 2009, the developer had admitted into evidence an Option to Purchase the property that expired in August 2009.  The township’s counsel stipulated to the entry of the Option to Purchase into evidence. 

The developer argued that the township had actually stipulated to its equitable ownership.  Judge Sprecher rejected this argument and held that the township only stipulated that the Option to Purchase could be entered into evidence and had specifically reserved its right to object to the probative value of the document.  The Commonwealth Court agreed with Judge Sprecher’s holding that the developer failed to present any other documents or witnesses at the township board level to prove that the Option to Purchase had been extended. 

The Commonwealth Court also affirmed Judge Sprecher’s decision not to allow the developer to present additional evidence at the Common Pleas Court level, and reasoned that supplementing the record should be limited to situations where the record was incomplete “because the party was denied an opportunity to be heard fully or because relevant testimony was offered and excluded” at the township board level. 

This case obviously emphasizes how important it is to create a full record at the township board level of a land use appeal, as the opportunity to supplement the record on appeal is very limited.

Orange Stones Revisited

Posted by J. Benjamin Nevius on September 14, 2011

As you may recall, in a prior entry we discussed Orange Stone Co.’s long battle over its plans to open a drug and alcohol rehabilitation center and halfway house on Hampden Boulevard in the City of Reading.  The Williamsport-based company is affiliated with Firetree, Ltd., owner/operator of numerous rehabilitation and community reentry centers in Pennsylvania and New York.  The non-profit had a Berks County presence until the Commonwealth’s Department of General Services elected not to renew Firetree’s lease at its state-owned Wernersville facility in 2008. 

Orange Stones currently faces a similar battle in Hamburg, where it purchased a vacant knitting mill on Pine Street in 2008 for $1.5 million.  Recently, the Pennsylvania Commonwealth Court issued an opinion relative to the ongoing dispute over Orange Stones’ application for a zoning permit. 

The Pine Street property is located in the Borough of Hamburg (the “Borough”) in a “Village Center Zoning District” as defined by the Borough’s Zoning Ordinance.  In 2009, Orange Stones submitted an application to the Borough requesting a zoning permit for a “20-guest room motel/hotel.”  Approximately one month later, the Borough’s zoning officer denied Orange Stones’ permit application, citing Borough Ordinance No. 765-09, which purportedly permits the zoning officer to deny a zoning permit if “certain construction, alterations, or uses require approval of the [Borough of Hamburg Zoning Hearing Board (the “Board”)] and/or the Borough Council, and/or the recommendations of the Borough Planning Commission.”

Orange Stones appealed to the Board, arguing that Borough Ordinance 765-09 was not enacted pursuant to the Municipalities Planning Code (“MPC”), and that the zoning officer’s denial of the permit application based upon the ordinance was wrongful.  The Board agreed, reversing the zoning officer and granting the permit subject to certain enumerated restrictions that would make it impossible for Orange Stones to operate a rehabilitation or halfway house facility at that location (the Commonwealth Court hinted that Orange Stones had made one more attempt to use the building for that purpose, noting that the Board was “perceptibly wary” of Orange Stones’ prior applications).

In September 2009, Orange Stones appealed to the Berks County Court of Common Pleas, arguing that the Board could not impose restrictions or conditions as part of the zoning permit application process.  Two days later, the Borough appealed, arguing that the Board erred in determining that the zoning officer improperly relied upon Borough Ordinance 765-09 when denying the permit application.

By Order dated June 28, 2010, President Judge Jeffrey L. Schmehl affirmed the Board to the extent the permit was granted, but reversed the Board’s attempt to place restrictions on Orange Stones’ use of the property.

The Borough appealed to the Commonwealth Court, arguing that:  (a) the Board’s decision effectively rendered Borough Ordinance 765-09 invalid, despite the fact that it had not been properly challenged in the Court of Common Pleas; and (b) the Board was free to place reasonable restrictions in granting the permit, as they represented a mere “memorialization” of Orange Stones’ assurances that the property would not be used for a rehabilitation or halfway house facility. 

