author: LOYECCfflO, J.,

text:
    Gorsline v. Board of Supervisors of Fairfield Township

      C.P. of Lycoming County,
    No. 14-000130

      J. Michael Wiley and Joshua J. Cochrane, for appellants.

      Kevin M. Walsh, Jr., for intervenors.
    Aug. 29, 2014 —
   LOYECCfflO, J.,

Before the court is the appeal of Brian and Dawn Gorsline, and Paul and Michele Batkowski (appellants) to the decision of the board of Supervisors of Fairfield Township (Fairfield or the board), which granted a conditional use approval to Inflection Energy, LLC (Inflection) for the construction and use of an oil and gas well pad on property owned by Donald and Eleanor Shaheen and located in Fairfield Township.

Inflection filed a zoning and development permit application (application) to construct an oil and gas well site on the Shaheen property. As described in its application, the proposed use of the property was as a site to “be used for the drilling, completion, production and operations of multiple gas wells.” Public hearings on the application were held before the board on October 7,2013 and November 4, 2013.

The well pad is proposed to measure approximately 300 feet by 350 feet initially and will ultimately measure 150 feet by 150 feet once completed. The well pad would be located on the Shaheen property which is located within a Residential Agricultural (RA) district. While there is only one residence that is located within a 1000 foot radius of the proposed well pad location, there is a large residential development, as well as many individual family homes located within a 3000 foot radius of the proposed well pad location.

On December 2, 2013, public action was taken by the board of Supervisors on the Conditional Use Application. In accordance with the provisions of 53 P.S. § 10908 (10), the board transmitted its final decision on December 18, 2013. On January 17, 2014, appellants filed a land use appeal from the written decision of the board. In their notice of appeal, appellants lodged numerous objections to the decision.

Arguments on the appeal and the issues raised therein were subsequently held before the court. The parties agreed that the court could hear and decide the appeal on the record without any further facts being presented. As well, the parties submitted written legal briefs in support of their respective positions.

In opposition to the appeal, Fairfield, Inflection and the Shaheens first argue that appellants have waived any right to raise the issues at this juncture because these issues were not raised before the board.

During the oral argument on this matter, Fairfield, Inflection and the Shaheens submitted that the appeal is governed by the Local Agency Law and in particular 2 Pa. C.S.A. § 753. Appellants disagreed and argued that their appeal is governed by the applicable provisions of Pennsylvania’s Municipal Planning Code (MPC).

Conditional uses in Fairfield Township are governed by § 14.2 of the Fairfield Township Zoning Ordinance of 2007 (“ordinance”). The criteria for review and approval of a given conditional use are set forth in § 14.2.5 of the ordinance. The ordinance also establishes procedures for the application and mandates criteria that the board must consider in making a decision. In this matter and pursuant to § 14.2.6 of the ordinance, the board established findings of fact and issued a written decision within the prescribed time period after the last hearing. The board transmitted its written decision “in accordance with the provisions of 53 P.S. § 10908 (10).” Clearly, the board conducted the hearing and issued its decision pursuant to the MPC.

The appeal by appellants was styled as a “Land Use Notice of Appeal.” Land use appeals are specifically addressed in the MPC. 53 P.S. § 11001-A.

The argument by Fairfield, Inflection and the Shaheens that the provisions of the Local Agency Law apply to the exclusion of the MPC lacks merit. The board issued its decision pursuant to the MPC and Inflection and the Shaheens intervened in the appeal pursuant to the MPC. 53 P.S. § 11004(A).

As appellants correctly note, the hearing and argument on the land use appeal is governed by the MPC and in particular 53 P.S. § 11005-A. That provision specifically notes that “[i]f the record below includes findings of fact made by the governing body, board or agency whose decision is brought up for review and the court does not take additional evidence, the findings of the governing body shall not be disturbed by the court if supported by substantial evidence.” 53 P.S. § 11005-A.

Pursuant to 53 P.S. § 11006-A, in a land use appeal, “the court shall have the power to declare any ordinance or map invalid and set aside or modify any action, decision or order of the governing body...brought up on appeal.”

There is no provision in the MPC that limits the court from addressing issues raised by appellants to only those issues that appellants raised before the board. Accordingly, the court dismisses the waiver argument of Fairfield, Inflection and the Shaheens.

Alternatively, even if the position of appellees and intervenors is deemed to have merit, the court agrees with appellants that the issues asserted by them in their appeal should be addressed for due cause shown. When the ordinance was adopted, it is safe to assume that neither the drafters, the municipality or the citizens contemplated the issues involved in oil and gas exploration. Moreover, and in light of the Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.2d 901 (Pa. 2013), the issues raised by appellants have significant constitutional import.

The first issue asaserted by appellants concerns whether Fairfield erred as a matter of law by reviewing the land use application as a “use provided for” under § 12.18 of the ordinance, rather than an application for “surface mining.”

Unfortunately, § 12.18 of the ordinance is inartfully drafted and confusing in part. The court will endeavor to apply the ordinance and its required criteria consistent with its language and intent. The first criterion that the applicant must establish is that the proposed use is neither specifically permitted nor denied “under [the] ordinance.” Clearly, the burden falls on Inflection to establish that its proposed use complies with the requirements of the ordinance. Aldridge v. Jackson Township, 983 A.2d 247, 253 (Pa. Commw. 2009).

Appellants argue that an oil and gas well pad and well drilling fall within the definition of surface mining which is permitted as a conditional use in the industrial district. They assert that the plain language of the ordinance provides that surface mining activities are authorized as a conditional use in the industrial district of Fairfield. Specifically, they further assert that the ordinance defines “surface mining” to include industrial surface activities aimed at extracting minerals from the ground and that the ordinance defines “minerals” to include “oil and natural gas.” They contend that an interpretation of “surface mining” that does not include natural gas extraction within its meaning would render the term “minerals” and the phrase “oil and natural gas” meaningless and superfluous.

While the court sees some merit in this argument, given the specific language of the ordinance and the legal precedents governing the interpretation of ordinances in general, the court cannot agree with appellant’s position. Under the specific terms of the ordinance, the use proposed on the property is only permitted if it is not permitted in any other zone under the terms of the ordinance. Ordinance, § 12.18.2. Article 6 of the ordinance entitled “industrial district” permits as a conditional use “surface mining.” Ordinance, § 6.2.3.12. Surface mining is defined in article 2. It includes the extraction of minerals from the earth but specifically does not include those mining operations carried out beneath the surface by means of shafts, tunnels, or other underground mine openings. Minerals are defined under article 2 as well. The definition of minerals includes “crude, oil and natural gas.”

The court agrees with Fairfield and the intervenors that the language of the ordinance does not provide for Inflection’s natural gas operations. It makes no mention of natural gas operations and said operations are not included in the definition of surface mining. As Fairfield and the intervenors assert, in order to qualify as surface mining, it is not enough to simply involve certain minerals. Instead, the ordinance requires the removal of the minerals in a certain fashion and specifically excludes subsurface mining.

Moreover, even if the language can be considered ambiguous, this court must give great weight and deference to the interpretation of it by Fairfield. In Re: Thompson, 896 A.2d 659, 669 (Pa. Commw. 2006); 1 Pa. C.S. § 1921 (c) (8). As intervenors correctly note in their brief, “The basis for the judicial deference is the knowledge and expertise that a [municipality] possesses to interpret the ordinance that it is charged with administering.” In Re: Thompson, supra.

As well, and also as Fairfield and the Intervenors correctly note, this court is required to interpret any ambiguous language in favor of the property owner and against any implied extension of the restriction. City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Commw. 2006). “In inteipreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction.” 53 P.S. § 10603.1. Accordingly, the court concludes that Fairfield did not commit an error of law in concluding that the proposed use was neither specifically permitted or denied in the zoning ordinance.

The second criteria the board must consider in addressing a conditional use are set forth in § 14.2 of the ordinance. The burden of proof with respect to these factors depends on whether the factors are deemed to be specific or general. Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911 (Pa. Commw. 1980); Appeal of Baker, 339 A.2d 131 (Pa. Commw. 1975). In light of the court’s decision below with respect to the remaining § 12.18 factors, the court need not address the § 14.2 factors.

As set forth in the December 18, 2013 opinion and order of Fairfield, it concluded that the proposed use “satisfies the requirements of the zoning ordinance applicable to the proposed use in the RA-Residential Agricultural District.” (Opinion and order, conclusions of law, Paragraph 8). Fairfield further found that the criteria for review as set forth in § 12.18 have been “sufficient (sic) satisfied.” (Opinion and order; conclusions of law, paragraph 20). More specifically, Fairfield concluded that the site selected is generally appropriate for the proposed uses, and no evidence was offered that there would be any adverse impacts to the surrounding neighborhoods or negative impacts to adjoining properties that are not appropriately mitigated by the board’s conditions to the conditional use approval. (Opinion and order, conclusions of law, paragraph 20). Curiously, other than a general finding by Fairfield that the criteria in § 12.8 have been satisfied, there are no specific findings regarding the required factors set forth in §§ 12.18.1,12.18.2 or 12.18.3.

§ 12.18.1 establishes the third set of criteria. The use may only be permitted if the proposed use is similar to and compatible with other uses permitted in the zone where the subject property is located. The burden is on the applicant to prove such. Aldridge, 983 A.2d at 253.

This court must specifically determine whether there is substantial evidence to support a finding that Inflection demonstrated that its proposed use is similar to the other uses permitted in the zone where the subject property is located. Stated otherwise, the court must determine whether relevant evidence was presented to Fairfield such that a reasonable person might accept it “as adequate” to establish that the proposed use is similar to other uses “permitted in the zone.”

