author: LIEBERMAN, J,

text:
    Ethan-Michael Inc. v. Board of Supervisors of Union Township, Berks County

      Daniel P. Becker and Joan E. London, for appellant

      Josele Cleary, for appellee
    July 2, 2006
   LIEBERMAN, J,

This matter came before the court on Ethan-Michael Inc.’s (EMI) appeal of the January 23,2006 decision issued by the Honorable Edward N. Cahn (hearing officer), former Chief Judge of the United States District Court for the Eastern District of Pennsylvania. Judge Cahn was appointed hearing officer to render a decision in place of the Union Township Zoning Hearing Board pursuant to the Municipalities Planning Code, 53 P.S. §10908(2). Hearing Officer Cahn’s decision granted in part and denied in part the appellant’s substantive validity challenge and curative amendment. On May 4,2006, after briefs were submitted and argument held, this court found that the findings of fact, conclusions of law, and decision of the hearing officer were supported by the record and issued an order denying the appeal. The appellant has now appealed this court’s order upholding Hearing Officer Cahn’s decision.

After receiving a notice of appeal, this court directed appellant to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. In response, the appellant filed a document raising three issues complained of on appeal, which runs six pages in length. The appellant’s statement of matters complained of on appeal rehashes the issues originally presented to this court, and for the most part, does not frame the issues complained of in a way for this court to meaningfully address them.

Of the three issues the appellant presents, two are vague and overbroad, and the argument the appellant included does little to focus the issues to a point where this court can meaningfully address them. The Pennsylvania Superior Court has held that “a concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all.” Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002). Furthermore, atrial court may not frame issues for an appellant by guessing or anticipating what issues should be raised on appeal. Commonwealth v. Pettus, 860 A.2d 162, 164 (Pa. Super. 2004). The appellant has failed to frame the first and third allegations of error in a way that would enable this court to meaningfully address the claims, and it is this court’s opinion that these claims should be denied.

STANDARD OF REVIEW

Counsel for the appellant never stated what this court’s standard of review is in this matter. When a trial court does not conduct a hearing or receive additional evidence, the standard of review of an initial decision by a zoning hearing board is limited to whether the board abused its discretion or committed an error of law and whether its necessary findings are supported by substantial evidence. Citizens for Responsible Development v. Windsor Township Zoning Hearing Board, 70 D.&C.4th 427, 429 (York Cty. 2004) citing Rushford v. Zoning Board of Adjustment of Pittsburgh, 81 Pa. Commw. 274, 278, 473 A.2d 719, 722 (1984). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).

Further, a zoning hearing board’s interpretation of an ordinance is entitled to great weight and deference from a reviewing court. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57 (Pa. Commw. 1999). Upon reviewing a decision of a zoning hearing board, a court may not substitute its judgment for that of the board; and, assuming the record demonstrates substantial evidence, the court is bound by the board’s findings which result from resolutions of credibility and the weighing of evidence rather than a capricious disregard for the evidence. Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa. Commw. 2002).

ISSUES COMPLAINED OF ON APPEAL

The AP Zoning District Regulations Are Invalid Because They Are Unduly Burdensome and Fail To Support the Stated Purpose of the Zoning District

This statement is broad, does not indicate where the appellant alleges an error occurred, and suggests only that the appellant is not happy with the decision. In the argument provided for this matter, the appellant appears to raise three separate issues, but these issues do little to clarify the appellant’s position. As stated above, this court is not required to guess or anticipate the appellant’s meaning concerning an issue raised. Commonwealth v. Pettus at 164. This court has to guess what the appellant’s intent is concerning this matter complained of on appeal due to the fact that the issue is broad, and the argument provided raises separate issues which are inconsistent with each other. This court is thus prevented from meaningfully addressing the issue, and respectfully requests that this claim should be denied.

Should it be determined that the issue presented is sufficient to provide this court with an opportunity to meaningfully address this issue, this court believes the error appellant is alleging was in ruling that the zoning ordinance regulations support the purpose of the ordinance. This court found that the hearing officer made no error of law concerning this issue.

The purpose of the Agricultural Preservation District is stated in section 401.1 of the zoning ordinance. This section states that:

“The presence of active and productive agricultural land is a major land resource for any municipality. Union Township has a significant supply of this valuable resource. The purpose of the AP district is to preserve the active and productive agricultural lands that are present within the township. Residential land development should be limited within the AP district in order to preserve large contiguous tracts of agricultural land area within the township. The goals, objectives and planning policies of agricultural preservation are further outlined within the Union Township Comprehensive Plan Update (1994).”

The preservation of agricultural land is a valid purpose for a zoning ordinance, and has been recognized as such by the Pennsylvania courts. See Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 452 A.2d 1337 (1982). (The preservation of agricultural land is a legitimate government goal, which can be implemented by zoning regulation.)