On August 31, 2011, the Commonwealth Court affirmed Judge Schmehl in all regards.  The Court reiterated well-established law that a municipality derives its power to zone pursuant to the MPC, and that a zoning officer’s authority is limited to administering a zoning ordinance that has been duly enacted pursuant to the express provisions of the MPC.  The Court found that Borough Ordinance 765-09 was not enacted pursuant to the MPC and that the Board (and the Court in affirming the Board) did not err in reversing the zoning officer’s denial on that basis. 

The Court further reasoned that, in any event, the zoning officer’s interpretation of the ordinance was incorrect.  Specifically, a property owner is not required by any ordinance to submit a land development plan to the Borough Planning Commission or Borough Council as a condition precedent to obtaining a zoning permit.

Finally, the Court held that the Board could not place restrictions on Orange Stones’ use of the property.  Specifically, the Court held that zoning hearing boards lack the authority to attach conditions in granting an appeal from the decision of a zoning hearing officer. 

In concluding, the Court said it “appreciate[d] the Raison d'être of the Board’s conditions,” - that Orange Stones may, at a later date, open a rehabilitation or halfway house facility - reminding the Borough/Board that mechanisms exist to allay their concerns. 

The Court went on, noting that Orange Stones must now apply for a certificate of use and occupancy.  If completed work on the property is inconsistent with the work listed in the zoning permit (i.e. a 20-guest room hotel/motel), the certificate may be denied.  Likewise, any inconsistent activities at the premises may result in enforcement proceedings pursuant to the MPC and a host of local ordinances.

This would appear to be an illusory (and indeed pyrrhic) victory for Orange Stones.  Those familiar with the building may scratch their heads wondering whom, if anyone, would stay in such a guesthouse.  Orange Stones’ ultimate goal is to find a suitable replacement location for a private treatment and community reentry facility in Berks County.  Unfortunately for Orange Stones, however, that location likely will not be Hamburg.

Legal Levity

Posted by J. Benjamin Nevius on September 02, 2011

I would not want to be on the receiving end of this Order from the Hon. Sam Sparks, U.S. District Judge for the Western District of Texas.  Who says judges don't have a sense of humor? 

Have a safe and relaxing holiday weekend.

Here's My Badge (You Can Look, But You Can't Touch).

Posted by J. Benjamin Nevius on August 31, 2011

Berks County residents may remember the bizarre story of Daniel S. Griffin.  Griffin garnered more than his fair share of local newspaper clippings following a May 2009 traffic stop in Fleetwood Borough.  According to police, Griffin was traveling in what appeared to be an unmarked Ford Crown Victoria police car at 55 to 60 miles per hour in a 35 mile per hour residential area.  The vehicle had tinted windows, K-9 insignias, and a “police” license plate on the front.

A patrolman from the Fleetwood Police Department initiated a stop, at which point Griffin bound from the vehicle, allegedly identifying himself as a police officer.  Griffin was ordered back into his vehicle and asked for his license and credentials.  Police claim Griffin flashed a badge, but he would not hand it to the patrolman for inspection.  After fumbling through a “fanny pack” in the center console, Griffin produced a long-expired Municipal Police Officers' Education and Training Commission card.  Griffin stated that he was eager to get back to Kingston, Pennsylvania to continue working on a hot case.

Police later learned that Griffin was, in fact, terminated from his position as an officer with the Kingston Police Department as result of a 2007 misdemeanor conviction for altering a receipt, and subsequently forging the signature of his supervisor, in hopes of being reimbursed for a shotgun purchase.  The Fleetwood Police Department subsequently filed charges in Berks County, and a warrant was issued for Griffin’s arrest. 

