HomeMy WebLinkAbout04-0212
MYRA J. MARTIN,
Petitioner
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. CYf-~(;;( C~~t-r~
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
LICENSE SUSPENSION APPEAL
AND NOW, this 14''' day of January, 2004, comes Myra J. Martin, through her attomeys, Mancke,
Wagner & Spreha, who respectfully represent:
1. Your Petitioner is an adult individual residing at 202 April Drive, Camp Hill, Cumberland County,
Pennsylvania.
2. The facts and occurrences which give rise to this license suspension appeal occurred on or about
November 27,2003 in Hampden Township, Cumberland County, Pennsylvania.
3. Your Petitioner received a notice of license suspension for an alleged refusal which is alleged to
have occurred on November 27, 2003. A copy of said notice is attached hereto and made a part hereof as
Exhibit A.
4. Your Petitioner believes, and therefore avers, that the license suspension is illegal, unjust and
improper for reasons which include, but are not limited to, the following:
(a) there were no reasonable grounds to request a chemical test;
(b) any wamings of consequences were inadequate;
(c) there was no intelligent, knowing or valid refusal;
(d) any alleged wamings were inadequate and/or were not done in a timely
fashion;
(e) Your Petitioner was not given proper and/or timely opportunity to
supply sufficient breath;
(f) the instructions and/or procedures were confusing, inadequate and
improper;
(g) Your Petitioner was not given adequate wamings that she had no right
to talk to an attomey and/or anyone else at the time of the request for
chemical testing;
(h) there was no valid refusal as any alleged refusal was a result of
operator error and/or equipment failure; and
(i) there was no proper request for taking the chemical test.
WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to detennine the validity
of the license suspension outlined in Exhibit A.
ReSpr~IIY sUb~tted,
JOhn/( M~ESq., ID No. 07212
Mancke, Wagner & Spreha
2233 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attomey for Petitioner
Dated: January 14, 2004
2
VERIFICATION
I hereby verify that the statements made in this document are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom
falsification to authorities.
DI/IY/04
Date
/I!L~ A.:3A{ AidA k
Myra J. Marti~r:!:f ('
3
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: DECEMBER 16, 2003
MYRA JEAN MARTIN
1015 N 3RD STREET
APT 2
HARRISBURG PA 17102
WID t 033436122146495 001
PROCESSING DATE 12/09/2003
DRIVER LICENSE t 23217422
DATE OF BIRTH 01/26/1974
Dear MS. MARTIN:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 1547 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 1547
of the Vehicle Code, CHEMICAL TEST REFUSAL, on 11/27/2003:
. Your driving privilege is SUSPENDED for a period of 1
YEAR(S) effective 01/20/2004 at 12:01 a.m.
***********************************************************
WARNING: If you are convicted of driving while your
license is suspended/revoked the penalties will be a
MINIMUM of 90 days imprisonment AND a $1,000 fine AND
your driving privilege will be suspended/revoked for
I a MINIMUM 1 year period I
***********************************************************
COMPLYING WITH THIS SUSPENSION
You must return all current PennsYlvania driver's licenses,
learner's permits, temporary driver's licenses (camera
ca'rds) 'in your possession on or before 017207.::u04.' You may
surrender these items before, 01/20/2004, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION
PURPOSES. However. YOU may apply for and obtain a photo
identification card at any Driver License Center for a cost
of $10.00. You must present two (2) forms of proper iden-
tification (e.g., birth certificate, valid U.S. passport,
marriage certificate, etc.) in order to obtain your photo
identification card.
You will not receive credit toward serving any suspension
until we receive your license(s). Complete the following
steps to acknowledge this suspension.
~ EXHIBIT
~
~ A
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'"
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: DECEMBER 16, 2003
MYRA JEAN MARTIN
1015 N 3RD STREET
APT 2
HARRISBURG PA 17102
WID I 033436122146495 001
PROCESSING DATE 12/09/2003
DRIVER LICENSE I 23217422
DATE OF BIRTH 01/26/1974
Dear MS. MARTIN:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized bY Section 1547 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 1547
of the Vehicle Code, CHEMICAL TEST REFUSAL, on 11/27/2003:
. Your driving privilege is SUSPENDED for a period of 1
YEARCS) effective 01/20/2004 at 12:01 a.m.
***********************************************************
WARNING: If you are convicted of driving while your
license is suspended/revoked the penalties will be a
MINIMUM of 90 days imprisonment AND a $1,000 fine AND
your driVing privilege will be suspended/revoked for
I a MINIMUM 1 Year period
***********************************************************
COMPLYING WITH THIS SUSPENSION
You must return all current PennsYlvania driver's licenses,
learner's permits, temporary driver's licenses Ccamera
car"ds) "',in your possession on or b'efore 017207"u04.' You may
surrender these items before, 01/20/2004, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION
PURPOSES. However, YOU may apply for and obtain a photo
identification card at any Driver License Center for a cost
of $10.00. You must present two (2) forms of proper iden-
tification Ce.g., birth certificate, valid U.S. passport,
marriage certificate, etc.) in order to obtain your photo
identification card.
You will not receive credit toward serving any suspension
until we receive your licenseCs). Complete the following
steps to acknowledge this suspension.
~ EXHIBIT
~
~ A
-'
:i.
033436122146495
1. Return all current PennsYlvania driver's licenses,
learner's permits and/or camera cards to PennDOT. If
you do not have any of these items, send a sworn nota-
rized letter stating you are aware of the suspension of
your driving privilege. You must specify in your letter
why YOU are unable to return your driver's license.
Remember: You may not retain your driver's license for
identification purposes. Please send these items to:
.PennsYlvania Department o..f, Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
2. Upon receipt, review and acceptance of your PennsYlvania
driver's licensees), learner's permit(s), and/or a sworn
notarized letter, PennDOT will send you a receipt con-
firming the date that credit began. If you do not re-
ceive a receipt from us within 3 weeks, please contact
our office. Otherwise, you will not be given credit
toward serving this suspension. PennDOT phone numbers
are listed at the end of this letter.
3. If YOU do not return all current driver license pro-
ducts, we must refer this matter to the PennsYlvania
State Police for prosecution under SECTION 1571 (a) (4)
of the Pennsylvania Vehicle Code.
PAYING THE RESTORATION FEE
You must pay a restoration fee to PennDOT to be restored
from a suspension/revocation of your driving privilege. To
pa~- your r-estCirati-vn--f-S'€, cu:u;::-letc "t~---'f-o-Il:::wi-ng' ~tcpe-:
1. Return the enclosed Application for Restoration. The
amount due is listed on the application.
2. Write your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
3. Follow the payment and mailing instructions on the back
of the application.
033436122146495
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, DECEMBER 16, 2003, of this letter. X1' YOU file an
appeal in the County Court, the Court will give you a time-
stamped certified COpy 01' the appeal. In order for your
appeal to be valid. you must send this time-stamped certi-
fied copy of the appeal by certified mail to:
Pennsylvania Department of Transportation
Office, of-C-hief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
Remember, this is an OFFXCXAL NOTXCE OF SUSPENSXON. You
must return all current Pennsylvania driver license products
to PennDOT by 01/20/2004.
Sincerely,
~~,~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
IN STATE
OUT-OF-STATE
WEB SITE ADDRESS
INFORMATION 7:00 a.m. to 9:00 p.m.
1-800-932-4600 TDD IN STATE
717-391-6190 TDD OUT-OF-STATE
www.dot.state.pa.us
1-800-228-0676
717-391-6191
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MYRA J. MARTIN,
Petitioner
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. ()I-I~ J..../;;'" C!./~l.L~&YrJ
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
ORDER
AND NOW, "~""Of n ,.J """,-" d"_ Petitioo,
it is hereby ordered and decreed that a hearing be held on the {).-tL day of ~ ' 200..i,
at (.:V o'clock in Courtroom~, Cumberland County Courthouse, Carlisle, Pennsylvania.
Notice of said hearing shall be sent by certified mail to the Department of Transportation by Petitione~s
attorney at least sixty days prior to the date of the hearing.
Byt~)
~~"\"'"
J.
Distribution:
Prothonotary's Office
vdOhn B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110
';pA Dept. ofTransportation, Office of Chief Counsel, 1101 S. Front Street, Harrisburg, PA 17104
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MYRA J. MARTIN,
PETITIONER
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
: 04-0212 CIVIL TERM
ORDER OF COURT
AND NOW, this
JofA
day of January, 2004, the hearing currently
scheduled for April 12, 2004, is cancelled. The hearing is rescheduled to Thursday,
April 22, 2004, at 2:00 p.m., in Courtroom Number 2, Cumberland County Courthouse,
Carlisle, Pennsylvania.
~7J~
Edgar B. Bayley, J.
v<'ohn B. Mancke, Esquire
For Petitioner
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vCeorge Kabusk, Esquire
For the Department of Transportation
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MYRA J. MARTIN,
PETITIONER
V.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
IN THE COUFn OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 04-0212 CIVIL TERM
ORDER OF COURT
AND NOW, this 13th day of April, 2004, the hearing currently scheduled for April
22, 2004, is cancelled. The hearing is rescheduled to Wl~dnesday, May 26, 2004, in
Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania.
John B. Mancke, Esquire
For Petitioner
George Kabusk, Esquire a~
For the Department of Transportation
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Edgar B. lBayley, J.
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MYRA J. MARTIN,
PETITIONER
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
RESPONDENT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 04-0212 CIVIL. TERM
IN RE: LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this:3-r\ day of June, 2004, the suspension of the operating
<-6eorge Kabusk, Esquire
For the Department of Transportation
~ B. Mancke, Esquire
For Petitioner
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MYRA J. MARTIN,
PETITIONER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
RESPONDENT
04-0212 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
OPINION AND ORDER OF COURT
Bayley, J., June 2, 2004:--
Petitioner, Myra J. Martin, filed an appeal from the suspension of her operating
privilege by the Department of Transportation for one year for a refusal to undertake
chemical testing following her arrest for driving under the influence. A hearing was
conducted on May 26, 2004. We find the following facts.
On November 27,2003, at approximately 1 :45 a.m., Officer James Sollenberger,
of the Hampden Township Police, was in a marked police vehicle on Trindle Road in
Hampden Township, Cumberland County. He saw a vehicle in front of him that he
clocked with a speedometer for 100 yards at 53 miles per hour in a posted 40 mile per
hour zone. The vehicle slowed, and while on Trindle Road went into the Borough of
Camp Hill. After signaling the driver then made a wide right turn onto April Drive, a two-
lane unmarked side street in the Borough of Camp Hill. There was no other traffic on
April Drive or Trindle Road except the police vehicle. At the point of the turn there were
several large potholes on the right berm of Trindle Road and in the right lane of April
04-0212 CIVIL TERM
Drive. The vehicle continued on April Drive in the right I,me. Officer Sollenberger
turned onto April Drive and activated the lights on his patrol vehicle. The vehicle
stopped and the driver, petitioner, Myra Martin, got out. The officer got out of his
vehicle and asked her to get back inside her vehicle, which she did. He asked for her
cards which she provided. He smelled an odor of alcohol coming from inSide the
vehicle. Petitioner had red, bloodshot eyes and slurred speech. Officer Sollenberger
had her get outside of her vehicle at which point he smelled alcohol coming from her
person. He asked petitioner to perform field sobriety tests. She swore at him and
started to walk toward a house. He told her to stop but she kept going. He grabbed
her, arrested her for driving under the influence, and put her into his police vehicle. He
drove her to a booking center where he read her instructions from a DL-26 form on the
Implied Consent Law. Defendant refused to provide a booking agent with two valid
breath tests.
Petitioner maintains that Officer Sollenberger had no extraterritorial jurisdiction to
stop and arrest her in the Borough of Camp Hill thus invalidating his status as a police
officer for purposes of the Implied Consent law. The Vehicle Code at 75 Pa.C.S.
Section 1547 provides:
(a) General rule.-Any person who drives, operates or is in actual
physical control of the movement of a motor vehicle in this
Commonwealth shall be deemed to have givl~n consent to one or more
chemical tests of breath, blood or urine for the purpose of determining the
alcoholic content of blood or the presence of a controlled substance if a
police officer has reasonable grounds to beliE~ve the person to have been
driving, operating or in actual physical control of the movement of a motor
vehicle:
-2-
04-0212 CIVIL TERM
both;
(1) while under the influence of alcohol or a controlled substance or
Section 1547(b) provides:
(1) If any person placed under arrest for a violation of section 3731
(relating to driving under influence of alcohol or controlled substance) is
requested to submit to chemical testing and refuses to do so, the testing
shall not be conducted but upon notice by the police officer, the
department shall suspend the operating privilege of the person for a
period of 12 months.
In Banner v. Commonwealth, Department of Trclnsportation, Bureau of
Driver Licensing, 737 A.2d 1203 (Pa. 1999), the Supreme Court of Pennsylvania
stated that "[b]ecause the suspension proceeding focuses solely on the refusal to
submit to chemical testing after being taken into custody, the legality of the arrest for
the underlying offense is irrelevant." The Court stated "[t]hat the plain language of the
statute [Section 1547(a)] require[s] that the request for chemical testing be supported
by reasonable grounds for the officer to believe that licensee was operating the vehicle
under the influence of alcohol." Reasonable grounds exislls when a person in the
position of the police officer, viewing the facts and circumstances as they appeared at
the time, could have concluded that the motorist was operating the vehicle while under
the influence of intoxicating liquor. DiPaolo v. Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa.
Commw. 1997). Notwithstanding, where the licensee challenges the legal authority of
the arresting officer, as opposed to some aspect of the manner of the arrest, the officer
must have had authority or a suspension will be reversed. Commonwealth of
-3-
04-0212 CIVIL TERM
Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Kline,
741 A.2d 1281 (Pa. 1999); Snyder v. Commonwealth, l>40 A.2d 490 (Pa. Commw.
1994 ).
The Vehicle Code at 75 Pa.C.S. Section 102 defines "police officer" as "[a]
natural person authorized by law to make arrests for violations of law." The Judicial
Code at 42 Pa.C.S. Section 8951 defines a "Municipal Police Officer" as "any natural
person who is properly employed by a municipality, including a home rule municipality,
as a regular full-time or part-time police officer." Officer Sollenberger is a municipal
police officer employed by Hampden Township. The primary jurisdiction of a municipal
police officer is defined in Section 8951 as "the geographiical area within the territorial
limits of a municipality or any lawful combination of municipalities which employ a
municipal police officer." Section 8952 provides:
Any duly employed municipal police clfficer shall have the power
and authority to enforce the laws of this Commonwealth or otherwise
perform the functions of that office anywherEl within his primary jurisdiction
as to:
(1) Any offense which the officer views or otherwise has
probable cause to believe was committed within his jurisdiction.
(2) Any other event that occurs within his primary jurisdiction
and which reasonably requires action on the part of the police in
order to preserve, protect or defend plsrsons or property or to
otherwise maintain the peace and dignity of this Commonwealth.
Section 8953 titled "Statewide municipal police jurisdiction," provides:
(a) General rule.-Any duly employed municipal police officer
who is within this Commonwealth, but beyond the territorial limits of
his primary jurisdiction, shall have the power and authority to
enforce the laws of this Commonwealth or otherwise perform the
functions of that office as if enforcing those Iclws or performing those
-4-
04-0212 CIVIL TERM
functions within the territorial limits of his primary jurisdiction in the
following cases:
(1) Where the officer is actin!~ pursuant to an order issued
by a court of record or an order issul3d by a district magistrate
whose magisterial district is located within the judicial district
wherein the officer's primary jurisdiction is situated, or where the
officer is otherwise acting pursuant tl:> the requirements of the
Pennsylvania Rules of Criminal Procedure, except that the service
of an arrest or search warrant shall require the consent of the chief
law enforcement officer, or a person authorized by him to give
consent, of the organized law enforcement agency which regularly
provides primary police services in the municipality wherein the
warrant is to be served.
(2) Where the officer is in hot pursuit of any person for
any offense which was committed, or which he has probable
cause to believe was committed, within his primary
jurisdiction and for which offense the officer continues in
fresh pursuit of the person after the commission of the
offense.
(3) Where the officer has bElen required to aid or assist
any local, state or Federal law enfolrcement officer or park
police officer or otherwise has probable cause to believe that
the other officer is in need of aid or assistance.
(4) Where the officer has obtained the prior consent of
the chief law enforcement officer, lor a person authorized by
him to give consent, of the organiz:ed law enforcement agency
which provides primary police services to a political
subdivision which is beyond that clfficer's primary jurisdiction
to enter the other jurisdiction for the purpose of conducting
official duties which arise from offiicial matters within his
primary jurisdiction.
(5) Where the officer is on official business and views
an offense, or has probable cause to believe that an offense
has been committed, and makes a reasonable effort to identify
himself as a police officer and whi4:h offense is a felony,
misdemeanor, breach of the peace or other act which presents
an immediate clear and present danger to persons or property.
(6) Where the officer views an offense which is a felony, or
has probable cause to believe that an offense which is a felony has
been committed, and makes a reasonable effort to identify himself
as a police officer. (Emphasis added.,)
-5-
04-0212 CIVIL TERM
Because Officer Sollenberger, a municipal police officer in Hampden Township,
stopped and arrested petitioner in the Borough of Camp Hill, we must determine if any
of the subsections in Section 8953 conferred on him extraterritorial jurisdiction while he
was in the Borough. Subsections (1) and (6) are not remotely applicable. As to
subsection (2), the issue is whether Officer Sollenberger was in hot pursuit of petitioner
for any offense which she committed, or for which he had probable cause to believe
she committed within Hampden Township, and for which he continued in fresh pursuit
into the Borough of Camp Hill after the commission of thel offense.
In Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995), a Pennsylvania
state trooper in a patrol vehicle saw appellee driving on Interstate 81 and clocked him
with a speedometer for two-tenths of a mile at 70 miles pl3r hour in a 55 mile per hour
zone. Noting that the Vehicle Code at 75 Pa.C.S. Section 3368(a) provides that in
ascertaining the speed of a vehicle by using a speedomeller "[t]he speed shall be timed
for a distance of not less than three-tenths of a mile," the Supreme Court of
Pennsylvania concluded that clocking the vehicle for only two-tenths of a mile did not
constitute probable cause for the trooper to believe that there was a speeding violation.
The Court further concluded that there was no probable cause for the trooper to believe
that the driver was operating at a speed greater than reasonable and prudent under the
conditions and having regard to the actual and potential hazards then existing, nor at a
speed greater than would permit the vehicle to stop within the assured clear distance
ahead, in violation of Section 3361 of the Vehicle Code. The Court stated that the only
-6-
04-0212 CIVIL TERM
evidence bearing upon such a violation:
was the trooper's testimony that traffic at the time was medium to heavy.
That conclusion is of no legal significance where [Appellee]'s speed was
only estimated at 15 miles an hour over the speed limit on a three lane
interstate highway at a time when his vehicle was not changing lanes,
traveling too close to another vehicle, or prElsenting a potential hazard to
any other vehicle or person.
In the case sub judice, the only driving by petitioner that Officer Sollenberger
testified to while she was on Trindle Road in Hampden Township was when he clocked
her for 100 yards at 53 miles per hour in a posted 40 mile, per hour zone. As in
Whitmyer, this was not a valid clock and did not provide him with probable cause to
believe she was speeding. Petitioner's vehicle then went into the Borough of Camp Hill
before she turned right onto April Drive. No other vehicles were in the vicinity except
the patrol car behind her. Petitioner was not weaving within her lane nor did she cross
into the oncoming lane of travel on Trindle Road while in Hampden Township. As in
Whitmyer, her speed was not such that there was probable cause for Officer
Sollenberger to believe that she was driving at an unsafe speed in violation of Section
3361 of the Vehicle Code. Therefore, there was no hot pursuit into the Borough of
Camp Hill for any offense that petitioner committed, or for which Officer Sollenberger
had probable cause to believe she committed in Hampden Township.
The only other observation that Officer Sollenberger made as to petitioner's
driving was the wide turn onto April Drive while in the Borough of Camp Hill. The
Vehicle Code at 75 Pa.C.S. Section 3309 provides:
-7-
04-0212 CIVIL TERM
Driving on roadways laned for traffic
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic the following rules in addition to all other
not inconsistent therewith shall apply:
(1) Driving within single lane.-A vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from
the lane until the driver has first ascertained that the movement can
be made with safety. (Emphasis added.)
Section 3309(1) does not require perfect adherence to driving entirely within a
single marked lane on all occasions. It only requires that a vehicle be driven as nearly
as practical entirely within a single marked lane. The mquirement to drive entirely
within a single marked lane "as nearly as practicable" is further subject to the exception
"until the driver has first ascertained that the movement can be made with safety,"
The two lanes on April Drive were not marked. When petitioner made a right turn
around the potholes in the right lane of Trindle Road and the right lane of April Drive,
and then immediately moved fully into the unmarked right lane, there were no other
vehicles on April Drive or Trindle Road except the police v,ehicle behind her. This
driving in the Borough of Camp Hill did not provided probable cause for the officer to
believe that the wide turn constituted a safety hazard in violation of Section 3309 of the
Vehicle Code. Furthermore, even if it had, Officer Sollenblsrger had no extraterritorial
jurisdiction to stop her, and then arrest her, which is necessary for the purposes of the
Implied Consent Law. McKinley v. Commonwealth, Dep;artment of Transportation,
Bureau of Driver Licensing, 769 A.2d 1153 (Pa. 2001).