Under Pennsylvania law, a zoning ordinance is a valid exercise of state police power when it promotes public health, safety or welfare and its regulations are substantially related to the purpose the ordinance purports to serve. Miller & Son Paving Inc. v. Wrightstown Township, 499 Pa. 80, 88, 451 A.2d 1002, 1006 (1982). This ordinance furthers a legitimate government goal in the preservation of agricultural land, and is thus a valid ordinance as long as its regulations are substantially related to this goal. In order to determine substantial relation, a substantive due process analysis is used requiring a reviewing court to balance the public interest served by the zoning ordinance against the confiscatory or exclusionary impact of the regulation on individual rights. Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970). Hearing Officer Cahn performed the required balancing test, and determined that the zoning ordinance was valid. In his opinion he stated, “Balancing the rights of EMI to be free of undue restrictions against the public policy of this Commonwealth, the County of Berks and the township to encourage active farming on large contiguous tracts, I hold that the zoning ordinance passes muster.” (Hearing officer decision, p. 25.) Accordingly, there was no legal error as the hearing officer applied the required substantive due process balancing test.

The question now turns on whether or not there was substantial evidence to support Hearing Officer Cahn’s determination that the regulations in the zoning ordinance support its purpose. The appellant argues that the regulations do not support the ordinance’s purpose because there are uses allowed by special exception and conditional use, some of which may not support the preservation of productive agricultural land.

The Union Township Zoning Ordinance permits the land in the AP to be used for general agricultural uses, intensive agricultural uses, nurseries and greenhouses. (Union Twp. Zoning Ordinance, §§401.2.A, 401.2.B, 401.3.B.) Intensive agricultural purposes include mushroom, egg and poultry production, and dry livestock production. (Union Twp. Zoning Ordinance, §202.) The uses that are allowed by conditional use and special exception that are not agricultural are uses such as cemeteries, driving ranges, campgrounds, and wildlife preserves, and require approval by the zoning hearing board or board of supervisors. (Union Twp. Zoning Ordinance, §§401.3,401.4.) However, Hearing Officer Cahn found that there is no evidence that any of these uses have ever been approved, and that their presence is not fatal to the ordinance.

This court agrees with the hearing officer’s determination, and believes there is substantial evidence that the overall effect of the ordinance is substantially related to the preservation of large, contiguous tracts of productive agricultural land. The ordinance’s primary effect has been consistent with its purpose of preserving agricultural land, while the uses the appellant complains of have never occurred. Further, the uses by special exception and conditional use would not destroy the land for future agricultural use in the manner of the proposed development by the appellant, and other uses such as wildlife preserves, would have no negative effect on the land whatsoever. These uses would also not substantially interfere with agricultural activities on neighboring lands the way residential development would. As this court feels there is substantial evidence to support the hearing officer’s opinion, it is bound by his decision. Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d at 1278.

At best, the validity of the special exception and conditional use regulations is debatable. However, debatable regulations do not render an ordinance invalid. Where the validity of zoning regulations is debatable, the legislature’s judgment must control. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975). Accordingly, the ordinance and regulations must stand as drafted.

EMI raises two other issues in the argument under this section. The first is that the zoning regulations are unduly restrictive. The appellant states that “A zoning ordinance may be challenged on the basis of unconstitutionality due to undue restriction. Hock v. Board of Supervisors of Mount Pleasant Township, 154 Pa. Commw. 101, 622 A.2d 431 (1993). A significant factor in determining a restriction’s reasonableness is whether it is consistent with the stated purpose of the zoning district. Id.” The hearing officer determined, and this court agrees, that the zoning restrictions in the Union Township ordinance are consistent with the stated purpose of the ordinance. Accordingly, under the test the appellant cites, the restrictions must be considered reasonable and not unduly burdensome. Further, EMI’s expert planner Charles Guttenplan agreed that EMI may make reasonable use of its land in the AP district, just not the use it prefers. (N.T. 985-86.)

The next issue is that the zoning regulations do not support the stated purpose of protecting active and productive agricultural land because land along the Schuylkill River is not zoned AP. This argument is listed under the first matter complained of on appeal, stating that the regulations are invalid because they fail to support the ordinance’s stated purpose. This issue relates to the ordinance’s application, not the construction of the ordinance which is what this court believes this matter complained of on appeal concerns. This inconsistency illustrates the need for a concise statement of matters complained of on appeal, and the potential for error that exists when a court is required to guess what issue an appellant is raising. As stated above, a trial court may not frame issues for an appellant by guessing or anticipating what the appellant intends. Commonwealth v. Pettus, 860 A.2d 162, 164 (Pa. Super. 2004). However, considering this issue on its own, without regard to the relationship of the zoning regulations to the purpose of the ordinance, there was no error. Pennsylvania case law states:

“The courts cannot become involved in a general review of the wisdom of zoning boundaries without assuming almost the entire legislative function.... While the supervisors might have made a better choice in location, the choice was theirs to make and the remedy for any such error is not in with the courts, but rather the ballot box. . .. Thus, even where there is room for difference of opinion as to the designation of the agricultural zoning district, the courts cannot substitute their judgment for that of the authorities who enacted the legislation.” Kirk v. Zoning Hearing Board of Honey Brook Township, 713 A.2d 1226, 1230-31 (Pa. Commw. 1998).

