author: KENNEY, J.,

text:
    Bartkowski Investment Group, Inc. v. Springfield Twp. Zoning Hearing Bd.

      C.P. of Delaware County,
    No. 11-3479.

      Gregory Adelman, for appellant.

      James J. Byrne, for appellee.
    March 30, 2012
   KENNEY, J.,

This is an appeal from a decision of the Zoning Hearing Board of Springfield Township denying appellant, Bartkowski Investment Group, Inc.’s substantive challenge to Springfield Township’s Zoning Ordinance as it relates to the exclusion of billboards.

FACTUAL BACKGROUND

Bartkowski Investment Group, Inc. (hereinafter “BIG”), a corporation engaged in the development of outdoor advertisting, entered into lease agreements with the owners of six (6) properties in Springfield Township, intending to construct two-sided, 672 square foot billboards on the properties. On December 8, 2008, BIG filed an application with the Springfield Township Zoning Hearing Board (hereinafter “ZHB”) alleging that the Township’s Zoning Ordinance is invalid and unconstitutional because it imposes a de jure total exclusion of billboards within the municipality. Specifically, BIG challenged the constitutionality of Section 143-101 (A)(5) of Springfield Township Zoning Ordinance which states, in relevant part:

§143-101, Restrictions and standards.

A. Prohibited signs. It is unlawful to erect or maintain the following signs:...

(5) Outdoor advertising billboards.
Springfield Township Zoning Ordinance, §143-101.

On March 26, 2009, the ZHB commenced hearings on BIG’s application. In support of its position at the hearings, the township offered the testimony of the following individuals: Jerry Wachtel, an expert in the area of traffic safety; Joseph Mastronardo, P.E., an expert in the area of civil engineering with an emphasis on municipal engineering; Thomas J. Comitta, an expert in the field of land planning; and Detective Daniel McNeely, an expert in the area of accident reconstruction. BIG also offered testimony to support its position at the hearings, namely that of: Thaddeus Bartkowski, who testified to his experience in the outdoor advertising industry; Michael W. Tañíala, P.E., an expert in the area of traffic safety; Joseph A. Platt, P.E., an expert who testified regarding the impact of the proposed billboards on traffic safety; and Larry Waetzman, an expert in the area of land planning.

On March 24,2011, after sixteen (16) days of hearings, the ZEOB issued a written decision denying BIG’s challenge. On April 12, 2011, the ZHB issued its findings of fact and conclusions of law. On May 9, 2011, BIG instituted the present Land Use Appeal.

DISCUSSION

In Pennsylvania, where the trial court takes no additional evidence in an appeal from a decision of a zoning hearing board, the trial court’s review is limited to determining whether the ZHB abused its discretion or erred as a matter of law. See In re Petition of Dolington Land Group, 576 Pa. 519, 526, 839 A.2d 1021, 1026 (Pa. 2003). “An abuse of discretion occurs when the Board’s findings are not supported by substantial evidence in the record. Substantial evidence is that relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached.” Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 599 Pa. 568, 578, 962 A.2d 653, 659 (2009). The ZHB “as fact finder is the sole judge of credibility with power to resolve conflicts in the testimony and to reject even uncontradicted testimony that it finds to be lacking in credibility.” Id. The trial court is not to reweigh the evidence presented, but rather to examine the Board’s findings and determine whether there was substantial evidence to support them. See Montgomery Crossing Associates v. Twp. of Lower Gwynedd, 758 A.2d 285, 288 (Pa. Cmwlth. 2000).

Zoning ordinances in this commonwealth are held to be presumptively constitutional and valid, and the party challenging a zoning ordinance bears a heavy burden of proving otherwise. See Macioce v. Zoning Hearing Bd. of the Borough of Baldwin, 850 A.2d 882, 887 (Pa. Cmwlth. 2004). In order to overcome this presumption of constitutionality, the challenger must demonstrate that the ordinance totally or effectively excludes an otherwise legitimate use. Id.; see also Exton Quarries, Inc. v. Zoning Bd. Of Adjustment of West Whiteland Twp., 425 Pa. 43, 58, 228 A.2d 169, 178 (1967). To prove total or effective exclusion of a permitted use, a challenger can show that the ordinance is either de jure or de facto exclusionary. Twp. of Exeter, 962 A.2d at 659. A de jure exclusion exists where an ordinance, on its face, totally bans a legitimate use. Id. A de facto exclusion exists where an ordinance permits a use on its face, but when applied, acts to prohibit the use throughout the municipality. Id.

In deciding a substantive validity challenge to a zoning ordinance such as the one presented by this case, Pennsylvania courts are directed to follow a two-step analysis:

[W]e first consider whether the challenging party has overcome the presumed constitutionality of an ordinance by showing it excludes billboards as a use. If we determine that the challenger has done so, we then consider whether the municipality has salvaged the ordinance by presenting evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality or welfare.

Twp. of Exeter, 962 A.2d at 661.

I. SPRINGFIELD TOWNSHIP’S ZONING ORDINANCE ENTIRELY PROHIBITS THE CONSTRUCTION OF BILLBOARDS

In the present case, while Springfield Township’s Zoning Ordinance does not prohibit all outdoor, off-premises advertising, it does entirely exclude billboards as a use. Specifically, Section 143-101 of the Springfield Township Zoning Ordinance states, in relevant part:

§143-101, Restrictions and standards.
A. Prohibited signs, It is unlawful to erect or maintain the following signs:
(5) Outdoor advertising billboards.

Springfield Township Zoning Ordinance §143-101.

On appeal, the township argues that because the zoning ordinance merely prohibits one manifestation of outdoor advertising, namely the “massive scale erection of ‘billboards,’” the prohibition is not a de jure prohibition of billboards and, thus, is constitutional. In support of this proposition, the township sets forth numerous examples of outdoor advertising that currently exist within the township, including:

“advertising signs on SEPTA buses on Baltimore Pike; automobile wraps; bus shelters; fleet ads, or vinyl applied to vehicle advertisements; outdoor shopping cart return advertisements; supermarket shopping cart advertisements; advertisements on gas pumps, both digital and vinyl; advisements [sic] at the checkout lanes; advertisements at Automated Teller Machines; [and] free standing advertisements at the Springfield Mall.”

See Brief of Township of Springfield, at 11-12. However, while this evidence does establish that the Zoning Ordinance does not entirely prohibit off-premises, outdoor advertising, the Pennsylvania Supreme Court has specifically addressed a municipality’s total prohibition of billboards, stating that: “since billboards are not objectionable per se, a blanket prohibition on billboards without justification cannot pass constitutional muster.” Twp. of Exeter, 962 A.2d at 660; see also Interstate Outdoor Advertising, L.P. v. Zoning Hearing Bd. of Warrington Twp., — A.3d —, 2012 WL 787395, *4 (Pa. Cmwlth. 2012) (“[A] blanket prohibition of billboards without justification cannot withstand a constitutional challenge because billboards are not objectionable per se.”).

Therefore, because BIG has overcome the presumed constitutionality of the ordinance by showing it excludes billboards as a use, this court’s analysis must turn to whether the exclusionary regulation bears a substantial relationship to the public health, safety, morality or welfare and is, thus, justifiable.

II. THE EXCLUSIONARY REGULATION BEARS A SUBSTANTIAL RELATIONSHIP TO THE PUBLIC HEALTH, SAFETY, MORALITY OR WELFARE

Article I, Section 27 of Pennsylvania’s Constitution provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Pa. Const. Art. 1, §27. While property owners have a constitutionally protected right to enjoy their property, this protected property right may be reasonably limited by zoning ordinances that are enacted pursuant to a municipality’s police powers. See Twp. of Exeter, 962 A.2d at 578-79. Under their police powers, municipalities “have a significant interest in regulating billboards and other advertising because they are seen from the street and can ‘distract drivers,’ constitute ‘traffic hazards,’ and the effects of billboards on development can harm an area.” Interstate Outdoor Advertising, L.P., — A.3d —, 2012 WL 787395, at *4 (citing Norate Corp. v. Zoning Bd. of Adjustment of Upper Moreland Twp., 417 Pa. 397, 207 A.2d 890 (Pa. 1965)). “If a city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems that they create is to prohibit them.” Interstate Outdoor Advertising, L.P., 2012 WL 787395, at *4 (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508 (1981)). The Pennsylvania Supreme Court has specifically recognized that a municipality may regulate and prohibit billboards under its police power for a combination of reasons, explaining that;

(1) billboards being temporary structures are liable to be blown down and thus injure pedestrians; (2) they gather refuse and paper which may tend to spread conflagrations; (3) they are used as dumping places for dirt, filth and refuse, and as public privies; (4) they serve as hiding places for criminals; and (5) they are put to use by disorderly persons for immoral purposes. Moreover, as is well known, billboards placed at certain locations, as at comers or curves, may obstmct the vision of drivers and thereby constitute a traffic menace, and the promotion of safety on public highways certainly is justification for a billboard regulation reasonably related thereto.

Twp. of Exeter, 962 A.2d at 660-61.

In the present case, the township supported its position that the prohibition of billboards within Springfield Township is a valid exercise of its police powers by offering evidence concerning: (1) the safety issues addressed by the municipality-wide ban on billboards; and (2) the safety issues specifically limited to the sites of the proposed billboard constructions.

A. MUNICIPALITY-WIDE BAN ON BILLBOARDS.

To support its position that the municipality-wide prohibition of billboards is a valid exercise of police power, the township offered evidence that established that the regulation is necessary to address and prevent the specific concerns contemplated by the Pennsylvania Supreme Court in Exeter, supra, namely:

1. Billboards are liable to be blown down and thus injure pedestrians.

During the hearings before the ZHB, the township offered evidence to demonstrate that billboards have the potential to fall and injure pedestrians and that the possibility of a billboard structure being blown down by a gust of wind is a real and reasonable threat that a township should take steps to avoid. In support of this position, the township entered into evidence numerous photographs exhibiting collapsed billboards structures, including: a fallen billboard located on South Columbus Avenue in Philadelphia, Pennsylvania; a fallen, on-premises sign located at Cutler Plaza in Springfield Township; and a fallen roof billboard located at Chelton Avenue. See ZHB Opinion, at ¶236.

Further, the township offered evidence establishing that the billboards are designed with a wind load of ninety (90) miles per hour.