The court concludes that with respect to the similarity issue Fairfield abused its discretion in concluding that Inflection complied with its burden. Fairfield’s decision is not supported by such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.

First, and perhaps determinatively, the evidence presented as to the actual proposed use is not at all clear. The actual proposed use is fraught with significant uncertainties.

Inflection presented the testimony of both Thomas Irwin, a Senior Field Operations Manager for Inflection and Thomas Gillespie, the Director of Regulatory Affairs and Environmental Health and Safety at Inflection. While numerous specifics were set forth in connection with the proposed use, many determinative questions were left unanswered.

Inflection was unable to state with any certainty whatsoever, how many wells would be drilled. Transcript, 10/713, at 13 (“We will probably drill two wells off the pad initially, and it depends upon the results.”). Inflection was unable to state with certainty how much water would be needed. Id. (“we like to start with a couple million gallons before we start the fracking operation.”). Inflection was unable to state with certainty the type of energy it would be utilizing. Id. at 15 (“If we decide to use electricity —. We will probably use solar, that is what we have been using on all our other sites. There is electricity to the location though if we need it.”). Inflection was unable to state how long the site would be used for construction or otherwise. Id. at 26 (“We may come backhand so that makes it longer, a more drawn out process.”). Inflection also could not say if after they drilled through the Marcellus shale, they would be drilling other layers, thus being on the property much longer. Id.

With respect to adjoining property owners, Inflection could not state if the wells would be going under their property or “whose property it goes under.” Id. at 35. With respect to a water source, Inflection could not confirm whether it would be supplied by pipeline or trucked in. Id. at 42-43.

No one testified that the proposed use is similar to other uses specifically permitted in the residential agriculture district. The permitted uses in a RA district are: Accessory Uses/Structures; Agriculture; Dwelling — Single Family Detached; Essential Services; Family Based Group Home; Family Day Care Home; Forestry Activities; Home Occupation; Hunting Camp or Seasonal Dwelling; and No Impact Home Based Business. Zoning Ordinance §4.2.1.

Fairfield argues in its brief that a natural gas pad is similar to the public service facilities that are permitted by conditional uses in the RA District. Such facilities include: power plants or substations; water treatment plants or pumping stations; sewage disposal or pumping plants and other similar public services, whether publicly or privately owned.

Appellants contend, and rightfully so, that Inflection’s testimony was conclusory and not supported .by any factual evidence whatsoever. Further, they persuasively argue that the uses permitted in the RA district do not involve the use of industrial machinery and chemicals, do not entail thousands of roundtrips of heavy truck traffic, do not cause loud noises at all hours of the day, do not impose threats to human health and safety and do not have negative impacts on the environment.

Mr. Irwin testified that Inflection’s proposed use was not classified as a public service facility under the ordinance. Transcript, 10/7/13, at 8. Apparently dissatisfied with that answer, Inflection’s attorney then asked the following leading question, “It fits the definition as a public service facility under the Fairfield Township Zoning Ordinance, it that correct?” After this prompting, Mr. Irwin said, “Yes.” There was absolutely no explanation for Mr. Irwin’s arguably inconsistent answers. The definition of a public service facility was not discussed or alluded to and no testimony was provided to show how Inflection’s proposed use fits the definition. There was just a bald, conclusory statement that the use fit the definition of a public service facility.

Inflection also testified that it “received approval” for four other wells in the same zoning district. The court cannot conclude that this statement, in and of itself, constitutes such relevant evidence as a reasonable mind might accept as adequate to support the similarity conclusion. Inflection did not present any evidence whatsoever describing the specifics with respect to those other “four” wells. A resident, however, noted that the wells that have gone in seem to be much further from residential areas. Transcript, 11/4/2013, at 67. Furthermore, the criteria relates to similarity to explicit permitted uses, not other gas wells which are a use that is neither specifically permitted nor denied in the zoning ordinance. Moreover, Inflection is not constructing these gas wells to furnish natural gas to the residents of the Pines Development, or even Fairfield Township.

There was also insufficient evidence to support the finding that Inflection met its burden of proving that the proposed use was compatible. The only testimony presented by Inflection on this issue was a statement by Mr. Irwin that he believes, given the location of the well, that it is compatible “with the surrounding properties.” Transcript, 10/7/13, at 20. This conclusory statement falls far short of establishing that the proposed use is compatible. Being compatible with “other properties” also does not prove compatibility with “other uses” in the zoning district.

As well, numerous residents of Fairfield Township as well as other concerned individuals provided contrary proof. Their testimony raised specific issues regarding the compatibility of the subject property, the general purposes of the RA district and how the proposed use conflicted with those purposes and other uses permitted in the zone. Their concerns went beyond mere speculation, bald assertions, personal opinions or perceptions. Their concerns were factually based and supported by cogent arguments and evidence.

By way of example, numerous questions were raised regarding what, in fact, the limits were with respect to the proposed use. If the limits could not be explained by Inflection, the proposed use could not be deemed to be compatible with other uses. As well, the record is replete with testimony of individuals verifying the uses presently in existence in the zoning district and describing in detail how the proposed uses by Inflection would not be compatible.

The next factor to be considered is the general purposes factor set forth in 12.18.3. The proposed use may only be permitted if it “in no way is in conflict with the general purposes of [the] ordinance.”

Appellants argue that the purpose of the RA district is to encourage development of a quiet, medium density, residential environment. See ordinance § 3.1. They argue further that unlike the uses permitted in the RA district, the Shaheen pad activities are clearly industrial related activities and uses.

Appellants note that the general purposes of the ordinance are to promote public health, safety and welfare; encourage the most appropriate use of land; conserve and stabilize the value of property; provide adequate open spaces for light and air; prevent undue concentration of population; and lessen congestion on streets and highways.

They argue that the testimony at the hearing established that the Shaheen pad poses the risk of spills, fires, accidents and other activities that threaten the public health, safety and welfare. Moreover, they argue that no testimony was offered to show that the Shaheen pad activities will conserve and stabilize the value of the residential properties or that traffic congestion would remain the same or lessen. Since traffic congestion, public health, safety and welfare, and property values are all general purposes of the ordinance, appellants argue that Fairfield could not properly conclude that the proposed use is in accordance with the ordinance purposes.

According to the clear language of article 3 of the ordinance, the RA district is generally intended for application to rural development areas. The purpose of the regulations for this district is to foster a quiet, medium density residential environment while encouraging the continuation of agricultural activities and the preservation of prime farmland. Industrial uses are discouraged in this district. Compatible public and semipublic uses such as schools, churches and recreational facilities are provided for. As well, a higher density residential development may be permitted under certain circumstances. Ordinance, § 3.1.

As set forth in article 4 of the ordinance, the purpose of the RA district is to encourage the continued use of areas of the township for rural living including open space, agricultural and residential uses. Such uses typically do not require public utilities or community services. Uses which specify the provision of community or public utilities may be feasible in certain locations in the township provided that the developer is able to furnish the necessary utility infrastructure. Ordinance, § 4.1.

The only evidence presented by Inflection, in support of meeting its burden in connection with the general purposes factor was the testimony of Mr. Irwin. Mr. Irwin stated that he was familiar with the purpose of the RA zone and “believed” that the proposed use furthered that purpose as set forth in § 4.1 of the ordinance. Yet he failed to support his conclusion with any facts whatsoever. He failed as well to reference, let alone provide any facts, as to the purposes of the RA district as set forth in § 3.1 of the ordinance.

However, and in addition to the uncertainties relating to the actual use and activities, many facts were developed at the hearing supporting the position that the proposed use is actually in conflict with the aforesaid general purposes.

During construction and drilling there would be an extreme amount of truck traffic. Mr. Irwin testified that “there will be a lot of trucks...I am guessing 1400, 1800 trucks just to get the gravel on location to meet the DEP permit we have applied for.” Transcript, 10/7/13, at 18. There will be about 206 truck trips to bring the three drilling rigs onto and off of the property — three loads in and three loads out for the conductor rig, 40 loads in and 40 loads out for the top all rig, and 60 loads in and 60 loads out for the horizontal rig. Id. at 18-19. These figures did not include any trucks to get 2,000,000 gallons of water to the property. Id. at 13, 42-43. Inflection did not know how it was going to get the water to the property. It would take an additional 100 trucks to install a pipeline and if a pipeline did not go through it could be a very large number of trucks. Id. at 43. Mr. Irwin initially estimated the number of trucks to be 3000, but then he changed that number to 500 per well and stated that initially there would probably be two wells. Id. at 43-44. At the second hearing, however, Mr. Irwin stated that it would be 1430 trucks each with a trip in and out per well. Transcript, 11/4/13, at 61-62. The truck traffic would run 24 hours a day, nonstop except for two 45-minute shutdown periods. Transcript 10/7/13 at 44. Contrary to this clear evidence, the board found that (excluding water trucks) “total traffic is anticipated at 300 trucks during construction, 120 trucks during drilling and 225 during completion.” Board opinion and order, finding of fact 31.

With respect to burning off excess gas, or what is known as a flare or a controlled kick, Mr. Irwin could only state that Inflection did not “anticipate” doing it. Id. at 38. However, Inflection did not anticipate doing that with another well either. When they did, there were numerous noise complaints and Inflection shut down over the holidays. Id. at 50-51.