The Provisions of Section 905.3 of the Zoning Ordinance Are Unreasonably Restrictive of EMI’s Property Rights, Are Properly Read Together, and Are Not Severable

The appellant’s second matter complained of on appeal is the only matter properly presented in the appellant’s Pa.R.A.P. 1925(b) statement. This issue concerns Hearing Officer Cahn’s severing of three subsections under section 905.3 of the zoning ordinance.

Section 905.3 of the zoning ordinance concerns development within the AP zoning district, and before Hearing Officer Cahn severed subsections E, F, and I, this section provided:

“(A) Single-family detached residential development shall be permitted in the agricultural preservation, subject to development limitations and controls specified within this section of the ordinance.
“(B) Contiguous tracts of land owned under single or separate deeds at the adoption of the Union Township Zoning Ordinance of 1994 shall be limited to the maximum additional single family detached dwellings:
Size of original Maximum number of tract of land dwelling units
5 to 19 acres 2
20 to 49 acres 3
50 to 99 acres 4
100 to 149 acres 5
150 to 199 acres 6
200 to 299 acres 7
300 to 399 acres 8
400 to 499 acres 9
500 or more acres 10
“(C) All single-family residential dwellings and/or lots approved prior to the adoption of the Union Township Zoning Ordinance of 1994 shall be permitted in addition to the maximum number of dwellings specified under this section.
“(D) General agricultural and intensive agricultural land development activity shall be permitted within the AP district, subject to the limitations and controls specified under this section of the ordinance. Unless otherwise specified within this ordinance, no other land use or activity shall be permitted within the AP district.
“(E) A minimum of 75 percent of the total land area for all new single-family residential lots shall not be consumed by soils with capability units of Class I and II, as defined by the Soils Survey of Berks County, prepared by the United States Department of Agriculture in cooperation with the Pennsylvania State University and the Pennsylvania Department of Agriculture.
“(F) All new single-family residential lots and dwellings shall be located along an existing public street.
“(G) If permitted by the township board of supervisors and planning commission, a single-family residential lot and dwelling may be located along a private road. In such cases the applicant shall provide evidence that the proposed residential lot and dwelling will be located in an area which will conserve prime agricultural lands and will provide safe and convenient access for emergency vehicles.
“(H) The individual lot size for all new single-family dwellings shall be a minimum of one acre and a maximum of two acres. The township may permit larger lots if the applicant can demonstrate that the lot will not encroach upon any prime agricultural lands and/or additional area is needed to locate an on-lot sewage disposal system. In addition, the residential lot and dwelling shall conform with the minimum and maximum requirements specified below:
Min. regulations Max. regulations
Lot area 1 acre Lot area 2 acres
Lot width 100 feet Bldg, height
Bldg, setback 50 feet Farm bldgs. None
Rear yard 30 feet Silos None
Side yard Dwelling 35 feet
Total 40 feet Lot coverage 20%
One side 20 feet Woodland extr. 30%
“(I) The Union Township Board of Supervisors may permit the additional single-family residential lots, if the land owner can demonstrate that two of the following conditions exist:
“(1) A minimum of 50 percent of the total land area proposed for development is consumed by soils with capability units of Class IV through VIII, as defined by the Soils Survey of Berks County.
“(2) The tract of land is unsuitable for agricultural land uses based on the geological, topographical and/or hydrological conditions on the site.
“(3) The site is unsuitable for agricultural land uses based on the configuration and/or size of the tract of land.
“(4) The proposed development will not create a conflict with the goals, objectives and policies identified within the Union Township Comprehensive Plan Update.
“(J) All plans submitted for subdivisions or land development shall be prepared, reviewed and approved in accordance with the Township Subdivision and Land Development Ordinance.”

Hearing Officer Cahn correctly determined that subsections E, F, and I of section 905.3 are too restrictive, and severed these subsections of the statute. The appellant claims that these sections are not severable due to the fact that the subsections are dependent upon each other, and that the whole section is invalid. This court disagrees with the appellant, and agrees with Hearing Officer Cahn’s determination that the subsections are severable. Accordingly, this court found no error.

Severability is favored by Pennsylvania law, and is codified under the Statutory Construction Act at 1 Pa.C.S. §1925, which states that:

“The provisions of every statute shall be severable. If any provisions of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon the void provision or application that it cannot be presumed that the general assembly would have enacted the remaining valid provisions without the void one; or the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with legislative intent.”

The Statutory Construction Act is applicable to zoning ordinances. Council of Middletown Township, Delaware County v. Benham, 91 Pa. Commw. 186, 496 A.2d 1293 (1985).

The application of the rule favoring severability to ordinances is also supported by case law. “In determining the severability of a statute or ordinance, the legislative intent is of primary significance— The legislating body must have intended that the act or ordinance be separable, and the . . . ordinance must be capable of separation in fact.” Pennsylvania Independent Waste Haulers Association v. Township of Lower Merion, 872 A.2d 224, 228 n.16 (Pa. Commw. 2005), citing to Saulsbury v. Bethlehem Steel Company, 413 Pa. 316, 321, 196 A.2d 664, 667 (1964). The valid portion of the statute left after separation must be “independent and complete within itself.” Id.