ZHB Opinion at ¶237. However,

The National Climatic Data Center (“NCDC”) records reflect several storm events In 1993 in Springfield Township where wind gusts ranged from 73-112 miles per hour and two storm events in Delaware County since 1973, one of which had wind gusts of between 113 and 157 miles per hour.

ZHB Opinion at ¶240.

2. Billboards are inconsistent with Springfield Township’s Comprehensive Plan and Baltimore Pike’s Green Boulevard Plan.

At the hearings, the township established that in 2008, the Pennsylvania Department of Community and Economic Development (DCED) awarded a grant to Springfield Township to study Baltimore Pike and further implement a “Green Boulevard” concept that had been advocated in Springfield Township’s Comprehensive Plan. ZHB Opinion, at ¶249. Subsequently, the Green Boulevard Plan was enacted to “promote an enhanced, pedestrian friendly streetscape along Baltimore Pike.” ZHB Opinion, at ¶253; see also Springfield Township’s Zoning Ordinance, available at: http://www.springfielddelco.org/Complete percent 20Zoning percent 20Packet_Exh_Map.pdf. The plan also established guidelines and requirements for the inclusion of “shade trees, street trees, streetlights and banners invoking a positive commentary on the town.” See id.

Thereafter, the township offered the testimony of Thomas J. Comitta, an expert in the field of land planning. Mr. Comitta testified that Springfield Township did not have an appropriate place for billboards because, inter alia: any billboard would be located too close to residential neighborhoods; would be directly visible from neighborhoods throughout the township; are incompatible, incongruous and out-of-character with the historic, scenic, cohesive and aesthetic values of the township; and are undesirable, unpleasant and inconsistent with the township’s Comprehensive Plan. SeeN.T., 9/23/10, at 35-36.

Following the hearings, the ZHB concluded that because the billboards are in the line of sight of hundreds of residential homes, an inordinately large segment of Springfield Township’s residential community would be affected by the billboards and the billboards would contravene Springfield Township’s Green Boulevard Plan. See ZHB Opinion, at ¶¶253, 297.

3. Billboards may serve as hiding places for criminals and can be put to use by disorderly persons for immoral purposes.

At the hearings, while BIG’s expert, Mr. Tantala, testified that the sign faces of the billboards “can only be accessed by a bucket truck,” the township offered evidence to establish that billboard structures could potentially be accessed by anyone, making them a safety hazard and also a canvas for graffiti. In support of this position, the township offered: photographs depicting a 6’1” man reaching up and nearly touching the access ladder on a billboard structure; photographs depicting existing graffiti on billboards at the Philadelphia Naval Yard; and photographs exhibiting children climbing on billboard structures. When questioned as to these photographs, Mr. Tantala testified that, “anybody can try to access [billboards] in different ways, illegally or otherwise.” ZFIB Opinion, at ¶181.

4. Billboards create traffic hazards.

At the hearings, the township’s traffic safety expert, Jerry Wachtel, testified that most roadways located in Springfield Township, with the exception of Interstate 476, are no-control-of-access roadways. Mr. Wachtel testified that “no-control-of-access” roadways are the least safe type of roadway because they evidence grade-level intersections with traffic control devices, such as stop signs, stop lights and yield signs, and also contain driveways and curb cuts allowing unfettered multidirectional access to the roadway. ZHB Opinion, at ¶222. Mr. Wachtel concluded that the erection of billboards on such roadways would be detrimental to traffic safety within the township because no-control-of-access roadways impose excessive demands on a driver’s attention and billboards would be an additional distraction.

Following the hearings, the ZHB concluded in its written opinion that:

off-premises signs do not serve the immediate needs of a driver in operating the vehicle and are not relevant to the safe conduct of a driver’s vehicle. They present no compensating benefit to the motoring public. Their purpose is to advertise a message or a product; it bears no relationship to the driving task. While many roadway conditions can distract a driver, off-premises signs are the only objects on the roadway that have the singular purpose of distracting a driver to communicate a message. These signs are designed to capture the attention of a driver as the driver approaches the sign.

ZHB Opinion, at ¶211-12. Further, the ZHB concluded that:

driver distraction is adverse to traffic safety because it leads drivers to make errors while driving. Driver distraction is largely studied and many scholarly reports exist enumerating the , danger of driver distraction. It is the objective of the billboard industry to get drivers to look at their signs instead of the roadway. This is a detriment to traffic safety when such additional distraction cannot be tolerated.

ZHB Opinion, at ¶225.

5. Billboards have the potential to create other safety issues.

BIG’s safety expert, Michael Tantala, testified that the installation of a billboard structure requires the erection of a monopole that has a tapered diameter starting at forty-eight (48) inches at the base and tapers to forty-five (45) inches at the peak. See ZHB Opinion, at ¶46. The installation of this monopole requires excavation of up to 20 to 30 feet in depth. Mr. Tantala elaborated that the excavation is performed by using a drill or pneumatic equipment and the excavation could potentially have negative effects on buildings located adjacent to the excavation. See N.T., 7/23/2009, at 93.

B. CONCERNS SURROUNDING SPECIFIC BILLBOARD SITES

As to the evidence concerning the specific locations and safety concerns surrounding the proposed billboard sites, the ZHB made, inter alia, the following findings of fact:

52. Baltimore Pike, in Springfield Township, is a no-control-of-access roadway which exhibits numerous intersections, curb cuts for business access, grade changes that cause variance in traffic speed, pedestrian crosswalks and frequent SEPTA bus stops in the traveling lane without shoulder pull-off.
55. There are 81 ingresses/egresses from business or community places, such as churches and parks, onto Baltimore Pike in the 1.3 mile affected area.
185(a). At the Thompson Ave. intersection, near the proposed sites of 891 Baltimore Pike, during the time of observation [Nov. 21-23, 2009, from 7:00 A.M. to 9:00 A.M. and 2:00 P.M. to 6:00 P.M.] there were 3,276 vehicles, 894 of which were turning. There were 17 pedestrians observed during these hours and 38 buses.
185(d). At the Thompson Ave. intersection, near the proposed sites for the 791 and 800 proposed billboards, there were 3,730 vehicles observed, 1,186 of which were turning. There were also 44 pedestrians observed during these hours and 37 buses.
185(e). Between the proposed 800 Baltimore Pike and 500-508 Baltimore Pike locations there are 43 driveways, 12 pedestrian crossings, 5 bus stops, 3 bus shelters and 5 roadway intersections.
185(f). At the West Avenue intersection, near the proposed site of 166 Baltimore Pike, during the time of observation, there were 3,242 vehicles, 490 of which were turning. There were 22 pedestrians and 41 buses.
186. The Board finds that in the stretch of Baltimore Pike that is proposed for the billboards there are a total of;
[a] fifteen [15] intersections;
[b] one-hundred and twelve [112] driveways;
[c] twenty-seven [27] pedestrian crossings;
[d] nineteen [19] bus stops; and
[e] eight [8] bus shelters.
217. The 1.3 mile stretch of Baltimore Pike contains several hundred on-premise signs.
218. The 1.3 mile stretch of Baltimore Pike also contains off-premises signs, including bus shelters, outdoor shopping cart return advertisement, supermarket shopping cart advertisements digital and vinyl advertisements on gas pumps, vehicle wraps, SEPTA bus advertisements, fleet ads or vinyl applied to vehicle advertisements.
223. Baltimore Pike is a challenging roadways to drive because it demands careful attention to the driving task due to the number of variables involved.
224. In addition to the complete lack of access controls on Baltimore Pike, there are additional complications to the driving task including school bus traffic and SEPTA transit bus stops, frequent incidents of pedestrian jaywalking due to the widely spaced crosswalks and existing prolific signage both on-premises and “off-premises.”
228. Considering the size, height and distance from which they will be seen, the proposed billboards are detrimental to traffic safety. They will impose excessive demands on drivers’ attention patterns and will serve the sole purpose of distracting drivers on a roadway that already exhibits excessive driver distraction through existing signage and lack of control access.
242. [a] 891 Baltimore Pike - the “collapse zone,” in different directions for this sign impact drivers on Baltimore Pike, the utilities on Baltimore Pike, the Springfield Square Shopping Center, parking and pedestrian walkways. The fail zone impacts the parking area, there is parking directly below the proposed sign. If anything were to fall from the sign structure, any vehicle parked below the falling item would be impacted.
[b] 800 Baltimore Pike - the “collapse zone,” in different directions for this sign, and the fail zone impacts pedestrian walkways, the T-Mobile building and adjacent parking areas.
[c] 794 Baltimore Pike - the “collapse zone,” in different directions for this sign impacts the Pandolfi Carpet building, parking at the adjacent Rothrock Chevrolet business and the pedestrian walkways on Baltimore Pike.
[d] 500-508 Baltimore Pike - the “collapse zone,” in different directions impacts the building, structures and parking for the strip center. This sign is proposed to hang directly over the roof of the strip mall stores on the property.
[e] 144-166 Baltimore Pike - the “collapse zone,” in different directions for this sign impact the traveling public on Baltimore Pike, the access drive to the property, the parking area for the strip of stores and an adjacent drive for the Liberty Diner, the Liberty Diner building and the access to the parking area for the Netherwood Park.
[f] 134 Baltimore Pike - the “collapse zone,” in different directions for this sign impacts the parking area, parallel parking in front of Klaussner’s, the Klaussner building, the adjacent commercial property, the access drive to Netherwood Park and the southbound travel lane of Baltimore Pike.
249. Mr. Comitta testified that it is his expert opinion that the six proposed billboard sites are inappropriate, as follows:
[a] The size and scale are excessive in comparison to existing signage on Baltimore Pike.
[b] The billboards are excessive for the lots, meaning that the lots exhibit a lack of screening, small lot areas, narrow lot widths, existing building coverage and problems with soning code requirements for setbacks.
[c] The billboards are not compliant with the zoning ordinance for side yard setback, front yard setback, rear yard, height of structures and sign face area.
[d] The billboards are proposed too close to residential neighbors.
[e] The billboards, if erected as proposed, will have direct visibility from residential neighbors.
[f] The billboards are incompatible and incongruous with the existing land use from a land planning perspective.
[g] The billboards are out of character with the neighbors and the streetscape from a historic, scenic and esthetic standpoint.
[h] The billboards cannot be buffered due to their height.
[i] The billboards, as proposed, are too close together.
[j] The billboards, as proposed, are inconsistent with many of the provisions of the comprehensive plan.
[k] The billboards are unlike anything else within the view shed, or the area within which the billboards will be visible.
[l] The billboards are unlike anything else within the view shed and should not be permitted in settings that are historic, scenic and esthetic.
[m] The billboards are not compliant with the Baltimore Pike Green Boulevard Plan. BIG’s application to this board was made just after the Pennsylvania Department of Community and Economic Development awarded a grant to Springfield Township to study Baltimore Pike through the lens of the Green Boulevard Plan. The state was convinced that the Springfield Township’s Comprehensive Plan was heading in the right direction. The billboard proposal is diametrically in opposition to the Green Boulevard Plan for Baltimore Pike.
253. Billboards at a height of 62 feet will change the visual character of a large portion of Springfield Township; the sense of character of a street in conformance with the Green Boulevard Plan with shade trees, street trees, streetlights and banners invokes a positive commentary on the town. By way of contrast, if the tallest figure seen is a 62 foot high billboard, it becomes different and depending on the color, height, message and lighting, you get a different sense of character.
254. The billboard proposed for 891 Baltimore Pike is in close proximity to a day care center, a middle school, residential areas and a bus stop. It is nearly two times as high as the adjacent buildings and residences, utility poles, street lights and traffic signals. This billboard would intrude into the residential areas and be visible from the Rocklyn Road neighborhood.
294. This Board finds that the proposed billboard at 891 Baltimore Pike would be adverse to the public health, safety and welfare of the community for the following reasons:
[a] The billboard would place extra and unnecessary demands on drivers traveling Baltimore Pike which would take drivers’ attention off of the primary task of driving on an already congested roadway that exhibits no control access;
[b] The billboard would place extra and unnecessary demands on drivers on Baltimore Pike which would take their attention off their primary task of driving on a roadway that has pedestrians and bicycles crossing legally at cross walks as well as illegally by jaywalking;
[c] driving on a roadway where SEPTA buses do not have a dedicated bus lane requiring them to stop on the congested roadway;
295. [a] Because all six billboards proposed for Springfield Township are along the same 1.3 mile stretch, the public health, safety and welfare concerns for each are largely congruent. Therefore, the reasons set forth above regarding 891 Baltimore Pike also apply to [the other proposed] billboards.