With respect to noise, Mr. Irwin’s testimony was inconsistent. At one point he stated that “there might be a little noise” and “there is not very much, but if there is, [Inflection] tries to help the residents out.” Id. at 21, 39. But if there is a lot, they put some hay bales around. Id. When a resident asked what the fracking was like compared to the seismic testing that shook her house and rattled her dishes, Mr. Irwin stated, “It’s loud, and like I have said, we will try and take care of the neighbors.” Id. at 65. When the resident indicated that her house was way up high, Mr. Irwin said, “I understand that. It is going to be hard to do that. But we will try and we have tried with all of our neighbors so far.” Notably, however, when one of the residents asked how she or any of her neighbors would be compensated for the noise, trucks and everything else that goes on, Mr. Irwin replied “There is no compensation, I am sorry. There is just no compensation. We will try to work with you, and if there is noise we will try to keep the noise down.” Id. at 48-49. Despite this testimony and there being no reference in the transcripts to any Lycoming County noise standards, the board found in finding of fact 35 that “applicant testified that any noise generated by applicant’s operations would be below the Lycoming County noise standards.”

With regard to how long this whole ordeal was going to last, the application submitted by Inflection stated the drilling and completion stages would be for a period of 2-3 years. Intervenor’s exhibit 6, at 2, 10. In response to questions from the residents, Mr. Irwin testified that that it would take at least 9 months, maybe longer. Transcript, 10/7/13, at 26, 32. Mr. Gillespie testified that the aggregate number of days with truck traffic would be 90 days, but the whole process takes about 4 months or so — three to four weeks of construction, a month to six weeks where there would be no trucks on the road, two to three weeks of actual well drilling, weeks later the fracking string comes in and they don’t leave for another three weeks. Transcript, 11/4/13, at 58-60. This, however, does not include any time for any post construction activities such as reduction of the well pad from 350’ by 300’ to 150’ by 150’. See, Transcript, 10/7/13, at 12.

Curiously, when Mr. Minium, a resident who worked on a well pad in Susquehanna County, was commenting that life is going to “suck” for the next two years for anybody who lives around that pad and how it was going to be 24 hours a day, seven days a week and 365 days a year (Transcript, 11/4/13, at 45-48), the chairman of the board interrupted him and said that the “inconvenience” would be gone in 90 days. Transcript, 11/4/13/ at 48. Not surprisingly given the Chairman’s comments, but contrary to the clear evidence of record, the board found that “applicant testified that the initial well pad construction and drilling process would take approximately three (3) months.” See The board’s opinion and order, finding of fact 34.

Of great concern to the court is the use of the term “no way” in the ordinance. Section 12.8.3 of the zoning ordinance states that the use may only be permitted if it “in no way is in conflict with the general purposes of this ordinance.” The court defines “no way” as when there is a zero percent chance that something will or will not occur. There was insufficient evidence to conclude to a 100% certainty that the proposed use would not conflict with the general purposes of the ordinance.

The construction of anywhere from one or more well pads with potentially one to four wells on each well pad is clearly in conflict with the general purposes of the ordinance as set forth in the aforesaid sections. It is not an open space, agricultural or residential use, and it does not foster a quiet, medium density residential environment while encouraging the continuation of agricultural activities and the preservation of prime farm land.

The final factor addressed in 12.18 concerns detriment to public health, safety and welfare of the neighborhood where the well pad and wells are to be located. Ordinance, § 12.18.3. Regarding the applicable burden of proof with respect to this factor, appellants argue that pursuant to the express terms of the ordinance, the applicant, Inflection, bears the burden of proof.

Areading of the ordinance supports appellants’position. The ordinance reads as follows:

“The burden of proof shall be upon the Applicant to demonstrate that the proposed use meets the foregoing criteria and would not be detrimental to the public health, safety and welfare of the neighborhood where it is to be located. ”

Appellants logically argue that the provision means what it says.

Appellee and intervenors argue on the contrary that despite said express language, case law retains the burden of production on the objectors. Remarkably, they are correct. While the ordinance places the “burden of proof’ on the applicant as to the matter of detriment to health, safety and general welfare, “such a provision... merely places the persuasion burden on the applicant. The objectors still retain the initial presentation burden with respect to the general matter of detriment to health, safety and general welfare.” Manor Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 590 A.2d 65, 70 (Pa. Commw. 1991). The objectors must “raise specific issues concerning the proposal’s general detrimental effect on the community before the applicant is required to persuade the factfinder that the intended use would not violate the health, safety and welfare of the community.” Id. at 71, citing Appeal of R.C. Maxwell Co., Id. at 1303.

As with the other factors, appellants and the other objectors present at the hearing raised numerous and specific issues concerning the proposal’s general detrimental effect on the community.

The court has already discussed the truck traffic, noise, and lighting. Such certainly is not consistent with the serene, pastoral setting of a RA district. It also will have a detrimental effect on the community. This area has rolling hills, a couple of streams and some wetlands. Transcript, 10/4/13, at 11-12. The proposed location of the well pad is below several of the resident’s homes. By Mr. Irwin’s own admission, this topography makes it more difficult to shield the residents from the noise and lights. Mr. Minium, who worked at a well pad in another county, testified that given the location of the well pad “down in that hole”, the noise would echo up out away from the pad, and the lights would bring a glow so that nobody would be able to have a nice dark evening after Inflection starts drilling. Transcript, 11/4/13, at 45-47. Mr. Pentz also testified that with the trucks constantly running up and down Quaker State Road, the people wouldn’t be able to sleep and the road would be all chewed up until Inflection was done. Id. at 45.

This is not the typical construction situation. It is common knowledge that when an individual hires contractors to build a house or a farm, the work typically is performed during daylight hours in the normal business week. In comparison, the construction and drilling for the proposed use involves constant or near constant truck traffic, illumination and noise from trying to get through thousands of feet (likely about a mile) of rock formations at all hours of the day and night, seven days a week until the well is completed. This would be less of a concern, and perhaps not a concern at all, in a commercial or industrial area where people aren’t trying to sleep. In a commercial area, the businesses likely would be closed at night. In an industrial area, if there is a second or third shift operating, those industrial uses will have their own noise and light and won’t notice or won’t be bothered by the noise and light involved in the construction of a well pad. Here, however, there are in excess of 125 homes whose residents likely will be adversely affected by Inflection’s activities, especially the activities that occur during nighttime.

The residents also had concerns about the individuals who would be working near their homes. Mr. Irwin did not know if the numerous contractors working on the site required criminal background checks for its employees. Transcript, 10/7/13, at 78. Of the 400 people who would be working on the pad over the course of the project, 98 or 99% would not be Inflection employees. Id. Inflection’s attorney stated, “We are hiring local, insured, licensed, respectable contractors.” Transcript, 11/4/13, at 3. Later in the hearing a resident asked, “But do they have background checks?” Id. at 38. The attorney replied, “We don’t know that.” Id. When the resident indicated that she still had concerns, the attorney said “they do sign agreements that they’re going to be law abiding and they’re not going to commit any crimes.” Id. at 39. Mr. Gillespie read a portion of an Inflection company policy into the record. The policy did state that there was a conduct policy that all Inflection’s employees, contractors and other persons engaged in company business are obligated to follow, which prohibited, among other things, engaging in criminal conduct or any action that is detrimental to Inflection’s efforts to operate properly and lawfully. The policy, however, did not state that contractors or their employees who had prior criminal records would not be hired. Instead, it merely stated that the company “inquires into the background of all of its employees, including contractors.” Id. at 56. Unlike the standard of conduct policy relating to future activities, the inquiries into backgrounds did not explicitly cover “other persons engaged in company business” or describe what type of inquiry is made. In other words, Inflection could hire company X to engage in construction activities such as hauling water, stone or concrete to the site and investigate company X, but not investigate the individuals actually driving the trucks onto the site or even know who those individuals are. The language quoted by Mr. Gillespie regarding background inquiries also could mean that Inflection just inquires about licensing, insurance and/or bonding (and not criminal background checks) as suggested by the statements of Inflection’s attorney earlier in the hearing.

The residents raised concerns about radiation at both hearings. Inflection’s testimony on this issue was again somewhat inconsistent. Mr. Gillespie testified that the radiation levels are checked because they are going down into a deep formation, a different formation than exists in the upper mile of the earth, and bringing drill cuttings of that deep formation up to the surface. Transcript, 11/4/13 at 22. “Because we are opening a hole up to something a mile down below the ground, everybody just wants to be sure you’re not bringing something up or opening up a pathway for additional radiation to come out with natural rocks.” Id. at 22-23. Mr. Gillespie downplayed the residents’ concerns by stating they have never detected anything in this region that is out of the ordinary background levels we see and radiation is in just about all the water in the region, including the residents’ drinking water. Id. at 31. When asked if he was saying the residents’ drinking water had just as high level of radium 226 (a radioactive element) as a mile down, however, Mr. Gillespie said, “I wouldn’t say that, but there is no correlation between the depths of water you are looking at and the amount of any element within it.” Id. When a resident said he thought there would be more radiation further down, Mr. Gillespie contradicted his earlier testimony and said, “The rock formations that are down there are related to and of the same system rock formations as the ones that are directly under your feet.” Id.

The resident also cited a Duke University study which concluded that the waterways in Pennsylvania are now exceeding levels of appropriate radioactivity because of hydrofracking. Inflection, through both its attorney and Mr. Gillespie suggested that questions about the Duke University study challenged the process which is already permitted by DEP and went beyond what Mr. Gillespie was there to testify about. Inflection, however, did not refute the Duke study. Instead, Mr. Gillespie was “not ready to weigh in and say that the Duke people are right or wrong. It’s not settled yet.” Transcript, 11/4/13, at 36.