The Union Township ordinance meets the test provided in Saulsbury, and cited by Independent Waste Haulers. First, the ordinance states that it was intended to be severable. Section 108 of the ordinance states: “should any article, section, subsection, paragraph, clause, phrase or provision of this ordinance be declared by a court to be invalid, such judgment shall not affect the validity of the ordinance as a whole or any part or provision thereof other than the part decided to be invalid or unconstitutional.”

Next, a reading of the plain meaning of section 905.3 shows that the subsections are not interdependent, and are capable of separation in fact, fulfilling the requirements of the test. For example, subsection F, which was severed, states that all new lots and dwellings shall be located along a public street. Subsection H concerns lot sizes within the AP district, and this subsection clearly can exist on its own without subsection R This court conceives of no interpretation of the subsections of905.3 that requires that the subsections be read together. Accordingly, this court found no error as the subsections remaining after the severing of subsections E, F, and I are valid and stand own their own.

The Exclusionary Intent of the Board of Supervisors Is Relevant in the Determination of Exclusionary Zoning

Here, the appellant presents another overly broad and vague matter for appeal, causing this court to guess the appellant’s meaning concerning this issue. The appellant has argued previously that the zoning board enacted the zoning ordinance with the specific intent of preventing EMI from developing residential homes on its land. Hearing Officer Cahn found that at the time of the enactment of the ordinance, EMI owned approximately 132 acres of the land involved in this matter. This means that of the approximately 518 acres of land now involved in this dispute, EMI bought approximately 386 acres with the knowledge that it was zoned Agricultural Preserve, and that the ordinance could not be special legislation directed at EMI. (Hearing officer decision, p. 26.) As the appellant obtained the majority of the land involved in this matter after the zoning ordinance was enacted, there is relevant, substantial evidence to support Hearing Officer Cahn’s decision. This court agrees that there was no intent to specifically exclude EMI from developing its land.

Further, as Hearing Officer Cahn noted, the intent of the board of supervisors, even if it was aimed at preventing EMI from developing the AP land, is irrelevant. The Commonwealth Court has held that “the state of mind of the legislative body in enacting a zoning ordinance is irrelevant to a determination of its validity— Rather, the legislation must stand or fall on its own terms; even the strenuous lobbying by supporters of the zoning amendment for its passage itself does not render the amendment special legislation.” Appeal of Apgar from Board of Manheim Township, 661 A.2d 445, 448 (Pa. Commw. 1995); citing to Nichols v. City of Corry, 53 Pa. Commw. 248, 417 A.2d 836 (1980). (citation omitted)

As there was no persuasive evidence presented concerning exclusionary intent, and even if there had been, such evidence would have had no legal bearing on Hearing Officer Cahn’s decision, the appellant’s third claim of error is groundless.

CONCLUSION

The appellant in this matter has filed a Pa.R.A.P 1925(b) statement of matters complained of on appeal that is not concise, as required. In addition to matters listed for appeal, there is argument provided that is not appropriate in a 1925(b) concise statement. The argument provided does little to frame or clarify the three issues presented for appeal, and portions of the argument are inconsistent with the matters raised for appeal. It is this court’s opinion that the first and third matters complained of on appeal are not presented in a manner framed for this court to meaningfully address, and that these matters should not be considered on appeal. Should the Commonwealth Court decide to consider the first and third issues, this court believes that there was no error made concerning these issues. As to the issue concerning severability, which was properly raised, this court believes that the zoning ordinance in question was intended to be severable, and the subsections in question were capable of separation in fact, and that there was no error. For the foregoing reasons, this court respectfully requests that the appeal in this matter be dismissed.

      . In this matter, Hearing Officer Cahn’s decision replaces the decision of the zoning hearing board.


source: Caselaw Access Project

author: GEORGE, J,

license: Public Domain

text:
    Gettysburg Historic Holdings Inc. v. Adams County

      Dean S. Piermattei, for plaintiffs.

      John M. Hartvell and Michael D. Reed, for defendants.

      January 11, 2007
   GEORGE, J,

In early 1996, defendant Adams County owned a 287-acre tract of land located within the southeast quadrant of the intersection of U.S. Route 30 and U.S. Route 15 in Straban Township, Adams County, Pennsylvania. The county determined that the property would be developed into a business, commercial, and light industrial center to be known as the Adams County Commerce Center. To this end, by agreement dated February 14, 1996, the county, in exchange for consideration of $24,000, granted North Ridge Associates (NRA) an exclusive option to purchase all or a portion of an approximately 90-acre parcel of the commerce center (option parcel) at a set price designated in the agreement. The agreement was quite comprehensive and called for NRA to develop the option parcel for uses consistent with Civil War history and the Adams County tourist industry. Although the option agreement did not specifically discuss road access to the property, the proposed sales agreement attached to the option agreement provided that access to the option parcel would either be by direct access from U.S. Route 30 to service the option parcel only or by a private connector street from a main access road providing access from U.S. Route 30 to the remainder of the county’s land adjoining the option parcel. Determination of the manner of access was to be controlled by a traffic study prepared by a mutually acceptable traffic engineer. The sales agreement further provided for a shared cost allocation in the event access occurred by a connector road from the main access road. Attached as an exhibit to the option agreement was a survey of the entire county parcel which contemplated a main access to the entire commerce center from U.S. Route 30 to be developed in an area located on the remaining county property adjoining the option parcel. For purposes of clarity, this main access route as depicted on the original survey shall hereinafter be referred to as the “boulevard.”