See ZHB Opinion, ¶52-295. At the conclusion of its Opinion, the ZHB summarized its findings as follows:

this Board finds that Springfield Township has met its burden of proof with clear and convincing evidence that; [1] the 1.3 mile stretch of Baltimore Pike where the proposed billboards would be constructed is presently a highly trafficked road: [2] there are numerous dangerous conditions currently along Baltimore Pike which require a driver’s complete and total attention while performing the driving task; [3] the proposed billboards would further complicate the driving task, placing the public at further risk of bodily injury and/ or death, as well as, additional property damage; [4] the proposed billboards would be the tallest structures on the 1.3 mile stretch of Baltimore Pike; [5] there is no way to adequately buffer the billboards to shield them from neighboring residences; [6] the neighboring residential properties will have a clear view of the billboards during the day and the light emanating from them during the evening hours; [7] the billboards will cause the neighboring residences both a personal and financial hardship; [8] regulating the billboards is a valid police power of Springfield Township; [9] protecting the neighboring residential properties that will be directly affected by the proposed billboards as well as pedestrians and the driving public who will be exposed to additional dangers due to greater driver distraction, are also valid police powers; [10] all of the elements which were found in the [ ] Exeter case[ ] exist along Baltimore Pike, therefore, this Board is bound by these decisions. Not every use is suitable or appropriate for every municipality.

CONCLUSION

At the conclusion of the hearings, the ZHB weighed the testimony and evidence presented and ultimately concluded that the township established that the exclusionary regulation bore a substantial relationship to the public health, safety, morality or welfare. Based on the record before this court and the findings of the board there is substantial evidence to support the board’s decision. Therefore, for the foregoing reasons, this court hereby enters the following:

ORDER

And now, March 30, 2012, upon consideration of the Appeal from the March 24,2011 decision of the Springfield Township Zoning Hearing Board, the briefs submitted by the parties and the argument held on March 23, 2012, it is hereby ordered that the decision of the Zoning Hearing Board is affirmed.

      . Specifically, the addresses at which BIG has proposed the construction of sign structures within Springfield Township include: 891 Baltimore Pike; 800 Baltimore Pike; 794 Baltimore Pike; 500-508 Baltimore Pike; 144-166 Baltimore Pike; and 134 Baltimore Pike. By any standard, a 672 square foot sign is a billboard. In fact, the industry has defined two standard sized “billboards,” this size being one of them. Therefore, there is no question in this case that a “billboard” analysis is required.

      . On appeal, BIG argues that the ZHB failed to render a written decision within 45 days of the last hearing, thus violating Section 916.1 of the MPC, because the ZHB’s decision did not include findings of fact and conclusions of law. BIG’s argument follows that this alleged lack of a decision results in a “deemed denial” of the challenge under Section 916.1 (c)(6) of the MPC and this court must review the appeal de novo. This argument, however, is without merit. On March 24, 2011, 29 days after the last hearing, the ZHB provided BIG written notice that the challenge had been denied. Contrary to BIG’s position, a written decision issued by the ZHB does not need to be accompanied by findings of fact and conclusions of law to stop the 45 day period from running. See Hammond v. Zoning Hearing Bd. of Borough of Stroudsburg, 564 A.2d 1324, 1327 (Pa. Cmwlth. 1989) (“[T]he 45-day requirement is satisfied when the decision reached by a zoning board is communicated to the parties even though it is not then accompanied by findings of fact, by an opinion or by any explanation of the result.”). Therefore, there was no “deemed denial” and the ZHB’s decision is not negated.

      . While Springfield Township permits outdoor advertising within its borders, the Pennsylvania appellate courts have analyzed “billboards” in their own category according to size, industry standards and usefulness for their fundamental purpose. See Twp. of Exeter, 962 A.2d at 660. This is not to say that the appellate courts look upon “billboards” favorably per se. While the Pennsylvania appellate courts have recognized that there may be appropriate locations for the construction of billboards within this commonwealth, thus not rendering them “objectionable per se,” the courts have also recognized the significance of billboards as aesthetic blights in commercial and residential areas, attractive nuisances and safety hazards. While venues for billboards, therefore, may be somewhat limited to industrial and non-scenic highways, a court cannot find billboards to be per se objectionable and the courts must require the municipality to prove the requisite factual foundation when challenged to do so by a “billboard” applicant. See id. Once a credible factual foundation has been laid, the appellate courts have recognized a municipality’s right to use its police powers to entirely ban “billboards.” See id.

      . On appeal, BIG argues that the evidence concerning the police powers applied to the specific locations of the proposed billboards is irrelevant because its application challenges the municipality-wide ban on billboards not merely the prohibition as it relates to the specific sites. This court, however, does not agree. The sites of the proposed billboard constructions encompass 1.3 miles of the 6.4 square mile township, The safety issues surrounding this 1.3 mile stretch of Baltimore Pike, a compact commercial no-control-of-access roadway that cuts directly through a residential area, are certainly applicable to the more prevalent residential neighborhoods of Springfield Township. It would be impracticable for a township to be required to analyze every roadway in the municipality in order to meet its burden of establishing a valid exercise of police power.

      . 1-476 has been designated as a scenic byway by the federal government, precluding the erection of off-site advertising signs and billboards along its entire frontage. See 23 U.S.C. §131 (s) (describing control of outdoor advertising along federally designated scenic byways); see also http://bywaysonline.org/inventory/states/PA (listing federally designated scenic byways in Pennsylvania).


source: Caselaw Access Project

author: TUCKER, J,

license: Public Domain

text:
    City of Philadelphia v. Bryan

      Marco A. Muniz and James C. Vandermark, for appellant.

      Jon C. Sirlin, for appellee.
    March 9, 2012
   TUCKER, J,

I. PROCEDURAL HISTORY

This matter comes before the court from a denial of appellant Denise Bryan’s petition to open default judgment. The procedural posture of this matter is an appeal from an order entered in the Philadelphia Court of Common Pleas pursuant to the Rules of Civil Procedure governing Philadelphia Municipal Court Appeals of Money Judgments. The relevant facts are as follows.

II. LEGAL ANALYSIS

1. Facts

On October 7, 2010, the Philadelphia Municipal Court ruled in favor of appellant Denise Bryan. Order of Municipal Court (10/7/10). The City of Philadelphia (“appellee”) timely appealed the Philadelphia Municipal Court decision to the Philadelphia Court of Common Pleas on October 29, 2010 pursuant to Phila. Civ.R. 1001(c)(1). Notice of the appeal was served by First Class Mail in violation of Phila. Civ.R. 1001(d) - (e). The appellee filed an untimely complaint with notice to defend the civil complaint. Phila. Civ.R. 1001(f)(l)(i). Notice of the complaint was personally served on appellant on November 29, 2010 pursuant to Phila. Civ.R. 1001(f)(1) and Pa.R.C.P. 401. Appellee’s aff. of service (12/3/2010). The complaint alleges two counts for failure to pay business privilege taxes. This case was scheduled for hearing in the arbitration center pursuant to Phila. Civ.R. 1001(g).

Judgment for default for failure to answer the complaint within the required time was entered against appellant on January 10,2011, without objection. OnNovember 8,2011, a praecipe for writ of execution was filed upon appellant and PNC Bank, garnishee in the above captioned matter. PNC Bank filed answers to interrogatories in attachment on November 30, 2011; judgment by admission was subsequently entered against garnishee PNC Bank on December 6, 2011 based on the answer to interrogatories. Appellant filed an untimely petition to open default judgment on December 9, 2011. Meanwhile, the appellee proceeded to partially satisfy the judgment against garnishee PNC Bank by praecipe on December 21, 2011. On January 6, 2012, this court denied appellant’s petition to open default judgment. This timely appeal follows.

The court ordered appellant Bryan to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). On January 25, 2012, appellant timely filed a 1925(b) statement wherein she alleged that she was denied a fair hearing, presumably in the Philadelphia Municipal Court, and that appellant was not properly served notice of an appeal from the Philadelphia Municipal Court to the Philadelphia Court of Common Pleas.