Approximately one week later, Griffin was arrested in Wilkes-Barre while exiting an unemployment compensation hearing.  At the request of the Fleetwood Police Department, Griffin’s car was towed to a nearby parking facility.  Fleetwood Police, in concert with the Berks County District Attorney, requested that the Wilkes-Barre Police Department obtain a search warrant for the vehicle.  A subsequent joint search revealed a number of police-issue items, including, among other things, police business cards, flex ties, a club, a canister of pepper spray, and a .25 caliber handgun with seven rounds of live ammunition. 

Griffin was subsequently charged in Luzerne County with firearms not to be carried without a license.  He filed a pre-trial motion seeking to suppress evidence obtained during the search.  The motion was denied, and on February 8, 2010, Griffin was found guilty of the Luzerne County charge.

On March 3, 2010 Griffin stood before the Honorable Thomas G. Parisi on the Berks County charges.  Judge Parisi found Griffin not guilty of impersonating a public servant.  Judge Parisi astutely reasoned that, although Griffin’s conduct was deceptive, it did not comport with the elements of impersonation under the law.

Griffin appealed his Luzerne County conviction to the Pennsylvania Superior Court.  Last month, the Court affirmed the conviction.  See Commonwealth v. Griffin, No. 1614 MDA 2010 (Pa. Super. Ct., August 25, 2010).  Griffin argued on appeal that the removal of his vehicle from a public parking lot prior to the issuance of a search warrant was an improper seizure.  The Superior Court cited well-established law that, “where a warrantless seizure of the automobile follows arrest of its owner or driver, the intrusion into that person’s privacy interest is even less offensive; since the person is to be taken into custody, he or she will suffer minimal further inconvenience from the temporary immobilization of the vehicle.” 

The Court further rejected Griffin’s argument that the search warrant was invalid because it was based upon stale information, reasoning that “affidavits supporting search warrants normally are prepared by nonlawyers in the midst and haste of a criminal investigation, and, accordingly, said affidavits, should be interpreted in a ‘common sense and realistic’ fashion rather than in a hypertechnical manner.”

Of course, this is probably not the last we will hear of Griffin.  In fact, he recently filed a suit in federal court against a number of individuals involved in his 2009 arrests, alleging a host of civil rights abuses, including civil conspiracy and malicious prosecution.  See Griffin v. Keiper, et al., U.S.D.C. MD. Pa., Docket No. 3:11-cv-00924-RPC.  According to the Griffin Complaint, the arrests were part of a coordinated effort to retaliate against him for his “aggressive” advocacy of police union interests, and his support for Lisa Baker in her 2006 state senate race against Kingston Mayor, Jim Haggerty.  Griffin’s attorney is former United States Congressman and Pennsylvania Auditor General, Donald A. Bailey.

IRS: I Hold You In Contempt

Posted by J. Benjamin Nevius on August 26, 2011

Judge Richard E. Fehling, the federal bankruptcy judge presiding in Reading, Pennsylvania, ruled on an interesting case involving a motion for contempt filed against the Internal Revenue Service (IRS) for its alleged violation of the automatic stay provisions of Section 362(a) of the United States Bankruptcy Code in a Chapter 13 case.  In Re Minnich, 2011 WL 2173752 (Bkrtcy. E.D. Pa. June 2, 2011).  The Debtor, an accountant and tax practitioner, alleged that the IRS sent a notice to him while an automatic stay was in place, informing him that his e-filing authorization with the IRS was being suspended.  

The Court held that the IRS had not violated the automatic stay.  It reasoned that the IRS’ policy was to suspend a party’s e-filing authorization if that party had been assessed civil IRS penalties, and therefore, the suspension of this privilege was not related to the Debtor’s non-payment of those penalties.  The Debtor argued that the IRS failed to prove that it suspends e-filing authorization for those who are assessed penalties but do pay.  The Court rejected this argument reasoning that it was the Debtor’s burden to prove that the IRS applied the policy in such a manner.  The Court reasoned that if the Debtor had offered evidence of the IRS’ applying the policy only to those who failed to pay the penalties and not those who were assessed the penalty and did pay, then the Court’s decision may have been different.

