filed: November 30, 1982.
COMMONWEALTH OF PENNSYLVANIA
MARILYN A. LEWIS, APPELLANT
No. 1057 APRIL TERM, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 7802983-A.
Stanley W. Greenfield, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ.
[ 307 Pa. Super. Page 470]
Appellant, Marilyn A. Lewis, was charged with one count of barratry, a misdemeanor of the third degree, for having intentionally filed numerous unjust and vexatious lawsuits against Richard E. Lewis, Jr., her former husband, personally or pertaining to his business and property.
The nature, relevant information and disposition of said cases are as follows:
Date Caption Court Disposition
filed of Case
10/6/76 Comm. of Pa. CC 7608963 Defendant found
(Marilyn Lewis) Court of Common not guilty
v. Pleas of Ally. by Judge Brosky
Richard E. County (Crim- 2/22/77
Lewis Simple Assault.)
12/1/76 Comm. of Pa. No. 395 of 1976 Dismissed by
(Marilyn Lewis) District Justice District
v. Richard E. Bernard J. Regan Justice
Lewis, Jr. (Simple Assault 1/19/77
12/27/76 First Lemington C.A. No. 76-1623 Dismissed by
Corp & Key U.S. District Court Judge Snyder
Properties, for the Western 12/1/77
Inc. v. District of Pa.
Spring Marilyn A. No. 232 of 1977 Verdict in
1977 Lewis v. Court of Common favor of both
Richard E. Pleas of Allegheny Mr. Lewis
Lewis, Jr. County (Rental ($832.18)
Suit.) & Mrs. Lewis
5/3/77 Marilyn Lewis CA No. 77-503 Dismissed by
v. Judge U.S. District Ct. Judge
Richard G. for the Western Teitelbaum
Zeleznik, James District of Pa. 9/1/77
Lally, Peter J. (Civil Rights
King & Richard violation, seeking
E. Lewis, Jr. damages)
11/77 Marilyn Lewis District Justice Dismissed by
v. Richard E. Meinert District
Lewis, Jr. TA 1977-384 Justice
TA 1977-385 12/22/77
(2 civil suits
12/27/77 Marilyn A. G.D. 77-30126 Dismissed by
Lewis v. Court of Common Judge Flaherty
Peter J. King Pleas of Allegheny
& Richard E. County Equity &
Lewis, Jr. damages of
[ 307 Pa. Super. Page 471]
On September 19, 1978, the jury returned a verdict of guilty. Subsequently, appellant filed timely post-verdict motions which were denied. Appellant was then sentenced to a period of incarceration of six (6) to twelve (12) months and fined one thousand two hundred fifty ($1,250.00) dollars.
[ 307 Pa. Super. Page 472]
Appellant raises two issues on appeal: 1) whether the barratry statute is unconstitutionally vague?; and 2) whether the Commonwealth's evidence was sufficient to sustain its' burden of proof that the suits filed by Mrs. Lewis were unjust?
Regarding appellant's first contention, it must be noted that the issues that are being examined in this appeal are those of first impression to a Pennsylvania appellate court, in that, this is a charge seldom instituted in this Commonwealth. See Commonwealth v. Gardner, 3 Lanc. 139 (1886); Donohue v. McGroarty, 1 Kulp. 238, 9 Luz.L.Reg.Rep. 281 (1879). The offense of barratry is defined at 18 Pa.C.S.A. § 5109:
A person is guilty of a misdemeanor of the third degree if he vexes others with unjust and vexatious suits.
Also, it must be noted that absent an assertion of First Amendment freedoms,*fn1 the specificity of a statute must be measured against the conduct in which the parties challenging the statute has engaged:
"It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. [citations omitted]" United States v. Mazurie, 419 U.S. 544, 550 [95 S.Ct. 710, 714, 42 L.Ed.2d 706] (1975); Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 245 (1976).
See also Comment, Recent Supreme Court Developments of the Vagueness Doctrine, 7 Conn.L.Rev. 94, 100 (1974); Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960) [hereinafter cited as Pa. Note.] Since appellant makes no assertion that application of the barratry statute could result in an infringement of a First Amendment right, we must judge the specificity of the barratry statute in light of appellant's particular conduct. Therefore,
[ 307 Pa. Super. Page 473]
it is incumbent that we examine the standards which govern this determination.
A criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
[ 307 Pa. Super. Page 474]
See also United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-598, 9 L.Ed.2d 561 (1963); Commonwealth v. Heinbaugh, 467 Pa. at 5, 354 A.2d at 246; Comment, Public Disorder Offenses Under Pennsylvania's New Crimes Code, 78 Dick.L.Rev. 15, 33 (1973); Pa.Note supra at 75. Statutes which are challenged on the ground of vagueness are not, however, to be tested against paradigms of legislative draftmanship. "The fact that [the legislature] might without difficulty have chosen 'clear and more precise language' equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague." United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975); Commonwealth v. Heinbaugh, 467 Pa. at 6, 354 A.2d at 246. Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct. United States Page 474} v. Powell, supra; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Pa.Note, supra at 80; cf. Horvath v. City of Chicago, 510 F.2d 594, 595 (7th Cir. 1975); Commonwealth v. Heinbaugh, 467 Pa. at 6, 354 A.2d at 246; Freund, The Use of Indefinite Terms in Statutes, 30 Yale L.J. 437 (1921); Note, Due Process Requirements of Definitions in Statutes, 62 Harv.L.Rev. 77, 80 (1948).