During the time period between Februaiy 14, 1996 and February 1,1999, the Adams County Commissioners turned for assistance in developing the commerce park to the Adams County Economic Development Corporation (ACEDC). ACEDC assumed the lead role in acquiring sewer and water service to the commerce center. In addition, ACEDC was charged with the development of the remainder of the commerce center property. When it became apparent that NRA was not prepared for development of the option parcel, the county and ACEDC looked at other alternatives to launching development on the remaining county property. In furtherance of this goal, on June 16, 2000, ACEDC, the county, Straban Township, and the Commonwealth of Pennsylvania Department of Transportation entered into a highway occupancy permit construction and security agreement (HOP). The purpose of the agreement was to secure access to the remaining portion of the commerce center not subject to the option agreement, which consisted of the approximately 201.86 remaining acres (ACEDC proj ect). The HOP was entered after the county and ACEDC opted to access the ACEDC project from State Route 30 across existing Cavalry Field Road to a main road bisecting the project to be designated as V-Twin Drive.

The HOP envisioned a two-phase build-out. Phase I consisted of improvements to old Cavalry Field Road and its intersection with State Route 30, while Phase II required construction of an additional eastbound lane on State Route 30 and an additional southbound off-ramp left-turn lane from State Route 15 onto State Route 30. The HOP further provided, in relevant part, that the township would not issue further building permits for construction within the commerce center once the average daily traffic on V-Twin Drive reached 4,135 vehicles per day, unless and until advised in writing by PennDOT that a supplemental highway occupancy permit for full build-out of the proposed project would be issued or, on the other hand, was not required.

On February 1, 1999, NRA attempted to exercise its option to purchase the entire option parcel by placing an additional $24,000 in escrow, as contemplated by the option agreement. However, partially due to the length of time between execution of the original option agreement and NRA’s exercise of their rights under that agreement, the county refused to sign the agreement of sale. Faced with this stalemate, the parties undertook extensive negotiations in an effort to resolve their various disagreements.

As ACEDC moved forward with the development of the ACEDC project, negotiations between NRA and the county digressed. On October 16, 2000, at the direction of the county commissioners, County Solicitor John M. Hartzell forwarded a letter to NRA’s counsel notifying them that the county believed the option agreement to be null and void based upon the failure of NRA to timely perform. This notification prompted further negotiations which culminated in an addendum to option agreement and agreement of sale executed between the parties on April 18, 2001. The addendum represented that it resolved “various and sundry unforeseen circumstances” which had arisen between the execution of the option agreement and execution of the current addendum. The document dictated that it “shall prevail in all respects, for all purposes, and under any and all circumstances, in the event of any inconsistency or conflict with the terms and conditions of the option agreement and/or agreement of sale.” The parties agreed the addendum would “fully and finally agree upon and resolve any and all issues regarding any and all matters” mentioned in the addendum.

Of importance to the present matter are two provisions contained in the addendum agreement. The first, paragraph 2(d)(vi), modified paragraph 6(e) of the option agreement in respect to the parties’ obligations for the costs of constructing access to the option parcel. In addition, paragraph 2(b)(xii) expressly ratified the June 16, 2000 HOP.

On August 23, 2001, NRA assigned all of its right, title, and interest in the option and addendum, as well its equitable interest in the option parcel, to Gettysburg Historic Holdings Inc. (HH). By deed dated August 23, 2001, the county transferred title to the option parcel to ACEDC. Subsequent deed that same date transferred title of the option parcel from ACEDC to HH.

In the fall of 2003, a representative of HH contacted the commissioners to advise of HH’s intent to begin construction of certain commercial proj ects on the option parcel. HH further asserted that the county would be required to bear the costs of improvements to U.S. Routes 30 and 15, including the boulevard, as required by previous agreements. In November 2003, the commissioners consulted with special counsel, John R. White, Esquire, who, as former county solicitor, had been involved in the commerce park transactions from the inception. By memorandum dated December 18,2003, Attorney White essentially opined that his review of the documentation failed to reveal any indication as to the timing of construction of the boulevard and related U.S. Routes 15 and 30 improvements. His memorandum also recognized an issue concerning the county’s obligation to pay for one-half of development of the boulevard, noting that the documents did not specifically obligate the county in this regard. Attorney White noted that resolution of these issues would control the county’s obligation to fund the improvements and that, absent the issue of timing, the county was “liable for the controverted improvements to U.S. Routes 15 and 30.”