Subsection (5) of Section 8953 of the Judicial Code would not apply because
-8-
04-0212 CIVIL TERM
even if Officer Sollenberger had probable cause to believe that petitioner had
committed a summary violation of Section 3309 of the VEihicle Code in the Borough of
Camp Hill, such a violation was not a felony, misdemeanor, breach of the peace or
other act which presented an immediate clear and present danger to persons or
property. Subsection (4) would not apply because the officer did not obtain prior
consent of any authorized person in the Borough of Camp Hill for him to enter the
Borough for the purpose of conducting official duties which arose from official matters
within Hampden Township, his primary jurisdiction. Subsl9ction (3) would not apply
because the officer was not required to aid or assist any Camp Hill Borough Police
Officer in need of aid or assistance. Notwithstanding, the Department argues that a
Mutual Aid Agreement executed by Hampden Township and the Borough of Camp Hill
on December 7, 1998, authorized Officer Sollenberger to enter the Borough of Camp
Hill and stop and arrest petitioner. The Agreement providl~s, inter alia:
2. The Municipalities do agree and hereby authorize their police to
request, and furnish upon request, aid, assistance and temporary police
protection, to each or any other Municipality, which are parties hereto,
subject to the terms and provisions of this A~lreement.
3. Upon request, each Municipality authorizes its police to
answer calls and provide aid, assistance and temporary police
protection and services within the jurisdic:tional boundaries of a
requesting Municipality. Any aid, assistance and/or temporary police
protection provided shall be furnished in accc)rdance with the furnishing
Municipality's policies and procedures, consistent with the nature of the
request and consistent with paragraph five of this Agreement. (Emphasis
added.)
There was no request by any official of the Borough of Camp Hill for Officer
Sollenberger to enter the Borough to provide aid, assistance or temporary police
-9-
04-0212 CIVIL TERM
protection within its boundaries. Accordingly, neither the, Mutual Aid Agreement nor any
subsections of Section 8953 of the Judicial Code providE~d Officer Sollenberger with
extraterritorial jurisdiction to stop and arrest petitioner in the Borough of Camp Hill.
Therefore, petitioner's operating privilege cannot be suspended under the Implied
Consent Law.
ORDER OF COURT
AND NOW, this ~ay of June, 2004, the suspension of the operating
privilege of Myra J. Martin for one year, IS REVERSED.
By the Court,
7
George Kabusk, Esquire
For the Department of Transportation
John B. Mancke, Esquire
For Petitioner
:sal
-10-
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCEM.EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
vs.
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
MYRA J. MARTIN,
Appellee
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO. 04-0212 Civil Term
Amended Notice of ADDeal
Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation,
BUTeau of Driver Licensing, heTeby appeals to the Commonwealth Court of Pennsylvania from the ordeT that
was filed in this matter on June 2, 2004. This oTder is from a statutory appeal and cannot be reduced to
judgment. The oTder has been entered in the docket and notice of its entry has been given undeT Pa. R.C.P.
236. A copy of the docket entries are attached hereto.
r-/~
.;--
TERRANCE M. EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
110 I South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
vs.
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
MYRA J. MARTIN,
Appellee
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO. 04-0212 Civil Term
Request for Transcript
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certifY and file the transcript in this matter in conformity with Pa. R.A.P. 1922.
PTepare only the original for inclusion in the record as the Appellant, Commonwealth of
Pennsylvania, Department of TTansportation, Bureau of DriveT Licensing, does not desire a copy of the
transcript.
_~,/-~k
TERRANCE M. EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
]110 1 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
MYRA J. MARTIN,
Appellee
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
vs.
}
}
}
}
}
NO. 04-0212 Civil Term
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
Proof of Service
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing documents upon the persons and in the manner indicated below, which service satisfies the
requirements ofPa. R.A.P. 121:
First Class Mail; Postage Pre-Paid;
Addressed as FollowSl
Judge Edgar B. Bayley
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
John B. Mancke, Esquire
Att. for Appellee Martin
2233 N. Front Street
Harrisburg, P A 1711 0
C~~Cl~l;::d~
DANA M. BRESSLER
Appellate Paralegal for Vehicle & Traffic Law Division
Date: June 16, 2004
Cumberlan9 C;:ounty Prothonotary's Office
Clvll Case Prlnt
2004-00212 MARIN MYRA J (vs) PENNSYLVANIA COMMONWEALTH OF
.PYS510
Page
1
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
JVdge Assigned: BAYLEY EDGAR B
Dlsposed Desc. :
------------ Case Comments -------------
F i 1 ed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
1/15/2004 _
3:12 _
0/00/0000 ::-
0/00/0000-
-
-
--
**************************************************'k****************************r-
General Index Attorney Info ~
I
MARTIN MYRA J
202 APRIL DRIVE
CAMP HILL PA 17011
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
3RD FL RIVERFRONT OFFICE CT
HARRISBURG PA 17104
APPELLANT
IVIANCKE JOHN B
APPELLEE
-
-
********************************************************************************
* Date Entries *
********************************************************************************
1/15/2004
1/27/2004
1/30/2004
4/13/2004
6/03/2004
_ _ _ _ _ - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER DATED 1/27/04 - A HEARING TO BE HELD 4/12/04 AT 1:30 PM IN
COURTROOM NO 2 - CUMBERLAND CO COURTHOUSE - CARLISLE PA - BY THE
COURT - BY THE COURT - EDGAR B BAYLEY J COPIES MAILED 1/27/04
---------------------------------------------------------------------
ORDER OF COURT - DATED 1/30/04 - HEARING 4/12/04 IS CANCELLED -
HEARING IS RESCHEDULED TO 4/22/04 AT 2 PM CR 2 - BY EDGAR B BAYLEY -
J - COPIES MAILED 2/2/04 -
-------------------------------------------------------------------...
ORDER OF COURT - DATED 4/13/04 - THE HEARING CURRENTLY SCHEDULED --
FOR 4/22/04 IS CANCELLED THE HEARING IS RESCHEDULED TO 5/26/04 IN ==
CR 2 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDGAR ~
~p~~i~~~~D~6~~~~-~~~~~RT-=-DATED-06=02=04-=-IN-RE~-LlcENSE------I
SUSPENSION APPEAL - THE SUSPENSION OF THE OPERATING PRIVILEGE OF
PLFF FOR ONE YEAR IS REVERSED - BY THE COURT EDGAR B BAYLEY J -
COPIES MAILED 06-03-04 -
_ _ _ - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - --
-
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Bal Pvmts/Adl End Bal *
********************************************************************************
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
AUTOMATION FEE
JCP FEE
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
10.00 10.00 .00
------------------------ ------------
55.50 55.50 .00
-
*************************************************~,*****************************~
* End of Case Information ~
********************************************************************************~-
-
-
--
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MYRA J. MARTIN,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,:
BUREAU OF DRIVER LICENSING,
Respondent
NO. 04-0212 CIVIL TERM
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE EDGAR B. BAYLEY, J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on May 26, 2004,
in Courtroom Number Two.
APPEARANCES:
GEORGE H. KABUSK, Esquire
For the Department of Transportation
JOHN B. MANCKE, Esquire
For the Petitioner
INDEX TO WITNESSES
FOR THE COMMONWEALTH DIRECT
1. James Sollenberger 6
CROSS
16
FOR THE PETITIONER
1. John O'Brien
20
2
INDEX TO EXHIBITS
FOR THE COMMONWEALTH IDENTIFIED ADMITTED
l. DL-26 form 12 13
2 . Breath test printout U5689 13 13
3. Breath test printout U5690 13 13
4. Breath test printout U5691 13 13
5. Mutual Aid Agreement 14 14
6. Map from MapQuest 15 15
FOR THE PETITIONER
l. Hampden Township street map 18 22
2 . Camp Hill Borough zoning map 18 22
3. Photographs 22 22
3
1 May 26,2004,1:50 p.m.
2 Carlisle, Pennsylvania
3 (Whereupon, Commonwealt:h' s Exhibits 1 to
4 4 were marked for identification.)
5 (Whereupon, Defendant's Exhibits 1 and 2
6 were marked for identification.)
7 THE COURT: Ready to go?
8 MR. KABUSK: Yes, Your Honor.
9 THE COURT: Proceed.
10 MR. KABUSK: This is the case of Myra J. Martin
11 versus Commonwealth of Pennsylvania, Department of
12 Transportation, Bureau of Driver Licensing, case number
13 04-0212. By official notice dated December 16th, 2003, the
14 Department notified the petitioner, Myra Jean Martin,
15 operator's number 23217422, that as a result of her violation
16 of Section 1547 of the Vehicle Code relating to chemical test
17 refusal on 11/27/2003 her operating privilege was being
18 suspended for a period of one year.
19 THE COURT: First witness.
20 MR. MANCKE: Your Honor, as it relates to the case,
21 I would just indicate that our position is outlined in the
22 memorandum that we submitted that relies upon the two McKinley
23 versus Department of Transportation cases, and it's our
24 position that at no time was the officer a police officer
25 having reasonable grounds to believe that my client was driving
4
1 under the influence. We believe that there was an extra
2 territorial encounter in this case and that the officer was not
3 a police officer as defined in Section 102 and as construed in
4 the two McKinley cases.
5 THE COURT: And that is the sole issue?
6 MR. MANCKE: Yes. What I am indicating, and I have
7 indicated to Mr. Kabusk, we are stipulating that the DL-26 was
8 read to my client at the booking center, contained the proper
9 warnings, and that there was a request to submit to chemical
10 testing.
11 Second, we are stipulating that my client did give
12 one valid sample, but then gave several invalid samples and
13 that her failure to produce the two valid samples would
14 constitute a refusal under the Commonwealth Court decisions.
15 THE COURT: So the real issue is the officers
16 authority in issuing it?
17 MR. MANCKE: That is correct, and whether he was a
18 police officer having reasonable grounds.
19 THE COURT: So stipulated?
20 MR. KABUSK: Yes.
21 THE COURT: Proceed.
22 MR. KABUSK: The Depart.ment now calls Officer
23 Sollenberger.
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Whereupon,
JAMES SOLLENBERGER,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Sollenberger, please state your name and
spell your last name for the record.
A My name is James Sollenberger,
S-o-l-l-e-n-b-e-r-g-e-r.
Q And where are you employed?
A I'm employed at Hampden Township.
Q In what capacity?
A Uniformed police officer.
Q During the course of your official duties, have you
had occasion to investigate an alleged incident of DUI on or
about November 27th, 2003?
A
Q
11/27 /03.
A
I was thinking it was the 23rd, sir.
I'm sorry. My records indicate on the refusal it's
I'm sorry, sir. I had the wrong date. That is
correct,
sir.
Q
Would you please tell the Court about that
incident.
A I was in a marked police vehicle uniformed. It was
about 1:45 a.m. I was traveling down Trindle Road when I
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observed a vehicle, a Chevrolet, traveling at a high rate of
speed down Trindle Road from the area of where the 581 overpass
goes over toward the Camp Hill area.
Q Is that particular area in Hampden Township?
A Yes, sir. I followed the vehicle and gave it a
clocked speed of 53 miles an hour. As I got in behind the
vehicle, it then slowed and began to turn onto April Drive. I
initiated -- as it did turn, it made a wide turn onto April
Drive. I initiated my overhead lights and initiated a traffic
stop.
Q Let me back you up. When you noticed the vehicle,
were you in Hampden Township?
A Yes, sir.
Q What did you notice?
A The vehicle was traveling at a high rate of speed,
well, higher than posted I mean, sir.
Q What was the posted speed limit?
A Forty miles an hour.
Q And then what did you do after you noticed the high
rate of speed?
A I got in behind it and what we call paced it. I
followed it at a steady distance to determine what the speed is
with my speedometer, sir.
Q And where did this occur?
A Roughly from about the area where RT Grim is, it's
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a business on Trindle Road, to about where Fallowfield Road is,
I believe.
Q Is that in Hampden Township?
A Yes, sir, it is.
Q And is that when you were clocking the vehicle?
A Yes, sir.
Q And then what happened?
A As I said, the vehicle slowed. As it turned onto
April Drive, I followed it. It made a wide turn. What I mean
by that is going into the other lane.
Q At any point did the vehicle leave Hampden
Township?
A As it turned onto April Drive, it entered Camp
Hill.
MR. KABUSK: May I approach the witness, Your
Honor?
THE COURT: Yes.
BY MR. KABUSK:
Q I'm going to show you what is a printout from
MapQuest of the particular area. Six forty-one, is that the
same as Trindle Road?
A That is Trindle Road, that's correct, sir.
Q Would you draw on here approximately where Hampden
Township stops and Camp Hill begins?
A On this side of the road, it's roughly somewhere in
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between Fallowfield and April. It continues on on the other
side of the road, Hampden Township, I mean, sir.
Q So approximately midway between Fallowfield and
April Drive is the border?
A I couldn't tell you the exact place but between the
two, sir.
Q But when she made the turn on April Drive, you were
now in Camp Hill?
A Yes, sir.
Q Then what happened?
A The vehicle continued on and then stopped in front
of, I believe it was -- it was either 202 or 204 April, and I
got ready to call into my County Control to tell them I had a
traffic stop, but before I could do that, the driver's door
opened and the young lady driving got out.
So I exited the vehicle, walked up, asked her to
have a seat back in the car. I asked her for her cards,
driver's license, registration and insurance card. She had
trouble, difficulty finding it, the cards. I did detect an
odor of alcohol coming from the interior of the vehicle, also
red blood shot eyes, and when she did speak to me in answering
questions it was a slurred voice.
I asked her to step out of the vehicle then to the
rear of the vehicle. When she got out of the vehicle, I did
notice that the odor was coming from her, not the vehicle. I
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asked her to stand at the rear of her vehicle facing my patrol
vehicle. I asked her if she would do a few tests. She finally
said that she would do the tests.
As I got ready to radio into county basically
telling them I had a traffic stop -- up to this point I hadn't
contacted them. As I got ready to call in, the young lady told
me to turn out those F-in lights. At this point she said she
wasn't taking the test. She turned and walked away toward the
house she had parked in front of.
I asked her at least once to come back, and then I
basically grabbed her by the arm and placed handcuffs on her
and told her that she was under arrest for DUI.
Q Then what happened?
A I asked her to come to my vehicle. She wouldn't.
So I more or less had to carry her back. I opened the door to
the rear of my vehicle, asked her to have a seat in. She
refused to do that. So I had to actually place her in the
vehicle.
Then about -- I can't r'emernber exactly what time
officer -- I believe it was Officer Kidman from Camp Hill
showed up. He was just checking on me because he heard -- I
guess he heard some type -- or at some point that I made an
attempt to call into county. He stood by and he actually
followed me as I transported her over to booking.
Booking is the West Shore Booking Center over at
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the Lower Allen Township Police Station. We arrived there. I
took her inside and released her to the custody of Officer
Heckard here, and then I read the implied consent warning to
her.
Q If I can back you up.
A Sure.
Q Did you have any conversations with her while you
were putting her in the vehicle or while she was in the
vehicle?
A Not really conversation. She was telling me that I
couldn't do this. Well, let me back up. At one point when I
told her she was under arrest she said, well, just give me the
speeding ticket. You can't do this. I'm at home. My car was
off. I was out of my car. She continued to tell me that she
was out of her car and that she had already made it home, when
she was seated in my cruiser, along with some other language.
Q At anytime did you ask her if she had been
drinking?
A I'm sorry. Yes, sir, I did. She told me she had
two glasses of wine. She said, if I remember correctly, the
first one was at -- can I look at my notes?
Q Yes.
A She stated she had the first glass of wine at 10:00
and the second glass around 12:00, and it was currently almost
2:00.
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Q And then you stated you transported her to the
booking center?
A Yes, sir.
Q And then what happened at the booking center?
A She was read her implied consent warning and --
well, among other things, but I read her the implied consent
warning, and I stood by until Officer Heckard actually gave her
three -- what we call three tickets or three attempts to
provide two good breath samples for a good test.
Q At anytime did she provide two valid samples?
A No, ma'am. No, sir. I'm sorry.
MR. KABUSK: May I approach the witness, Your
Honor?
THE COURT: Yes.
BY MR. KABUSK:
Q I'm going to show you what's been marked
Commonwealth Exhibit No.1. It's a copy of the DL-26. Would
you circle what you read to the petitioner.
MR. MANCKE: Your Honor', we'll stipulate to that.
THE COURT: Stipulate that the DL-26 was read in
its entirety and are the correct warnings?
MR. MANCKE: Yes.
THE COURT: So stipulated.
BY MR. KABUSK:
Q And I'm going to show you what has been marked as
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Commonwealth's Exhibit No.2. Is that a correct copy of the
breath test printout?
A Yes, sir.
Q And number three, is that a correct copy of the
breath test printout? The first one is numbered 15689 which is
the test number. The second one is number 15690, and the third
breath test ticket is number 15691 which is sub-exhibit number
four. Is that a correct copy?
A I'm just checking the date here. Yes, sir, they
are.
MR. KABUSK: I move for the admission of what's
been marked Commonwealth's Exhibit No.1 and Commonwealth's
Exhibit No.2, 3 and 4.
THE COURT: Admitted.
BY MR. KABUSK:
Q Officer Sollenberger, are you aware of any
agreements that Hampden Township has entered into with other
jurisdictions regarding a provision of police services?
A Yes, sir. We constantly help each other out,
whether it be assisting in active calls or many times
jurisdictions will have a limited number of officers. They are
tied up. Another officer from an outside jurisdiction has to
come in and handle whatever the call is.
Q So is it unusual for you to respond to a call in
Camp Hill?
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MR. MANCKE: Your Honor, I'm going to object at
this point.
THE COURT: Sustained. I don't see the relevance.
BY MR. KABUSK:
Q Are you aware of a Mutual Aid Agreement that Camp
Hill has signed regarding county wide mutual aid?
A Yes, sir.
Q What's been marked as Commonwealth's Exhibit No.5
is a copy of that. Are you familiar with that?
A I've never seen it, sir. I've just been told about
it through training.
Q Thank you.
A My training.
MR. KABUSK: I move for the admission of what's
been marked Commonwealth's Exhibit No.5. It is not a
certified copy.
MR. MANCKE: Your Honor, my objection is not that
it's not certified. However, the Mutual Aid Agreement
specifically requires a request of the other municipality, and
there has been no evidence of any request by Camp Hill. So I'm
objecting to its admissibility and relevancy.
THE COURT: I will admit it as long as you are not
contesting the authenticity. Whether it is relevant as part of
this case is another -- relevance isn't the right word.
Whether it is applicable to the facts of this case is another
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issue.
MR. KABUSK: And what will be marked Commonwealth
Exhibit No. 6 --
(Whereupon, Commonwealth's Exhibit No.6
was marked for identification.)
BY MR. KABUSK:
Q This is that map I showed you earlier. You put a
little mark on there. Would you circle that mark indicating
where the border is?
A Somewhere in that area, sir.
MR. KABUSK: I move for the admission of what's
been marked Commonwealth Exhibit No.6.
THE COURT: Admitted.
BY MR. KABUSK:
Q Did you then deem her actions at the booking center
to be a refusal?
A Yes, sir. In fact, I believe after -- before and
after each test when we were getting insignificant or
insufficient breath samples we tried to tell her that, you
know, anything you do like this, not giving a full breath
sample, is going to end up being termed insufficient and that
will be understood as a refusal.
MR. KABUSK: Your Honor, I have a copy of that tape
at the booking center, but since the refusal has been
stipulated to I'll forego showing that.
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THE COURT:
MR. KABUSK:
THE COURT:
I agree.
No further questions.
Cross.
CROSS EXAMINATION
BY MR. MANCKE:
Q Officer, you were in a Hampden Township municipal
police uniform and a Hampden Township Police vehicle on
November 27, 2003, is that correct?
A That's correct, sir.
Q And while you were in Hampden Township, you
mentioned a speedometer clock. I think you called it a pace
clock. That total distance that you actually clocked her at 53
in a 40 mile per hour zone was a hundred yards, is that
correct?
A It wasn't very far, yes, sir.
Q Would your best estimate be that it was a hundred
yards?
A Estimate, yes, sir.
Q And you saw no other violations of the Motor
Vehicle Code in Hampden Township, did you?
A I saw the wide turn. I don't know if you're going
to say that is in Camp Hill or technically Hampden. As I
understand it, the jurisdiction runs right down the middle of
the roadway at that point.