2. Legal Analysis

(1) Appellant has waived the issue of whether the court erred in denying her petition to open default judgment.

Appellant’s 1925(b) statement does not meet the provisions ofthePennsy lvaniaRules ofAppellateProcedure; therefore appellant has waived all issues relevant to this court’s denial of her petition to open default judgment. Under the Pennsylvania Rules of Appellate Procedure, the 1925(b) statement must identify each ruling or error that is being challenged on appeal. PA. R.A.P. 1925(b)(4). Issues not raised in the statement are deemed waived. Golovach v. DOT, Bureau of Driver Licensing, 4 A.3d 759, 764 (Pa. Cmwlth. 2010). Appellant assigns as error a denial of a fair hearing based, presumably, on the theory that appellant did not receive notice of the Philadelphia Municipal Court appeal. Appellant also states that she “won” her case in the Philadelphia Municipal Court, 1925(B) statement. As a threshold matter, appellant is held to the same standard as practicing attorneys. Cino v. Hopewell Twp. Gov’t., 715 A.2d 1242, 1243 (Pa. Cmwlth. 1998). Appellant does not state as error this court’s denial of her petition to open the default judgment. Therefore, appellant has waived the issue of whether the court erred in denying the petition to open default judgment.

(2) Notwithstanding waiver, the court properly denied appellant’s petition to open default judgment for failure to attach a verified copy of the answer which petitioner seeks to file.

Appellant failed to follow the Pennsylvania Rules of Procedure governing petitions to open default judgment. Under the Pennsylvania Rules of Civil Procedure, a petition to open a default judgment entered pursuant to Rule 237.1 must include a “verified copy” of the answer which the petitioner seeks leave to file. PA.R.C.P. 237.3. While the court may disregard procedural defects, the court may not ignore procedural defects that affect the substantial rights of the parties. PA.R.C.P. 126. As discussed below, the failure of appellant to file the appropriate answer hindered the court’s ability to discern any meritorious defense to the underlying business privilege tax claim. The substantial rights of both the appellant and the appellee are affected by appellant’s deviation from the Rules of Civil Procedure.

(3) Furthermore, the court properly denied appellant’s petition to open default judgment because it was untimely and did not otherwise meet the requirements to open default judgment.

A petition to open default judgment is an appeal to the equitable powers of the trial court. Schultz v. Erie Ins. Exchange, 505 Pa. 90, 93, All A.2d 471, 472 (1984). The court must balance this equitable power with the policy for authorizing default judgments. Default judgments were designed to “prevent a dilatory defendant from impeding the plaintiff’s efforts to establish a claim.” Raymond J. Brusco Funeral Home v. Sicilia, 419 A.2d 688, 692 (Pa. Super. 1980). Accordingly, a court may only open a default judgment where (1) the petition is promptly filed; (2) a meritorious defense is shown; and (3) there is a reasonable excuse for the failure to respond. Southeastern Pennsylvania Transp. Auth. v. Ray, 569 A.2d 1020, 1021 (Pa. Cmwlth. 1990). All three elements must be present before the court may open a default judgment. Id.

Under the Pennsylvania Rules of Civil Procedure, the court must grant a petition to open default judgment if the petition is filed within ten (10) days of default and there is a meritorious defense Pa. R.C.P. 237.3(b). Otherwise, promptness is determined by the court and the specific facts of the case. Gravely v. Gaffney, 437 A.2d 1041, 1043 (Pa. Cmwlth. 1981)(citing Raymond J. Brusco Funeral Home v. Sicilia, 419 A.2d 688 (Pa. Super. 1980)). While there is no bright line test for promptness, a court may consider two factors: 1) the length of the delay between discoveiy of the default judgment and the filing of the petition; and 2) the reason for the delay. Raymond, 419 A.2d 688 at 690. Unexplained delays of two and one-half weeks have been considered untimely; delays as long as ten months have been excused based on the asserted reasons for the delay. Gravely, 437 A.2d at 1043 (citations omitted).

Here, appellant waited eleven (11) months after notice of the default judgment to file the petition to open default judgment. The appellee certifies that the ten (10) day notice of intent to file a praecipe for default was sent to appellant on December 28, 2010. Appellee’s praecipe for entry of default J. (1/10/2011) (certification of service dated 12/28/2010 attached). Appellant filed a motion to open default judgment on December 9, 2011. Appellant’s pet. to open default J. (12/9/2011). Appellant attempts to explain the reason for her delay in filing the petition to open by asserting that she thought the “matter was settled when [she] sold the building in 2008” and that she was never served notice of the appeal from the Philadelphia Municipal Court to the Philadelphia Court of Common Pleas, Id.

While the court acknowledges the unique procedural posture of Philadelphia Municipal Court money judgment appeals, it is incumbent upon appellant to defend against the appellee’s claim. The record reflects that the complaint was personally served to appellant at 5733 Larchwood Avenue, Philadelphia, PA 19143; both the notice of appeal and the intent to file a praecipe for entry of judgment by default were sent to the same address. Aff. of service of compl. (12/3/2010) (Rule 400.1 affidavit dated 11/29/2010 attached); Aff. of service of appeal (10/29/2010); appellee’s praecipe for entry of default J. (1/10/2011) (Certification of service dated 12/28/2010 attached). The effectuation of personal service of the complaint cures any defect in the service of the appeal; the standard of review for appeals of Philadelphia Municipal Court money judgments is denovo pursuant to Phila. Civ. R. 1001. Appellant only decided to take action in these proceedings when she was unable to access funds that had been garnished from her PNC bank account. Appellant’s pet. to open default J. (12/9/2011). The circumstances surrounding the eleven (11) month delay in filing the petition to open the default judgment indicate that appellant chose to ignore the complaint and subsequent notices of default judgment until her personal bank account was garnished. Appellant’s explanation amounts to an unexplained delay. The petition to open default judgment was not promptly filed.

(4) The court properly denied appellant’s petition to open default judgment for lack of a meritorious defense to the underlying business privilege tax claim.

Appellant did not assert a meritorious defense to the underlying business privilege tax claim. A meritorious defense must be asserted in “precise, specific, clear and unmistaken terms.” City of Philadelphia v. New Sun Ray Drug, Inc., 394 A.2d 1311, 1313 (Pa. Cmwlth. 1978). A defense is meritorious when, if proven, the defense is sufficient to justify relief. Southeastern Pennsylvania Transp. Auth. v. DiAntonio, 618 A.2d 1182, 1184 (Pa. Cmwlth. 1992).

Appellant was personally served with a complaint in civil action for non-payment of business privilege taxes on November 29, 2010. Appellee’s compl. (11/22/2010); aff. of service of compl. (12/3/2010) (Rule 400.1 Affidavit dated 11/29/2010 attached). Appellant failed to answer the complaint; appellant did not offer any defense to the underlying business privilege tax claim within her petition to open default judgment. Appellant simply states that she “won” her case in the Philadelphia Municipal Court and that favorable outcome should stand on appeal. Appellant’s pet. to open default J. (12/9/2011). The standard of review for Philadelphia Municipal Court appeals of money judgments is de novo; appellant was responsible for defending against the appellee’s tax claim as if it were originally filed in the Philadelphia Court of Common Pleas. Phila. Civ. R. 1001. Appellant has not asserted a meritorious defense.

(5) The court properly denied appellant’s petition to open default judgment for lack of a reasonable excuse for her failure to answer the complaint.

Appellant did not assert a reasonable excuse for her failure to answer the complaint. The court may only grant a petition to open default judgment where all three elements of the tripartite test are present, including a reasonable excuse for any delay in answering the complaint. Appellant must provide a “justifiable” explanation for her failure to respond to the complaint in a timely manner. McFarland v. Whitham, 518 Pa. 496, 498, 544 A.2d 929, 930 (1988). Merely stating the facts surrounding the delay in response does not sufficiently explain the delay in response. Id. Appellant maintains that she was unaware of the Philadelphia Municipal Court appeal to the Philadelphia Court of Common Pleas. While the record supports this argument, the record confirms that appellant was properly served a complaint with notice to defend, which effectively cures any deficiency relating to the notice of appeal. Appellant neither responded to the complaint nor the subsequent notice of intent to take the instant default judgment. Instead, appellant relied on the favorable outcome of the Philadelphia Municipal Court case, which was the subject of this appeal. Appellant has not shown a reasonable excuse for her failure to answer the complaint or otherwise participate in any of the docketed actions in this case.

III. CONCLUSION

Appellant asserts on appeal that she was denied a fair hearing, that she was unaware of the Philadelphia Municipal Court appeal, and that she won her case in the Philadelphia Municipal Court. Taking all equities and prejudices surrounding default judgments into consideration, the court concludes that appellant has waived the issue of whether this court erred in denying her petition to open default judgment. Nevertheless, the court finds that appellant’s petition to open was not promptly filed; did not state a meritorious defense to the underlying business privilege tax claim; and did not assert a reasonable excuse for appellant’s failure to reply to the personally served complaint. Therefore, this court did not err and its judgment must stand.

      . The court is unaware of any claim relating to a “building”; the underlying civil action is for failure to pay business privilege taxes. See compl. in civil action.

      . Final orders issued by the Philadelphia Municipal Court involving money judgments are appealable to the Philadelphia Court of Common Pleas pursuant to Phila. Civ.R. 1001(1).


author: MINORA, J.,

text:
    Emiliani v. Pierre

      C.P. of Lackawanna County,
    No. 10 CV 7365.

      Charles F. Wilson, for plaintiff.

      Edward S. Neyhart, for defendant.
    November 18, 2011
   MINORA, J.,

(1) In a non-juiy proceeding, the judge sits as the “finder of fact,” and is, therefore, empowered to make any and all credibility determinations. The sitting judge is also empowered to render decisions with respect to the probative value and evidentiary weight of the evidence submitted. Mill Creek Twp. School District v. County of Erie, 714 A.2d 1095 (Pa. Cmwlth. 1998); GAR Memorial Assoc. v. Pritchard, 101 Lacka. Jurist 111 (1999). The trial judge is free to believe all, some or none of the testimony and/or evidence presented by any witness or party. Lou Botti Construction v. Harbulak, 760 A.2d 896 (Pa. Super. 2000). The findings of a trial judge in a non-jury case will be given the same weight and effect as a jury verdict and will not be disturbed absent error of law or abuse of discretion. Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 685 A.2d 1019 (Pa. Super. 1996).