By application dated March 15,2004, HH andACEDC filed an application for highway occupancy permit with PennDOT seeking permission to construct the boulevard and related improvements to U.S. Route 30. A permit for the construction was granted by PennDOT. HH, at their cost, subsequently completed the road improvements pursuant to the permit. Despite requests by HH, the county has refused to reimburse HH for the costs of the improvements. This action followed.

In their suit, HH seeks specific performance under the various contracts claiming the county is obligated to reimburse HH for the cost of the improvements of U.S. Routes 30 and 15, as well as one-half of the costs associated with constructing the boulevard. In addition, HH seeks an order directing the county to cooperate with and assist HH in obtaining all governmental permits and approvals necessary for development of the option parcel. They further seek damages under a breach of contract theory related to costs incurred by HH as a result of the county’s alleged breach including contractual claims for interest, costs, and attorney fees. In a related claim, HH seeks damages based upon a theory of promissory estoppel, essentially alleging that they have been damaged by their justifiable and actual reliance on misrepresentations and misleading warranties made by the county. Finally, they seek damages, including punitive damages, on the theory of fraudulent misrepresentation, claiming that the county intentionally and fraudulently misled HFI into developing the roadway infrastructure at a time the county had no intention to honor the alleged representations made to HH. After a lengthy and thorough discovery, each party has moved for summary judgment.

The standards which govern summary judgment are well settled. A court shall enter summary judgment only whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857(2005). A motion for summary judgment is based on an evidentiary record that entitles the moving party to judgment as a matter of law. Swords v. Harleysville Insurance Companies, 883 A.2d 562, 566 (Pa. Super. 2005). In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party with all doubts as to the existence of a genuine issue of material fact being resolved against the moving party. Id. at 566-67. Finally, the court may grant summary judgment only when the right to such judgment is clear and free from doubt. Id. at 567.

HFPs motion for summary judgment cites specific language in the various agreements reached between the parties as support for what it claims is a clear obligation on the part of the county to fund the U.S. Routes 30 and 15 improvements, as well as one-half of the boulevard construction. They argue that the language of the various agreements entered between the parties is unambiguous and, therefore, as a matter of law requires judgment in their favor.

The fundamental rule in interpreting a contract is to ascertain and give effect to the intent of the contracting parties. Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590-91, 777 A.2d 418, 429 (2001). The intent of the parties to a written agreement is embodied in the writing itself. Steuart v. McChesney, 498 Pa. 45, 48-49, 444 A.2d 659, 661 (1982). Courts do not assume a contract’s language was chosen carelessly, nor do they assume the parties were ignorant of the meaning of the language employed. Id. at 51, 444 A.2d at 662. When contractual language is clear and unequivocal, its meaning must be determined by its contents alone. Murphy, 565 Pa. at 591, 777 A.2d at 429. A court may not modify the plain meaning of the contract under the guise of interpretation. Little v. Little, 441 Pa. Super. 185, 190, 657 A.2d 12, 15 (1995). Finally, when interpreting a contract, words that are clear and unambiguous must be given their plain and ordinary meaning. Donegal Mutual Insurance Co. v. Baumhammers, 893 A.2d 797, 810 (Pa. Super. 2006).

After a careful and thorough review of the record, I find that there is no ambiguity as to the county’s obligation to fund the improvements which are the subject of this action. The April 18, 2001 addendum unequivocally provides that the county “shall be responsible for any improvements to U.S. Route 30 and/or U.S. Route 15, including but not limited to cartway widening, acceleration deceleration and turning lanes, and traffic signals, which may be required in connection with obtaining highway occupancy permits for the construction of the boulevard.” Addendum to option agreement and agreement of sale, April 18, 2001, paragraph 2(d)(vi). Clearly, the plain and ordinary meaning of these words reflects the intent of the parties.

The county does not contest the validity of the contractual relationship between the parties; however, it challenges the meaning and interpretation of the option agreement and addendum. In this regard, the county argues that construing the language of the addendum in the manner suggested by HH is much too narrow and that a fair reading of the obligations of the parties under the document requires a much broader and historical review of the text. They suggest that a complete reading of the addendum, specifically paragraph 2(d)(vi), reveals that the county’s obligation to fund the improvements is only triggered when access to the option parcel is not “direct access.” In instances of “direct access” to the option parcel, the county points out different language in that same paragraph of the addendum. This language provides that if HH pursues the option of having any sort of direct access from U.S. Route 30 to the option parcel only, HH shall be solely liable for the costs and expenses of the improvements. The county concludes that, since the record establishes that the boulevard is “direct access” to the option parcel, the county has no legal obligation to fund the improvements. Although imaginative, I fail to find any support for this argument in the record.