Q Well, I'll get to that with you in a minute.
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A I'm sorry.
Q But I'm asking you, as far as what you know to be
in Hampden Township, the only thing you did was get a clock on
your speedometer for a total distance of a hundred yards at 53
miles per hour in a 40 mile per hour zone?
A That's correct, sir.
Q You never saw my client get out of her lane of
travel on Trindle Road, did you?
A No, sir, I did not.
Q And at no time from the beginning of when you saw
her to when you pulled her over did you observe her interfere
with any other traffic on the roadway?
A That's correct, sir.
Q And as you proceeded on Trindle Road, you saw her
vehicle slow down to make a right-hand turn, is that right?
A That's correct, sir.
Q And she used her turn signal to make that right
turn, did she not?
A I want to say yes, but I can't honestly remember.
I'm sure if she didn't I would have included it in my report.
Q And you don't have it in your report?
A That is correct, sir.
Q And as soon as you made the turn on April Drive is
when you turned on your lights, is that correct?
A That's correct, sir.
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Q To stop her vehicle, is that right?
A Yes, sir.
Q Now, I'm going to show you what we have marked as
Defendant's Exhibit No.1 which is a certified street map of
Hampden Township. Would you agree 'with me on that certified
copy
A Yes, sir.
Q That it is a certified copy of the street map, is
that correct?
A That's true.
Q And you'll agree with me that April Drive is not
listed on the map as being in Hampden Township?
A That's correct, sir. It would be up in that area,
in that little chunk where Camp Hill is.
Q So April Drive on this map is in Camp Hill?
A Correct, sir.
Q And then showing you what we have marked as
Defendant's Exhibit No.2 is a Camp Hill Borough zoning map
which is also certified, and that shows clearly that April
Drive is in Camp Hill, is that correct?
A That's correct, sir.
Q And, in fact, it indicates that Trindle Road prior
to April actually turns -- for the direction that you were
going is actually in Camp Hill?
A Yes, sir.
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Q Is that correct?
A Yes, sir.
Q Now, there was no other traffic on April Drive, was
there, at the time she made her right-hand turn?
A No, sir, there was not.
Q And you had told her the reason you had pulled her
over was for speeding and a wide turn, is that right?
A Yes, sir.
Q Now, are you familiar with potholes that existed at
the intersection of Trindle and April Drive?
A Before this incident, no, sir, I can honestly say I
don't think I've ever been on April Drive before in my life.
But I did go back after dropping her off and look, and there
was at least one pothole right there.
Q And the pothole to avoid that pothole an
operator of a motor vehicle would swing wide while making the
right-hand turn, would they not?
A It was in the travel lane, so I would guess that
they would have to, yes, sir.
Q And are you able in looking at a group of
photographs able to identify
A Which one? No, sir. I'm sorry.
Q And April Drive has no lane markings on it, does
it?
A No, sir, I don't believe so.
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MR. MANCKE: That's all I have.
THE COURT: Any redirec.t?
MR. KABUSK: No.
THE COURT: Sir, you may step down.
THE WITNESS: Thank you, Your Honor. Should I take
these down, sir?
THE COURT: Just hand them to the stenographer.
MR. KABUSK: The Department has the booking agent,
David Heckard, here. However, since the refusal has been
stipulated to I'll dispense with his testimony.
THE COURT: You rest?
MR. KABUSK: Yes.
THE COURT: Any respondent testimony? Pardon me,
petitioner.
Just very briefly, Your Honor.
Sure.
Whereupon,
JOHN O'BRIEN,
having been duly sworn, testified as follows:
MR. MANCKE:
THE COURT:
DIRECT EXAMINATION
BY MR. MANCKE:
Q Will you state your full name, please.
A John O'Brien.
THE COURT: Spell that last name for me.
THE WITNESS: O-B-r-i-e-n.
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BY MR. MANCKE:
Q And your residence address?
A 1423 Timberbrook Drive, Hampden Township.
Q And are you familiar with the location that's been
described as Trindle Road and April Drive?
A Yes, I am.
Q And how is it that you're familiar with that
intersection?
A I've been seeing Myra for about nine months, and I
frequent that road. She lives there. I pick her up often.
THE COURT: Would you speak a little louder into
the microphone.
THE WITNESS: Sure.
(Whereupon, Defendant's Exhibit No.3 was
marked for identification.)
BY MR. MANCKE:
Q Have you made the turn -- a right-hand turn onto
April Drive from Trindle Road?
A Frequently.
Q And for the last nine months that you have been
dating her, what did you observe about the road conditions at
that intersection?
A Very poor, several potholes. You do need to take a
wide turn unless you want to drive through the holes.
Q Have you seen other operators make wide turns
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there?
A Almost always.
Q I'm going to show you a set of photographs that
we've collectively marked as Defendant's Exhibit No.3 and ask
you whether you can identify the photographs?
A Yes, I can identify all of them, which direction
they are, what have you.
Q And what do they reflect?
A The conditions of the road, the potholes.
Q And have those conditions existed for the last nine
months?
A For the nine months that I've been traveling that
road, yes.
Q And when you make that turn, you make it wide to
avoid those potholes?
A Yes.
MR. MANCKE:
MR. KABUSK:
THE COURT:
That's all I have. Cross-examine.
No questions.
Sir, you may step down. Anything
further?
MR. MANCKE: Nothing further, Your Honor, except to
move for the admission of what have been marked Defendant's
Exhibit No.1, 2 and then the group of photographs identified
as Defendant's Exhibit No.3.
THE COURT: Admitted. The record is closed.
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1 Argument, off the record, defense.
2 (Whereupon, argument wa~3 held off the record.)
3 THE COURT: I understand the issues. I will take
4 it under advisement. Thank you.
5 (Whereupon, the hearing was concluded at
6 2:28 p.m.)
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CERTIFICATION
2
I hereby certify that the proceedings are
3
contained fully and accurately in the notes taken by me on
4
the above cause and that this is a correct transcript of
5
same.
6
0~) .
.~"- K . ~~"tiJO !',
Pamela R. Sheaffer
Official Court Reporte .
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------------------------------
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The foregoing record of the proceedings on
the hearing of t~e within m~tter is h~bY approved
directed to be hled. / I
and
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B. Bayl J. ~
Judicial District
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Edgar
Ninth
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Myra J. Martin
v.
No. 1255 C.D. 2004
Submitted: November 12, 2004
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
tJ D4- )11
,
~
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION
BY JUDGE LEAVITT
FILED: March 18, 2005
The Department of Transportation, Bureau of Driver Licensing
(Department), appeals from an order of the Court of Common Pleas of Cumberland
County (trial court) that sustained the statutory appeal of Myra J. Martin (Martin)
from a one-year suspension of her operating privilege pursuant to Section l547(b)
of the Vehicle Code (Implied Consent Law).l We reverse.
On November 27, 2003, Hampden Township Police Officer James
Sollenberger was on uniformed patrol in a marked police cruiser. At
approximately 1:45 a.m. he observed Martin's vehicle proceeding along Trindle
Road in Hampden Township. Believing that Martin was exceeding the posted 40
1 It states that "[i]f any person placed under arrest for [driving under the influence of alcohol or
controlled substance] is requested to submit to chemical testing and refuses to do so, the testing
shall not be conducted but upon notice by the police officer, the department shall suspend the
operating privilege of the person. . . for a period of 12 months." 75 Pa.C.S. 9 1547(b )(1)(i).
mile per hour speed limit, Officer Sollenberger followed her at a steady distance
for approximately 100 yards and, using his speedometer, clocked Martin's speed at
53 miles per hour. Martin reduced her speed and made a wide right turn onto April
Drive, a two-lane unmarked street in the Borough of Camp Hill. Notes of
Testimony, 5/26/04, at 9 (NT -.--1; Reproduced Record at 25a (RR -.--1. The
only vehicles on April Drive were Officer Sollenberger's and Martin's.
As Officer Sollenberger activated his lights to initiate a traffic stop,
Martin stopped in front of her residence on April Drive and exited her vehicle.
Officer Sollenberger asked Martin to return to her vehicle and to produce her
driver's license, vehicle registration and proof of insurance. Martin had difficulty
locating the requested documents. N.T. 9; RR 25a. Officer Sollenberger detected
an odor of alcohol emanating from the vehicle and noticed that Martin had
bloodshot eyes and slurred speech. Id. Officer Sollenberger asked Martin to get
out of her vehicle, at which point he noticed an odor of alcohol about Martin's
person. Martin admitted that she had consumed two glasses of wine that evening
at 10:00 p.rn. and 12:00 a.ill. N.T. 11; RR 27a. Martin refused to perform field
sobriety tests and began walking toward her house. As Martin became more
belligerent, Officer Sollenberger physically restrained her and placed her under
arrest for driving under the influence. Officer Sollenberger transported Martin to
the West Shore Booking Center at the Lower Allen Township Police Station where
she received standard implied consent warnings. Martin was unable to provide two
valid breath samples, and her actions were deemed a refusal to submit to a
chemical test for blood alcohol content. NT. 15; R.R 31a.
By notice dated December 16, 2003, the Department informed Martin
that her operating privilege was being suspended for a period of one year in
2
.
accordance with the Implied Consent Law. Martin filed a statutory appeal to the
trial court challenging only Officer Sollenberger's authority to enforce the Implied
Consent Law outside of his jurisdiction. Following a de novo hearing on May 26,
2004, the trial court found that Officer Sollenberger lacked jurisdiction to stop and
arrest Martin outside of his jurisdiction and, therefore, was not a "police officer"
for purposes of the Implied Consent Law. The trial court sustained Martin's
appeal and reversed her suspension. The Department now appeals.2
On appeal, the Department argues that the trial court erred in its
determination that Officer Sollenberger lacked extraterritorial authority to enforce
the Implied Consent Law. The Department also maintains that the legality of
Martin's arrest is immaterial.
The Implied Consent Law provides, in pertinent part, as follows:
(a) General Rule.-Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one
or more chemical tests of breath, blood or urine for the purpose
of determining the alcoholic content of blood . . . if a police
officer has reasonable grounds to believe the person to have
been driving, operating or in actual physical control of the
movement of a vehicle:
(1) in violation of section. . . 3802 (relating to
driving under influence of alcohol or controlled
substance)... .
2 In reviewing a decision of the trial court in a license suspension case, the standard of review of
an appellate court is to determine if the factual findings of the trial court are supported by
competent evidence, and whether the trial court committed an error of law or an abuse of
discretion. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241,
247,684 A.2d 539, 542 (1996).
3
75 Pa.C.S. s1547(a)(1) (emphasis added). The Vehicle Code defines "police
officer" as "[a] natural person authorized by law to make arrests for violations of
law." 75 Pa.C.S. Sl02 (emphasis added). Thus, a plain reading of Section l547(a)
evidences the legislature's intent to trigger the provisions of the Implied Consent
Law only when a person with legal authority to make an arrest has reasonable
cause to believe a motorist has been driving while intoxicated. Snyder v.
Commonwealth, 640 A.2d 490, 492 (Pa. Cmwlth. 1994). Where a licensee
challenges the legal authority of the arresting officer, as opposed to some aspect of
the manner of the arrest, the Department bears the burden of proving that the
officer had such authority. /d. 3
The Department argues, and we agree, that the Municipal Police
Jurisdiction Act (MPJA), 42 Pa.C.S. SS895l-8954, is controlling on the issue of
Officer Sollenberger's authority. The MPJA grants broad authority to municipal
police officers to enforce the laws of this Commonwealth within their primary
jurisdiction. 42 Pa.C.S. S8952.4 The MPJA also provides for statewide municipal
police jurisdiction in certain situations, one of which is relevant here:
] In a typical license suspension case the Department must establish that the licensee: (1) was
arrested for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3)
refused to do so; and (4) was specifically warned that a refusal would result in a license
suspension. Department of Transportation, Bureau of Driver Licensing v. Holsten, 615 A.2d
113, 114-115 (Pa. Cmwlth. 1992) (quoting Commonwealth v. O'Connell, 521 Pa. 242, 555 A.2d
873 (1989)). In this case, Martin stipulated that the Department satisfied the second, third and
fourth elements of its prima facie case. NT 5; R.R. 21a. Her challenge to Officer
Sollenberger's authority to arrest her relates to the first element.
4 It provides as follows:
Any duly employed municipal police officer shall have the power and authority to
enforce the laws of this Commonwealth or otherwise perform the functions ofthat
office anywhere within his primary jurisdiction as to:
(Footnote continued on next page. . . )
4
.
(a) General rule.--Any duly employed municipal police officer
who is within this Commonwealth, but beyond the territorial
limits of his primary jurisdiction, shall have the power and
authority to enforce the laws of this Commonwealth or
otherwise perform the functions of that office as if enforcing
those laws or performing those functions within the territorial
limits of his primary jurisdiction in the following cases:
* * *
(5) Where the officer is on official business and
views an offense, or has probable cause to believe
that an offense has been committed, and makes a
reasonable effort to identify himself as a police
officer and which offense is a felony,.
misdemeanor, breach of the peace or other act
which presents an immediate clear and present
danger to persons or property.
42 Pa.C.S. g8953(a).s Our Supreme Court has acknowledged that the MPJA
"should be liberally construed to effectuate its purposes, one of which 'is to
(continued. . . )
(1) Any offense which the officer views or otherwise has probable
cause to believe was committed within his jurisdiction.
(2) Any other event that occurs within his primary jurisdiction and
which reasonably requires action on the part of the police in
order to preserve, protect or defend persons or property or to
otherwise maintain the peace and dignity of this
Commonwealth.
42 Pa.C.S. 98952.
5 Although the parties cite extensively to McKinley v. Department of Transportation, Bureau of
Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003), that case has no application here. In
McKinley, our Supreme Court held that airport officers lack the authority to enforce provisions
of the Implied Consent Law outside of their territorial boundaries absent an express legislative
grant of extraterritorial authority. By contrast, our General Assembly, by enacting the MPJA,
has expressly authorized municipal police officers like Officer Sollenberger to enforce laws
outside of their primary jurisdiction. See also Stein v. Department of Transportation, Bureau of
Driver Licensing, 857 A.2d 719 (Pa. Cmwlth. 2004) (distinguishing McKinley in case involving
extraterritorial authority of municipal police officer).
5
provide police officers with authority to make arrests outside of their primary
jurisdictions in limited situations.'" Commonwealth v. Merchant, 528 Pa. 161,
168,595 A.2d 1135, 1138 (1991) (quoting Commonwealth v. Ebersole, 492 A.2d
436,438 (Pa. Super. 1985)). See also Commonwealth v. Pratti, 530 Pa. 256, 608
A.2d 488 (1992) (arresting officer on "official business" when he stopped and
detained defendant; officer was traveling toward his routine turnaround point
outside of his jurisdiction when he heard an automobile accident).
Applying subsection (a)(5) to the facts of this case, we find that
Officer Sollenberger was "on official business" prior to and during his encounter
with Martin. He was on routine patrol in a marked police cruiser in an area within
his primary jurisdiction, albeit at the boundary with neighboring Camp Hill
Borough. He was also in uniform and was unquestionably identifiable as a police
officer. While still in his primary jurisdiction, Officer Sollenberger viewed at least
one offense by Martin, speeding, as evidenced by his uncontroverted testimony
that he clocked her speed for a distance of approximately 100 yards.6 He viewed a
second offense on the geographical boundary when Martin made a wide right turn
onto April Drive and crossed over the opposing lane. Together these acts of erratic
driving presented an immediate clear and present danger to persons or property and
6 We acknowledge that because Officer Sollenberger clocked Martin's speed for only 100 yards
that she could not be charged with speeding. 75 Pa.C.S. 93368(a) (valid speedometer clock must
be measured "for a distance of not less than three-tenths of a mile."). This is of no moment,
however, since a license suspension is a civil proceeding. See Banner v. Department of
Transportation. Bureau of Driver Licensing, 558 Pa. 439, 444, 737 A.2d 1203, 1206 (1999)
("Thus the licensee's operating privileges could be suspended for refusing chemical testing even
though the initial stop of his vehicle did not comport with constitutional mandates.");
Department of Transportation v. Wysocki, 517 Pa. 175, 179, 535 A.2d 77, 79 (1987) ("(F]or
purposes of a license suspension proceeding for refusal to submit to a breathalyzer test, the
legality of the arrest (is] immaterial.").
6
.
further investigation was warranted. That the events occurred in a short period of
time and happened to traverse a jurisdictional boundary should not negate Officer
Sollenberger's authority. By concluding otherwise, the trial court thwarted the
liberal construction of the MPJA mandated by our Supreme Court.
Section 1547(a) of the Vehicle Code requires, in addition to the
arresting officer's authority, "reasonable grounds" for the officer to believe the
licensee was driving under the influence ofa1cohol. 75 Pa.C.S. ~1547(a)(1). Here,
there were several indicia of Martin's intoxication, including an odor of alcohol
emanating from her vehicle and about her person, her bloodshot eyes, slurred
speech and difficulty producing her license, registration and insurance
documentation. Martin also admitted to Officer Sollenberger that she had
consumed alcohol only hours before her arrest. Under these circumstances, Officer
Sollenberger unquestionably had reasonable grounds to believe Martin had driven
her vehicle while intoxicated.
In accordance with the foregoing analysis, we reverse the order of the
trial court sustaining Martin's appeal and reversing her suspension.
(~
MARY HANNAH LEAVITT, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Myra J. Martin
v.
No. 1255 C.D. 2004
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
AND NOW, this 18th day of March, 2005, the order of the Court of
Common Pleas of Cumberland County dated June 2, 2004, in the above-captioned
matter is hereby REVERSED.
~
MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Myra J. Martin
v.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 1255 C.D. 2004
Submitted: November 12,2004
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
DISSENTING OPINION BY
PRESIDENT JUDGE COLINS
FILED: March 18,2005
I must vigorously dissent from the well-written opinion of the
majority, as it seems we are coming perilously close to turning a blind eye to
questionable conduct by our police officers. While I acknowledge that our police
officers are charged with the awesome and sometimes onerous responsibility of
protecting the public, I cannot sanction the whisperings of the majority that that
protection comes at the deprivation of the constitutional rights of citizenship. We
do not want a police state, and it seems we are on the precipice of becoming one, in
the name of DUL I suggest that the Court, and the police, can ill afford to sanction
this type of conduct.
The facts here are like those of so many other cases. In the early
mornmg hours of November 27, 2003, Officer Sollenberger of the Hampden
Township Police saw a vehicle driving in front of his marked police cruiser on
Trindle Road in Hampden Township. For no cause other than that Officer
Sollenberger felt that the car was driving at a rate of speed above the 40-miles-per-
hour limit posted for the road, he followed the vehicle at a steady distance for 100
yards. Based on his own speedometer reading, he clocked its speed at 53 miles per
hour. The vehicle reduced its speed and while still on Trindle Road, entered the
separate jurisdiction of the Borough of Camp Hill. After properly signaling, the
driver made a wide right turn, avoiding several large potholes, onto April Drive, a
two-lane unmarked side street in Camp Hill. Officer Sollenberger did not notice
the potholes in the road at the time of the stop, but Martin produced photos and
testimony at trial to show that a wide turn was necessary to avoid the potholes at
that intersection. Officer Sollenberger's and Martin's vehicles were the only traffic
on the road at the time. Martin then continued on April Drive in the right lane, and
as Officer Sollenberger turned on his lights to initiate a traffic stop, Martin stopped
in front of 202 April Drive, Martin's residence. At this point, Officer Sollenberger
was outside of his primary jurisdiction and had no probable cause to issue a ticket
for any violations of the vehicle code or otherwise make an arrest.
After the vehicle stopped, Martin got out of her car. Officer
Sollenberger also got out of his cruiser and requested that Martin return to her
vehicle. She did. Officer Sollenberger then requested that Martin produce her
license and vehicle registration. She did. Officer Sollenberger detected an odor of
alcohol from the vehicle and noticed that Martin had bloodshot eyes and slurred
speech. Officer Sollenberger requested that Martin get out of her vehicle, at which
point, he noticed the smell of alcohol emanating from Martin. Martin admitted to
having had two glasses of wine, one at 10 P.M. and another at 12 A.M. Officer
Sollenberger asked Martin to perform field sobriety tests, and in response she
JGC-2
started to walk to her house. Officer Sollenberger told her to stop, but she kept
going. He took hold of Martin and arrested her for driving under the influence and
had to physically place her in the police cruiser. He drove her to the booking center
where he informed her of the Implied Consent Lawl and asked her to supply a
breath test. Martin refused to provide two good breath tests.
There is no dispute as to whether Martin was arrested for driving
under the influence, nor is there a dispute as to whether she refused chemical
testing. The sole issue in this case is whether Officer Sollenberger had
extraterritorial jurisdiction when he stopped and arrested Martin in the Borough of
Camp Hill qualifying Officer Sollenberger as a "police officer" for purposes of the
Implied Consent Law.