Stating that the process is already permitted by DEP begs the question. Merely because hydrofracking is regulated by DEP, certainly does not mean the activity should occur in this particular residential area. Inflection acknowledged that there are in excess of 125 wells that supply water to the residents within 3000 feet of Inflection’s proposed well pad. Transcript 10/4/13, at 23-24. The residents were concerned that the increased levels of radioactivity in the waterways would also show up in their water supply and they were pointing to the Duke study to show that placing a natural gas well in this residential zoning district would be detrimental to their health, safety and welfare.

The residents were also concerned that the well casings would fail and affect their health, safety and welfare. Inflection could not say that no casings had ever failed in the fracking process. It admitted that it was “very possible” that well casings “weren’t installed properly in Lycoming County.” Transcript, 11/4/13, at 29, 30. Inflection tried to downplay that by stating, “That is an installation, that’s not a failure.” The resident aptly replied, “Well the point is though installation or failure, it still could render someone’s water undrinkable.” Id. at 30.

In addressing the detriment question, Inflection merely stated that it “did not believe” that the proposed use would adversely affect the neighborhood or create any nuisance or hazards to people or pedestrians. Transcript, 10/7/13, at 20. A resident, however, noted that there is a blind hill coming out of the Pines Development. Id. at 39. Excessive truck traffic and a blind hill coming out of the development certainly could create a nuisance if not an actual hazard to people in the development.

Inflection cursorily stated that the proposed use would not have an adverse impact on health, safety or welfare of the public. Id. at 21. On additional questioning, Inflection could only respond “okay” when advised that there is no evidence to support its claim of no adverse impact. Id. at 32. Without any supporting evidence or “meat,” Inflection stated that it would control the effects on health, safety and environment “at the site.” Id. at 33.

Brian Gorsline testified about citations and violations. Particularly, Inflection was cited on July 18,2013 by DEP for failure to properly control or dispose of industrial or residual waste to prevent pollution of the Commonwealth waters. Over a period of approximately five years, out of 180 wells inspected in Lycoming County, there were 660 violations. Transcript, 11/4/13 at 40, 41.

Given all of the aforesaid evidence, the court finds that the appellant objectors presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood. Therefore, they met their burden of production. The burden of persuasion, however, was not met by appellees and intervenors. In fact, there is no evidence to support the board’s conclusion that said burden was met, let alone substantial evidence.

While the court appreciates the deference that the board presumably was paying to the intent and mandates of the legislature through Act 13 of 2012, the Pennsylvania Oil and Gas Act, such deference cannot be in abrogation to the criteria of the ordinance.

As the Pennsylvania Supreme Court recently noted, the technique used to recover the natural gas contained in Marcellus shale “inevitably” does “violence to the landscape.” Robinson Township v. Commonwealth, 83 A.3d 901, 914 (Pa. 2014). One unconventional gas well uses several million gallons of water. Id. at 915. “The Commonwealth’s experience of having the benefit of vast natural resources [with] unrestrained exploitation...[has] led to destructive and lasting consequences not only for the environment but also for the citizens’ quality of life.” Id. at 963. “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children and future generations...perhaps rivaling the environmental effects of coal extraction.” Id. at 976.

Fairfield Township has a substantial and immediate interest in protecting the environment and the quality of life within its borders. Id. at 919-920. This quality of life is a constitutional charge that must be respected by all levels of government. Id. at 952 (citing Franklin Twp. v. Commonwealth, 499 Pa. 162, 452 A.2d 718, 722 & n.8 (1982)). “When government acts, the action must, on balance, reasonably account for the environmental features of the affected locale.” Id. at 953.

While the court understands the constraints thattheboard may have been operating under as a result of Act 13 and the litigation regarding its constitutionality, our Supreme Court has now ruled with respect to such, the citizens’ rights cannot be ignored and must be protected. Neither the applicant nor the board explained how unconventional natural gas operations are compatible with the permitted uses in this residential district. Furthermore, the board’s findings were not supported by substantial evidence and, in some instances, were clearly in contravention of the evidence.

Appellant has raised several other issues in its appeal. In light of this court’s findings with respect to the factors set forth in § 12.18, the court sees no need to address the other issues. In fact, the court deems it improper to do so. The court should not and cannot address, for example, constitutional issues if they need not be addressed.

In conclusion, taking into account the respective burdens as well as the standard for this court’s review, and acknowledging the appropriate deference that should be given to the board in connection with its decision, the court nonetheless concludes that the board’s findings with respect to the § 12.18 factors are not supported by substantial evidence. Accordingly, the appeal of appellants shall be granted and the decision and order of the board shall be vacated and set aside.

ORDER

And now, this day of August 2014, for the reasons set forth herein, the appeal of appellants Gorsline and Batkowski is granted. The decision of the Fairfield Township Board of Supervisors issuing a conditional use permit to Inflection Engergy, LLC to construct and operate an unconventional natural gas well pad on the Shaheen property is vacated, set aside and reversed.

      . Inflection’s attorney, Mr. Karpowich, suggested that the whole process would take 90 days. Transcript, 11/4/13 at 38. It is well settled, however, that arguments and statements of attorneys are not evidence. Commonwealth v. LaCava, 542 Pa. 160, 182, 666 A.2d 221, 231 (1995); Pa.SSJI (Civ.) 1.190.


source: Caselaw Access Project

author: MINORA, /.,

license: Public Domain

text:
    Pierpont v. Daniel Siniawa & Associates Ltd.

      C.P. of Lackawanna County,
    No. 2012 CV 2397

      John M. Mulcahey, for plaintiffs.

      Lisa A. Balestrini, for defendant Daniel Siniawa & Associates.

      Michael R. Goffer, for defendant City of Carbondale.

      Sept 2, 2014
   MINORA, /.,

— The issue before the court is the plaintiffs, Elsie Pierpont and Eugene Pierpont, (herein after plaintiffs) motion to amend caption. Oral argument was conducted on June 12,2014, and this matter is therefore ripe for disposition. An appropriate order follows.

PROCEDURAL AND FACTUAL HISTORY

This case arises from an accident that occurred on November 20, 2010. The plaintiff Elsie Pierpont was walking along the sidewalk on 33-37 Main Street in Carbondale. At that time, she tripped and fell over a piece of metal or piece of concrete protruding from the bottom of a lamp post that was removed by the defendants. Plaintiff’s complaint alleges that Siniawa Associates was the owner and general contractor of the property located at 33-37 Main Street and the City of Carbondale was the owner of the sidewalks which abutted the aforementioned property. The complaint further asserts that the hazardous condition was present long enough for the defendants to have knowledge of the danger present. Plaintiff’s complaint alleges that, as a result of the accident, plaintiff Elsie Pierpont suffered extensive injuries. Plaintiff Eugene Pierpont alleges that, as a result of the aforementioned accident of his wife Elsie Pierpont, he will be obligated to pay medical expenses now and into the future and alleges loss of the comfort, society and assistance of his wife.

The plaintiffs commenced this action on April 18,2012 by filing a complaint, naming Siniawa Associates and the City of Carbondale as defendants. An answer was finally filed by the defendant Siniawa Associates nearly eight months later on December 12, 2012. In the defendant’s answer, the defendant responded in part by explaining that an entity named Siniawa Associates did not exist. Defendant further clarified by explaining that Daniel Siniawa & Associates Ltd. was the general contractor where a hotel was being built and Siniawa 22 L.P. was the owner of the property on which the hotel was being built, located at the address listed above. Both entities share the same business address of 851 Commerce Boulevard, Dickson City, Pennsylvania 18519. This address is where the plaintiff served the defendant, Siniawa Associates. Siniawa Associates was later amended to Daniel Siniawa & Associates Ltd. on August 8,2013 through a stipulation to amend the caption. The stipulation amended the caption that previously named Siniawa Associates as a defendant to Daniel Siniawa & Associated Ltd.

On May 7, 2014, plaintiffs made a motion to amend the caption, listed as Daniel Siniawa & Associated Ltd. to also include Siniawa 22 L.P. Plaintiffs allege that because Daniel Siniawa & Associated Ltd. and Siniawa 22 L.P. share the same business address upon which plaintiffs served the originally listed party in the complaint, Siniawa Associates, Siniawa 22 L.P. was on notice of the claims against them; thus the statute of limitations has not run for Siniawa 22 L.P. and the amendment should be granted to properly reflect the names of all the parties.

Defendant asserts that the two corporations are different entities. Defendant claims that Daniel Siniawa & Associates Ltd. is a corporation that was formed in 1985, while Siniawa 22 L.P. was formed in 2007. Further, defendant asserts that Daniel Siniawa personally owns 100% of Siniawa & Associates Ltd., while he owns merely 6% of Siniawa 22 L.P., with the remaining 94% owned by several other investors. Defendant further asserts that based on this, vastly different assets will be available from Siniawa 22 L.P. than from Siniawa & Associates Ltd. Defendant claims that as a result in the vastly different assets and ownership, these two entities are different parties and amendment of the caption should not be permitted as the statute of limitations has run.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1033 states that “[a] party, either by filed consent of the adverse party or by leave of court, may at any time . . . correct the name of a party . . . .” However, “[a] plaintiff may not amend a pleading to add a new and distinct party once the statute of limitations has expired.” Kincy v. Petro, 606 Pa. 524, 2 A.3d 490, 497 (2010); Phillips v. Lock, 86 A.3d 906, 915 (Pa. Super. Ct. 2014); Tork-Hiis v. Com., 558 Pa. 170, 735 A.2d 1256 (1999). Amendment pursuant to Rule 1033, should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party. Piehl v. City of Philadelphia, 604 Pa. 658, 671, 987 A.2d 146, 154 (2009).

Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which [a party] is sued. Blaine v. York Fin. Corp., 847 A.2d 727, 729 (Pa. Super. Ct. 2004). If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused. Blaine at 729 (citations omitted). The court has stated “emendations correcting the name of a party, e.g., from corporation to partnership or vice-versa, will be allowed after the statute period has ended.” Fredericks v. Sophocles, 831 A.2d 147, 150 (Pa. Super. Ct. 2003); See Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). However, where the proposed change has the effect of adding a new party, it should be prohibited. The imposition of liability on a new and distinct party after the statute of limitations has run is the result to be avoided. Fredericks at 150. The test of whether an amendment to a complaint is permissible is whether the right party is sued but under a wrong designation, in which event the amendment is permissible, or whether a wrong party is sued and the amendment is designed to substitute another and distinct party. Tork-Hiis v. Com. at 170, 735 A.2d at 1256.

Plaintiff’s claim is governed by the two-year statute of limitations set forth in 42 Pa. C.S.A. §5524(2). Since the subject accident occurred on November 22,2010, the two-year statute of limitations lapsed on November 21, 2012, prior to the dilatory filing of the defendant’s answer.

In order to secure a determination of cases on their merits the trial court should grant, whenever possible, a petition to change the name on a pleading. Jacob’s Air Cond. v. Assoc. Heating, 366 Pa. Super. 430, 531 A.2d 494 (1987). However, if the other party suffers prejudice or surprise, the petition to change the name of a party will not be permitted. Id., 366 Pa. Super, at 433, 531 A.2d at 496, citing Spain v. Vincente, 315 Pa. Super. 135, 461 A.2d 833 (1983); Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986); Zercher v. Coca-Cola USA, 438 Pa. Super. 142, 145, 651 A.2d 1133, 1134(1994). The prejudice “must be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party.” MacGregor v. Mediq Inc., 395 Pa. Super. 221, 576 A.2d 1123, 1126 (1990); Piehl v. City of Philadelphia, 604 Pa. 658, 671-72, 987 A.2d 146, 154-55 (2009).

In Phillips v. Lock, 86 A.3d 906 (Pa. Super. Ct. 2014), the plaintiff was barred from adding corporate defendant “Krapf Coaches” to the complaint after the applicable statute of limitations had ran. In Phillips, “Krapf Coaches,” was found to be a wholly distinct corporate entity from the originally plead defendant “Krapf and Sons”. Thus, the plaintiff was precluded from amending complaint to add “Krapf Coaches” as a defendant on claims after applicable limitations period had expired, “especially since motorist learned...that defendants were two separate and distinct corporate entities.” Id. at 906. The court cited to the decision in Powell, stating in part that “the plaintiff identified the defendant as a partnership, later learned it was a corporation, and the trial court permitted the correction of this designation because “the proposed amendment merely seeks to correct the designation of that business entity,” which already was a party. Phillips at 916 (citing Powell at 865). The court further stated that “...[a]ppellants sought to add a wholly new, separate, and distinct business entity” by seeking to add Krapf Coaches to the litigation. Id.

Plaintiffs rely on Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952) for their contention that an amendment should be granted to allow the additional defendant of Siniawa 22 L.P. to the litigation. In Waugh, the plaintiff designated Steelton Taxicab Company as a defendant-corporation, only to find that after the statute of limitations had run that the said taxicab ‘company’ was not a corporation but a fictitious name used by Anthony John Kosir in the conduct of his taxicab business. Id. at. 436, 89 A.2d 527. The court held that “[ajlthough Kosir was wearing the cloak of the Steelton Taxicab Company he was the precise person involved in the accident and he was precisely the person served, through his agent employed in his very business office.” Id. at 440, 89 A.2d at 529. The court further states “[wjhile it is true that the name of a party already on the record may be corrected at any time, it is elementary that a new party, or a party in a different capacity, cannot be brought on the record after the statute of limitations has become a bar.” Id. (citations omitted). The court further goes on to state that, “[b]ut that proposition is not involved here at all because Kosir is not a new party nor is he a party in a different capacity.”

The issue before this court is whether the party sought to be added to the caption, Siniawa 22 L.P., is a new and distinct entity to the litigation. Additionally, we must examine if Siniawa 22 L.P is comprised of vastly different assets from the currently named defendant, Daniel Siniawa & Associates Ltd., that would be available to the plaintiff to recover if the amendment was allowed. Although our case is factually similar to both of the aforementioned cases, this court cannot make a determination as to whether the party seeking to be added to the caption is a new and distinct party, as we are presented with no evidentiary record of proofs that substantiate any of the distinctive party claims made by defendants.

Plaintiff’s compliant misidentified both Daniel Siniawa & Associates Ltd. and Siniawa 22 L.P., as general contractor and as owner, respectively, under the incorrect name of Siniawa Associates. An answer correcting the mistaken identities of both of the parties in question was not filed until December 12, 2012, after the statute of limitations expired. Both entities shared the same business address and service was properly made to the listed business address for both parties and admittedly there is at least some overlap in corporate ownership. We are absent any evidentiary record of any of the officers, directors, or corporate principals of these parties.

Siniawa22L.P. is claimed to be the owner of the property in question. This court has not been provided with any proofs to substantiate the defendant’s averments regarding the corporate structure, governance, or ownership of the entities at issue, such as incorporation documents or a deed showing ownership of the property. In order to properly examine and decide the questions presented before us, this aforementioned corporate information is both essential and necessary for our review prior to our determination as to the true structure of both corporations and whether they are separate and distinct from one another, as the defendant asserts in their brief. These certified copies of corporate documents should be presented to the court effective as of the date of the accident on November 22, 2010. These corporate documents that are to be provided must provide this court with a legally adequate evidentiary record suitable for making a proper factual determination of the claims put forth by both parties in their briefs. Other written and oral discovery can also be presented to determine whether Siniawa 22 L.P. is, in fact, a new and distinct party that is being sought to be added to the litigation. A certified copy of the governing deed as of November 22,2010 will also be required. The court gives both sides 90 days to put into evidence authentic certified copies of any and all transactional documents and/or minutes and public records relating the corporations at issue, as well as deed to the property at issue in this case, along with any written and oral discovery. It is so ordered and time is of the essence.

ORDER

Accordingly, this 2nd day of September, 2014 it is hereby ordered that the parties are granted ninety (90) days from the date of this order to conduct limited discovery in order to create a legally adequate evidentiary record pertaining to the documents associated with the corporate entities at issue. Further, this new evidentiary record is to allow this court to make a factual determination as to the proposed amendment presented. Time is of the essence.


author: PICCONE, J.,

text:
    Trott v. Naples

      C.P. of Lawrence County,
    No. 11278 of 2005 CA

      Douglas J. Olcott, for plaintiff.

      Mark A. Martini, for defendant.
    Sept. 8, 2014
   PICCONE, J.,

— This court issues the instant order of court and opinion pursuant to Pa.R.A.P. 1925(a) in support of the order of court dated June 27, 2014, which denied the plaintiff’s motion for post trial relief. In accordance with this court’s order dated July 8, 2014, the plaintiff filed a timely Concise Statement of Matters Complained of on Appeal. The plaintiff raises the following assignments of error: (1) “The court erred in failing to grant plaintiff’s motion for directed verdict on the issue of statutoiy employer because defendants Lear and Anthony failed to produce evidence to overcome the presumption, set forth by the Pennsylvania Supreme Court’s decision in Mature v. Angelo, 97 A.2d 59, 60 (Pa. 1953), that Anthony Naples remained an employee of Lear, LLC, where, as here, Lear LLC, was in the business of renting out cranes and furnished an operator, such as Anthony Naples, as part of its daily rental agreement; (2) the court erred in charging the jury regarding the six-foot OSHA Fall Protection Requirement set forth in 29 C.F.R. § 1926.501 and failing to charge the jury on the fifteen-foot OSHA Fall Protection Requirement set forth in 29 C.F.R. § 1926.76 or at the very least, should have charged both OSHA regulations in accordance with the Superior Court’s holding in Ettinger v. Triangle-Pacific Corporation, 799 A.2d 95 (Pa. Super. 2002)[,] since the parties disputed whether or not plaintiff Brandon Trott was engaged in steel erection activity at the time of this accident.” (arbitrary internal capitalization omitted). For the reasoning set forth herein, the plaintiffs appeal should be denied.

This matter arises out of an accident occurring on November 3, 2003 at Neshannock Elementary School in New Castle, Lawrence County, Pennsylvania. The plaintiff, Brandon Trott (hereinafter, the “plaintiff’), was employed as an ironworker for Sheraden Steel. At the time of the accident, the plaintiff was working on a construction site at Neshannock Elementary School (hereinafter, the “job site”). For the purpose of steel erection in connection with the project, Sheraden Steel rented a crane and crane operator from the defendant, Lear, LLC, (hereinafter, “defendant Lear”). Defendant Lear sent defendant, Anthony Naples (hereinafter, “defendant Naples”), to operate the 50-ton TMS475 crane at the Neshannock job site.

On the morning ofNovember 3,2003, defendant Naples, the plaintiff, and other members of the construction crew were conducting steel erection activities on the rear of the building. Also an ironworker, Mr. Willard Ensminger (hereinafter, “Ensminger”) was the foreman on the job site. Ensminger was responsible, inter alia, for controlling the work to be completed and, in some instances, the manner in which the work was to be performed. Defendant Naples described Ensminger to be “the boss.”