In order to place the county’s argument in proper context, it is necessary to review the historical background from which this argument finds its genesis. The record reveals that the commerce center project was in its infancy when HH purchased the option rights to the option parcel. Initial plans for the commerce center envisioned a main access to the commerce center off of U.S. Route 30 along the boulevard. There would also be a secondary access to the commerce center from existing Cavalry Field Road, which also junctions with U.S. Route 30. The county suggests that part of the “various and sundry unforeseen circumstances” which resulted in the addendum to the option agreement involved the county’s frustration with HH’s failing to take a leadership role in development of the infrastructure for the commerce park. Although there is no support for their argument in any of the contractual documents, nor in the minutes of any meetings, the county currently implies that they anticipated development of the option parcel to be the anchor for the commerce park. At this time, it was contemplated that the option parcel would be home to a new visitor center for Gettysburg National Park. Unfortunately, initial development plans for the option parcel as a visitor center were unsuccessful through no fault of any of the parties. The subsequent shift in development plans, and the necessary background work, caused HH to maximize the time period within which they could exercise their option rights under the option agreement to the great consternation of county officials. Nevertheless, it is undisputed that HH met all time limits in exercising their option rights.

As a result of the passage of time due to HH’s change of plans, it became apparent that full development of the remaining portions of the commerce park could not be coordinated with development of the option parcel. County officials turned to ACEDC for acceleration of the commerce park development. In approximately 1999-2000, with ACEDC leading the build-out of the remainder of the commerce park, two corporations, Battlefield Harley Davidson and Pella Windows, were secured to develop lots at the commerce park. In coordination with the Pella project, ACEDC obtained grant funding to develop the roadway infrastructure necessary to access the Pella lot, which was located at the most southern point of the commerce park. ACEDC made the decision that access to the Pella lot would be obtained along the road designated V-Twin Drive which would access Cavalry Field Road and, in turn, provide access to State Route 30. Unfortunately, there is a paucity of information in the record as to the details affecting this decision. Nevertheless, Catherine Cresswell, president of ACEDC at all relevant times, recalls that the decision to develop V-Twin Drive as a primary entrance was due in part to V-Twin Drive’s ability to access more developmental lots in the commerce park. According to Cress-well, ACEDC made the policy determination that the industrial lots in the commerce park could be better accessed by V-Twin Drive while the tourism traffic could separately access the commerce park by way of the boulevard. Deposition of Catherine Cresswell, December 15, 2005,15:17-17:23. In furtherance of the development of V-Twin Drive, ACEDC, Adams County, Straban Township, and PennDOT executed the previously referenced ElOP. The HOP recognized a number of improvements were necessary prior to full build-out of the entire ACEDC project; however, PennDOT was willing to defer construction of “required off-site highway improvements made necessary by the full build-out” of the commerce park conditioned upon ACEDC’s agreement to apply for supplemental HOP before daily traffic in the park reached 4,135 vehicles per day.

Several months later, on September 6,2000, ACEDC and the county recorded an approved subdivision plan for the commerce park. The subdivision plan recognized the existence of V-Twin Drive and designated an area adjacent to the option parcel as “area reserved exclusively for future street.” The location of this designation is in the identical location of the boulevard as identified in the survey attached to the 1996 option agreement.

Just prior to recordation of the subdivision plan, on September 1, 2000, HH and ACEDC entered an agreement for bridge construction. Apparently, designation of the wetlands within the commerce park had disclosed that the boulevard traversed an area designated as “wetland” pursuant to federal law. The agreement for bridge construction essentially pledges cooperation between the two entities to obtain grants or other forms of funding for construction of a bridge to traverse the wetland area. ACEDC further agreed that HH would not be required to delay development of the option parcel due to efforts to obtain grant funding and that HH may develop their lot on such a time schedule as they shall determine. Finally, to the extent that other sources of funding were unavailable, ACEDC agreed to pay full costs of the construction of the bridge. A reading of the preliminary paragraphs of the bridge agreement reveals that it was prompted by HH’s unwillingness to participate in the recordation of the aforementioned subdivision plan absent some resolution of the financial responsibilities related to construction of the boulevard bridge. Interestingly, the agreement for bridge construction includes the following representation:

“The subdivision plan, as approved by Straban Township, with the review of Adams County, both as fee title holder to the Adams Commerce Center, and through the county planning commission, contains a main entrance boulevard, having a width of 100 feet, providing access to Route 30 from Adams Commerce Center. The boulevard shall be used by HH to provide access to and from lot 16.”

During approximately this same time period, the “various and sundry unforeseen circumstances” developed which cumulated in the execution of the “addendum to option agreement and agreement of sale.” The addendum was apparently an effort by all parties to coordinate the numerous agreements previously entered by the separate parties into a single unified arrangement. Although for purposes of this opinion, the specific motivation of the respective parties in executing the addendum is not critical; it is apparent from the record that execution of the addendum followed both internal concerns by county officials, and notice by non-county entities, that the uncoordinated development of the commerce park was jeopardizing its success and, potentially, violating the rights of the purchasers of commerce center lots. Following execution of the addendum, title to the option parcel was transferred to HFI.