In disagreeing with the majority on this issue, I do not question the
officer's diligence, nor his honor and integrity in protecting the community. I do,
however, challenge the methodology. The majority sanctions the conduct of
Officer Sollenberger and rather glibly admits that they would sanction such
conduct even if the officer's conduct were not authorized by the law known as the
Municipal Police Jurisdiction Act (MPJA), 42 Pa. C.S. 998951-8954.1 This,
1 The Implied Consent Law at Section 1547(a) of the Vehicle Code, 75 Pa. C.S. gI547(a), states
in relevant part: "Any person who drives, operates or is in actual physical control of the
movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to
one or more chemical tests of breath, blood OT urine for the purpose of determining the alcoholic
content of the blood or the presence of a controlled substance if a police officer has reasonable
grounds to believe the person to have been driving, operating or in actual physical control of the
movement of a vehicle...." Further, Section 154 7(b )(i) states in relevant part:
"If any person placed under arrest for a violation of section 3802 [formerly Section 3731 relating
to driving under the influence of alcohol or other controlled substance] is requested to submit to
chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the
police officer, the department shall suspend the operating privilege of the person... for a period
of 12 months."75 Pa. C.S. gI547(b)(i)
2 "We would reach the same result even if Officer Sollenberger's conduct was not technically
authorized under the MPJA." Majority Opinion, at footnote 7.
JGC-3
despite the majority's position that the MPJA controls the issue of Officer
Sollenberger's authority to act extraterritorially. Thus, I lay the blame at our door
for allowing this conduct to escalate.
For purposes of the Implied Consent Law at issue here, the Vehicle
Code at Section 102 defines "police officer" as H[a] natural person authorized to
make arrests for violations of law." 75 Pa. C.S. SI02. Officer Sollenberger was
operating outside his primary jurisdiction of Hampden Township. In determining
whether Officer Sollenberger was authorized to make an arrest in the Borough of
Camp Hill, this Court must follow the direct precedent of McKinley IV, 3 as handed
down by the Pennsylvania Supreme Court, concerning the ability of limited
jurisdiction police officers to act in implementation of the Implied Consent Law.
McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa.
85, 838 A.2d 700 (2003) (McKinley IV). In discussing limited jurisdiction police
officers, the Supreme Court stated that "as the Legislature has circumscribed their
police authority, we hold that they lack the ability to act as police officers in
implementation of the Implied Consent Law outside territorial boundaries, in the
absence of an express, legislative grant of extraterritorial authority." 576 Pa. at 94,
838 A.2d at 706. The Legislature has expressly addressed the extraterritorial
authority of municipal police officers.4 This express grant of extraterritorial
jurisdiction for municipal police officers has already been noted by this Court in
Stein, which distinguishes the respective statutory grants of authority of municipal
officers from those of the airport police officers that were addressed in our
Supreme Court's holding in McKinley IV. Stein v. Department of Transportation,
3 The majority contends that McKinley IV has no application here. Nevertheless, the majority
attempts to find the express legislative grant of authority that McKinley mandates.
4 Judicial Code, 42 Pa. C.S. S 8953(a) and (b).
JGC-4
Bureau of Driver Licensing, 857 A.2d 719, 726 (Pa. Cmwlth. 2004).5 Under the
facts of the present case, I conclude that none of the circumstances outlined in 42
Pa. e.S. s8953(a) apply to Officer Sollenberger's actions. We agree with the trial
court that Officer Sollenberger witnessed no violations of the Vehicle Code while
within his primary jurisdiction of Hampden Township. Officer Sollenberger did
not get a valid speedometer clock of Martin's vehicle because, as Officer
Sollenberger testified, he clocked Martin's car for only 100 yards. The Vehicle
Code at 75 Pa. C.S. s3368(a) requires that for a speedometer clock to be valid the
vehicle's speed must be measured "for a distance of not less than three-tenths of a
mile." Commonwealth v. Whitmyer, 668 A.2d 1113 (1995) (Pennsylvania Supreme
Court held clocking for two-tenths of a mile insufficient to constitute probable
cause of a speeding violation). All other driving and conduct of Martin witnessed
by Officer Sollenberger took place outside his primary jurisdiction, where he
lacked authority to make an arrest. Martin's arrest for driving under the influence
was also made without the requisite authority. Consequently, Martin's refusal to
submit to chemical testing was a legal nullity and the Implied Consent Law does
not apply. Snyder v. Commonwealth, 640 A.2d 490 (Pa.Cmwlth. 1994).
I hesitantly reference the criminal law's "fruit of the poisonous tree"
doctrine, as I must acknowledge that license suspension proceedings are civil in
5 Specifically, based on the facts in Stein, this Court noted that Section 8953(a) of the Judicial
Code grants municipal police officers jurisdiction to enforce the laws of the Commonwealth
beyond their primary jurisdiction in the following circumstances: where the officer is in hot
pursuit; where the officer has obtained the prior consent of the chief law enforcement officeT, or
person authorized by him to give consent, of the recognized law enforcement agency that
provides primary police services to political subdivision; and where the officer is on official
business and views an offense or has probable cause to believe that an offense has been
committed.
JGC-5
nature. However, as stated by our Superior Court in Commonwealth v. Scattone,
672 A.2d 345,348 n.5 (Pa. Super. 1996),
[a] police stop of a motorist without probable cause or
articulable suspicion of criminal activity would taint the
seizure of evidence as "fruit of the poisonous tree" and
render it suppressible. See Wong Sun v. United States,
371 U.S. 471 (1963); Commonwealth v. Epoca, 447 Pa.
Super. 183,668 A.2d 578 (1995); and Commonwealth v.
Dennis, 289 Pa. Super. 205, 433 A.2d 79 (1981). Thus,
the police are not given carte blanche to stop
indiscriminately all motorists without sacrificing the
suppression of evidence seized as a result of an unlawful
stop.
In this case, I believe the officer's stop was indiscriminate, and as such, the officer
lacked reasonable grounds to stop the vehicle. For the foregoing reasons I would
affirm the trial court.
Accordingly, I respectfully dissent.
~~~..
JAMES GARDNER COLINS, President Judge
~~ .1
:... )
JGC-6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Myra J. Martin
v.
No. 1255 C.D. 2004
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
1+ 64- Jf~~~
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT
FILED: April 8, 2005
Before this Court is Myra J. Martin's (Martin) Application for
Supersedeas. Martin seeks to stay this Court's order upholding the one year
suspension of her driving privileges by the Pennsylvania Department of
Transportation, Bureau of Driver Licensing (Department) while she appeals our
order to the Pennsylvania Supreme Court. For the reasons set forth below the
supersedeas is denied.
The background to Martin's application is as follows. Officer
Sollenberger, of the Hampden Township Police, stopped Martin for observed
violations of the Vehicle Code. When she emerged from her vehicle, she smelled
of alcohol, her eyes were bloodshot and her speech was slurred. Martin admitted
that she had consumed alcohol in the four hours preceding the stop. She became
belligerent, swore at the officer, and refused to perform a field sobriety test or to
take a breathalyzer test. As a result, the Department suspended Martin's driving
privileges for one year in accordance with Section l547(b) of the Vehicle Code
(Implied Consent Law), 75 Pa. C.S. 9154 7(b)(1 )(i), which mandates a one year
suspension of driving privileges for refusing to take such a test.
The Court of Common Pleas of Cumberland County (trial court)
sustained Martin's statutory appeal of her license suspension, and the Department
then sought this Court's review. On March 18, 2005, by a vote of 2-1, this Court
reversed the trial court and reinstated the Department's suspension of Martin's
license. Martin v. Department of Transportation, Bureau of Driver Licensing, _
A.2d _' 2005 WL 627956 (Pa. Cmwlth., No. 1255 C.D. 2004, filed March 18,
2005). President Judge Colins filed a dissenting opinion. Id. (Colins, P.J.,
dissenting). In her application, Martin states that she intends to file a petition for
allowance of appeal with the Pennsylvania Supreme Court and in anticipation
thereof seeks a supersedeas of our order of March 18, 2005. The Department does
not oppose Martin's application.
The test for whether an applicant is entitled to a supersedeas pending
appeal, which has been established by our Supreme Court, is as follows:
1. The petitioner makes a strong showing that [she] is likely
to prevail on the merits.
2. The petitioner has shown that without the requested relief,
[she] will suffer irreparable injury.
3. The issuance of a [supersedeas] will not substantially hann
other interested parties in the proceedings.
4. The issuance of a stay will not adversely affect the public
interest.
Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502
Pa. 545, 552-553, 467 A.2d 805, 808-809 (1983) (citing Virginia Petroleum
Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir.
1958)). Generally, the applicant must make a "strong showing" on each of the
2
above criteria in order to justifY the issuance of a supersedeas. Process Gas, 502
Pa. at 553, 467 A.2d at 809.1
Beginning with the second Process Gas factor, Martin avers that she
"will suffer irreparable injury while waiting for the Supreme Court to rule on the
Petition for Allowance of Appeal and during any pendency of an appeal since her
driving privileges to operate a motor vehicle would be suspended and she needs
her driving privileges to maintain her employment.. .". Application for
Supersedeas at ~8. Martin offers no support for this bald allegation.2 There is, for
example, no suggestion that she is required to operate a motor vehicle as part of
her employment, or that she will be unable to get to work by other means, such as
carpool or public transportation, while her driving privileges are suspended. At
most, Martin asserts an inconvenience by the loss of her driving privileges, which
is simply inadequate to satisfY the "irreparable injury" requirement.
The third and fourth Process Gas factors weigh in Martin's favor.
The only other interested party, the Department, does not oppose Martin's
application and presumably will suffer no harm if a supersedeas is issued. There is
also no real risk of an adverse effect on the public interest since the Department
I When a court is confronted with a case in which the other three factors strongly favor interim
relief it may exercise its discretion to grant a stay if the petitioner has made a "substantial case"
on the merits. Process Gas, 502 Pa. at 553, 467 A.2d at 809 (citing Washington Metropolitan
Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977)). This is not
such a case since, as explained above, Martin has failed to demonstrate that she will suffer
irreparable injury without the requested relief.
2 The Court reminds counsel of the requirement in Pa.R.A.P. 1703 that an application for
supersedeas must comply with Pa.R.A.P. 123. Rule 123 directs that an application "shall state
with particularity the grounds on which it is based." Pa.R.A.P. 123(a). Martin's two-page
application fails to explain with any particularity why she is entitled to a supersedeas undeT
Process Gas.
3
can reimpose the license suspension in the event the Pennsylvania Supreme Court
declines to hear Martin's appeal or affirms this Court's order. This will also be the
result if Martin changes her mind about an appeal to the Supreme Court.
Finally, and most importantly, Martin must make a strong showing
that she is likely to prevail on the merits. Martin asserts that her appeal will
succeed, referring the Court to the dissenting opinion of President Judge Colins
and the Pennsylvania Supreme Court's decisions in McKinley v. Department of
Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003)
(McKinley IV); Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995)
and Commonwealth v. McCandless, 538 Pa. 286, 648 A.2d 309 (1994). However,
Martin offers no supporting analysis whatsoever.
In the absence of such analysis, the Court can only infer that Martin
believes that the dissenting opinion will prevail in the Supreme Court. There are
several flaws in the dissenting opinion that constrain the Court from reaching the
conclusion that there is a strong likelihood that the reasoning of the dissent will be
adopted by the Supreme Court.
First, the dissent glosses over the fact that this case is a civil
proceeding arising from Martin's refusal to take a blood alcohol test, not a criminal
conviction for violating the Vehicle Code. The dissent emphasizes that Officer
Sollenberger had not clocked Martin's speed for a sufficient length of time to
prosecute her for a speeding offense. That is beside the point because Officer
Sollenberger did not have to be able to convict Martin for speeding in order to
require her to take a blood alcohol test. Even if the stop of a vehicle is not proper,
our Supreme Court has held that the operator of that vehicle is subject to a license
suspension for refusing to take a blood alcohol test. Banner v. Department of
4
~
Transportation, Bureau of Driver Licensing, 558 Pa. 439, 444, 737 A.2d 1203,
1206 (1999) ("Thus the licensee's operating privileges could be suspended for
refusing chemical testing even though the initial stop of his vehicle did not
comport with constitutional mandates."). See also Department of Transportation
v. Wysocki, 517 Pa. 175, 179, 535 A.2d 77, 79 (1987) ("[F]or purposes of a license
suspension proceeding for refusal to submit to a breathalyzer test, the legality of
the arrest [is] immaterial.").
Second, the dissent treats the holding in McKinley IV as dispositive
here, but it is distinguishable. In McKinley IV, the Supreme Court held that airport
officers lacked authority to enforce the Implied Consent Law outside of their
territorial boundaries because there was no express legislative grant of such
authority. In the present case, Officer Sollenberger is not an airport officer; he is a
municipal police officer. As such, he is vested with extraterritorial authority under
the Municipal Police Jurisdiction Act (MPJA), 42 Pa. C.S. ~~895l-8954.3 Under
the terms of the express authority provided in the MPJA, Officer Sollenberger was
on "official business" prior to and during his encounter with Martin, which began
in Hampden Township and ended in the Borough of Camp Hill. 42 Pa. C.S.
~8953(a)(5).
Finally, the dissent fails to account for our Supreme Court's directive
that the MPJA "should be liberally construed to effectuate its purposes, one of
which 'is to provide police officers with authority to make arrests outside of their
3 Although he maintains that McKinley IV is controlling, President Judge Colins acknowledges
this crucial distinction by citing with approval Stein v. Department of Transportation, Bureau of
Driver Licensing, 857 A.2d 719 (Pa. Cmwlth. 2004), "which distinguishes the respective
statutory grants of authority of municipal officers from those of the airport police officers [in
McKinley IV]." Martin, _ A.2d _,2005 WL 627956 at *4 (Colins, PJ., dissenting).
5
primary jurisdictions in limited situations.'" Commonwealth v. Merchant, 528 Pa.
161,168,595 A.2d 1135,1138 (1991) (quoting Commonwealth v. Ebersole, 342
Pa. Super. 151, 492 A.2d 436, 438 (Pa. Super. 1985)). Liberal construction effects
the intention of the legislature that the lines that divide Pennsylvania into a Chinese
puzzle of townships, boroughs and cities be given appropriate, but not
determinative, weight in matters of law enforcement.
We consider, next, Martin's conclusory assertion that Whitmyer and
McCandless will carry the day in her appeal. Both of those cases addressed the
legality of a traffic stop and whether the officer conducting the stop had probable
cause to suspect a violation of the Vehic1e Code. In each case, the arresting
officers lacked the requisite probable cause, which led to the suppression of
evidence in a criminal enforcement proceeding. If this case were a criminal matter
involving the admissibility of evidence or the legality of charges lodged against
Martin for DUI or speeding then Whitmyer and McCandless might be applicable.4
4 McCandless is factually similar to the case sub judice insofar as it involved a municipal police
officer acting outside of his jurisdiction. Our Supreme Court rejected the argument that the
officer was on "official business" pursuant to the MPJA, 42 Pa.C.S. g8953(a)(5), because he had
no probable cause to believe that an offense was committed within his primary jurisdiction. In
that case, however, "[n]othing in the record provide[d) a basis to estimate the speed of
appellant's vehicle befoTe it [left the officer's jurisdiction). The officer himself testified that he
was unable to give any estimate whatsoever of that speed, and that nothing erratic had been
observed with Tegard to the manner in which the vehicle was being operated." McCandless, 538
Pa. at 289-290, 648 A.2d at 311. In the present case, Officer SollenbergeT was able to clock
Martin for a sufficient length of time within his primary jurisdiction to estimate her speed; he
also observed other erratic driving, namely Martin's wide right turn into the oncoming Jane of
traffic. In any event, whether Officer SollenbergeT had probable cause to arrest Martin for
speeding or any other Vehicle Code offense is, as indicated above, an issue for a criminal court
responsible for the imposition of criminal sanctions for violations of the Vehicle Code.eSuspension of operating privileges is a civil proceeding.
6
,
This case is different. As explained above, a license suspension proceeding is civil
in nature and the legality of the traffic stop is immaterial.
Officer Sollenberger stopped Martin after observing her to travel at an
illegal rate of speed and then use the lane of oncoming traffic to execute a turn.s
No one, not even Martin, claims that Officer Sollenberger's conduct was, per se,
inappropriate or excessive, only that it should not have taken place in Camp Hill.
The dissent's invocation of a "police state" exaggerates the significance of a
straightforward case of statutory construction, and it does not even fit. What
Officer Sollenberger did is not at issue, only where he did it.
It is the conclusion of this Court that Martin has failed to make a
strong showing that she is likely to prevail on the merits in an appeal to the
Supreme Court, and she has failed to demonstrate irreparable injury, only
. .
Inconvemence.
Accordingly, the Court will deny the application for a supersedeas.
[~
MAR AH LEAVITT, Judge
5 The General Assembly, in its wisdom, has limited the authority of police to make arrests
outside their primary jurisdiction to a case where the offense is an act which presents a danger to
person or property. Officer Sollenberger did not observe Martin littering or spitting on the
sidewalk. She was carelessly operating a two-ton vehicle at an unlawful rate of speed. The
speed limit on Trindle Road was enacted for reasons of safety not to boost the nation's strategic
oil reserves. The officer acted responsibly in these circumstances.
7
IN THE COMMONWEALTH COURT OF PENNSYL VANIA
v.
No. 1255 C.D. 2004
o :?5
r:~ C.:..-, ()
C~"'l -,"j
:r..,~ '--.f
-;;:..' :J~ _~
:;~.~j nli~
Myra J. Martin
N
>
;--,
<}
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
~..'''
':"'1:
(,J-; -....;;:
ORDER
AND NOW, this 8th day of April, 2005, the Application for
Supersedeas filed by Myra J. Martin on March 28, 2005, in the above-captioned
matter is hereby DENIED.
MAR~m'cJ"dg,
Certified from the Record
APR - 8 Z005
and Order Exit
.
J. A22016/03
NON-PRECEDENTlAL DECISION - SEE SUPERIOR COURT I.0.P.65.37
JAMES & JEAN FRALISH, AS
ADMINISTRATORS OF THE ESTATE OF
HEATHER L. JOHNSON, AND ON BEHALF
OF THE INTESTATE HEIRS OF HEATHER
L. JOHNSON,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
-Aq~_ (15)
v.
A.O. SMITH CORPORATION, Appellee,
AND PAUL R. LAY, Appellee, AND DORIS
F. LAY, Appellee,
Appellees
v.
.
LEA ANNE FRALISH, Appellee,
ADDITIONAL DEFENDANT,
Appellee
No. 1333 MDA 2002
Appeal from the Order Entered July 19, 2002, in the Court
of Common Pleas of Cumberland County, Civil Division,
at No. 98-1153.
BEFORE: MUSMANNO, BOWES AND POPOVICH, JJ.
MEMORANDUM:
FILED: July 7, 2004
James and Jean Fralish, the administrators of the estate of Heather
Johnson, appeal from the July 19, 2002 order granting summary judgment
in favor of the A.O. Smith Corporation ("AOSC") and Paul and Doris Lay,
Appellees herein.1 Appellants also question the propriety of a discovery
order dated April 5, 2001. After careful review, we affirm in part, reverse in
J. A22016/03
part, and remand for further proceedings consistent with this memorandum.
The relevant facts are as follows. On March 11, 1996, nineteen-
month-old Heather Johnson entered the bathroom of the apartment where
she resided with her parents in Carlisle, Pennsylvania. Heather's mother,
Lea Anne Fralish, was inside the apartment but had fallen asleep while
watching television, leaving Heather unsupervised. As her mother lay
sleeping on the living room couch, Heather attempted to bathe herself. She
drew hot water from the bathtub faucet but did not add any cold water.
Heather then climbed or fell into the bathtub, immersing herself in scalding
water that caused her to sustain second degree burns over eighty percent of
her body. Heather immediately began to scream and managed to climb out
of the bathtub before her mother awoke to the sound of her cries.
Paramedics were summoned, and Heather was taken to Hershey Medical
Center. Thereafter, Heather was transported to St. Christopher's Hospital
for Children where she died from burn-related injuries on March 31, 1996.
Appellants, Heather's maternal grandparents, instituted this wrongful
death and survivor action against Appellees by filing a praecipe for writ of
summons on March 3, 1998. At counts I and II of their six-count complaint,
Appellants alleged, inter alia, that Paul and Doris Lay, the couple who owned
the apartment building where Heather was injured, were negligent for failing
1 The July 19, 2002 order effectively disposed of all claims and all parties,
including third-party defendant Lea Anne Fralish. Therefore, the order is
final and appealable. See Pa.R.A.P. 341(b)(1).