Later, Ensminger decided to move the construction to the front of the building. Defendant Naples then drove the crane to the front of the building. While defendant Naples was driving the crane to the front, the jib extension, which is also called the lattice boom extension, was positioned to the side of the crane. Once in position, the jib extension had to be swung around the crane to the front in order for the ironworkers to reach interior areas of the building. In order to do so, four pins that were holding the jib extension in place on the side of the crane had to be removed. The pins had to be removed and inserted manually; however, conflicting testimony was presented regarding the permissible and prohibited manners of doing so. The plaintiff first climbed onto the side of the crane to remove the pins, and the jib extension swung to the front of the crane. The pins then had to be reinserted to stabilize the jib extension so it could safely move the steel beams. The plaintiff then climbed onto the boom and walked toward the head of the jib extension. Conflicting testimony was presented regarding whether the boom moved in any way; nevertheless, the plaintiff suddenly fell off the left side of the boom and landed head-first onto his wrists.

Defendant Naples testified that in his 5 0 years of employ as a crane operator, he has never seen an ironworker walk on the boom to insert pins to secure the jib extension. He testified that he would have no reason to think someone was walking on the boom since he had never seen anyone do it. Conversely, the plaintiff presented the testimony of Ensminger and another ironworker, Mr. Kevin Cain (hereinafter, “Cain”), who was working alongside the defendant when he fell, both of whom testified that ironworkers typically walked on the boom to insert pins in this way. Cain testified that he had climbed onto the boom to insert the pins into the jib extension approximate one thousand times. He and Ensminger also each testified that defendant Naples appeared to move the boom while the plaintiff was on top of it, which caused the plaintiff’s fall. They also each testified that no one gave defendant Naples a signal to do so; rather, defendant Naples made an independent call to move the crane. Defendant Naples, however, denied this claim. Defendant Naples explained that while operating a crane, the operator’s view is obstructed and he relies on signaling from ironworkers on the ground. He testified that he never moves the crane without receiving a signal. Defendant Naples also testified that he engaged the emergency brake and foot brake on the crane so it would have been impossible for him to move the crane at that point.

Although initially taken to Jameson Memorial Hospital by ambulance, the plaintiff was driven to another hospital in Pittsburgh to handle his immediate care. The plaintiff sustained a fracture in his left wrist and a tear in his right wrist. The plaintiff underwent three surgeries to his left wrist and now has decreased function and pain in his wrist. Additionally, the plaintiff provided the testimony of his father, Mr. Ronald Trott (hereinafter, “Trott”), regarding the length of the plaintiff’s recovery. Trott testified that after the plaintiff’s accident, the plaintiff had to move in with him for months so Trott could care for him and to drive him wherever he needed.

This case was tried before a jury from F ebruary 10,2014 through February 18,2014. At the close of testimony, each party moved for a directed verdict as to the employment status of defendant Naples at the time of the accident. The court denied both. On February 18, 2014, the jury returned a verdict in favor of the defendants. The jury specifically found that defendant Naples was an employee of Sheraden Steel while working on the job site, which rendered both defendants immune from liability pursuant to the Worker’s Compensation Act. '

The plaintiff first argues that this court erred in failing to grant his motion for a directed verdict on the statutory employer issue. The plaintiff argues that the defendants failed to rebut the presumption that defendant Naples was an employee of defendant Lear at the time of the accident. Pursuant to the Worker’s Compensation Act, “An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer...in the same manner and to the same extent as to his own employe.” 77 P.S. § 52. According to this section of the Workers’ Compensation Act, “If [defendant Naples] was at the time of the accident an employee of [Sheraden Steel], then the Workmen’s Compensation Act... furnished the exclusive method of securing compensation for [the plaintiff’s] injury, and an action in trespass would not lie [against the defendants].” Venezia v. Philadelphia Electric Co., 177 A.25, 26 (Pa. 1935) (internal brackets removed). If it is determined that defendant Naples was employed by Sheraden Steel at the time of the accident, the plaintiff would, therefore, be prohibited from pursuing an action against his fellow employee, defendant Naples. “Where an employee’s injury is compensable [under the Workers’ Compensation Act], the exclusivity provision of the Act immunizes fellow employees from liability for their negligence.” Albright v. Fagan, 671 A.2d 760, 762 (Pa. Super. 1996); 77 P.S. § 72. As the Pennsylvania Superior Court explained in O’Donnell v. R.M. Shoemaker & Co., 816 A.2d 1159, 1163 (Pa. Super. 2003), “[t]he clear intent of the act is to provide the sole and exclusive means of recovery for injuries occurring within the scope of employment.” 77 P.S. § 1.

The statutory employer is considered to be the entity who has control over the work of the borrowed employee, regardless of whether such control is actually exercised. When, as here, a company “is engaged in the business of renting out...cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master[.]” Mature v. Angelo, 97 A.2d 59, 60 (Pa. 1953). This presumption is only rebutted if evidence is presented to establish “that the borrowing employer in fact assumes control of the employe’s manner of performing the work[.]” Id. (emphasis in original).

Other factors that may be considered by a court when determining whether a “statutory employer”/ “borrowed employee” relationship include the right to hire and fire the employee, the skill or expertise required of the employee, and the payment of wages. JFC Temps, supra at 864 (citing Mature, supra at 60; Venezia, 177 A. at 26. However, this list of factors is not exclusive nor are the factors alone necessarily decisive; instead, courts must decide each case based on its specific factual scenario. JFC Temps, supra at 864.

The relevant facts regarding the employment of defendant Naples are not in dispute. Defendant Lear sent a crane operator, defendant Naples, along with the crane to the Neshannock job site pursuant to Sheraden Steel’s rental agreement with defendant Lear. Defendant Lear had the exclusive right to choose which crane operator to send to the job site; however, Ensminger testified that he had a right to refuse an operator if he felt it to be necessary. Also, defendant Naples would contact defendant Lear if he could not report to the job site. Defendant Naples was the only person on the job site with the necessary skill to operate the crane, and he would arrive at the job site approximately one hour early to inspect the crane to ensure it would perform safely because it was his responsibility. Moreover, defendant Naples was hired on a daily basis and was paid by the hour and at a rate determined by defendant Lear.

The defendants presented the evidence that Sheraden Steel vis-a-vis Ensminger, as the foreman, controlled aspects of defendant’s work. Ensminger determined when and where the workers would erect steel and when to engage the jib extension. Additionally, defendant Naples, as the crane operator, could not move the crane himself; crane operator’s vision is obstructed inside the crane so. Out of necessity and safety, the operator must rely on the signals given to him from another person on the ground. Although defendant Naples manually operated the crane, the signals instructed defendant Naples when and where to move the crane, at what height to set the boom, and the size of the load to move.

From a review of the relevant case law, it appears that which company controls an employee’s operation while working on a job site is much more indicative of his statutory employer than the rate and the manner in which he is paid. The Supreme Court in Venezia, supra, and the Superior Court in Ramondo v. Ramondo, 82 A.2d 40 (Pa. Super. 1951), found that an employee’s statutory employer while on a job site was the lesee company rather than the lessor company, from whom the employees had been leased. In each case, the courts considered the role of the foreman and his control over the borrowed employees to be indicative of the statutory employer. The court in Ramondo stated, “[T]he actual mechanical operation of the bulldozer is not decisive as to [the operator’s] employment, and the fact that he was not actually on the [borrowing company’s] payroll is insignificant. Ramondo, 82 A.2d at 41-42.

Here, the defendants presented evidence that is consistent with evidence that Pennsylvania appellate decisions have held to be sufficient to overcome the presumption discussed above. A question of fact will be found to exist even where the evidence is undisputed where there remains the consideration and weight of the evidence presented and what inferences are to drawn therefrom. As stated in Mature, “Where the facts are not in dispute, and the evidence leaves no sufficient ground for inconsistent inferences therefrom, the question as to who is the servant’s employer is a matter for the determination of the court, but, where the evidence presents an issue of fact, or different inferences can reasonably be drawn therefrom, the question is one for determination by the jury.” Mature, 97 A.2d at 61. Here, it was for the jury to make the necessary inferences from the evidence. Therefore, as was properly within its purview, the jury determined that defendant Naples was employed by Sheradan Steel while on the job site. Based upon the above, this court did not err in denying the plaintiff’s motion for a directed verdict on the statutory employer issue.

Next, the plaintiff argues that the court erred in failing to instruct the jury on 29 C.F.R § 1926.760 of OSHA, in determining the standard of care, or, at least, should have instructed on this regulation and § 1926.501, which the court gave, and leaving it to the jury to determine which applied. Initially, the court notes that this argument is moot because the jury did not reach this issue. Regardless, the court believes it did not err in its instruction to the jury. Both § 1926.501 and § 1926.76 provide mandates for providing fall protection to employees on a construction site. Section 501 provides, in relevant part, “Each employee on a walking/working surfact (horizontal and vertical surface) with an unprotected side or edge which is 6 feet...or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.” 29 C.F.R. § 1926.501(b). This subsection is located in Subpart M, which is entitled “fall protection.” The subsection does not identify to which type of employee on a construction site it applies; rather, it is a blanket provision.

Section 1926.760 under Subpart R, entitled “Steel Erection” provides “each employee engaged in a steel erection activity who is on a walk/working surface with an unprotected side or edge more than 15 feet...above a lower level shall be protected from fall hazards by guardrail systems” and other safety measures. 29 C.F.R. § 1926.760. Steel erection is defined as “the construction, alteration or repair of steel buildings, bridges and other structures, including the installation of metal decking and all planking used during the process of erection.” 29 C.F.R. § 1926.751.