Who's On First? - Commonwealth Court

Posted by John J. Miravich on August 25, 2011

Earlier this month, the Pennsylvania Commonwealth Court vacated a ruling by Judge Jeffrey K. Sprecher, who handles a significant case load of administrative agency appeals for the Berks County Court of Common Pleas.  Reminiscent of the famous Abbott and Costello skit, “Who’s On First?”, the Commonwealth Court ordered Judge Sprecher to transfer the lawsuit to Commonwealth Court. Garwood v Pa. Department of Transportation (Pa. Commw. Ct. August 18, 2011).

Starting at the beginning, Jenna Renee Garwood (“Garwood”), a Pennsylvania driver dealing with license suspension and restriction issues, sought to challenge the fact that the Pennsylvania Department of Transportation (“PennDOT”) was requiring her to install an ignition interlock system in her automobile.  Garwood started her lawsuit at what she thought was first base: the Berks County Court of Common Pleas. 

In 2002, Garwood was arrested for driving under the influence (“DUI”).  She was accepted into the advanced rehabilitative disposition (“ARD”) program, which she successfully completed.  She received a 180-day license suspension for her participation in the ARD program, and a one year suspension for her refusal to take a blood test the day of her arrest. 

In 2008, Garwood was again arrested and charged with DUI.  She subsequently pled guilty to her second offense.  On July 4, 2008, PennDOT notified Garwood that it was treating her 2008 guilty plea as a second conviction under Pennsylvania’s DUI statute.  As result, she was informed that:  (1) her driving privileges were suspended for 18 months; (2) she was required to install and ignition interlock system in each of her vehicles before having her privileges restored; and (3) she had 30 days to appeal PennDOT’s decision.  

On November 25, 2009, PennDOT sent a restoration letter to Garwood informing her that she would have her privileges to drive restored if she installed the ignition interlock system.  She followed PennDOT’s directive and was issued a restricted license allowing her to drive with the system.  

On February 17, 2010, the Commonwealth Court decided Whalen v. Department of Transportation, 990 A.2d 826 (Pa. Commw. Ct. 2009), where the Court held that the licensee’s acceptance into the ARD program was not to be considered a conviction under Section 3805 of the Pennsylvania Vehicle Code, and therefore, the licensee was not required to install the system. 

Based on Whalen, Judge Sprecher granted Garwood’s petition over the objection of PennDOT, who argued that her lawsuit was, in reality, a statutory appeal, which should have been brought within 30 days of her original suspension notice.  Of course, Garwood did not have the Whalenopinion to rely on, because it was not issued within that 30 days, but instead nearly three months after her notice of suspension.  After Judge Sprecher’s ruling, PennDOT took the lawsuit to second base by appealing to the Commonwealth Court. 

Interestingly, the Commonwealth Court did not find that PennDOT must release the ignition interlock requirement.  It also did not find that Garwood’s lawsuit was untimely.  Instead, the Commonwealth Court held that Garwood’s lawsuit was actually seeking mandamus relief (a court order requiring the governmental entity to act or refrain from acting) and a declaratory judgment against PennDOT.  Therefore, the Court reasoned, the lawsuit should have been brought directly to the Commonwealth Court under its original jurisdiction.  See42 Pa. C.S.A. § 761.  In effect, the Commonwealth Court said that it was first base.  The Commonwealth Court then held that Judge Sprecher should have never reached the merits of Garwood’s lawsuit, and ordered Judge Sprecher to transfer the case to the Commonwealth Court.  Therefore, the Commonwealth Court should have been first base, not second base, but Garwood had to litigate the matter before the Commonwealth Court at second base to have that determined. 

Unfortunately for the Garwood, she is back at home plate, as she starts her appeal from scratch.