- 2 -
J. A22016/03
to inspect the building's water heater, failing to test the temperature of the
hot water, failing to set the water heater at a safe temperature, and failing
to discover the dangerous condition created by the water heater, which was
set at 1500 Fahrenheit at the time of this incident. At counts III, IV, V, and
VI, Appellants asserted claims against AOSC, the water heater
manufacturer, sounding in strict liability and negligence. Specifically,
Appellants alleged that the water heater was defective because it was
capable of generating water "so hot as to be unreasonably dangerous to
intended users/, utilized a thermostat that was too easy to adjust, lacked
safety features to prevent users from setting the thermostat at
"unreasonably dangerous" temperatures, and bore no warnings regarding
the dangers of heating water to "unreasonably dangerous" temperatures.
Complaint, 9/1/98, at 14. In addition, Appellants alleged that AOSC was
negligent for designing and manufacturing a product capable of heating
water to unsafe temperatures, designing and manufacturing a water heater
without adequate safety features, and failing to warn foreseeable users of
the risk of injury associated with water heated above 1200 Fahrenheit. As a
result of these acts and omissions, Appellants sought punitive damages and
damages for pain and suffering, pecuniary loss, medical expenses, funeral
expenses, and administrative expenses.
On September 17, 1998, AOSC filed an answer and new matter
asserting that Heather Johnson and her mother, Lea Anne Fralish, had been
- 3 -
J. A22016/03
contributorily negligent. In addition, AOSC filed a cross-claim against the
Lays contending, inter alia, that the Lays had been negligent and that their
negligence was the sole cause of Heather's injuries. Lastly, AOSC filed a
complaint joining Lea Anne Fralish as an additional defendant on the theory
that her negligence was the sole cause of the accident.
Appellants filed an amended complaint with respect to the Lays on
October 6, 1998. The Lays answered the amended complaint, answered
AOSC's cross-claim, and filed cross-claims against Lea Anne Fralish and
AOSC. AOSC answered the Lays' cross-claim on November 6, 1998.
Discovery ensued, and numerous depositions were taken. On October
2, 2000, AOSC filed a motion for summary judgment claiming that: 1) the
water heater was not defectively designed; 2) there was no causal
relationship between the design of the water heater and Heather Johnson's
injuries; 3) AOSC had no duty to warn Heather Johnson's parents of the
obvious dangers of hot water; 4) it was unforeseeable that a nineteen-
month-old child would come into contact with scalding water in such a
manner; 5) when used properly, AOSC water heaters are safe and fit for
their ordinary purpose; and 6) Appellants had produced no evidence that the
Lays' water heater was defective or that it malfunctioned at any time.
The Lays also moved for summary judgment, arguing that: 1) Heather
Johnson's injuries resulted from lack of parental supervision; 2) Appellants
had produced no evidence that the Lays had actual or constructive notice
- 4 -
J. A22016/03
that the water heater was defectively designed, malfunctioned, or created a
dangerous condition; 3) absent such notice, the Lays did not owe a duty to
"take action" on behalf of their tenants with respect to the water heater; and
4) it was unforeseeable that a nineteen-month.old child would be injured in
such a manner. Lays' Motion for Summary Judgment, 10/5/00, at 3.
Appellants filed responses and briefs in opposition to both motions,
and on December 11, 2000, a three-judge panel consisting of the Honorable
George E. Hoffer, the Honorable Edward E. Guido, and the Honorable J.
Wesley Oler, Jr. issued the following order:
AND NOW, this 11th day of December, 2000, after careful
review of the briefs and record, the Motion for Summary
Judgment of Defendants Paul R. Lay and Doris F. Lay is DENIED.
The portion of the Motion for Summary Judgment of
Defendant A.D. Smith which is based upon the claim that the
conduct of Defendant Lee [sic] Anne Fralish was an intervening
and superseding cause as a matter of law is DENIED. The
remaining portions of Defendant A.D. Smith's Motion for
Summary Judgment are DENIED, without prejudice, and may be
refiled after completion of all discovery relevant to those issues.
Order of Court, 12/11/00.
When discovery resumed, Appellants filed a motion to compel AOSC to
identify all litigation relating to burn injuries caused by any of its water
heaters because AOSC refused to divulge information about cases that did
not involve the particular make and model at issue herein. AOSC opposed
the motion on the grounds that Appellants' interrogatories were "overly
broad, unduly burdensome, irrelevant, and not likely to lead to the discovery
- 5 -
J. A22016j03
of admissible evidence because they fail to reasonably limit the scope of
inquiry." AOSC's Answer to Discovery Motion, 1/17/01, at 3. On April 5,
2001, Judge Oler issued an order stating in relevant part as follows:
With respect to Plaintiff's Discovery Motion, within 30 days
of today's date Defendant A.O. Smith Corporation shall furnish to
Plaintiff's counsel the following information or documents: (1)
reports of burns resulting from the A.O. Smith Corporation's
water heater which is Model No. BT65-780 received by
Defendant A.O. Smith Corporation from 1968 until 1996; (2)
recalls relating to burns resulting from any A.O. Smith
Corporation water heaters of any type from 1970 to 1996; (3)
correspondence between Defendant A.O. Smith Corporation and
the [Consumer Product Safety Commission] relating to the
subject of warnings in connection with water heaters from 1970
to 1996, provided that this information need be supplied only in
the event that Plaintiffs are willing to pay to A.O. Smith
Corporation the costs of assembling such information; (4) the
steps, if any, taken by Defendant A.O. Smith Corporation to
warn of dangers from hot water heaters to consumers from 1970
to 1996; (5) recommendations, if any, as to proper temperature
settings for commercial hot water heaters from 1970 to 1996
made by Defendant A.O. Smith Corporation. . . .
Order of Court, 4/5/01, at 1-2. Appellants filed a motion for reconsideration
of the AprilS, 2001 order, which was summarily denied on May 1, 2001.
Appellants subsequently requested permission to appeal the April 5, 2001
order under 42 Pa.C.S. ~ 702(b), but that request was denied as well.
Following discovery, AOSC renewed its motion for summary judgment,
re-asserting the claims that had been denied without prejudice on December
11, 2000. The Lays filed a second motion for summary judgment as well,
claiming that there was no evidence that they had actual or constructive
notice of a dangerous condition on the leased premises. Consistent with this
- 6 -
J. A22016j03
view, the Lays maintained that they were immune from liability because the
dangerous condition allegedly created by the water heater's temperature
setting could not have been discovered upon reasonable inspection.
Appellants filed written responses to both motions. Judges Hoffer and Oler
reviewed the motions and granted summary judgment in favor of Appellees
by order and opinion dated July 19, 2002. This timely appeal followed.
Appellants raise the following issues for our review:
1. Whether the lower court erred in revisiting the issue of
whether the behavior of [Heather JOhnson] or her mother was a
superceding intervening cause, where [a] panel of the same
court had previously considered the issue and had decided it
differently and where there had been no change in the law or in
the facts?
2. Whether the lower court erred in granting the Motion for
Summary Judgment of Defendant A.a. Smith Corp. on all
theories of liability, including the warnings theories, where
record evidence demonstrated, among other things, that the
Defendant was aware (or should have been aware) at the time
of the manufacture of the product of a very serious risk of scald
injury for water heated to 1500 F[ahrenheit], and where it was
undisputed that neither the product nor its operator's manual
contained any warning of the risk of scald injury?
3. Whether the lower court erred in limiting discovery
regarding other burn incidents to the specific make and model of
hot water heater implicated in this case, where the defendant
manufacturer had produced many different makes and models of
hot water heaters over a long period of time, and where the risk
of scald injury and the nature of the alleged defects were not
limited to the specific make or model involved in this case?
4. Whether the lower court erred in granting the Motion for
Summary Judgment of Defendants Paul R. and Doris F. Lay. . .
where an earlier Motion for Summary Judgment raising the same
issues had been denied, and where record evidence showed the
following: The [Lays] had exclusive control over the temperature
- 7 -
J. A22016/03
setting of the hot water heater, the landlords did not dispute the
existence of a dangerous condition resulting from water heated
to 1500 F[ahrenheit], and the Plaintiffs had put forth evidence
that the standard of care of a professional landlord is to be
aware of a safe hot water temperature setting and to set the
thermostat accordingly?
Appellants' brief at 3-4.2
Appellants initially argue that in granting summary judgment, the trial
court erroneously revisited the issue of whether the conduct of the decedent
or her mother, Lea Anne Fralish, was a superseding cause of the accident.
As the record provides no support for this claim, we find it to be meritless.
Contrary to Appellants' position, the trial court did not grant summary
judgment based on a finding that Heather Johnson or her mother committed
intervening negligent acts that absolved Appellees from liability. In
actuality, the court granted summary judgment based on its determination
that: 1) the Lays did not have actual or constructive notice of a defective
condition on the leased premises and therefore had no duty to correct the
alleged defective condition; 2) the water heater was not defectively
designed; and 3) AOSC was not negligent for failing to warn foreseeable
users of the obvious dangers of hot water. See Trial Court Opinion,
7/19/02, at 7, 14-15. Hence, Appellants' first claim fails.
We now address Appellants' arguments challenging the propriety of
the order granting summary judgment in favor of AOSC, mindful of our
scope and standard of review:
- 8 -
J. A22016/03
As with all questions of law, our scope of review of a trial court's
order granting summary judgment is plenary. Our standard of
review is the same as that of the trial court; we must review the
record in the light most favorable to the non-moving party
granting [them] the benefit of all reasonable inferences and
resolving all doubts in [their] favor. We will reverse the court's
order only where the appellant. . . demonstrates that the court
abused its discretion or committed legal error.
Taylor v. Woods Rehabilitation Service, 2004 PA Super 89, 4.
The threshold inquiry in all products liability cases is whether the
product is defective. Schindler v. Sofamor, Inc., 774 A.2d 765 (Pa.Super.
2001). When a design defect is alleged, the plaintiff must show that the
product is unreasonably dangerous for its intended use. Id. This rule is
derived from section 402A of the Restatement (Second) of Torts, which has
been adopted as the law of this Commonwealth and provides as follows:
9 402 A. Special Liability of Seller of Product for Physical Harm
to User or Consumer
(1) One who sells any product in a defective
condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or
consumer, or to his property, if
(a) the seller is engaged in the business of
selling such a product, and
(b) it is expected to and does reach the user
or consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies
although
2 We have renumbered Appellants' issues for our convenience.
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(a) the seller has exercised all possible care
in the preparation and sale of his product, and
(b) the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
In the instant case, the trial court employed a risk-utility analysis and
determined that the water heater in question was not unreasonably
dangerous. Moreover, the court concluded that Appellants presented "no
evidence that a different design and/or temperature setting would have
created a safer design as well as have prevented [Heather Johnson's]
death." Trial Court Opinion, 7/19/02, at 12. Appellants challenge both
determinations, claiming that the court improperly disregarded the expert
report of safety engineer Russell Fote, which relied on information provided
by another engineering expert, Dr. Douglas Bynum, Jr. Mr. Fote's report
states in pertinent part:
In my opinion, this water heater was defective since the
water heater's thermostat could not safely control water
temperature and therefore, could not accurately convey a water
temperature inside or exiting its tank. During Dr. Bynum's
testing on June 15-16, 1998, he set the water heater's
thermostat control to the 120[0] F[ahrenheit] mark but was
reading hot water temperatures at the bathtub's spout between
127[0] F[ahrenheit] and 166[0] F[ahrenheit]. This is known as
stacking or layering and its likelihood is substantially reduced
with proper design. Layering allows for the water to be hotter
than what is suggested by the thermostat reading. This water
heater was not equipped with two thermostats, a lower and an
upper and therefore was defectively and dangerously designed.
Such a design substantially reduces the likelihood of layering. In
my opinion, if this water heater was so equipped, it would have
significantly reduced tap water temperature fluctuations over the
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thermostat's setting. Such a design would not have materially
affected the production cost or utility of the water heater.
Response in Opposition to AOSC's Renewed Motion for Summary Judgment,
12/31/01, Exhibit A at 2.
In order to prevail in a products liability action, the plaintiff must prove
by a preponderance of the evidence that: (1) the product was defective; (2)
the defect existed when it left the seller's hands; and (3) the defect was a
proximate cause of the plaintiff's injuries. Schindler, supra; see also
Davis v. Berwind Corporation, 547 Pa. 260,690 A.2d 186 (1997).
In the case at bar, we find that the aforementioned passage from Mr.
Fote's expert report is insufficient as a matter of law to sustain Appellants'
strict liability design defect claim. Assuming arguendo that the water heater
was defective because it was not equipped with two thermostats, Appellants
cannot establish proximate causation because there is absolutely no
evidence that the temperature of the water that injured Heather Johnson
exceeded 1500 Fahrenheit, the temperature at which the thermostat was set
when Heather was injured. In other words, even if we accept as true the
proposition that the presence of a second thermostat would have reduced
the likelihood of "layering," Appellants cannot prove that the absence of a
second thermostat was a proximate cause of Heather's injuries because
there is no evidence that any layering occurred when Heather filled the
bathtub. Accordingly, we affirm the trial court's grant of summary judgment
with respect to Appellants' strict liability design defect claim.
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Next, we consider whether the trial court erred in granting summary
judgment with regard to Appellants' failure-to-warn claim. Appellants argue
that the court improperly ignored expert witness reports indicating that the
water heater was defective because AOSC failed to place a warning on the
product concerning the dangers of water heated above certain temperatures
and failed to include instructions on how to avoid scald injury. AOSC
counters that the trial court's decision was correct because: (1) "the fact
that hot water within a range of temperatures can scald or burn skin is open
and obvious;" (2) Lea Anne Fralish admitted at a deposition that she knew
hot water can cause scald injury; and (3) both Lea Anne Fralish and the Lays
committed intervening acts "sufficient to break the chain of proximate
causation." AOSC's brief at 33, 41. We address these claims seriatim.
In regard to the law of strict liability, our Supreme Court has stated:
A "defective condition" is not limited to defects in design or
manufacture. The seller must provide with the product every
element necessary to make it safe for use. One such element
may be warnings and/or instructions concerning use of the
product. A seller must give such warnings and instructions as
are required to inform the user or consumer of the possible risks
and inherent limitations of his product. Restatement (Second) of
Torts Section 402A, comment h. If the product is defective
absent such warnings, and the defect is a proximate cause of the
plaintiff's injury, the seller is strictly liable without proof of
negligence. . . . Where warnings or instructions are required to
make a product non-defective, it is the duty of the manufacturer
to provide such warnings in a form that will reach that ultimate
consumer and inform of the risks and inherent limits of the
product. The duty to provide a non-defective product is non-
delegable. . . .
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Walton v. Avco Corporation, 530 Pa. 568, 576-77, 610 A.2d 454, 458-59
(1992) (quoting Berkebile v. Brantly Helicopter Corporation, 462 Pa.
83,100-103,337 A.2d 893, 902-903 (1975) (citations omitted)).
The record herein reveals that Russell Fote, Appellants' safety
engineering expert, reached the following conclusions with respect to the
water heater at Lea Anne Fralish's apartment building:
In my opinion, this water heater was defective since it did
not warn the owner of the serious injury hazard of high water
temperatures. There were no such warnings on the water heater
and/or in the water heater's owner's manual. A.O. Smith knew
or should have known of the very hazardous condition of hot tap
water since the Consumer Product Safety Commission was
collecting tap water scald injury data during 1973 via their
NEISS collection system. Mr. Plank testified on behalf of A.O.
Smith that A.O. Smith does review the NEISS data. In fact, hot
water temperatures correlating to skin contact time and scald
injury severity were researched as far back as 1947. These
studies were published in The American Journal of Pathology.
Mr. Plank stated in his deposition that this 1947 article would
have been available to his company since it is in the publiC
domain. He further stated in his deposition that a scald warning
could have been placed on the subject water heater. He stated
that his company pays about 7 cents per water heater for their
current scald warning. It is fair to say that in 1973 the cost to
A.O. Smith of such a warning would have been similar in
comparison to the cost of the water heater. Providing such a
warning . . . would not have materially affected the production
cost or the utility of the water heater.
Response in Opposition to AOSC's Renewed Motion for Summary Judgment,
12/31/01, Exhibit A at 2-3 (emphasis in original). Additionally, Mr. Fote
opined that the water heater was defective because AOSC: (1) failed to warn
consumers of the advisability of installing a mixing valve to provide
tempered hot water for residential use; (2) originally set the water heater's
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thermostat at 1400 and then failed to advise consumers to reduce the
temperature setting for residential use; (3) acknowledged that in 1973, the
year in which the Lays' water heater was manufactured, some consumers
would have wanted information on how to avoid or reduce scald injury.
AOSC does not dispute the validity of Mr. Fote's expert report; instead,
it posits that it should not be held accountable for Heather Johnson's injuries
because it is common knowledge that hot water can cause serious bodily
injury and because Lea Anne Fralish, the individual who was supposed to be
monitoring Heather's activities, was sleeping when the accident occurred.
For reasons discussed infra, we reject AOSC's arguments and find that the
trial court erred in granting summary judgment on the failure-to-warn claim.
AOSC initially contends that no warnings were necessary because the
general public is aware that hot water can cause serious bodily injury, and
Lea Anne Fralish admittedly possessed that knowledge. We reject this
contention for several reasons. First, contrary to AOSC's position, the
underlying issue is not whether the general public knows that hot water can
cause bodily injury; rather, it is whether warnings were required to make the
product safe for its intended use. Here, Appellants' expert has opined that
warnings were necessary, and Brad Plank, the product safety manager at
AOSC, has acknowledged that AOSC now cautions users that water
temperatures in excess of 1300 Fahrenheit may cause scalding and that such
temperatures increase the risk of injury for "young children, aged or
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handicapped persons." Deposition of Bradley N. Plank, 7/10/01, at 16-17.
Second, in Berkebile, supra, our Supreme Court unequivocally stated that
in strict liability cases, it is inappropriate to permit argument concerning the
reasonableness of a consumer's actions and knowledge:
It must be emphasized that the test of the necessity of
warnings or instructions is not to be governed by the reasonable
man standard. In the strict liability context we reject standards
based upon what the "reasonable" consumer could be expected
to know, or what the "reasonable" manufacturer could be
expected to "foresee" about the consumers who use his product.
Rather, the sole question here is whether the seller accompanied
his product with sufficient instructions and warnings so as to
make his product safe. This is for the jury to determine. The
necessity and adequacy of warnings in determining the existence
of a defect can and should be considered with a view to all the
evidence. The jury should view the relative degrees of danger
associated with use of the product since a greater degree of
danger requires a greater degree of protection.
Id. at 101-102, 337 A.2d at 902.
Finally, AOSC's argument concerning the obvious hazards of hot water
ignores the central question in this case, which is whether the public knows
that setting the temperature of one's water heater above 1200 Fahrenheit
drastically increases the risk of scald injury. With regard to this question,
Appellants have produced evidence that the public does not possess that
knowledge, and therefore, scald warnings are necessary. Hence, we find
that Appellants are entitled to present their evidence to a jury, which will
then determine whether the absence of warnings constituted a defect.
As noted, AOSC also maintains that it cannot be held liable in this
instance because Lea Anne Fralish inadvertently permitted her daughter to
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fill the bathtub without adult supervision. Accordingly, AOSC argues that the
accident occurred solely as a result of Ms. Fralish's negligence, and
therefore, the fact that AOSC did not place a scald warning on the Lays'
water heater is immaterial. For the following reasons, we disagree.
At the outset, we note that our Supreme Court has repeatedly
observed that negligence concepts have no place in strict liability cases.
See, e.g., Phillips v. Cricket Lighters, _ Pa. _, 841 A.2d 1000
(2003); Kimco Development Corp. v. Michael D's Carpet Outlets, 536
Pa. 1, 637 A.2d 603 (1993); Lewis v. Coffing Hoist Division, Duff-
Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987). Nevertheless, as
noted previously, a plaintiff in a products liability action must show that the
defective product was a proximate cause of his injury. Schindler, supra;
Davis, supra. A plaintiff's negligent conduct is irrelevant if the product
defect contributed in any way to his injury; however, where the defense
offers evidence to show that the accident occurred solely as a result of the
plaintiff's conduct, the plaintiff's actions are relevant and admissible to prove
causation. Jara v. Rexworks, Inc., 718 A.2d 788 (Pa.Super. 1998).
The plaintiff in Jara, id., was a laborer at a concrete factory where his
duties included cleaning and maintaining a conveyor manufactured by the
defendant. Prior to working on the conveyor, the plaintiff typically would
direct the plant manager to deactivate the machine at the main disconnect
switch, which was located in a control trailer. On the day in question, the
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plaintiff climbed to the top of the conveyor to perform routine maintenance,
but for some reason, no one had disconnected the power. Consequently,
the plaintiff was thrown to the ground when a co-worker activated the
conveyor by pushing the start button at the base of the machine.
The plaintiff filed suit against the manufacturer for personal injuries
claiming, inter alia, that the conveyor was defective because it lacked
various safety features. The case proceeded to trial, and although the jury
agreed that the conveyor was defective, it did not award any damages
because it found that the co-worker's conduct was a superseding cause of
the plaintiff's harm. The plaintiff filed post-trial motions, and the trial court
determined that it had erred in submitting the issue of superseding cause to
the jury. The court therefore granted post-trial relief and ordered a new trial
with respect to damages only. The manufacturer appealed.