(2) Pennsylvania declaratory judgment act found at 42 Pa. C.S.A. section 7532(a) empowers this court, as a court of record, “...to declare rights, status and other legal relations,... The declaration may be either affirmative or negative in form and effect and such declarations shall have the force and effect of a final judgment or decree.”

(3) An action for declaratory judgment as equitable in nature, the court once it assumes jurisdiction has the power to render any relief it deems necessary, the declaratory judgment remedy being cumulative and in addition to other available remedies, 42 Pa. C.S.A. 7541(b).

(4) The legal standard for the application of punitive damages requires a finding that defendant’s conduct was outrageous. A person’s conduct is outrageous when it is malicious, wanton, willful or oppressive or shows reckless indifference to the interests of others, Jahanshahi v. Centura Development Co., 816 A.2d 1179, 1180 (Pa. Super. 2003). We find the defendant’s conduct meets and exceeds this legal standard.

Introduction

This case arises out of a recreational partnership dispute relative to the ownership and control of the Sick Lame and Lazy Fishing Club (hereinafter “SL&L”). Plaintiff is alleging a disputed equity ownership of SL&L which owned a Mallard House trailer situated on a ground lease of rental real estate on the St. Lawrence River in Clayton, New York.

The parties are involved in a dispute over the limits of one partner’s authority to act and exercise control over the club’s assets noted above, which exist solely for fishing/ recreational purposes.

On October 13, 2010, Richard Emiliani (hereinafter “Emiliani” or “plaintiff’) filed a writ of summons commencing this lawsuit. A certificate of service indicates that Thomas Pierre (hereinafter “Pierre” or “defendant”) was served on October 22,2010. On January 6, 2011, Emiliani filed his complaint and on February 7, 2011, Pierre filed his answer.

The issues framed by the complaint and answer reveal that Emiliani claims to have purchased an equity interest in SL&L on or about August 3, 1999 from a prior owner named Henry Brown. Emiliani goes on to state that from 1999 to the present he timely paid his annual assessments and was treated by all other members at that time as a full equity partner.

Subsequently, two equity members left the partnership. William Wilson died in the year 2007 and Walter Mackiew resigned. Resultantly, Emiliani and Pierre, surviving members of SL&L, allegedly each became one half equity members in the club with Pierre taking over sole administrative responsibility.

Others were later allowed into the club as non-equity members only to control expenses. In 2010, Emiliani paid his check to Pierre who deposited same. Emiliani reserved July 2 through July 10, 2010 and Pierre allegedly agreed.

What brought this litigation to a head was defendant Pierre sought the admission of his son, James Pierre, as an equity member of SL&L. Emiliani objected and defendant Pierre tried to return Emiliani’s check which he had previously cashed and deposited. Defendant Pierre also engaged in self-help unilaterally changing the locks on the premises.

Emiliani claims Pierre’s actions were willful and wanton and accordingly, he seeks damages reflecting same. At count I, Emiliani seeks declaratory judgment and injunctive relief declaring him a fifty percent (50 percent) equity owner of the club and also enjoining Pierre from barring his equity based use and access to the club’s facility.

Count II sounds in trespass for wrongful deprivation and dispossession of Emiliani’s ownership rights and deprivation of his use and enjoyment of his property. Count III alternatively pleads conversion from being deprived and dispossessed as noted at Count II. Count IV sounds in breach of contract for Pierre’s unilateral and unauthorized dispossession and deprivation contrary to the club’s membership agreement.

Defendant Pierre, of course, denies the allegations as framed in plaintiff’s complaint and asserts new matter and affirmative defenses and a counterclaim.

Pierre claims that Emiliani was never voted in as an equity member per the club charter. Emiliani’s claim of purchase from a prior owner (Henry Stewart Brown) is contrary to the club’s charter and by-laws. The court allegedly lacks subject matter jurisdiction since the assets of the club are in New York State.

Pierre also claims Emiliani’s complaint is barred by both the statute of frauds and the doctrine of laches. Further, that plaintiff has also failed to join unnamed indispensable parties therefore further depriving this court of jurisdiction. There is also an unspecified claim that plaintiff has engaged in “multiple activities” causing plaintiff to have unclean hands thereby making plaintiff an unsuitable candidate for the equitable remedies sought.

Finally, Pierre says Emiliani’s claim is obdurate, vexatious and meritless, thereby causing Pierre to recover damages for monies expended as a result of this litigation.

The court shall dispose of these dueling claims by virtue of its findings of fact and conclusions of law which are made pursuant to a non-jury trial wherein the parties entered testimony and exhibits in support of their respective positions and subsequent filings.

Findings of Fact

The findings of fact in this case as determined by the court are supported by the credible, probative, competent and relevant evidence given weight by this court and established during the non-juiy proceedings and the evidentiary submissions of the parties and are accepted as valid and true by this court.

In a non-jury proceeding, the judge sits as the “finder of fact,” and is, therefore, empowered to make any and all credibility determinations. The sitting judge is also empowered to render decisions with respect to the probative value and evidentiary weight of the evidence submitted. Mill Creek Twp. School District v. County of Erie, 714 A.2d 1095 (Pa. Cmwlth. 1998); GAR Memorial Assoc. v. Pritchard, 101 Lacka, Jurist 111 (1999). The trial judge is free to believe all, some or none of the testimony and/or evidence presented by any witness or party. Lou Botti Construction v. Harbulak, 760 A.2d 896 (Pa. Super. 2000). The findings of a trial judge in a non-jury case will be given the same weight and effect as a juiy verdict and will not be disturbed absent error of law or abuse of discretion. Stonehedge Square, Ltd. Partnership v. Movie Merchants, Inc., 685 A.2d 1019 (Pa. Super. 1996).

1.) On August 3,1999, Henry Brown sold “my share of the Sick, Lame and Lazy camper” for $500.00 to Richard Emiliani. (See plaintiff exhibit 1).

2.) On or about August of 1999, Charter and By-Laws of the Sick, Lame and Lazy Club were adopted and signed by the six charter members: Walter Mackiew, William Wilson, Thomas Pierre, Henry Stewart Brown, Joseph Cannevale and William Haggerty. (See plaintiff exhibit 2).

3.) As of 1989, the above SL&L Club gained ownership to a 1986 Mallard trailer serial number 1U82MIR23 GAO 10812 which was registered in the name of the club and placed on a rental real estate lot on the St. Lawrence River in Clayton, New York.

4.) Originally, William Wilson, one of the charter members of the club was the person primarily responsible for maintaining all club records regarding dues collection and expense payments of the club prior to his death in 2007.

5.) On March 12, 2010, Richard Emiliani made payment to Tom Pierre in the amount of four hundred and sixty ($460) dollars by his check number 1532 and marked in the memo as “trailer dues.” (See plaintiff Exhibit 3).

6.) Tom Pierre and Audry Pierre routinely endorsed and deposited Emiliani’s check #1532 into an account of theirs on April 8, 2010. (See plaintiff Exhibit 3).

7.) During the time from Brown selling his share of the camper to Emiliani on or about August 3,1999 up until April 8, 2010, Emiliani was always treated as an equity member of the SL&L Club. (See deposition transcript of Walter Mackiew pg. 7, In. 13 to pg. 8, In. 2).

8.) Subsequently, two SL&L members left the club partnership. William Wilson died in 2007 and Walter Mackiew resigned.

9.) The two parties to this lawsuit resultantly became one-half equity members of the SL&L partnership due to the process of elimination noted at findings of fact number seven (#7) and findings of fact number eight (#8).

10.) Pierre became the partner who took over sole administrative and budget responsibility for SL&L.

11.) In order to control costs, others were allowed into the SL&L but only as non-equity members. No further equity members were admitted into SL&L. (See pg. 13, In. 16-20 of Walter Mackiew’s deposition).

12.) When Walter Mackiew left the SL&L Club partnership due to health reasons in early 2010, he was not compensated any money for his interest in the club.

13.) When William Wilson died on or about July 2007, no money was tendered to his estate for his interest in the SL&L Club partnership.

14.) At the time of payment noted at findings of fact number five (#5) and findings of fact number six (#6), plaintiff Emiliani also reserved the week of July 2-8, 2010.

15.) Subsequent to those events, defendant Pierre proposed that his son be made an equity member of the SL&L Club partnership and plaintiff Emiliani rejected this proposal.

16.)Again, when a non-equity member was to be added, defendant Pierre again proposed his son be made an equity member of the SL&L Club partnership, plaintiff Emiliani again rejected this proposal.

17.) Subsequent to these defendant Pierre proposals being rej ected by plaintiff Emiliani, defendant Pierre wrote a check to plaintiff Emiliani for four hundred and sixty ($460) dollars and unilaterally told the plaintiff that he was no longer a member of the SL&L Club partnership.

18.) Defendant Pierre went on to change all the locks on the club’s trailer in order to deny plaintiff Emiliani access to same.

19.) As a direct result of defendant Pierre’s actions, plaintiff Emiliani had to secure an alternative vacation spot at a cost of four hundred and forty-three ($443.00) dollars.

20.) As a direct result of defendant Pierre’s actions, plaintiff Emiliani had to secure legal counsel to assert his claims against defendant Pierre.

Conclusions of Law

1.) Plaintiff Emiliani and defendant Pierre at all relevant times were and remain residents of Lackawanna County, Pennsylvania thereby vesting this court with in personam jurisdiction over both parties in this case.

2.) Per plaintiff’s trial brief at pages four (4) and five (5), plaintiff has abandoned pursuit of the counts in his complaint relative to a request for injunction, breach of contract and conversation.

3.) The remaining counts for declaratory judgment confirming plaintiff fifty (50 percent) percent equity ownership in the SL&L Club and damages in trespass remain viable.

4.) Pennsylvania declaratory judgment act found at 42 Pa. C.S.A. section 7532(a) empowers this court, as a court of record, “...to declare rights, status and other legal relations,...The declaration may be either affirmative or negative in form and effect and such declarations shall have the force and effect of a final judgment or decree.”

5.) An action for declaratory judgment as equitable in nature, the court once it assumes jurisdiction has the power to render any relief it deems necessary, the declaratory judgment remedy being cumulative and in addition to other available remedies, 42 Pa. C.S.A. 7541(b).