In the instant case, the plaintiff was installing a jib extension on a crane. Although this activity is not identified in any part of OSHA as controlling in 2003, the plaintiff argues that this activity should be considered to be steel erection activity as defined by subsection 1926.751. However, the plaintiff did not present any evidence in support of this contention. Conversely, the defendants presented the testimony of Mr. Peter Poczynok (hereinafter, “Poczynok”), a qualified OSHA expert. Poczynok testified unequivocally that in 2003, the OSHA regulation that would have applied to the plaintiff’s activity is 29 C.F.R. § 1926.501. Poczynok testified that while walking on the boom to insert the pins, the plaintiff was in violation of subsection 1926.501 by failing to use fall protection. He further testified that based upon the description of the plaintiff’s activity immediately prior to his fall, the plaintiff was engaged in “crane assembly,” which does not fall within the definition of steel erection activity as defined in subsection 1926.751. Poczynok explained that subsection 1926.760 was intended to apply to “hoisting and rigging” activities. Poczynok also provided a number of different alternatives to insert pins to use a jib extension instead of walking on a boom. As stated above, the plaintiff presented no evidence in support of his contention that § 1926.760 was the applicable regulation on which to charge the jury. Based upon this, the plain language of the regulations, and the testimony of Poczynok, the court found that § 1926.501 was the appropriate regulation at the time of the plaintiff’s accident.

In the alternative, the plaintiff argues that the court should have instructed the jury on both sections of OSHA to permit the jury to determine the relevant regulation to apply. Both parties in the instant case sought to have the court instruct the jury on an OSHA regulation as evidence of the standard of care the plaintiff owed to himself. The courts in this Commonwealth have employed OSHA regulations as evidence of the standard of care. See Brogley v. Chambersburg Eng’g Co., 452 A.2d 743 (Pa. Super. 1982). However, the court must first determine that a duty exists. See Nertavich v. PPL Elec. Utilities, — A.3d — (Pa. Super. 2014). Above what height fall protection should be utilized is a legal determination for purposes of this case, and the court instructed the jury on the OSHA regulation that applied. As a result, the court did not err in failing to instruct the jury on 29 C.F.R. § 1926.760. Based upon the foregoing, the plaintiff’s appeal should be denied.

ORDER OF COURT

And now, this 8th day of September, 2014, the court having received plaintiff’s Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b), with Douglas J. Olcott, Esquire, representing the plaintiff, and Mark A. Martini, Esquire, representing the defendants, the court hereby orders and decrees as follows:

1. To address the issues raised on appeal, the court issues the attached opinion pursuant to Pa.R.A.P. 1925(a).

2. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.

      . Defendant Naples died on July 8, 2014, which is reflected in the notice of death filed by the defendants’ counsel on July 24,2014.

      . The parties presented conflicting testimony regarding the positioning of the jib extension at the time the pins had to be reinserted. The plaintiff and his witnesses testified that the jib extension was parallel with the ground and approximately six to ten feet in the air. Defendant Naples testified that the jib extension is never parallel with the ground when it is swung around the crane to insert the pins. He testified that the end of the jib extension was approximately one-inch from the ground, which is known as “jibbed down.”

      . Defendant Naples formally became a member of his union in 1949 and was 82-years-old at the time of the plaintiff’s accident. Defendant Naples testified that he did not have any health issues and had to receive a physical examination twice a year in order to maintain his license to operate a crane. He testified that he was never restricted to certain activities.


author: HODGE, J.,

text:
    Drake v. Drake

      C.P. of Lawrence County,
    No. 10183 of 2011 CA

      Susan M. Papa, for plaintiff.

      Theodore A. Saad, for defendant.
    Sept. 15, 2014 —
   HODGE, J.,

This opinion is issued pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure in support of the order of court dated May 21, 2014, from which the defendant, Timothy P. Drake, appeals and contends that this court committed the following eiTors:

1. The court erred in finding that the parties’ marital settlement agreement was ambiguous;

2. The court erroneously concluded that the life insurance policy at issue was not disclosed amongst the parties; and

3. The court erred in directing that a term life policy, with no cash value, be liquidated and the proceeds divided between the parties because doing so dissipates a marital asset and violates the parties’ marital settlement agreement.

Prior to addressing each of the matters complained of, the court sets forth the following summary of the relevant procedural and factual background of this case. On February 8,2011, the plaintiff, JudithB. Drake (hereinafter, “wife”), filed a complaint in divorce against the defendant, Timothy P. Drake (hereinafter, “husband”). The parties entered into a marital dissolution agreement on March 15, 2012, and a divorce decree was subsequently issued on April 5, 2012. On April 4, 2014, Wife presented the court with a petition for special relief, wherein wife requested the court to direct husband to transfer ownership of a life insurance policy to her. Following a hearing, this court denied wife’s request, but directed the parties to liquidate the asset and divide the proceeds pursuant to the terms of their marital dissolution agreement. From this order, husband appeals.

When interpreting a marital settlement agreement, “the trial court is the sole determiner of facts and absent an abuse of discretion, the appellate courts will not usurp the trial court’s fact-finding function.” Chen v. Chen, 840 A.2d 355, 360 (Pa. Super. 2003), appeal granted in part, 578 Pa. 433, 853 A.2d 1011 (2004) (relating to other findings). On appeal from an order interpreting a marital settlement agreement, the appellate court must decide whether the trial court committed an error of law or abused its discretion. Tuthill v. Tuthill, 763 A.2d 417, 419 (Pa. Super. 2000), appeal denied, 775 A.2d 808 (Pa. 2001).

“[Jjudicial discretion” requires action in conformity with law on facts and circumstances before the trial court after hearing and due consideration. Such discretion is not absolute, but must constitute the exercises of sound discretion. This is especially so where, as here, there is law to apply. On appeal, a trial court’s decision will generally not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying correct principles of law. An “abuse of discretion” or failure to exercise sound discretion is not merely an error of judgment. But if, in reaching a conclusion, law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason, discretion must be held to have been abused.

In re Deed of Trust of Rose Hill Cemetery Ass’n Dated Jan. 14, 1960, 590 A.2d 1, 3 (Pa. 1991) (internal citations omitted). While the appellate court is bound by the trial court’s determinations regarding credibility, Wade v. Huston, 877 A.2d 464 (Pa. Super. 2005), contract interpretation is a question of law, and the reviewing court is not bound by a trial court’s interpretation. Chen, supra at 360. The standard of review over questions of law is de novo and to the extent necessary, the scope of review is plenary.” Kripp v. Kripp, 849 A.2d 1159, 1164 n. 5 (Pa. 2004).

The insurance policy in question was issued by Primerica for the life of husband with wife also receiving a life insurance policy at a reduced rate. The parties referred to wife’s policy as a “rider” policy on husband’s policy. Wife’s life insurance policy names husband as a beneficiary. The associated death benefit for wife’s life insurance policy is $100,000.00. Following the execution of the marital dissolution agreement and the parties’ divorce, wife petitioned the court to compel husband to transfer ownership of the policy to wife and name the parties’ son as a beneficiaiy. Flusband objected to wife’s request by arguing that the marital dissolution agreement fully encompassed the division of all marital assets owned by the parties. Husband stated that the agreement provided that any property in either party’s possession remains the personal property of that individual part.

Wife, however, argued that it is inappropriate for Husband to incur financially gains following her death given the fact that the parties are no longer married. Wife additionally argues that if the court was unwilling to transfer ownership of the policy, the court should at least direct husband to execute the necessaiy forms to change the beneficiary provision and name the parties’ children as beneficiaries.

In Pennsylvania, a settlement agreement between a husband and wife is governed by the law of contracts, unless the agreement itself provides otherwise. Lyons v. Lyons, 585 A.2d 42 (Pa. Super. 1991); Caccavo v. Caccavo, 565 A.2d 1199 (1989); Sonder v. Sonder, 549 A.2d 155 (1988). When the language of such an agreement is clear and unambiguous, the focus of the interpretation must be upon the terms as manifestly expressed. Caccavo, 565 A.2d at 1202. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Walton v. Philadelphia National Bank, 545 A.2d 1383, 1389 (Pa. Super. 1988). The court must determine as a question of law whether the contract terms are clear or ambiguous. Id.

The standard of enforceability of a contractual agreement is also clear: “ [a]bsent4 fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.’” McMahon v. McMahon, 612 A.2d 1360, 1363 (Pa. Super. 1992) (citations omitted). As such, a trial court may interpret a marital settlement agreement like a contract, but the court has neither the power nor the authority to modify or vary the decree unless there is conclusive proof of fraud or mistake. Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

When construing agreements involving clear and unambiguous terms, a trial court need only look to the writing itself to give effect to the parties’ understanding. Vaccarello v. Vaccarello, 757 A.2d 909, 913-914 (Pa. 2000). A court may not modify the plain meaning of the words under the guise of interpretation. Id. A court must consider such contracts without reference to matters outside of the document, and we must ascertain the parties ’ intentions when entering into the contract from the entire instrument. Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998). Furthermore, the parties are bound “without regard to whether the terms were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains.” Sabad v. Fessenden, 825 A.2d 682, 688 (Pa. Super. 2003).

Additionally, Section 3105 of the Pennsylvania Domestic Code outlines the effect of agreements entered into between parties and its applicability applies to agreements relating to marital settlements.