On appeal, we affirmed the trial court on the following grounds:
In this case, evidence of Mr. Jara's conduct or the conduct of a
third party was offered to prove the accident was the result of a
superseding cause, namely someone started the [conveyor] belt
moving. However, that action was irrelevant to the question of
product defect. Had the product not been defective, Mr. Jara
would have had warning or been provided a safe location once
the belt was activated. Thus, it could not be established that the
accident was solely a result of Mr. Jara's or another's conduct.
Rather, as noted by the jury, the product defect was a
substantial factor in contributing to Mr. Jara's injury. Under
these circumstances, it was an error to submit the question of
superseding cause to the jury. . . .
Id. at 793-94.
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In the instant case, as in Jara, the underlying injury cannot be
attributed solely to the alleged defect, i.e., the lack of appropriate warnings.
Nonetheless, if AOSC had placed a scald warning on the water heater, a
visual inspection of the unit would have revealed that the water temperature
was dangerously high, and the Lays would not have assumed it was safe.
Thus, as we find that the evidence supports an inference that the lack of
warnings contributed to Heather Johnson's injuries, we reverse the trial
court's ruling on this claim. Accord Clark v. BiI-Jax, Inc., 763 A.2d 920
(Pa.Super. 2000) (evidence that forklift operator negligently caused
scaffolding to touch power line, which resulted in construction worker's
death, did not warrant grant of summary judgment in favor of scaffold
manufacturer where plaintiff proffered expert reports indicating that
scaffolding lacked safety features that could have prevented accident).
We now turn to Appellants' claims against AOSC for negligent design
and manufacture. Appellants contend that the trial court erred in granting
summary judgment in favor of AOSC "on all theories of liability," Appellants'
brief at 3, but they do not set forth any specified argument as to why their
negligence claims should not have been dismissed. Hence, we affirm the
trial court's grant of summary judgment with respect to those claims. See
Estate of Lakatosh, 656 A.2d 1378 (Pa.Super. 1995) (failure to elaborate
on mere assertion in argument section of brief results in waiver of claim).
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Next, Appellants assert that the trial court abused its discretion in
limiting discovery of other scald injury lawsuits filed against AOSC to cases
involving the specific make and model of water heater at issue in this action.
In essence, Appellants argue that the trial court's discovery ruling was
improper because the information sought was relevant to establishing that
AOSC knew or should have known that scald warnings were necessary prior
to 1973, the year in which the Lays' water heater was manufactured.
Discovery matters are discretionary with the trial court. McNeil v.
Jordan, 814 A.2d 234 (Pa.Super. 2002); accord Hutchison v. Luddy, 606
A.2d 905 (Pa.Super. 1992) (trial court has discretion to determine
appropriate measures necessary to insure adequate and prompt discovery of
matters permitted by Rules of Civil Procedure). Therefore, we review
discovery rulings for an abuse of discretion. McNeil, supra.
Pa.R.C.P. 4003.1 states in pertinent part:
Rule 4003.1. Scope of Discovery Generally. Opinions and
Contentions.
(a) Subject to the provisions of Rules 4003.2
to 4003.5 inclusive and Rule 4011, a party may
obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery
or to the claim or defense of any other party,
including the existence, description, nature, content,
custody, condition and location of any books,
documents, or other tangible things and the identity
and location of persons having knowledge of any
discoverable matter.
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(b) It is not ground for objection that the
information sought will be inadmissible at the trial if
the information sought appears reasonably
calculated to lead to the discovery of admissible
evidence.
Herein, Appellants filed discovery requests seeking to obtain, inter alia,
information from AOSC regarding notice of any injury caused by any of its
water heaters and information concerning any lawsuits filed against AOSC
that involved burn injuries caused by any of its water heaters. AOSC
refused to comply with these requests on the grounds that they were
overbroad. According to AOSC, it has been manufacturing water heaters
since 1936, and some of those products were designed for commercial use;
thus, information regarding injuries caused by commercial water heaters is
neither relevant nor likely to lead to the discovery of admissible evidence in
this case, which involves a water heater that was designed for residential
use. Additionally, AOSC contends that Appellants' request for information
concerning any and all litigation relating to burns caused by AOSC water
heaters was "unreasonable, overly burdensome and. . . not likely to lead to
the discovery of admissible evidence." AOSC's brief at 43.
Both parties raise valid points. For example, we agree with AOSC that
information relating to commercial water heaters is irrelevant to this action
and that such information does not appear reasonably calculated to lead to
the discovery of admissible evidence. Likewise, we agree that Appellants'
request for information concerning every burn-injury lawsuit ever filed
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against AOSC was overbroad because it would have required AOSC to
furnish documents pertaining to water heaters that carried scald warnings.
However, we reject AOSC's contention that information about prior burn-
injury accidents involving residential water heaters is irrelevant and unlikely
to lead to the discovery of admissible evidence absent a preliminary showing
that the other accidents occurred under substantially similar circumstances.
It is settled that evidence of prior accidents is relevant and admissible to
prove the existence of a defect and/or a defendant's actual or constructive
knowledge of a defect, see Spino v. John S. Tilley Ladder Co., 548 Pa.
286, 696 A.2d 1169 (1997), and although the plaintiff ultimately must show
that the prior accidents occurred under similar circumstances, id., the
plaintiff is not required to make that showing during the discovery period.
Appellants' argument also has merit. Appellants' case is premised on
the theory that AOSC, a company that has been making water heaters for
over fifty years, knew or should have known that scald warnings were
necessary well before 1980, the year in which the company began to issue
them. Therefore, Appellants sought information about scald injuries caused
by AOSC water heaters prior to 1980 in an effort to determine if any
consumers were injured during that period due to a lack of hazard warnings.
Although such information clearly is relevant to the issue at hand, the trial
court inexplicably limited discovery to incidents involving the specific make
and model of water heater that injured Heather Johnson. Under the
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circumstances, we agree with Appellants that the trial court's ruling
constitutes an abuse of discretion. Given the nature of this case, Appellants
should have been granted access to information about scald injuries caused
by other types of residential water heaters manufactured by AOSC between
1950 and 1980. Accordingly, we remand the case to the trial court to permit
additional discovery with respect to this issue.
Appellants' final argument assails the trial court's grant of summary
judgment in favor of the Lays. Specifically, Appellants contend that the trial
court: 1) improperly re-examined issues that were raised in the Lays' initial
motion for summary judgment, which was denied; and 2) erred in refusing
to charge the Lays with constructive notice of the dangerous condition
created by the water heater in Lea Anne Fralish's apartment building.
Appellants' claim that the court improperly re-considered previously-
litigated issues is waived because it was not raised in the trial court. See
Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be
raised for first time on appeal). Herein, the Lays' renewed motion for
summary judgment was based on the sole contention that they did not have
actual or constructive notice of a dangerous condition on the leased
premises. Although Appellants filed a written response to the Lays' renewed
motion for summary judgment, they did not oppose the motion on the
theory that the trial court had already addressed the notice issue.
Accordingly, we find that this claim is waived pursuant to Pa.R.A.P. 302(a).
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Accord Skipworth v. Lead Industries Association, Inc., 547 Pa. 224,
230 n.2, 690 A.2d 169, 171 n.2 (1997) (claim that trial court properly
entered summary judgment in favor of lead pigment manufacturer because
plaintiffs relied on inadmissible evidence was waived pursuant to Pa.R.A.P.
302(a) because manufacturer raised issue for first time on appeal).
We now consider whether the court erred in determining that the Lays
did not have constructive notice of the dangerous condition created by the
water heater. At the outset, we note the following principles of law
articulated by our Supreme Court:
As a general rule, a landlord does not warrant that the
leased premises are in a tenantable condition. However, where
the landlord retains control of a part of the leased premises,
which is necessary to the safe use of the leased portion, he is
liable to the lessee and others lawfully on the premises for
physical harm caused by a dangerous condition existing upon
that part over which he retains control, if by the exercise of
reasonable care he could have discovered the condition and the
risk involved, and made the condition safe. See, Restatement
2d, Torts, 9 361 (1965). See also, Wolk v. Pittsburgh Hotels Co.,
284 Pa. 545, 131 A.2d 537,42 A.L.R. 1081 (1925), and Pratt v.
Scott Enterprises, Inc., 421 Pa. 46, 218 A.2d 795 (1966) . . . .
In order to warrant a finding that the . . . landlord-
defendant failed to exercise reasonable care in discovering and
correcting the alleged dangerous condition . . . the plaintiff
[must] establish that the defendant had either actual or
constructive notice of the condition. See, Loeb v. Allegheny
County, 394 Pa. 433, 147 A. 2d 336 (1959).
Smith v. M. P. W. Realty Company, Inc., 423 Pa. 536, 539-40, 225 A.2d
227,229 (1967).
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In the case sub judice, the trial court, citing Felton v. Spratley, 640
A.2d 1358 (Pa.Super. 1994), a case where this Court held that a landlord
had no affirmative duty to inspect her rental property for lead-based paint,
concluded that the Lays were entitled to summary judgment because
Appellants "produced no evidence and [could] point to no authoritative
source which holds that the defendants Lay had a legally imposed duty to
inspect the hot water heater to determine whether the temperature setting
on it was safe for human use." Trial Court Opinion, 7/19/02, at 5-6.
Thereafter, the court stated as follows:
[Appellants] contend that the danger of having the hot water
heater set at a temperature of 150 degrees Fahrenheit was
generally known to the public at large as too hot of a setting for
personal use and the Lays should have known this. As such,
[Appellants] contend that, based upon this general public
knowledge, the Lays are charged with constructive notice,
thereby creating an affirmative duty on their part to check the
water heater on the premises in question to make sure it was set
at a lower temperature than 150 degrees Fahrenheit. But
[Appellants] have presented no evidence as to a supposed
general understanding in the public at large that a temperature
setting of 150 degrees Fahrenheit is unsafe for personal use.
Additionally, there was no indication on the temperature dial of
the hot water heater that any of the available temperature
settings on the dial were unsafe for personal use. Specifically,
there was no indication that it should not be set at 150 degrees
Fahrenheit for personal use. The water temperature dial on the
water heater contained temperature settings of 120, 140, 160,
and 180 degrees Fahrenheit. According to the A.O. Smith
operation manual the four settings are as follows:
120[0 Fahrenheit]- warm
140[0 Fahrenheit]- normal
160[0 Fahrenheit]- hot
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180[0 Fahrenheit]- dishwasher rinse only.
Thus, the midrange of the setting would have been 150 degrees
Fahrenheit. As such, the temperature setting was between
normal and hot. The water heater had no indication that the
150-degree temperature would be too hot for personal use. As
such, without any underlying reason triggering notice to the
landlords of defects on their premises, the [Lays] cannot be held
liable. There is no evidence that the [Lays] were placed on
notice throughout the entire 16 year period of owning the
apartment complex.
Id. at 6-7.
The trial court's reasoning is flawed in several respects. First,
Appellants have never argued that the Lays should have discovered the
dangerous condition because the general publiC knows that water heated to
1500 Fahrenheit is unsafe for personal use. To the contrary, Appellants have
consistently asserted that the Lays had a duty to inspect the water heater
and to test the hot water temperature because the general public does not
know that water heated to 1500 Fahrenheit is unsafe for personal use.
Second, the record clearly indicates that the Lays did not possess an
operation manual for the water heater in question. See also Lays' brief at
3. Hence, the fact that the 150-degree hot water temperature setting would
have fallen halfway between the "normal" and "hot" settings described in the
manual is irrelevant because the Lays made no effort to obtain a manual
from AOSC; rather, they chose to assume, without basis, that the hot water
temperature setting did not pose a danger to their tenants. Similarly, the
fact that no one ever complained about the hot water temperature in the
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apartment building is immaterial because it has no bearing on the issue of
whether the Lays failed to exercise reasonable care in discovering and
correcting the dangerous condition that existed on the premises.
We also take issue with the trial court's conclusion that Appellants did
not produce any evidence that would support a finding that the Lays had a
duty to inspect the water heater to determine if the hot water temperature
setting was safe for personal use. Contrary to the court's assertion,
Appellants presented evidence indicating that the Lays owed such a duty and
that their conduct fell below the applicable standard of care. Indeed,
Appellants proffered the expert report of professional property manager
Gerald Sobczak, which provides in relevant part:
The standard of care, as well as codes[,] charge a landlord
with the responsibility of providing a safe, clean and secure place
for his tenants and guests. It is the landlord's ultimate
responsibility to ensure the facility is safe from defects as the
nature of the building reasonably permits for the intended use of
same. Frequent and regular inspections are the keys to
providing a safe place to live and visit, and are part of a
reasonable on-going maintenance program necessary to ensure
that safety. Inspections are followed up with remedies to
observed and foreseeable defects and safety items. Of particular
concern to the reasonable and diligent landlord are things that
could place a tenant or guest at risk of harm. Water heaters and
the hot water they produce are such items of concern. Water, at
an extremely hot temperature, is truly a dangerous condition.
The reasonable landlord understands the obligation to inspect
water heaters and maintain and adjust them so as to keep the
temperature reasonable and safe.
The reasonable and prudent landlord recognizes that
excessively hot water is dangerous for his tenants. Prevention of
such conditions occurring is a very simple and quick procedure.
It is my opinion that these landlords fell below the reasonable
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standard of care in maintaining their water heater and the water
it produced.
The six-unit building in which this incident occurred had
one water heater. The landlord exclusively controlled this
heater. His own testimony acknowledged that the tenants were
not allowed to adjust or deal with the heater. With this control
comes the responsibility to maintain it in a safe condition.
Tenants are not expected to have the knowledge so as to
determine if the water provided is excessively hot. Landlords do
have such a duty.
The reasonable and prudent landlord is not only reactive
but is also proactive in the maintenance procedures of the rental
properties. In this case, the landlord's maintenance policy of
performing work only when tenants complained or requested
work is below the standard of care. Waiting for a tenant to
complain that the water is too hot is not an acceptable standard
of care for maintenance of a water heater.
Response in Opposition to Lays' Renewed Motion for Summary Judgment,
12/31/01, Exhibit A at 1-2.
The trial court either overlooked or ignored Mr. Sobczak's expert
report in ruling on the Lays' renewed motion for summary judgment. In
either case, we hold that the court erred. Viewing the evidence in the light
most favorable to Appellants, we find that issues of material fact exist as to
whether the Lays owed a duty to inspect the water heater and whether their
conduct fell below the standard of care. Thus, we reverse the trial court's
entry of summary judgment on this claim.
For the foregoing reasons, we affirm that portion of the trial court's
order dismissing the negligence and design defect claims against AOSC.
However, we reverse that portion of the order dismissing the strict liability
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.
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failure-to-warn claim against AOSC and the negligence claim against the
Lays. We also vacate the trial court's April 5, 2001 discovery order and
remand that issue to the trial court with instructions.
Case remanded. Jurisdiction relinquished.
Judge Popovich files a Concurring and Dissenting Memorandum
Statement.
Date:
JtJt-{J '1 2004
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JAMES & JEAN FRALISH, AS
ADMINISTRATORS OF THE ESTATE OF
HEATHER L. JOHNSON, AND ON BEHALF
OF THE INTESTATE HEIRS OF HEATHER L.
JOHNSON,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
A.O. SMITH CORPORATION AND PAUL R.
LAY, AND DORIS F. LAY
v.
LEA ANNE FRALISH, ADDITIONAL
DEFENDANT,
Appellees
No. 1333 MDA 2002
Appeal from the Order Entered July 19, 2002,
In the Court of Common Pleas of Cumberland County,
Civil Division at No. 98-1153.
BEFORE: MUSMANNO, BOWES AND POPOVICH, JJ.
CONCURRING AND DISSENTING MEMORANDUM STATEMENT BY POPOVICH, J.:
FILED: July 7, 2004
I agree with the majority's affirmation of the portion of the trial court's
order dismissing the negligence and design defects claims against AOSC. I
respectfully disagree with the portion of the majority's memorandum
dismissing the strict liability failure-to-warn claim against AOSC and the
negligence claim against the Lays.
.
.
J. A22016/03
I disagree with the majority's conclusion that a lack of warning on the
water heater contributed to Heather's injuries. I also disagree with the
majority's conclusion that the Lays had constructive notice that the
temperature of the water from the water heater was unsafe. The
temperature setting on the water heater was halfway between 140 degrees
and 160 degrees, which was also halfway between the low temperature
setting of 120 degrees and the high setting of 180 degrees. Accordingly, I
agree with the trial court's conclusion that the Lays did not have constructive
or actual notice of any alleged defect involving the water heater and,
therefore, did not have a duty to correct the alleged defective condition.
Additionally, based upon the foregoing, I would not find it necessary to
vacate the trial court's April 5, 2001 discovery order and remand with
instructions.
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J. A02007/05
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37
LINDA J. NIESEN,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
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THOMAS T. NIESEN,
Appellant
No. 1098 MDA 2004
Appeal from the Order Entered June 16, 2004
In the Court of Common Pleas of Cumberland County
Civil Division at No. 1999-00909
BEFORE: BENDER, GANTMAN and JOHNSON, JJ.
MEMORANDUM:
FILED: February 28, 2005
Thomas T. Niesen (Husband) appeals from the order entered on June
16, 2004, that denied his petition requesting the termination of alimony
payments to Linda J. Niesen (Wife) as provided for in the parties' property
settlement agreement (PSA). Husband contends that the trial court erred in
concluding that Wife continued to be entitled to alimony payments because
she was not cohabitating with Mark Heisey. We affirm.
"In reviewing alimony orders, 'we review only to determine whether
there has been an error of law or abuse of discretion by the trial court. An
abuse of discretion entails a misapplication of the law or a manifestly
unreasonable judgment in light of the record.'" Lobaugh v. Lobaugh, 753
A.2d 834, 835 (Pa. Super. 2000) (quoting Peck v. Peck, 707 A.2d 1163,
1164 (Pa. Super. 1998)).
J. A02007/05
Essentially, Husband argues that pursuant to the facts of record, which
he outlines at length in his brief, he has demonstrated that Wife and Mr.
Heisey are cohabitating, as that term is defined in case law. Accordingly,
Husband contends that the court should have granted his petition to
terminate alimony payments to Wife. We disagree.
Following our review of the record, the briefs of the parties, the
relevant law, and the thorough and well-reasoned analysis provided by the
trial court in its opinion, we conclude that the trial court properly found that
Husband's claims are without merit. Consequently, finding no error by the
trial court, and determining that its opinion correctly and accurately disposes
of Husband's arguments, we adopt the trial court's opinion as our own and
affirm the order on that basis.
Order affirmed.
FEB
Date:
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LINDA 1. NIESEN,
Plaintiff
IN TIIE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYTo VANIA
vs.
CIVIL ACTION - LAW
99-909 CIvIL
THOMAS T. NIESEN,
Defendant
IN RE: PETITION TO TERMINATE ALIMONY
BEFORE HESS, 1.
OPINION AND ORDER
Linda J. Niesen (hereinafter referred to as "Wife") and Thomas T, Niesen (hereinafter
referred to as "Husband") were divorced on February 4, 2003 and as part ofthis divorce
Husband and Wife entered into a Marital Settlement Agreement (hereinafter referred to as
"Agreement"). The Agreement requires Husband to pay Wife alimony in the amount of $900.00
monthly. There are five conditions upon which Husband's alimony obligation can terminate
under the terms of the Agreement: Husband's death, Wife's death, Wife's remarriage, Wife's
cohabitation with a person who is not a member of her immediate family, or by May 31, 2008.
Husband has filed a petition to terminate alimony obligation claiming that he is entitled to
a termination of his alimony obligation because Wife is cohabiting with a man named Mark
Heisey, who is not a member of Wife's immediate family. Wife admits to having a romantic
relationship with Mark Heisey, but maintains that they have no plans of marriage or of a serious
relationship. Wife and Mark Heisey each maintain separate residences. They sleep at each
other's residences occasionally but only when Wife does not have custody of Husband and
Wife's youngest child. Wife and Mark Heisey went on two vacations together, one to a wedding
of a colleague and another with Wife's son, where they shared a room together, but split the
.
.
I 99-909 CIVIL
costs of these vacations evenly. Also Wife had at one time put Mark Heisey's name down as an
emergency contact on her son's school pennission slip.
Under Section 3706 of the Divorce Code cohabitation is a bar to a spouse receiving court
awarded alimony, but the term "cohabitation" is not defmed. 23 Pa. C.S.A. S 3706. The Superior
Court, though, has provided a definition of "cohabitation" in its decision in Miller v. Miller, 508
A.2d 550 (pa. Super. 1986). The Court in Miller held that:
[C]ohabitation, for purposes of applying the bar of section 507,
requires that two persons of the opposite sex reside together in the
manner of husband and wife, mutually asswning those rights and
duties usually attendant upon the marriage relationship.