6.) Pursuant to the authority vested in this court by the above referenced declaratory judgment act, this court hereby adjudicates and declares that the plaintiff, Richard Emiliani is a fifty (50 percent) percent equity member and owner of the Sick, Lame & Lazy Fishing Club and all of its assets.

7.) Due to plaintiff Emiliani’s fifty (50 %) percent equity membership and ownership noted above, he possesses an ongoing right of general access to the club’s trailer and its site wherever located and presently located at French Creek Marina, Clayton, New York. This access is to be limited only by and consistent with past practice. This right of access also includes exclusive access and possession during pre-determined reserved periods of time. According to past practice, this means plaintiff Emiliani, at a minimum will have the right to exclusive occupation of the club trailer and premises for himself and his invited guests for the first week of July every year.

8.) It is further decreed, the defendant’s actions herein constitute a wrongful deprivation and dispossession of the plaintiff’s fifty (50 %) percent equity membership and ownership noted above. Plaintiff has been wrongfully deprived of his ownership rights and his use and enjoyment of the club facilities by the willful and intentional and wrongful acts of the defendant, Thomas Pierre.

9.) Plaintiff Emiliani had an actual recognized possessory right and right of access when the defendant wrongfully denied him.

10.) Defendant’s unilateral self-help actions in changing the locks on the trailer to deny access to plaintiff exhibits bad faith, recklessness and a wrongful seizure of property which did not exclusively belong to him. Further, defendant, due to prior correspondence from plaintiff’s counsel knew the matter was in dispute and yet he proceeded illegally to intentionally harass and annoy the plaintiff motivated by revenge and spite for plaintiff’s failure to consent to defendant’s son becoming an equity owner.

11.) The legal standard for the application of punitive damages requires a finding that defendant’s conduct was outrageous. A person’s conduct is outrageous when it is malicious, wanton, willful or oppressive or shows reckless indifference to the interests of others. Jahanshahi v. Centura Development Co., 816 A.2d 1179, 1180 (Pa. Super. 2003). We find the defendant’s conduct meets and exceeds this legal standard.

12.) Accordingly, this court will award the plaintiff attorneys’ fees, costs, compensatory damages and punitive damages.

13.)Any and all counter claims, new matter and affirmative defenses made by the defendant, Thomas Pierre against the plaintiff Richard Emiliani are hereby denied and dismissed as unsupported by any evidence which the court determined to be credible or probative. The defendant’s testimony and that of his witnesses lacks credibility, persuasiveness and is not in any way compelling to this court as the finder of fact. Therefore, the defendant’s counter claims, new matter and affirmative defenses are rejected, denied and dismissed in their entirety.

14.) Accordingly, the following damages are adjudicated as due and owing by the defendant Thomas Pierre to the plaintiff Richard Emiliani:

2010 Lost Use Rental Cost $ 443.00
Plaintiff’s Loss of Use $ 1,772.00
Plaintiff’s Legal Costs $ 522.95
Total Compensatory Damages: $2,737.95
Punitive Damages awarded by the court to punish defendant’s outrageous conduct and to defer future misconduct $5,475.90
Total award due to plaintiff from defendant: $8,213.85
An appropriate order follows.

ORDER

And now to wit, this day of November 18, 2011, upon consideration of the credible, probative, competent and relevant evidence given weight by this court during the non-jury proceedings as referenced in the accompanying opinion and also upon consideration of all the submissions made by the parties, both those of an evidentiary nature and those which qualify as pleadings, it is hereby ordered and decreed that a verdict is rendered in favor of the plaintiff Richard Emiliani and against the defendant, Thomas Pierre as follows:

1.) It is hereby declared and adjudicated that plaintiff Richard Emiliani is a fifty (5 0%) percent equity member and owner of the Sick, Lame & Lazy Fishing Club and all of its assets.
2.) DuetoplaintiffEmiliani’s fifty (50%) percent equity membership and ownership noted above, he possesses an ongoing right to general access to the Club’s trailer and its site wherever located and presently located at French Creek Marina, Clayton, New York. This access is to be limited only by and consistent with practice. This right of access also includes exclusive access and possession during pre-determined reserved periods of time. According to past practice, this means plaintiff Emiliani, at a minimum will have the right to exclusive occupation of the club trailer and premises for himself and his invited guests for the first week of July every year.
3.) It is further decreed, the defendant’s actions herein constitute a wrongful deprivation and dispossession of the plaintiff’s fifty (50%) percent equity membership and ownership noted above, plaintiff has been wrongfully deprived of his ownership rights and his use and enjoyment of the club facilities by the willful and intentional and wrongful acts of the defendant, Thomas Pierre.
4.) The legal standard for the application of punitive damages requires a finding that defendant’s conduct was outrageous. A person’s conduct is outrageous when it is malicious, wanton, willful or oppressive or shows reckless indifference to the interests of others. Jabansbahi v. Centura Development Co., 816 A.2d 1179, 1180 (Pa. Super. 2003). We find the defendant’s conduct meets and exceeds this legal standard.
5.) Any and all counter claims, new matter and affirmative defenses made by the defendant, Thomas Pierre against the plaintiff Richard Emiliani are hereby denied and dismissed as unsupported by any evidence which the court determined to be credible or probative. The defendant’s testimony and that of his witnesses lacks credibility, persuasiveness and is not in any way compelling to this court as the finder of fact. Therefore, the defendant’s counter claims, new matter and affirmative defenses are rejected, denied and dismissed in their entirety.
6.) Accordingly, the following damages are adjudicated as due and owing by the defendant Thomas Pierre to the plaintiff Richard Emiliani:
2010 lost use rental cost $ 443.00
Plaintiff’s loss of use $1,772.00
Plaintiff’s legal costs $ 522.95
Total compensatory damages: $2,737.95
Punitive damages awarded by the court to punish defendant’s outrageous conduct and to defer future misconduct $5,475.90
Total award due to plaintiff from defendant: $8,213.85

      . Plaintiff’s complaint at paragraph 3 notes plaintiff purchased his equity interest in this club from “Stewart” Brown. Defendant’s exhibit “A” notes “Henry” Brown as an equity owner. Plaintiff’s denial of defendant’s New Matter at paragraph 34 notes “Henry” Brown. We shall be guided by the club charter and call him as noted therein “Henry” Brown. This is confirmed at page 5, line 22 of his deposition where he notes his name as Henry Stewart Brown.


author: BERNSTEIN, J.,

text:
    McCaffery v. Creamer, Jr.

      Dion Rassias, for plaintiff.

      Karen Daly, Cheryl Krause, Elisa Wiygul, for defendant.
    April 4, 2012
   BERNSTEIN, J.,

Before the court is the motion for summary judgment of J. Shane Creamer, Jr. and the city of Philadelphia board of ethics. Defendants have filed a motion for summary judgment even though depositions have yet to occur.

Plaintiff filed suit claiming defendant J. Shane Creamer, Jr. and the city of Philadelphia board of ethics “sandbagged” plaintiff Daniel D. McCaffery by releasing to the press knowingly false allegations contained in a precipitously filed “enforcement” action. Plaintiff further contends defendants intentionally decided to do so just prior to a primary election at which Mr. McCaffery was a candidate for the office of District Attorney of the County of Philadelphia specifically to harm his chances of election.

Preliminary objections were initially sustained on a theory of quasi judicial immunity. After preliminary objections were sustained, the Commonwealth court in a well reasoned opinion reversed the trial court, holding that the improper release of defamatory material just prior to an election can be actionable. The Commonwealth court accurately and succinctly summarized the factual allegations as follows:

“McCaffery was a candidate for the office of district attorney for the City and County of Philadelphia. Pursuant to all applicable rules and regulations, McCaffery established “McCaffery for district attorney” as the designated committee for his campaign for district attorney. McCaffery for district attorney, through its Treasurer Joseph Fernandes, esquire, spent funds, and otherwise took all steps necessary to act in a manner fully consistent with all applicable laws and regulations governing the establishment of a committee, and acting as an independent entity.
The Pennsylvania good government fund (fund) is a duly registered political action committee affiliated with McCaffery’s private law firm and registered at 101 Greenwood Avenue, 5th Floor, Jenkintown, Montgomery County, Pennsylvania. On or about April 17, 2009, Creamer and the board issued a subpoena directed to the fund demanding that various documents and information be produced. Creamer and the board directed this subpoena and served it upon a private residence at 312 Palmer Drive, Philadelphia, Pennsylvania. At all times relevant hereto, the registered address for the Fund was 101 Greenwood Avenue, 5th Floor, Jenkintown, Montgomery County, Pennsylvania.
When McCaffery learned of the invalidly served subpoena, he contacted Creamer and asked about the nature of the board’s inquiry and why the subpoena was served upon a Philadelphia residence rather than through the proper legal channels. In response, Creamer threatened McCaffery by stating that if he did not receive documents in response to the subpoena, he would file an enforcement action and convene a press conference telling “everyone who would listen” that McCaffery was deliberately obstructing justice, hiding his financials from public scrutiny and refusing to comply with a Board investigation of his campaign and law firm’s political action committee.
Due to the time and expense it would require to challenge the subpoena, and in light of Creamer’s threats to convene a press conference, McCaffery directed the fund to simply turn over all of the requested documents. In response, Creamer and the board accused McCaffery and the McCaffery for district attorney committee of intentionally violating campaign finance laws and misleading the public by misallocating certain campaign contributions in 2009 that should have been allocated to 2008. However, there was no hiding of funds, rather an administrative allocation of $3,100 to calendar year 2008 and the remaining $7,400 from a check in the amount of $ 10,500 to calendar year 2009. The allocation was made to comply with the Philadelphia campaign finance laws.
After reviewing the books and records of the McCaffery for district attorney committee and the hundreds of thousands of dollars that were raised by the committee, the board could only find an open allocation of $3,100. The allocation was consistent with federal election laws which allow a contributor to allocate monies from a single check over two calendar years so as to comply with calendar year limits on campaign contributions.
Upon discovery of the allocation, Creamer and the board informed the McCaffery for district attorney committee that notwithstanding the fact that local election laws are silent on allowable allocations, Creamer and the board perceived the allocation as a violation of campaign finance laws. As a result, on the eve of the 2009 Primary Election, Creamer and the board offered to allow McCaffery and his campaign to admit to knowing violations of the laws, pay a fine and repay the monies allocated from the campaign committee to the fund.
McCaffery rejected the offer knowing that no one committed any intentional violation of the campaign finance laws. The Board responded by filing an enforcement action with the trial court alleging that McCaffery: (1) deliberately violated the campaign finance laws; (2) attempted to hide campaign contributions from the public; (3) concocted a “scheme” to hide contributions from the public; and (4) deliberately misreported the $3,100 campaign contribution. Simultaneously with filing the enforcement action, on the eve of the 2009 primary election, Creamer held an extra-judicial press conference, not pertinent in any way to the enforcement action against McCaffery or his committee, where Creamer publicly accused McCaffery of criminal and civil misconduct, attempting to circumvent the campaign finance laws, and knowingly conspiring to hide the truth from the public.
As a result of the filing of the enforcement action, the McCaffery campaign ultimately paid a $750 fine for the allocation of the $3,100 to calendar year 2008. As part of the settlement agreement, which was reached long after the 2009 primary election, Creamer and the Board admitted that neither the McCaffery for district attorney Committee, McCaffery individually or the committee treasurer intentionally or deliberately violated any of the campaign financial disclosure or conflict of interest laws. This admission by Creamer and the board is in sharp contrast to the enforcement petition and the press conference statements made before the 2009 primary election. At all times relevant hereto, Creamer and the board knew despite the press conference and filings, that McCaffery did nothing wrong intentionally, never intended to hide any of his campaign contributions from the public and never sought to violate the public trust.
Based on the facts set forth in the complaint, McCaffery alleges that Creamer, as executive director of the board, was authorized to recommend and take all actions on behalf of the board against McCaffery and his committee and was required to do so in a lawful, unbiased, even-handed and fair manner. McCaffery alleges that Creamer and the board failed to do so, and instead made frivolous, misleading and false statements about McCaffery and his campaign which were known to Creamer and the board to be false and/or reckless. McCaffery further alleges that Creamer and the board undertook this deliberate, rogue and reckless course of conduct in an effort to sabotage McCaffery’s campaign, to embarrass McCaffery and to tarnish his name and reputation in the eyes of the voting public. Therefore, McCaffery demands, inter alia, compensatory damages, interest, costs, attorney’s fees, and an award of punitive damages.”