Section 3105 provides:

a.Enforcement: A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
b. Certain provisions subject to modification: A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
c. Certain provisions not subject to modification: In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

Additionally, at the time the marital settlement agreement was executed, both parties were represented by competent counsel, and the agreement provides that they were fully advised of their rights, obligations and duties pursuant to the agreement. Based upon these findings, this court denied wife’s request to transfer ownership of the life insurance policy into her name. Further examination of the marital dissolution agreement led this court to provision 5.03, which stated, “[i]n the event either party has failed to disclose an asset that is valued at more than $1,000.00 the parties agree that they will divide the asset equally...”. Pursuant to provision 5.03, the court directed the life insurance policy to be liquidated and divided equally. Subsequent to the court issuing its decision, the parties informed the court that wife’s insurance policy has no present financial value, and all of the $100,000.00 is contingent upon wife’s death. Regardless of the circumstances pertaining to the asset, the court enforced compliance with the parties, marital dissolution agreement.

Husband now contends that this court erred in determining that the marital dissolution agreement was ambiguous. In addressing husband’s contention, the court notes that a contract will be found to be ambiguous:

if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction.

Z & L Lumber Co. of Atlasburg v. Nordquist, 502 A.2d 697, 700 (Pa. Super. 1985) (citations omitted).

Ambiguity within a contract may be latent or patent. A patent ambiguity appears on the face of the contract and is a result of defective or obscure language. Id. A latent ambiguity arises from collateral facts which make the meaning of a written contract uncertain, although the language appears clear on the face of the contract. Id. To determine whether there is an ambiguity, it is proper for a court to hear evidence from both parties and then decide whether there are objective indications that the terms of the contract are subject to differing meanings. Id.

In the order of court dated May 21, 2014, this court did not determine that the marital dissolution agreement was ambiguous, but rather this court specifically stated that the issue of who owned the subject insurance policy was ambiguous. This finding was based upon the fact that the policy was clearly a marital asset, but distribution was not set forth in the policy. Although the parties’ agreement professed full disclosure of assets, the agreement failed to mention the policy. Therefore, the court’s determination that ownership was at issue was proper.

Furthermore, Pennsylvania law prohibits an individual from financially benefiting from the death of a former spouse via a life insurance policy, annuity contract pension or profit-sharing plan. See 20 Pa.C.S.A. §6111.2 (effect of divorce on designation of beneficiaries); In re: Estate of Hoffman, 54 A.3d 903 (Pa. Super. 2012) (Unless otherwise and expressly stated, a beneficiary designation cannot survive a divorce. The former spouse is treated as if he or she predeceased the decedent.).

A more thorough consideration of section 6111.2 to the facts of the instant case leads this court to find error in its May 21, 2014 order, but for reasons other than those referenced by husband. In wife’s petition for special relief, she requested ownership of the policy be transferred to her. However, wife’s testimony at the May 7,2014 hearing indicated that it was her desire to have her children appointed as beneficiaries on her life insurance policy. (See N.T. May 7, 2014, p. 14). Although this court denied wife’s request to transfer ownership of the policy to wife, the court believes section 6111.2 of the Probate, Estates and Fiduciaries Code provides the court with the authority to grant wife’s request and direct husband to designate the parties’ minor children as the beneficiaries of wife’s life insurance policy. This conclusion would also prevent the dissipation of a marital asset, which would not have a realized value to Husband if he remains the intended beneficiary.

Based upon the foregoing, this court respectfully submits that husband’s appeal be denied in its entirety, and these proceedings be relinquished to the jurisdiction of this court for entry of an order consistent with the determinations set forth herein.

ORDER OF COURT

And now, this 15th day of September, 2014, the court having received defendants’ Concise Statement of Errors Complained of on appeal pursuant to Pa.R.A.P. 1925(b), and issuing an order pursuant thereto, the court hereby orders and decrees as follows:

1. Pursuant to Pa.R.A.P. Rule 1931, the Prothonotary shall assemble the record and transmit the same to the Prothonotary of the Superior Court as required by the applicable rules of appellate procedure.

2. The Prothonotary shall properly serve notice of this order upon counsel of record and upon any party not represented by counsel by regular mail or personal service.


author: BUTTS, /.,

text:
    Commonwealth v. Smith

      C.P. of Lycoming County,
    No. CR-369-2013
    Sept. 22, 2014
   BUTTS, /.,

— On April 23, 2014, the defendant filed a motion to suppress evidence. A suppression hearing was held on July 14, 2014.

I. Background

At approximately 2:27 A.M. on November 24, 2012, Officer Joshua Bell (Bell) of the Williamsport Bureau of Police was driving a patrol car east on Washington B oulevard in Williamsport, Pennsylvania. Bell observed a white Cadillac four-door car exit the parking lot of Joey’s Place Restaurant and proceed west on Washington Boulevard. During the suppression hearing, Bell testified that he had only a matter of seconds to observe the driver of the white Cadillac. Bell believed that the driver of the white Cadillac was E.N. During the preliminaiy hearing, Bell testified that he had stopped E.N. several times when E.N. was driving that vehicle. Bell knew that E.N.’s license was suspended because he had stopped E.N. a week or two before and had issued her a citation for driving with a suspended license.

Believing that the driver was E.N., Bell pulled over the white Cadillac. Bell testified that he stopped the car only because he thought it was E.N. Bell went to the driver and asked for the license of the driver. When Bell saw the license, he realized that the driver was the defendant, Sonya Smith. Bell told the defendant that he stopped her because he thought she was somebody else. Bell, however, noticed a strong odor of alcohol emitting from the defendant. He also observed that the defendant had glassy bloodshot eyes and slurred speech. After the defendant performed field sobriety tests, Bell determined that the defendant was not capable of driving safely and placed her under arrest for driving under the influence of alcohol. The defendant was transported to the DUI Processing Center, where she submitted to a blood draw. The defendant had a blood alcohol content of 0.21% at the time her blood was drawn. The defendant was charged with driving under the Influence of alcohol, Driving under the influence with the highest rate of alcohol, and driving while operating privilege is suspended.

During the suppression hearing, Bell testified that his observation of the following characteristics led him to believe that the driver of the white Cadillac was E.N. The driver was white, had a “female shaped” face, had a medium to slender build, and had dark brown hair down to her shoulders.

During the suppression hearing, E.N. testified that she had been pulled over by Bell while driving a white Pontiac Grand Prix. She testified that she had never been pulled over by Bell while driving a white Cadillac. E.N.’s testimony also established that the defendant weighs 80 to 90 pounds less than E.N., and the defendant is five or six inches shorter than E.N.

The defendant argues that the stop was made in violation of her rights under Article 1 Section 8 of the Pennsylvania Constitution and the fourth amendment to the United States Constitution. Specifically, the defendant argues that even if Bell had an honest belief that the driver of the car had a suspended license, the stop was not justified as there is no “good faith exception” under the Pennsylvania Constitution with regard to unlawful seizures and arrests. The defendant argues that since the stop was done in violation of the defendant’s constitutional rights, any evidence seized as a result of the stop must be suppressed. The Commonwealth argues that the “good faith exception” applies to this situation because there was no search or arrest warrant.

II. Discussion

“In Pennsylvania, a police officer has authority to stop a vehicle when he or she has reasonable suspicion that a violation of the Motor Vehicle Code is occurring or has occurred. Our Supreme Court defines reasonable suspicion as: a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. In order to justify the seizure, a police officer must be able to point to ‘ specific and articulable facts’ leading him to suspect criminal activity is afoot. In assessing the totality of the circumstances, courts must also afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer’s experience and acknowledge that innocent facts, when considered collectively, may permit the investigative detention. Thus...in order to establish reasonable suspicion, an officer must be able to point to specific and articulable facts which led him to reasonably suspect a violation of the Motor Vehicle Code[.]” Commonwealth v. Farnan, 55 A.3d 113, 116 (Pa. Super. 2012) (quoting Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011)).

“The determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances.” Holmes, 14 A.3d at 96. “[E]ven stops based on factual mistakes generally are constitutional if the mistake is objectively reasonable.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) (plurality opinion).

This court finds that Bell did not have reasonable suspicion that a violation of the Motor Vehicle Code was occurring because Bell’s mistake was not objectively reasonable. The defendant was stopped in a car of different make than the car in which E.N. was stopped. Based on Bell’s testimony, the defendant was pulled over because she was a white female with dark brown hair down to her shoulders, and she was driving a white car. These facts are not specific enough to establish reasonable suspicion that the driver of the white Cadillac was E.N.

Since Bell did not have reasonable suspicion that a violation of the Motor Vehicle Code was occurring, Bell was not justified in pulling over the defendant. The exclusionary rule prohibits the introduction of evidence unlawfully obtained. See Murray v. United States, 487 U.S. 533, 536-37 (1988). Any evidence obtained after Bell pulled over the defendant was obtained unlawfully and must be excluded.

III. Conclusion

Given the facts and circumstances presented, the court finds that Bell did not have reasonable suspicion that the driver was E.N. Therefore, the search of the defendant was unlawful. Any evidence obtained after Bell pulled over the defendant must be suppressed since it was the product of an unlawful search.

ORDER

And now, this 22nd day of September, 2014, based on the foregoing opinion, the defendant’s motion to suppress evidence is hereby granted. It is ordered and directed that any evidence obtained after officer Bell pulled over the defendant be suppressed.

      . 75 Pa. C.S. § 3802(a)(1).

      . 75 Pa. C.S. § 3802(c).

      .75 Pa. C.S. § 1543(b)(l.l)(i).

      . The independent source doctrine is an exception to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 443 (1984).