Cohabitation may be shown by evidence of financial, social, and
sexual interdependence, by sharing of the same residence, and by
other means. . ..Where, upon proof by a preponderance of the
evidence, the trier of fact concludes that the dependent former
spouse has entered into a relationship with' a member of the
opposite sex who is not a member of the petitioner's inunediate
family within the degrees of consanguinity' and the two have
assumed the rights, duties, and obligations attendant to the marital'
relationship, the dependent former spouse is no longer entitled to
receive alimony from the other former spouse. An occasional
sexual liaison, however, does not constitute cohabitation.
Miller, supra at 554.
In Lobaugh v. Lobaugh, 753 A.2d 834 (Pa. Super. 2000), the Court found that
cohabitation had occurred when a man and his child lived with the recipient, the man slept in the
recipient's bedroom, the man and the recipient were affectionate towards one another and often
kissed, hugged, and held hands even though they denied a sexual relationship. The man, his son,
the recipient and her son ate meals together and attended church together. The man took the
recipient's child to school. He bought'recipient and her child mattresses. He received phone
calls at the recipient's residence and made minor household repairs. He had no income and,
therefore, did not contribute to household bills. Based upon this evidence the Court determined
2
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; . I .' 99-909 CIVIL
.
that the man and the recipient were residing together as husband and wife by mutually assuming
those rights and duties usually attendant upon a marital relationship. The Court affirmed the
lower court's termination of alimony. Both parties in this case rely on Lobaugh in support of
their positions. We are satisfied, however, that this case better supports the position taken by the
wife.
In the present case, there is no evidence that Linda J. Niesen and Mark Heisey are
cohabiting under the definition of cohabitation provided for in Miller. Linda and Mark both
maintain separate residences. They each pay their own expenses and the two do not commingle
either assets or liabilities. According to Linda and Mark, they have no plans of getting married,
nor do they have plans for a serious relationship. Apart from some sexual intimacy, there is no
evidence of the type of interdependence which Miller associates with a marriage relationship.
Accordingly, we will deny the petition to terminate the alimony obligation.
ORDER
AND NOW, this 1(, I day of June, 2004, after hearing and consideration ofthe
testimony adduced, the petition ofthe defendant to terminate alimony is DENIED.
BY THE COURT,
Maria P. Cognetti, Esquire
For the Plaintiff
J
Thomas T. Niesen, Esquire
Charles E. Thomas, Jr., Esquire
For the Defendant
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1002005
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
MYRA J. MARTIN,
No. 333 MAL. 2005
Petitioner
Petition for Allowance of Appeal from the
Order of the Commonwealth Court
v.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
ORDER
PER CURIAM
AND NOW, this 26th day of August 2005, the Petition for Allowance of Appeal is
GRANTED. The parties are directed to brief the following issue:
Whether a municipal police officer has authority under the Municipal Police
Jurisdiction Act, 42 Pa.C.S. 9 8951 et seq., to conduct an extraterritorial
arrest of a motorist or implement the Implied Consent Law where the officer
has no grounds for arrest or probable cause in the officer's own jurisdiction
but grounds for arrest arise after the officer leaves his jurisdiction in pursuit of
the motorist.
Irene M. BizzQSO
Deputy Prothonotary
Shirley Bailey
Chief Clerk
Supreme Court of Pennsylvania
Middle District
August 26, 2005
P.O. Box 624
Harrisbum. PA 17108
717-7B7-6181
www.aopc.org
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
RE: Myra J. Martin, Petitioner
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing, Respondent
Commonwealth Docket Number -1255 CD 2004
Trial CourVAgency Dkt. Number: 04-0212 Civil Term
No. 333 MAL 2005
Appeal Docket No.: 100 MAP 2005
Date Petition for Allowance of Appeal Filed: April 18, 2005
Disposition: Petition for Allowance of Appeal - Limited Granted
Date: August 26, 2005
Reargument/Reconsideration Disposition:
Reargument/Reconsideration
Disposition Date:
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[J-133-2005]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.
MYRA J. MARTIN,
100 MAP 2005
Appellant
Appeal from the Order of the
Commonwealth Court entered on March
18,2005, at 1255 C.D. 2004, reversing the
Order of the Court of Common Pleas of
Cumberland County entered on June 2,
2004, at 04-0212.
v.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION, 870 A.2d 982 (Pa. Cmwlth. 2005)
BUREAU OF DRIVER LICENSING,
Appellee ARGUED: December 5, 2005
OPINION
MR. JUSTICE CASTILLE
DECIDED: August 22,2006
This appeal arises from the suspension of appellant's operating privilege for refusing
to undergo chemical testing pursuant to the Implied Consent Law, 75 Pa.C.S. 91547. The
lower courts disagreed over the authority of a municipal police officer to invoke the Implied
Consent Law outside the officer's defined territorial jurisdiction, as provided in the Municipal
Police Jurisdiction Act, 42 Pa.C.S. 98951 ef seq. ("MPJA" or "Act"). The trial court found
that the officer lacked authority under the MPJA to pursue and arrest appellant in an
adjoining jurisdiction; that the lack of authority rendered the officer's invocation of the
Implied Consent Law invalid; and, thus, that appellant's operating privilege was not subject
to suspension under the Implied Consent Law. A divided panel of the Commonwealth
Court reversed, with the panel majority holding that the officer had acted within his MPJA
authority in pursuing appellant into a neighboring jurisdiction, stopping her, and then
invoking the Implied Consent Law. We agree with the trial court that the officer in the
situation sub judice exceeded his authority under the Act and, therefore, we reverse the
order below and reinstate the trial court's order invalidating appellant's license suspension.
The facts as found by the trial court, per the Honorable Edgar B. Bayley, are as
follows: On November 27,2003, at approximately 1 :45 a.m., Hampden Township Police
Officer James Sollenberger was on uniformed patrol in a marked Hampden police cruiser
when he observed appellant's vehicle on Trindle Road in Hampden Township, Cumberland
County. Believing appellant to be exceeding the posted 40 mile per hour speed limit,
Officer Sollenberger followed her at a steady distance for approximately 100 yards,
clocking her speed (by use of his own speedometer) at 53 miles per hour. Appellant then
reduced her speed and, while still on Trindle Road, entered the neighboring Borough of
Camp Hill. Appellant properly signaled a right-hand turn and then made a wide right turn
onto April Drive. There was no other traffic except the police cruiser on either Trindle Road
or April Drive at the time and, at the point of appellant's turn, there were several large
potholes on the right berm of Trindle Road and the right driving lane of April Drive.
As appellant continued in the right lane on April Drive, Officer Sollenberger, now in
Camp Hill, turned onto April Drive and activated his patrol car's lights to initiate a traffic
stop. Appellant stopped her car and got out. The officer exited his vehicle and asked
appellant to get back inside her car, and she complied with his request. The officer then
asked appellant to produce her driver's license, vehicle registration and proof of insurance,
which she provided after some initial difficulty in locating the documents. During this
exchange, Officer Sollenberger smelled an odor of alcohol coming from inside appellant's
car and noted that appellant had red, bloodshot eyes and slurred her speech. The officer
then requested that appellant exit her car; when she did, he detected the odor of alcohol
[J-133-2005] - 2
coming from her person. Officer Sollenberger asked appellant to perform field sobriety
tests, whereupon she swore at him and started walking toward a nearby house. The officer
ordered appellant to stop, but she continued walking, causing him to physically seize
appellant and arrest her for driving under the influence ("DUI,,).1 He placed appellant in his
patrol car and drove her to the booking center where he read to her instructions relevant to
the Implied Consent Law from a DL-26 form? Appellant refused to provide two valid breath
test samples, which was deemed a refusal to submit to chemical testing.
On December 16, 2003, appellee Department of Transportation, Bureau of Driver
Licensing (the "Bureau") informed appellant that her operating privilege was being
suspended for one year, as a result of her refusal to submit to chemical testing. Appellant
filed a statutory appeal to the trial court challenging Officer Sollenberger's authority to
enforce Section 1547 of the Motor Vehicle Code (commonly referred to as the Implied
Consent Law), outside his territorial jurisdiction. The dispute arose from the statute's
language regarding the role of a "police officer:"
(a) General rule.--Any person who drives, operates or is in actual physical
control of the movement of a motor vehicle in this Commonwealth shall be
deemed to have given consent to one or more chemical tests of breath, blood
or urine for the purpose of determining the alcoholic content of blood or the
presence of a controlled substance if a police officer has reasonable
grounds to believe the person to have been driving, operating or in actual
physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both... .
1 75 Pa.C.S. 9 3731 (a). Section 3731 was subsequently repealed and reenacted as
amended at Section 3802 of the Motor Vehicle Code, 75 Pa.C.S. 9 3802. See Act of
September 30, 2003, P.L.120, No. 24, 9914,16 (effective Feb. 1, 2004).
2 The DL-26 form is generated by the Bureau.
[J-133-2005] - 3
75 Pa.C.S. 9 1547 (emphasis added).3 4 The Motor Vehicle Code defines a police officer
as: "A natural person authorized by law to make arrests for violations of law." kt 9 102.
This case centers on whether Officer Sollenberger was authorized to act as a police officer
when he arrested appellant in a neighboring jurisdiction and requested that she submit to
chemical testing under the Implied Consent Law.
The trial court sustained appellant's appeal and reversed her license suspension,
finding that Officer Sollenberger lacked statutory authority to stop and arrest appellant
outside the officer's territorial jurisdiction and, therefore, he was not then lawfully acting as
a police officer for purposes of the Implied Consent Law. The court reasoned that, as a
municipal police officer, Officer Sollenberger had authority beyond the territorial limits of his
3 Section 1547(a) was later amended by Act 24 of 2003, effective February 1,2004. The
prior version of the statute, set forth in the text, governs this case.
4 The Bureau's authority to suspend a driver's operating privilege based upon a refusal to
submit to chemical testing derives from Section 1547(b) which, at the time relevant here,
provided:
(b) Suspension for refusal.--
(1) If any person placed under arrest for a violation of section 3731 (relating
to driving under the influence of alcohol or controlled substance) is requested
to submit to chemical testing and refuses to do so, the testing shall not be
conducted but upon notice by the police officer, the department shall
suspend the operating privilege of the person for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that the
person's operating privilege will be suspended upon refusal to submit to
chemical testing.
75 Pa.C.S. 9 1547 (b). Section 1547(b) was later amended both by Act 24 of 2003,
effective February 1, 2004, and Act 177 of 2004, effective November 29, 2004. The text
above applies to this case, as the testing request pre-dated the amendments.
[J-133-2005] - 4
jurisdiction only in those instances specifically set forth in the MPJA. The MPJA, to the
extent relevant to this appeal, defines a municipal police officer's extra-territorial jurisdiction
as follows:
(a) General rule.--Any duly employed municipal police officer who is within
this Commonwealth, but beyond the territorial limits of his primary jurisdiction,
shall have the power and authority to enforce the laws of this Commonwealth
or otherwise perform the functions of that office as if enforcing those laws or
performing those functions within the territorial limits of his primary
jurisdiction in the following cases:
*
*
*
*
(2) Where the officer is in hot pursuit of any person for any
offense which was committed, orwhich he has probable cause
to believe was committed, within his primary jurisdiction and for
which offense the officer continues in fresh pursuit of the
person after the commission of the offense.
*
*
*
*
5) Where the officer is on official business and views an
offense, or has probable cause to believe that an offense has
been committed, and makes a reasonable effort to identify
himself as a police officer and which offense is a felony,
misdemeanor, breach of the peace or other act which presents
an immediate clear and present danger to persons or property.
42 Pa.C.S. 98953.
The trial court concluded that Officer Sollenberger's arrest of appellant was not an
authorized extra-jurisdictional arrest under subsection (a)(2)'s hot pursuit provision because
probable cause to arrest her did not arise while she was in the officer's primary jurisdiction
of Hampden Township. This was so, the trial court reasoned, because the officer did not
clock appellant's speed for a sufficient distance to generate probable cause to believe that
she was speeding. Under the Motor Vehicle Code, an officer attempting to ascertain a
motorist's speed using a speedometer (as opposed to, for example, a state police officer
[J-133-2005] - 5
employing radar) must time the speed for at least three-tenths of a mile. See 75 Pa.C.S. 9
3368(a). Here, Officer Sollenberger only clocked appellant's speed for 100 yards while still
in Hampden Township.5 The trial court further noted that appellant did not weave or cross
into the lane of oncoming traffic in Hampden Township. Thus, Officer Sollenberger lacked
probable cause to arrest appellant for any criminal acts or violations of the Motor Vehicle
Code occurring in Hampden Township, a fact which negated any hot pursuit claim.
As to subsection (a)(5), the trial court noted that when appellant made a wide turn
onto April Drive, she was already in the Borough of Camp Hill; that there were no other cars
on the road; that there were potholes at the intersection of Trindle Road and April Drive
(which explained appellant's wide turn); and that appellant immediately moved into the right
traffic lane after executing the turn. From these facts, the trial court concluded that Officer
Sollenberger did not witness or have probable cause to believe that appellant had
committed a felony, misdemeanor, breach of the peace or other act which presented an
immediate clear and present danger to persons or property while he was in the Borough of
Camp Hill. Thus, the trial court held that Officer Sollenberger lacked authority to arrest
appellant since the officer was not a "police officer" for purposes of the Implied Consent
Law. Therefore, appellant's operating privilege could not be suspended under the Law.
On the Bureau's appeal, a divided 2-1 panel ofthe Commonwealth Court reversed in
a published opinion. Martin v. Commonwealth. Department of Transportation. Bureau of
Driver Licensina, 870 A.2d 982 (Pa. Cmwlth. 2005). Confining its analysis to the officer's
authority under MPJA Section 8953(a)(5), the panel majority found that Officer
Sollenberger was on official business both before and during his encounter with appellant,
5 A mile equals 1,760 yards; thus, pursuant to Section 3368(a), an officer timing a motorist's
speed by use of a speedometer must follow the motorist for 528 yards, or more than five
times the distance Officer Sollenberger followed appellant and clocked her speed.
[J-133-2005] - 6
as he was on routine patrol in a marked police cruiser in his primary jurisdiction, he was in
uniform, and he was clearly identifiable as a police officer. The majority concluded that,
while in Hampden Township, the officer witnessed appellant commit a traffic offense, i.e.,
speeding, noting that even if appellant could not be charged with speeding because the
officer did not follow her for a sufficient statutory distance, the officer did clock her speed at
a rate exceeding the posted speed limit. The majority further concluded that Officer
Sollenberger witnessed a second traffic offense "on the geographical boundary [of
Hampden Township and the Borough of Camp Hill] when [appellant] made a wide turn onto
April Drive and crossed over the opposing lane." 870 A.2d at 986.6 Based upon
appellant's speeding and her wide turn, the majority concluded that: "[t]ogether, these acts
of erratic driving presented an immediate clear and present danger to persons or property
and further investigation was warranted," ~ The majority thus held that Officer
6 The majority's conclusion that the wide turn occurred on the boundary of the two
jurisdictions differs from the trial court's finding that appellant entered the Borough of Camp
Hill while still on Trindle Road and subsequently turned onto April Drive. Officer
Sollenberger's testimony supports the trial court's finding. On direct examination, the
officer testified that appellant crossed the border between Hampden Township and the
Borough of Camp Hill only when she made a right turn onto April Drive. N.T. 5/26/04 at 8.
The officer also stated that a portion of Trindle Road is also located in the Borough of
Camp Hill. ~ at 8-9. On cross-examination, when shown certified street and zoning maps,
the officer testified that a portion of Trindle Road prior to the intersection with April Drive
indeed is in the Borough of Camp Hill. not in Hampden Township. ~ at 18. For purposes
of appeal, we accept the trial court's finding, which is supported by the record, and not the
unsupported Commonwealth Court finding.
Further, the majority did not identify the provision of the Motor Vehicle Code it believed was
violated by appellant's wide turn. The Bureau argues that the Section implicated was 75
Pa.C.S. ~ 3301 ("driving on right side of roadway"), while the trial court analyzed Section
3309 ("driving on roadways laned for traffic"). The discrepancy is of no moment in our
analysis.
[J-133-2005] - 7
Sollenberger had statutory authority to stop appellant and accordingly could invoke the
Implied Consent Law.
President Judge Colins dissented. Citing McKinley v. Department of Transportation,
Bureau of Driver Licensino, 838 A.2d 700 (Pa. 2003) (McKinley IV), the dissent noted that
limited jurisdiction police officers such as Officer Sollenberger lack the authority to
implement the Implied Consent Law outside their own territorial boundaries in the absence
of express statutory authority. In the dissent's view, Officer Sollenberger lacked statutory
authority to arrest appellant because the conduct the officer witnessed in his own
jurisdiction did not establish a speeding violation, since the officer did not clock appellant's
vehicle for the requisite statutory distance, and the "other driving and conduct of [appellant]
... took place outside his primary jurisdiction, where he lacked authority to make an arrest."
Therefore, the dissent concluded, appellant's refusal to submit to chemical testing was a
"legal nullity" and the Implied Consent Law "does not apply." Martin, 870 A.2d at 988-89
(Colins, P.J., dissenting)
This Court granted allowance of appeal to consider: "Whether a municipal police
officer has authority underthe Municipal Police Jurisdiction Act, 42 Pa.C.S. ~ 8951 et seq.,
to conduct an extraterritorial arrest of a motorist or implement the Implied Consent Law
where the officer has no grounds for arrest or probable cause in the officer's own
jurisdiction but grounds for arrest arise after the officer leaves his jurisdiction in pursuit of
the motorist." Martin v. Commonwealth, Department of Transportation, Bureau of Driver
Licensino, 882 A.2d 1001 (Pa. 2005) (per curiam).
The question for review focuses on the meaning and application of the MPJA and
the Implied Consent Law. As the issue involves statutory construction, this Court's
standard of review is plenary and non-deferential. ~ MCI WorldCom, Inc. v.
Pennsylvania Public Utilitv Comm'n, 844 A.2d 1239 (Pa. 2004); Mosaica Academy Charter
School v. Commonwealth. Department of Education, 813 A.2d 813 (Pa. 2002). The
[J-133-2005] - 8
Statutory Construction Act, 1 Pa.C.S. 9 1501 et seq., provides that the object of
interpretation and construction of statutes is to ascertain and effectuate the intention of the
General Assembly. See 1 Pa.C.S. 99 1903(a), 1921(b). The statute's plain language
generally offers the best indication of legislative intent. See,~, Commonwealth v.
Gilmour Manufacturinq Co., 822 A.2d 676, 679 (Pa. 2003); Bowserv. Blom, 807 A.2d 830,
835 (Pa. 2002) (citations omitted); Pennsylvania Financial Responsibility Assiqned Claims
Plan v. Enolish, 664 A.2d 84, 87 (Pa. 1995) ("Where the words of a statute are clear and
free from ambiguity the legislative intent is to be gleaned from those very words. "). We will
resort to other considerations to discern legislative intent only when the words of the statute
are not explicit. 1 Pa.C.S. 91921(b). See also Canvass of Absentee Ballots of November
4. 2003 General Election, 843 A.2d 1223, 1230 (Pa. 2004) (citing O'Rourke v.
Commonwealth. Dept. of Corrections, 778 A.2d 1194, 1201 (Pa. 2001)); Ramich v.
Workers' Compensation Appeal Bd. (Schatz Electric, Inc. ),770 A.2d 318, 322 (Pa. 2001).
Moreover, we note the requirement that statutes, and parts of statutes, which are in pari
materia must be construed together. 1 Pa.C.S. 9 1932(b)
Appellant claims that, as a municipal police officer employed in Hampden Township,
Officer Sollenberger had legislatively limited authority to engage in extraterritorial police
activity pursuant to the MPJA. Appellant then posits that this Court's decisions in McKinlev
v. Department of Transportation. Bureau of Driver Licensino, 769 A.2d 1153 (Pa. 2001)
(McKinley II) and McKinley IV, supra, require a conclusion that the extraterritorial stop here
was not authorized by statute, and hence, the officer cannot be deemed to have been a
police officer empowered to invoke the Implied Consent Law against her -- a fact which, in
turn, renders appellant's refusal to comply with that Law no basis for suspending her
license. More specifically, appellant argues that in McKinlev II this Court recognized that
Section 8952 of the MPJA confines the general police powers of municipal officers to their
primary jurisdictions, giving them general powers of arrest within the geographic boundaries
[J-133-2005] - 9
of the municipality employing them. Municipal police officers' powers can be extended by
Section 8953 to include certain limited activities outside their primary jurisdiction. However,
appellant argues, McKinlev II expressly recognized that any such extension is limited to
those activities specifically enumerated in Section 8953.