The commonwealth Court overruled the lower court ruling granting preliminary objections, reinstated the complaint and reaffirmed long standing precedent that quasi judicial immunity was only applicable when the agency and its employees properly conduct themselves. The court acknowledged that Pennsylvania State law has extended quasi-judicial immunity to the administrative agency process:

In petition of Dwyer, 486 Pa. 585, 406 A.2d 1355 (1979), our Supreme Court following the lead established by the United States Supreme Court in Butz v. Economou, 438 U.S. 478, (1978), extended the principle of quasi-judicial immunity to agency officials performing adjudicatory functions within an administrative agency.”

Agencies and agency officials enjoy quasi-judicial immunity because adjudications within an administrative agency share enough of the characteristics of the judicial process like issuing subpoenas, ruling on evidence, regulating hearings and making or recommending decisions, that those who participate in them should be immune from suit for damages. However, this immunity is not absolute. For immunity to apply it must be established that the actions complained of were performed within the agency’s quasi-judicial function. Immunity afforded to official acts is inapplicable to unofficial conduct or ultra vires activities.

The Commonwealth Court correctly summarized the law of Pennsylvania concerning the limited immunity afforded to administrative agencies as applied to this case. The Commonwealth Court said:

“...McCaffery argues that Creamer and the Board are not entitled to immunity for actions apart from filed litigation or administrative hearings. McCaffery contends that his complaint raises factual issues regarding whether Creamer and the board acted outside the normal course and scope of the employment...”
“McCaffery contends that Creamer and the board publicly disclosed their filing against him in violation of Section 20-606(i) of the Philadelphia code.”

Section 3-806 of the Philadelphia home rule charter establishes a 5 appointed member board of ethics, provides for the appointment of an executive director, and sets forth that the board shall meet at least quarterly and at such other times as the chair may deem necessary. Section 4-1100 of the home rule charter sets forth the powers of that board of ethics. These powers include the power to: (1) conduct investigations and convene hearings; (2) conduct its enforcement activities either by bringing enforcement actions in the court of common pleas or, if authorized by council by ordinance; (3) administratively adjudicate alleged violations; and (4) impose civil penalties and other remedies for violations. Finally, Section 20-606 of the Philadelphia Code sets forth detailed powers and duties of the board. Section 20-606(i) mandates that “the records, reports, memoranda and files of the board shall be confidential and shall not be subject to public inspection, except as otherwise provided by law.” It also requires that “no person shall disclose or acknowledge to any other person any information relating to a complaint, investigation, referral or pending adjudication, except as otherwise provided by law.”

Herein, McCaffery claims that Creamer and the Board are not entitled to immunity for actions beyond properly filing litigation or properly conducted administrative hearings. McCaffery specifically contends that Creamer and the board publicized and publicly disclosed their filing against him in specific violation of section 20-606(i) of the Philadelphia Code. McCaffery’s complaint raises factual issues regarding whether Creamer and the Board acted outside the normal course and scope of their rights and obligations. These matters cannot be summarily resolved by summary judgment before discovery has been completed.

Creamer and the board say in their motion, without presenting any of “of record” evidence, that all public disclosures McCaffery alleges defamed him were exclusively enforcement updates read into the record at an official meeting of the board. However, defendants admit they issued a press release before the public meeting “for immediate release,” on May 12,2009 in contravention of section 20-606 of the Philadelphia Code. In this press release, issued days before the primary election, defendants proclaimed that McCaffery had “deliberately violated” the campaign finance law and specifically that a $10,500.00 had contribution been misreported. The press release characterized the behavior as “....a scheme to hide the excess contribution from the public.” Issued one day prior to the public board meeting it quotes Ethics Board chair Richard Glazer as saying:

“If political donors and the candidates they support were allowed to agree to misreport the actual amount of a contribution check by artificially ‘allocating’ portions of a single contribution check into different calendar years, then both the city’s contribution limits and the entire campaign finance disclosure system would be rendered meaningless,”

The minutes of the public board meeting reflect ethics board chair Richard Glazer saying these exact words a day later in public session.

Whether these accusations of intentional unethical behavior were communicated to the press by press release prior to the public official meeting, or revealed in private disclosures, or were made at a press conference, or were improperly disclosed through other discussions with the public news media either before or after that official board meeting, or whether that same information was only obtained by press attendance at an official public Board meeting are questions of fact upon which this case may turn. This question of fact can only be resolved through factual examination, and certainly cannot be summarily determined before discovery.

Likewise, if McCaffery can demonstrate that mandatory procedural steps required prior to any court action were not followed or if the confidentiality provisions under which the board of ethics was required to act had not been followed and if the allegations publicly made just prior to the district attorney primary were in fact unsubstantiated and revealed as part of an intentional design to hurt his candidacy, then the elements of actionable defamation have been made out.

Once the defendants ultra vires offer extra judicial commentary without authority, they violated their own enabling statute and law and are no longer protected by quasi judicial immunity. While the allegations contained in the properly filed common pleas complaint are protected from defendant’s claims, the Pennsylvania Supreme Court has held that publicizing that same information beyond the actual filing is not protected. In Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (2004) an attorney who had properly filed a complaint with the court of common pleas faxed that complaint to a freelance reporter for the legal intelligencer who published an article detailing the allegations of the complaint. The Supreme Court held that the judicial privilege protects an attorney from liability for the allegations contained in the filed complaint. However, seeking and obtaining press coverage for that same information by the mere act of faxing that same complaint as filed to a reporter is actionable. That activity was actionable even though that same complaint could have been independently retrieved as apublic record by the reporter. In Bochetto the trial court had granted summary judgment. Reversing that decision, the Supreme Court held the judicial privilege afforded absolute immunity only for communications issued in the regular course of judicial proceedings. Immunity extended to the parties and attorneys, does not cover republication. In Post v. Mendel, 510 Pa. 213, 507 A.2d 351, (1986) the Supreme Court explicitly held said that the judicial privilege “is not a license for extrajudicial defamation....” The court held that judicial privilege does not preclude liability for:

“Statements he made in the letter detailing alleged acts of misconduct by his opposing attorney sent as copies to the judge trying this case, the disciplinary board and the accused attorney’s client. Although that accusatory letter had been issued during the course of trial and referred to matters that occurred during the trial it was not protected because it was not issued ‘as a manner of regular course of proceedings’. Neither was it pertinent and material to the proceedings.”

In Bochetto the Supreme Court reaffirmed that publication of the complaint by a proper filing was clearly protected by privilege:

“However, the fact that the privilege protects this first publication does not necessarily mean that it also protects Gibson’s later act of republishing the complaint....”
“Even an absolute privilege may be lost through over publication...in the case of the judicial privilege over publication may be found where a statement initially privileged because made in the regular course of judicial proceedings is later republished to another audience outside of the proceedings.”

The mere fact of sending the filed copy of the complaint to the Legal Intelligencer without comment is actionable in Pennsylvania. Likewise a defamatory press release or commentary before or after an official meeting of the board of ethics at which the filing of a complaint and the content were described publicly is not protected by the judicial privilege.

The rules for summary judgment, Pa. R. Civ. Pro. 1035-103 5.4, specifically provide that a party may not rest upon the mere allegations of the pleading. These rules also specifically provide for additional discovery:

“any party may move for summary judgment... whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery.”

The moving party’s right to summary judgment has to be “clear and free from doubt after examination of the record in a light most favorable to the non-moving party and resolution of all doubts as to the existence of a genuine issue of material fact against the moving party.” The non-moving party opposing summary judgment has a burden to “adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.”

Pa. R. Civ. R. No. 1035.3 further provides:

“(b) an adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and action proposed to be taken by the party to present such evidence.”

Without doubt, plaintiff herein has the right to conduct discovery to demonstrate that the intentional and malicious defamation allegations can be supported. Clearly, plaintiffs have the right to present the results of that discovery in their response to a summary judgment motion to demonstrate that real factual issues exist. This summary judgment motion having been filed, even though no depositions have occurred, must be denied.