In Powell, the Supreme Court applied the above-mentioned criteria to a criminal statute prohibiting the mailing of "firearms capable of being concealed on the person." In holding the statute sufficiently precise, the Court concluded:
"While doubts as to the applicability of the language in marginal fact situations may be conceived, we think that the statute gave respondent adequate warning that her mailing of a sawed-off shotgun of some 22 inches in length was a criminal offense. Even as to more doubtful cases than that of respondent, we have said that 'the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.'"*fn2 [citation omitted] United States v. Powell, 423 U.S. at 93, 96 S.Ct. at 320; Commonwealth v. Heinbaugh, 467 Pa. at 7, 354 A.2d at 247.
Compare also United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921) with Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932). It seems clear, then, that when an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness. This leads us to question whether such a standard is present in this case.
[ 307 Pa. Super. Page 475]
Barratry was an indictable offense at common law. It was defined as "the crime or offense of frequently stirring up suits and quarrels between individuals, either at law or otherwise." 9 C.J.S., Barratry, § 1, p. 1546; State v. Batson, 220 N.C. 411, 412, 17 S.E.2d 511, 512 (1941); 4th Blackstone, pp. 125, 134. While the language of the challenged Pennsylvania barratry statute differs in some respects from this common law definition, there is no difference in meaning. Accordingly, we conclude that the statutory language "vexes others with unjust and vexatious suits," must be read as restating the established common law standard which has long existed in this Commonwealth.
Statutes which embody well-settled common law norms stand on a footing somewhat different than statutes which attempt to circumscribe conduct newly proscribed. Commonwealth v. Heinbaugh, 467 Pa. at 8, 354 A.2d at 247; Pa.Note, supra at 87. Because the former group merely reiterate customary normative standards, the prohibitory language need not be drawn with the precision that a newly-conceived interdiction might require. Commonwealth v. Heinbaugh, 467 Pa. at 8-9, 354 A.2d at 247; Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67 (1940); see e.g., Smith v. Goguen, supra (contemptuousness of the flag). Thus, statutes which embody common law definitions have generally survived attacks structured on the grounds of vagueness. See e.g., Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Commonwealth v. Heinbaugh, 467 Pa. at 9, 354 A.2d at 247; Pa.Note, supra at 87. Our question, then, reduces itself to whether the common law norm relative to barratry and now embodied in the Crimes Code is sufficiently definite when applied to the conduct in which the appellant was engaged.
There can be no doubt that many of the suits instituted by appellant against her former husband, were initiated to harass him following their unamicable divorce and the proceedings resulting therefrom. While appellant's actions initiated against her former husband at CC 7608963, No. 395 of 1976, and No. 232 of 1977, appeared from testimony to have
[ 307 Pa. Super. Page 476]
some justification,*fn3 the remaining five suits were clearly unjust. Special mention must be made of the suits brought at G.D. 77-30126 and C-A No. 77-503. Paragraphs 10-12 of the action filed pro se by appellant at G.D. 77-30126 contain extreme obscene and vulgar allegations against Mr. Lewis. Copies of these allegations were mailed to Mr. Lewis' mother, brothers, sisters, a fraternal organization, a bar he frequented, two union officials, his attorney, his attorney's law firm, and his girlfriend. Testimony revealed that neither Mr. Lewis, his attorney, nor the prothonotary mailed those copies of the complaint. These charges were dismissed by the court below when appellant failed to appear. At trial on this action, these abhorrent accusations were found to be groundless.
Regarding the action filed at C-A No. 77-503, appellant instituted suit against the Honorable Richard G. Zeleznik, James Lally, Peter J. King, and her former husband. One of appellant's allegations in this action is as follows:
"At various times and places, more specifically set forth in the following counts, the defendants by their acts of commission and omission have unlawfully, wrongfully, maliciously and knowingly conspired to deprive plaintiff of her rights under the Constitution and the laws of the United States and are continuing to do so, causing her extreme mental and emotional distress and causing her two minor children serious physical, mental, emotional and developmental injury of a permanent and irreparable nature in addition to causing plaintiff financial losses in excess of $10,000.00, all to her injury and detriment and to the permanent and irreparable injury and detriment of her children."
[ 307 Pa. Super. Page 477]
In dismissing this action, the United States Court for the Western District of Pennsylvania opined:
"The basis for denial is the complete lack of any credible evidence to support plaintiffs' contentions . . . (T)he initiation of this proceeding is outrageous".
The remaining three suits filed against Mr. Lewis by the appellant or her company concerned the couple's property, and all were subsequently dismissed.
In addition to the annoyance, embarrassment and harassment of having to defend these meritless suits, Richard E. Lewis also suffered a substantial monetary loss due to attorneys' costs and lost wages due to the time spent in court.
It is undisputable that the barratry statute contains a standard sufficiently normative to inform the appellant that her conduct was in violation thereof.
The final issue raised by appellant concerns the sufficiency of the evidence. In Commonwealth v. Rose, 463 Pa. 264, 267-268, 344 A.2d 824, 825-826 (1975), the Supreme Court stated:
"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt . . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced . . . . The fact-finder is free to believe all, part, or none of the evidence." (Citations omitted.)
Viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, we are of the considered opinion that the evidence presented by the Commonwealth was sufficient to establish beyond a reasonable doubt that the suits filed by the appellant were "unjust". See pp. 985-986 of Opinion.
Judgment of sentence affirmed.