In appellant's view, neither subsection 8953(a)(2) nor (a)(5) authorized Officer
Sollenberger's extraterritorial actions. With respect to (a)(2)'s hot pursuit provision,
appellant notes that the officer did not have probable cause to stop her in the officer's home
jurisdiction, and thus, the officer's ensuing extra-territorial pursuit was "illegal." Under
existing authority, appellant argues, it is clear that the hot pursuit provision only applies in
instances where (1) the offense which would justify the pursuit occurred in the officer's
primary jurisdiction, and (2) there was probable cause, and not merely reasonable
suspicion, to believe that the offense occurred. Brief for Appellant, 19-20, citing
Commonwealth v. Firman, 813 A.2d 643, 648 n.8 (Pa. 2002) (respecting primary
jurisdiction) and Commonwealth v. McCandless, 648 A.2d 309, 311 (Pa. 1994) (respecting
probable cause requirement for hot pursuit).
With respect to (a)(5)'s "official business" exception, appellant makes two
arguments. First, she echoes the trial court's view that appellant's "offense," as observed
by Officer Sollenberger, did not present "an immediate clear and present danger to persons
or property," and thus, the stop and arrest were unlawful. In addition, appellant argues, her
conduct in Camp Hill did not provide probable cause to stop and/or arrest her for a traffic
offense. Brieffor Appellant, at 20,25-29 (citing, inter alia, Commonwealth v. Whitmyer, 668
A.2d 1113 (Pa. 1995)). Second and more fundamentally, appellant again cites to this
Court's decision in McCandless and argues that an officer cannot be deemed to have been
on "official business" in a neighboring jurisdiction if the only reason the officer is there is his
pursuit of the defendant. Brief for Appellant, 22-23 (citing McCandless, 648 A.2d at 310-
11 ).
[J-133-2005] - 10
Turning to remedy, appellant argues that, because the officer was not authorized to
act extraterritorially under Section 8953, he does not meet the definition of a police officer
for purposes of the Implied Consent Law. Therefore, the officer's chemical testing request
was unlawful, and appellant's refusal to take the test cannot serve as a basis to suspend
her license. In reaching a contrary conclusion, appellant concludes, the Commonwealth
Court panel majority failed to appreciate the governing principles set forth in McKinley II
and McKinley IV.
In response, the Bureau focuses only on subsection 8953(a)(5), as it concedes that,
"as a matter of law," cases such as Whitmyer, supra, require a finding that Officer
Solllenberger was not engaged in "hot" or "fresh" pursuit under 8953(a)(2), because he
lacked probable cause to arrest while still within his primary jurisdiction. Brief for Appellee,
20-21 nA.7 With respect to (a)(5), the Bureau recognizes that McKinley IV held that a
limited jurisdiction police officer must have express statutory authority to make an
extraterritorial arrest for DUI and, as an incident of that arrest, to request that the motorist
submit to chemical testing under the Implied Consent Law. The Bureau argues, however,
that subsection 8953(a)(5) empowered the officer to pursue and arrest appellant because
he was on "official business" patrolling within his jurisdiction when he first noticed appellant,
who appeared to him to be exceeding the speed Iimit.8 The Bureau asserts that Officer
Sollenberger's observation of appellant's apparent speeding in Hampden Township justified
7 The Bureau suggests that, based on his informal clocking of appellant's vehicle in
Hampden Township, Officer Sollenberger did have reasonable suspicion to believe she
was speeding when he pursued her into Camp Hill. kl
8 Although the Bureau's "official business" argument emphasizes the officer's conduct upon
first seeing appellant in his own primary jurisdiction, it cites to two cases where this Court
recognized that officers on "routine patrol" were deemed to be on "official business" while
operating outside their jurisdictions. See Brieffor Appellee, 20-22 (citing Commonwealth
v. Pratti, 608 A.2d 488 (Pa. 1992) and Commonwealth v. Merchant (Pa. 1991)).
[J-133-2005] - 11
his pursuit of her into Camp Hill. Notably, the Bureau does not address appellant's reliance
upon McCandless concerning whether an officer in pursuit of a traffic offender (on less than
probable cause) can be said to be on "official business" in a neighboring jurisdiction; it
discusses that case only in a footnote, and only concerning a different point. ~ at 21 n.4.
Rather than address the question of "official business" in Camp Hill, the Bureau discusses
probable cause, maintaining that, once in Camp Hill, Officer Sollenberger made a series of
observations which generated probable cause to arrest for DUI. The Bureau then argues
that the offense of DUI created "an immediate clear and present danger to persons and
property," thus authorizing the officer to act pursuant to (a)(5).
The MPJA defines the primary territorial jurisdiction of municipal police officers as:
"The geographical area within the territorial limits of a municipality or any lawful
combination of municipalities which employs a municipal police officer." 42 Pa.C.S. ~ 8951.
Section 8952 then sets forth the powers of municipal police within this primary jurisdiction:
Any duly employed municipal police officer shall have the power and
authority to enforce the laws of this Commonwealth or otherwise perform
the functions of that office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or otherwise has probable cause to
believe was committed within his jurisdiction.
(2) Any other event that occurs within his primary jurisdiction and which
reasonably requires action on the part of the police in order to preserve,
protect or defend persons or property or to otherwise maintain the peace and
dignity of this Commonwealth.
42 Pa.C.S. ~ 8952. Subsection 8953(a) of the Act then addresses extraterritorial police
activity, authorizing municipal police to act outside their primary jurisdiction in '''six specific
instances.''' Commonwealth v. Merchant, 595 A.2d 1135, 1138 (Pa. 1991), quoting
Commonwealth v. O'Shea, 567 A.2d 1023 (Pa. 1989), cert. denied, 498 U.S. 881 (1990).9
9 Those six instances are as follows:
(continued.. .)
[J-133-2005] - 12
(.. .continued)
(a) General rule.--Any duly employed municipal police officer who is within
this Commonwealth, but beyond the territorial limits of his primary jurisdiction,
shall have the power and authority to enforce the laws of this Commonwealth
or otherwise perform the functions of that office as if enforcing those laws or
performing those functions within the territorial limits of his primary
jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an order issued by a court of
record or an order issued by a district magistrate whose magisterial district is
located within the judicial district wherein the officer's primary jurisdiction is
situated, or where the officer is otherwise acting pursuant to the requirements
of the Pennsylvania Rules of Criminal Procedure, except that the service of
an arrest or search warrant shall require the consent of the chief law
enforcement officer, or a person authorized by him to give consent, of the
organized law enforcement agency which regularly provides primary police
services in the municipality wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any person for any offense which was
committed, orwhich he has probable cause to believe was committed, within
his primary jurisdiction and for which offense the officer continues in fresh
pursuit of the person after the commission of the offense.
(3) Where the officer has been requested to aid or assist any local, State or
Federal law enforcement officer or park police officer or otherwise has
probable cause to believe that the other officer is in need of aid or
assistance.
(4) Where the officer has obtained the prior consent of the chief law
enforcement officer, or a person authorized by him to give consent, of the
organized law enforcement agency which provides primary police services to
a political subdivision which is beyond that officer's primary jurisdiction to
enter the other jurisdiction for the purpose of conducting official duties which
arise from official matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense, or has
probable cause to believe that an offense has been committed, and makes a
reasonable effort to identify himself as a police officer and which offense is a
felony, misdemeanor, breach of the peace or other act which presents an
immediate clear and present danger to persons or property.
(continued... )
[J-133-2005] - 13
The next subsection of the Act makes clear the legislative judgment that these extra-
territorial authorizations are finite: "(b) Limitation.--Nothing contained in subsection (a) shall
be deemed to extend or otherwise enlarge a municipal police officer's power and authority
to arrest any person for an offense unless specifically authorized by law." ~ 9 89S3(b).
See qenerally McKinley 11,769 A.2d at 1160 (Section 89S2 confers upon municipal police
general power of arrest within geographic area of their primary jurisdictions, while Section
89S3 vests municipal police with extra-territorial arrest power which is "unconstrained by
the employer-municipality's jurisdiction, but which is subject to legislatively defined limits
directed to specific purposes.").
Subsections 89S3(a)(2) and (a)(S) of the MPJA are in pari materia, and thus, must
be construed together. 1 Pa.C.S. 9 1932(b). However, in that construction, we must be
mindful of that which we observed in Merchant, i.e., that each of the six instances of
extraterritorial authority delineated in Section 89S3(a) "has its own rationale and justification
for permitting police action outside their primary jurisdiction." In addition, after noting that
the predecessor Act had authorized extraterritorial action in but one circumstance (hot
pursuit), the Merchant Court explained that, "[t]he inclusion of additional instances of
authorization indicates that the General Assembly intended to expand the powers of local
police to protect the public, where such expansion would not adversely affect the ultimate
goal of maintaining police accountability to local authority." S9S A.2d at 1138-39.
(.. .continued)
(6) Where the officer views an offense which is a felony, or has probable
cause to believe that an offense which is a felony has been committed, and
makes a reasonable effort to identify himself as a police officer.
42 Pa.C.S. 989S3.
[J-133-200S] - 14
Applying the plain language of Section 8953(a), we conclude that Officer
Sollenberger did not have statutory authority to act as a municipal police officer outside his
primary jurisdiction in the factual situation presented in this case. As noted above, it is
undisputed that the officer did not have probable cause to stop appellant in his own
jurisdiction, and thus his extraterritorial conduct was not authorized as hot pursuit under
subsection (a)(2) of the MPJA. Nor did the officer have extraterritorial authority under
subsection (a)(5) because, we conclude, he was not on "official business" for purposes of
that subsection when he pursued appellant into a neighboring jurisdiction.1o On this point,
appellant's reliance upon McCandless is apt and decisive.
Although McCandless involved a motion to suppress, and not a question of license
suspension arising pursuant to the Implied Consent Law, the facts are markedly similar to
those at bar here with respect to the extraterritorial authority of municipal police. The
arresting officer in McCandless was on patrol in the City of Franklin early in the morning
when he saw the appellant's station wagon, which appeared to be traveling much faster
than other vehicles the officer had seen on that street. The officer followed the vehicle to
determine if it was speeding. By the time the officer caught up with the vehicle, however, it
had passed into the adjoining jurisdiction of Sandycreek Township. Once in Sandycreek,
the officer followed the vehicle to clock its speed, doing so for one-half of a mile during
which time the vehicle left Sandycreek and reentered Franklin. Two-thirds of the officer's
clocking occurred in Sandycreek and one-third in Franklin. The clocking in Franklin was
only for two-tenths of a mile, and thus was insufficient on its own to establish speeding in
10 Given our conclusion on this point, we need not, and therefore do not, address the
additional arguments respecting subsection (a)(5), i.e., whether Officer Sollenberger's
observations in Camp Hill generated probable case, and whether, if so, the offense
involved a breach of the peace which presented an immediate clear and present danger to
persons or property.
[J-133-2005] - 15
the officer's home jurisdiction because, as we have noted above, the Vehicle Code requires
clocking for three-tenths of a mile when a determination is made via a speedometer. 75
Pa.C.S. 93368(a). The officer stopped the vehicle and determined that the appellant was
intoxicated.
The trial court granted the appellant's motion to suppress various statements as well
as blood test results, finding that the officer lacked probable cause to believe appellant was
speeding at the point the officer entered Sandycreek, and thus, the officer had no cause to
pursue the appellant. The Superior Court reversed, holding that the officer's belief that the
appellant was traveling faster than other vehicles allowed the officer to proceed into the
neighboring jurisdiction to investigate. On further appeal, this Court reversed, holding that
the officer's observations in his home jurisdiction were insufficient to establish probable
cause, and thus, the extraterritorial pursuit was not lawful under subsection 8953(a)(2).
Notably, for purposes of the case sub judice, this Court also summarily rejected the
Commonwealth's suggestion -- a suggestion which was premised upon Commonwealth v.
Pratti and Commonwealth v. Merchant, the same two cases the Bureau cites on the
question of "official business" -- that the officer's extraterritorial conduct was warranted
under subsection (a)(5):
It has been suggested by the Commonwealth that the officer's entry into
Sandycreek Township might have been justified on another basis, to wit, that
he was there on "official business" separate and apart from his pursuit of
appellant. See Commonwealth v. Pratti, 530 Pa. 256, 608 A.2d 488 (1992);
Commonwealth v. Merchant, 528 Pa. 161,595 A.2d 1135 (1991); 42 Pa.C.S.
9 8953(a)(5) (permitting police officers to exercise authority in neighboring
municipalities when they are there on "official business"). We find no basis in
the record, however, to conclude that the officer entered Sandycreek
Township for any purpose other than to determine whether appellant was
speeding. This being the case, probable cause to believe that an offense
had been committed in the City of Franklin was necessary to justify the
officer's pursuit of appellant into the neighboring township.
648 A.2d at 311.
[J-133-2005] - 16
Here, as in McCandless, the officer's entry into the adjoining jurisdiction of Camp Hill
was for no official business "separate and apart" from his "hot pursuit" of appellant in order
to determine if she was speeding. Officer Sollenberger was not in Camp Hill on other
official business when he noticed appellant, nor was he there as part of his routine patrol --
for example, a routine, brief entry to allow him to turn around to re-enter his primary
jurisdiction 11 -- or for any other purpose. The officer entered Camp Hill only to investigate
his suspicion that appellant was speeding. Indeed, to overlook the true reason for the
officer's entry, and deem the activity lawful under a different subsection ofthe MPJA, would
ignore that each of the six instances of extraterritorial authority recognized in Section
8953(a) "has its own rationale and justification for permitting police action outside their
primary jurisdiction." Merchant, 595 A.2d at 1138-39. Thus, we hold, the officer's conduct
in the case sub judice was not authorized by subsection (a)(5). Because Officer
Sollenberger's conduct in pursuing and arresting appellant was without statutory
authorization, he lacked the authority to implement the Implied Consent Law. McKinley IV,
supra.
We are mindful that the cost of enforcing the plain language of the limited
extraterritorial authorization established in Section 8953(a) is that some violators will
escape the consequences of their conduct. However, we reiterate that which we stated in
McKinley IV:
11 This fact distinguishes both Pratti and Merchant, as we recognized in McCandless.
Accord Commonwealth v. Lehman, 870 A.2d 818, 821 (Pa. 2005) ("Considering the
present case as well as Pratti and Merchant. we are led to the following rule: section
8953(a)(5) of the MPJA authorizes an extrajurisdictional detention where the detaining
officer is on-duty, outside his or her jurisdiction for a routine or customary reason including
responding to an exigent circumstance, develops probable cause to believe an offense has
been committed, and limits out-of-jurisdiction activities to maintaining the status quo,
including detaining the suspect, until officers from the appropriate jurisdiction arrive.").
[J-133-2005] - 17
Limited jurisdiction police personnel are not entirely without recourse outside
of their territorial boundaries. Nothing in our decisions prevents them from
summoning the appropriate law enforcement officials, and exercising any
lawful means to assist in the identification of law violators. Nevertheless, as
the Legislature has circumscribed their police authority, we hold that they
lack the ability to act as police officers in implementation of the Implied
Consent Law outside territorial boundaries, in the absence of an express,
legislative grant of extraterritorial authority.
838 A.2d at 706.
In addition to briefing the question specified in this Court's grant of allocatur, the
Bureau argues two other issues. First, the Bureau argues that, even if Officer
Sollenberger's extraterritorial pursuit and arrest of appellant for DUI was deemed illegal, her
remedy is limited to the criminal suppression court because the illegality of the arrest is
irrelevant to the propriety of her license suspension under the Implied Consent Law.
According to the Bureau, this Court's decision in McKinlev IV "did not change" an alleged
"longstanding rule" that an illegal arrest for DUt does not affect the Bureau's ability to
suspend a license for failing to comply with the arresting officer's request under the Implied
Consent Law. Second, the Bureau argues that Officer Sollenberger had reasonable
grounds to believe that appellant was operating and in actual physical control of the
movement of her vehicle while under the influence of alcohol. As these issues were not
encompassed in this Court's order granting review, ordinarily we would not discuss them.
However, because the Bureau prevailed below, if either issue would require affirmance
here (or a remand for consideration of the point below), the Bureau should not be denied
the benefit of a meritorious alternative argument. Ultimately, we conclude that neither
argument is persuasive.
With respect to the Bureau's first argument, the question of the appropriate remedy
in a license suspension appeal, where the challenge is to the arresting officer's authority
under the Implied Consent Law, was a specific subject of this Court's remand order in
McKinlev II, 769 A.2d at 1163-64 & n.18, and the Bureau's present argument (which was
[J-133-2005] - 18
accepted by the Commonwealth Court majority upon the remand in McKinley III) was
squarely rejected in the subsequent appeal to this Court in McKinley IV, where we reversed
the Commonwealth Court. McKinley IV carefully addressed and assessed the competing
positions set forth in the Commonwealth Court majority and dissenting positions in
McKinlev III on the question of remedy, and we made clear that we found the dissenting
position "to be the better one." 838 A.2d at 704. Our mandate in McKinley IV was equally
unambiguous, as we reversed the Commonwealth Court and reinstated the trial court order
invalidating the license suspension. The Bureau's present attempt to cast as unsettled,
and then relitigate, a question squarely resolved against it in McKinley IV must fail.
The Bureau's second argument is also easily disposed of. Since we have concluded
that Officer Sollenberger was not on "official business" when he pursued appellant into a
neighboring jurisdiction, and our reversal is based upon that fact, the Bureau could not
prevail even if this argument were accepted.
Accordingly, the decision of the Commonwealth Court is reversed, and the trial
court's order invalidating the license suspension under review is reinstated.
Mr. Chief Justice Cappy and Messrs. Justice Saylor and Baer join the opinion.
Former Justice Nigro did not participate in the consideration or decision of this case.
Mr. Justice Eakin files a concurring opinion in which Madame Justice Newman joins.
JUDGMENT ENTERED:
August 22, 2006
[J-133-2005] - 19
[J-133-2005]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.
MYRA J. MARTIN,
100 MAP 2005
Appellant
Appeal from the Order of the
Commonwealth Court entered on March
18,2005, at 1255 C.D. 2004, reversing the
Order of the Court of Common Pleas of
Cumberland County entered on June 2,
2004, at 04-0212.
v.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION, 870 A.2d 982 (Pa. Cmwlth. 2005)
BUREAU OF DRIVER LICENSING,
Appellee ARGUED: December 5, 2005
CONCURRING OPINION
MR. JUSTICE EAKIN
Since the issue of whether Officer Sollenberger had probable cause to believe
appellant was speeding in his jurisdiction was not before this Court, I join the majority's
decision to reverse the Commonwealth Court's order. See Martin v. Commonwealth,
Department of Transportation, Bureau of Driver Licensina, 882 A.2d 1001, 1002 (Pa.
2005) (allocatur granted on issue of u[W]hether a municipal police officer has authority
under... 42 Pa.C.S. ~ 8951 et seQ., to conduct an extraterritorial arrest of a motorist or
implement the Implied Consent Law where the officer has no grounds for arrest or
probable cause in the officer's own jurisdiction but grounds for arrest arise after the
officer leaves his jurisdiction in pursuit of the motorist.").
.
I write separately to note, in my view, Officer Sollenberger had probable cause to
believe appellant was speeding in his jurisdiction. He testified he saw appellant
traveling at a high rate of speed in his jurisdiction; he followed appellant for a steady
distance in his jurisdiction, where he clocked appellant with his speedometer as
traveling at 53 miles-per-hour in a 40 mile-per-hour speed limit zone. N.T. Trial Court
Hearing, 5/26/04, at 22-23. There may have ultimately been insufficient evidence to
convict appellant for speeding since Officer Sollenberger did not determine her speed
on his speedometer for three-tenths of a mile. See 75 Pa.C.S. 9 3368(a);
Commonwealth v. Cohen, 605 A.2d 814, 817 (Pa. Super. 1992). However, "an actual
violation of the [Motor Vehicle Code] need not ultimately be established to validate a
vehicle stop, a police officer must have a reasonable and articulable belief that a vehicle
or driver is in violation of the [Code] in order to lawfully stop the vehicle."
Commonwealth v. Snell, 811 A.2d 581,584 (Pa. Super. 2002).1
The question is not whether the officer could prove a case of speeding; validity of
a stop is never evaluated by the ultimate conviction or acquittal. Of course appellant
was exceeding the posted limit--the officer clocked her, and thus had articulable and
reasonable belief in the violation. Officer Sollenberger possessed probable cause to
believe appellant was speeding in his jurisdiction; thus, he could have continued pursuit
and stopped appellant's vehicle outside his jurisdiction. See 42 Pa.C.S. 98953(a)(2).
Madame Justice Newmans joins this concurring opinion.
1 Effective February 1, 2004, the General Assembly "lowered the quantum of cause an
officer must possess from 'articulable and reasonable grounds' [which is equivalent to
probable cause] to 'reasonable suspicion'" to conduct a vehicle stop. 75 Pa.C.S. 9
6308(b); Commonwealth v. Cook, 865 A.2d 869, 873 n.1 (Pa. Super. 2004) (emphasis
in original).
[J-133-2005] - 2
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