Defendants rely herein, as they did in their preliminary objections, upon the complaint’s words: “press conference.” They claim that since no “press conference” occurred, summary judgment must be granted. Defendants exclusively rely on plaintiff’s answer, to defendants’ Interrogatories. In those Interrogatories defendant said:

“In response to interrogatory number 1: ‘During the May 2009 board meeting of the defendants an invitation was extended to local media outlets to attend thereby converting said board meeting to a de facto press conference....to circumvent Philadelphia code 20-606(i) which clearly states inter alia that no person shall disclose or acknowledge to any other person any information relating to a complaint investigation referral or pending adjudication’.”

In that same answer to interrogatory number 1 plaintiff states:

“After a one sided recitation of facts was read to the assembled mass of press corp. reporters, defendant Creamer answered questions from the assembled reporters whereby he accused McCaffery of knowingly conspiring to intentionally violate the law on the eve of the election for Philadelphia District Attorney.”

In those same Interrogatory answers plaintiff identified the Philadelphia Daily News, Philadelphia Inquirer, Philadelphia.com, and multiple political websites across the commonwealth as some of the places to which the defamatory information promulgated.

In their interrogatory answers plaintiff, also specifically reserved their right to supplement their answers to interrogatories since as discovery had not been completed.

Plaintiffs in their answer to the summary judgment motion, attached a press release issued by defendants. Plaintiffs claim this press release, which made defamatory allegations and summoned the press to an ethics board meeting on the eve of the election, was itself improper and actionable because the city charter required all such allegations be kept confidential. Plaintiff further contends that this press release was neither incidental to defendants’ proper duties as government officials, nor accidental. Plaintiff claims defendants did not negligently overlook their explicit confidentiality requirements. Rather plaintiff asserts that issuing that press release prior to the public meeting was intentionally calculated and maliciously designed to harm the plaintiff’s district attorney candidacy by specifically damaging his reputation. While these claims have yet to be proven, summary judgment may not be granted when the sworn testimony of those involved has not yet been taken.

Defendants’ reliance on the words “press conference” in plaintiff’s complaint to support their summary judgment motion seeking dismissal “with prejudice is misplaced.” Technical pleading requirements contravene longstanding Pennsylvania jurisprudential philosophy

Rule 126 of the Pennsylvania rules of civil procedure reads:

“The rules shall be liberal ly construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

This rule, both by its clear language and by longstanding consistent application, affirms the essential policy of the justice system of Pennsylvania that cases be decided substantively on the merits and that substantive justice should not be thwarted by non-essential procedural missteps.

Rule 126 has been interpreted to permit amendment of a complaint in a wide variety of situations. The Supreme Court has held that summary procedural dismissal is such a drastic sanction that “the right to amend should not be withheld where there is some reasonable possibility that [the] amendment can be accomplished successfully.” The Pennsylvania Superior Court has held that “even when a complaint is deficient, amendment and not dismissal, is the appropriate remedy.” A complaint which improperly designated the nature or type of action brought can be amended.

Whether issuing apress release, or summoning the media to an official meeting by an intentionally inaccurate and provocative press release claiming significant personal and campaign improprieties days before the primary election can properly be characterized as a “press conference” or whether informal meetings, or conversations with the media by defendant Creamer or other members of the board of ethics, occurred prior to any official meeting, or subsequent to the close of any official meeting, cannot be determined until discovery is completed. In the event that upon the completion of discovery it turns out that improper dissemination of defamatory statements should more properly be characterized as “meetings with the press” or “discussions with the press” or “conferences held with specific reporters” or “telephone conversations with the media” or the improper release of information by any method, then an amended complaint may be filed.

Pennsylvania rule of civil procedure 1033 specifically authorizes the filing of an amended complaint at any time. Case law permits the filing of an amended complaint even after trial to conform to the evidence. In the event plaintiffs determines that an amended complaint should be filed after discovery is completed an amended complaint may be filed at that time.

However, whether or not any amended complaint is eventually filed, it is beyond any possible claim that defendants have not been properly put on notice that the gravamen of the activity which makes defamatory conduct actionable, and beyond all limited immunity protections afforded to an adjudicatory body, is the improper, intentional, and malicious, dissemination of defamatory allegations against a candidate on the eve of election in violation of defendants own enabling statutes.

For the reasons set forth above the motion for summary judgment is denied.

ORDER

And now, April 4, 2012, upon consideration of the motion of defendants J. Shane Creamer, Jr. and City of Philadelphia board of ethics for summary judgment, and plaintiff’s answer in opposition thereto, it is hereby ordered and decreed that the said motion is denied.

      . Tulio v. Com., State Horse Racing Com ’r, 79 Pa. Comwlth., 305, 313,470 A.2d 645, 648-49 (1984).

        . Id.

      . Section 3-806(a) of the Philadelphia home rule charter specifically provides as follows: (a) Composition. There shall be a board of ethics consisting of five members appointed by the mayor with the advice and consent of a majority of the members of city council. Members shall be chosen for their independence, integrity, civic commitment and high ethical standards; they shall be residents of, or have their primary place of business in, the city of Philadelphia and registered to vote. The members of the board shall elect a chair and such other officers as deemed necessary.

      . Section 20-606 of the Philadelphia code provides, in pertinent part, as follows:
      (1) Powers and duties.
      (a) Rules and regulations. The board shall promulgate rules and regulations as are necessary to implement and interpret the provisions of this chapter consistent with the goal of providing clear guidance regarding [* 14] standards of conduct and ethics.
      (f) Complaints.
      (i) The board shall receive written complaints alleging violations of this chapter. All such complaints must be signed by the complainant and the board shall preserve the confidentiality of the complainant and keep information, records and proceedings relating to an investigation confidential at all times.
      (ii) Whenever a written complaint is received by the board, it shall:
      (.1) Dismiss the complaint if it determines that no further action is required by the board;
      (.2) Investigate internally;
      (.3) Make an initial determination as to whether there is probable cause to believe that a city officer or employee has violated a provision of this chapter and, if so, proceed to adjudicate the matter in accordance with the regulations promulgated under paragraph (g) of this section; or
      (.4) Refer the alleged violation of this chapter to the head of the city agency in which the city officer or employee serves if the board deems the violation to be minor or if related disciplinary charges are pending against the city officer or employee; or
      (.5) Refer the alleged violation to the inspector general or other appropriate enforcement authorities.
      (g) [* 15] Investigations and referrals.
      (i) The board shall have the power to conduct an investigation of any matter related to the board’s responsibilities under this chapter.
      (ii) Whenever a city agency receives a complaint alleging a violation of the provisions of this chapter or determines that a violation of this chapter may have occurred, it shall refer such matter to the board. Such referral shall be reviewed and acted upon by the board in the same manner as a complaint received by the board under paragraph
      (e) (sic) of this section.

        (h) Adjudication. The board shall, by regulation, provide for adjudication of alleged violations of this chapter, insuring that notice and an opportunity to be heard are provided prior to any final decision by the board. If the board finds that there has been a violation of this chapter it may impose penalties pursuant to section 20-612. Findings and decisions of the board on any actions taken by the board shall be final and there shall be no further appeal other than to court as provided by law.
      (i) Confidentiality. Except as otherwise provided in this chapter, the records, reports, memoranda and files of the board shall be confidential and shall not be subject [*16] to public inspection, except as otherwise provided by law. Also, no person shall disclose or acknowledge to any other person any information relating to a complaint, investigation, referral or pending adjudication, except as otherwise provided by law.

      . Although minutes are attached as exhibits there is no affidavit or attestation verifying their accuracy. Nonetheless, because factual issues clearly exist, this opinion will assume without attestation, verification, or other proof the accuracy of all exhibits attached to motion and answer.

      . In the minutes of the Philadelphia board of ethics meeting of September 16,2009, defendant Creamer is quoted as saying:
      “that the excess contribution issue has been resolved because the parties had determined that no funds were received in 2008 that would have created an excess contribution.”
      At the October 21, 2009 meeting of the Philadelphia board of ethics defendant Creamer also admitted:
      “That the McCaffery campaign did not actually receive the good government fund check until January 27, 2009.

        Therefore, because contributions are made when received under Pennsylvania law, the contribution did not count toward the 2008 contribution limit and the amount of PAC contribution the McCaffery campaign accepted in 2008 complied with the limited imposed by the city campaign finance law.”

      . This court does not have to decide whether the dissemination of the contents of the complaint through the medium of a public board meeting is or is not protected until such time as discovery reveals the true extent and mode of dissemination.

      . Liss & Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 657 (Pa. 2009).

      . Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996).

      . If supplemention is made even in violation of prior court orders, the supplemental factual material must be considered. Gerrow v. John Royle & Sons, 813 A.2d 778 (Pa. 2002).

      . Defendants present no affidavits, sworn statement or even any discovery in support of their motion. The records and minutes attached are not attested to in any way and the motion itself has no verification.

      . In interrogatory number 8 plaintiff states:
      “...that Creamer threatened to both convene a press conference to let the media know that McCaffery had refused to comply with a validly issued subpoena and ongoing criminal investigation of the Philadelphia board of ethics.”

      . Exhibit C to plaintiffs answer to defendants motion for summary judgment.

      . Footnote regulation number 5 cited by defendant as justification for their behavior has no import whatsoever since it did not become effective until November 2, 2009, seven months after the defendant publicized their claims against McCaffery.

      . Of course application of rule 126 is not required to deny this motion since factual issues exist.

      . Otto v. American Mut. Ins. Co., 482 Pa. 202, 393 A.2d 450 (1978), vacating 241 Super Ct. 423 Pa. R.C.P. 1033.

      . Harkins v. Zamichielli, 266 Pa. Super. 401, 405 A.2d 495, 499 (1979).

      . Hoza v. Hoza, 302 Pa. Super. 72, 448 A.2d 100 (1982).

      . Sheppard v. First Pennsylvania Banking and Trust Co., 199 Pa. Super. 190, 184 A.2d 309 (1962), Biglan v. Biglan, 479 A.2d 1021 (Pa. Sup. 1984).

      . The court notes that the enabling legislation claimed to be violated were specifically designed and written to end improper electoral interference and influence. If the allegations of the complaint are proven at trial there can be no question that defendants acted under color of state law beyond their proper purview for insidious purposes directly contrary to the principles for which the “ethics board” was created. All of these allegations have yet to be proven. Plaintiff has the right to conduct discovery to determine what can be factually demonstrated.