On March 15, 2004, ACEDC joined HFI in applying for the highway occupancy permit in order to obtain authorization from PennDOT for construction of the boulevard. The boulevard was subsequently constructed at the cost of HFI. It is located at the area designated by the original survey, as well as the aforementioned recorded subdivision plan, and traverses across the property of ACEDC and/or Adams County. The option parcel is accessed by a spur road which connects to the boulevard. In addition to bordering the option parcel, the boulevard, as constructed, borders other areas of the ACEDC property which are designated as separate proposed lots. At the junction of the spur road with the boulevard, the boulevard abruptly ends and does not connect with V-Twin Drive as designated on the subdivision plan. The record fails to conclusively reveal why ACEDC has not completed connection of the boulevard to V-Twin Drive; however, it appears to be related to the cost of the bridge required to traverse the wetlands that are located in between that portion of the boulevard, as constructed, and V-Twin Drive. Commissioner Weaver has suggested that it is impractical at this time to connect the boulevard to V-Twin Drive in that the cost is outweighed by the lack of necessity since V-Twin Drive currently accesses the remaining developmental lots in the commerce park. Deposition of Thomas Weaver, May 18, 2005, 49:3-49:7, 71:20-74:7.

It is this history which leads to the county’s current argument that they are not responsible for the cost of road construction and improvements since, in effect, the boulevard, as constructed, provides access to the option parcel only. The county suggests that under these circumstances, the access is “direct” within the meaning of the addendum. Therefore, that portion of the addendum which provides “[HH] shall be solely liable for any and all costs and expenses in connection with, or arising from, such direct access . . .’’is triggered. The county relies upon this interpretation as compelling the denial of HH’s motion for summary judgment and the grant of summary judgment in their favor. I am not persuaded by this argument.

As noted above, when the terms of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the document itself. Steuart, supra. The words of a contract are to be given their ordinary meaning and a court may not undertake a creative distortion of explicit and unambiguous terms under the guise of interpretation. Little, supra. The addendum at issue unequivocally sets forth the intention of the parties when it announces that “it is contemplated by the parties that the access to the option parcel shall be only by a spur or connection street from the main entrance drive (the ‘boulevard’).” Moreover, the addendum clearly intends “direct access” as something other than access across the boulevard when it provides that if HH seeks direct access: “such direct access shall be prohibited in the event that any highway occupancy permit for any direct access from U.S. Route 30 to service the option parcel only prohibits, prejudices, hinders or renders more expensive the construction, or the design and/or permitting thereof, of the aforementioned boulevard as presently planned by seller and/or the Adams County Economic Development Corporation . . . Addendum to option agreement and agreement of sale, paragraph 2(d)(vi).

There is no doubt in this language that when the county agreed to be responsible for the improvements to U.S. Route 30 and/or U.S. Route 15, they were fully aware that the term “direct access” did not include access via the boulevard.

This interpretation is consistent with a common sense reading of the addendum giving the terms their ordinary meaning. According to Webster’s New Collegiate Dictionary, “direct” is defined as “1 a: proceeding from one point to another in time or space without deviation or interruption: straight b: proceeding by the shortest way ... marked by absence of an intervening agency, instrumentality, or influence.” In this regard, the record is undisputable that the boulevard is not an immediate connection between U.S. Route 30 and the option parcel but rather permits the option parcel to access Route 30 by traversing across the property of ACEDC and/or Adams County.

The county ignores this common meaning of the word “direct” in suggesting that the boulevard is “direct access” because it currently is used solely by HH. The county’s argument interprets “direct” access to mean “sole” access. This argument, however, ignores that HH does not have exclusive or sole control over use of the boulevard. HH could not limit the access of others to the boulevard even if they choose to do so. Rather, ACEDC and/or Adams County has the undeniable ability to manage use of the boulevard, subject, of course, to any right-of-way agreements which may place limitations on that right. The boulevard, as constructed, presently fronts other lots to the commerce park. ACEDC’s decision to not currently utilize the boulevard does not detract from the fact that the boulevard is on the property of ACEDC and/or the county to be used as they so desire by whomever they desire. Undoubtedly, HH cannot preclude the boulevard from being developed as a primary access to all the remaining lots of the commerce park. Thus, ACEDC’s decision to not fully utilize the boulevard is quite different from the county’s inaccurate claim that the boulevard services no other parcel and, therefore, is direct access. This argument by the county is unpersuasive and, therefore, is rejected.

The county seeks to avoid summary judgment on the additional basis that the county’s obligation to construct and fund the construction of the boulevard has not yet been triggered pursuant to the terms of the addendum. They note that the addendum expressly incorporates the June 16, 2000 EÍOP. In doing so, the addendum bound HH to a term of the HOP which the county suggests made clear that the boulevard would only be constructed in the event that traffic on V-Twin Drive reached the average daily figure of 4,135 vehicles per day. The county concludes that since the average daily traffic flow has not reached 4,135 vehicles per day, the county’s obligation to fund construction of the boulevard has not yet accrued.

The specific provisions of the HOP which are implicated by the county’s contention are as follows:

“Whereas, the Department is willing to defer construction of required off-site highway improvements made necessary by the full build-out of the entire ACEDC project (Phase II improvements) conditioned upon ACEDC’s agreement to apply for a supplemental HOP from the Department to accommodate full build-out traffic, prior to the Average Daily Traffic (ADT) for ACEDC Project reaching 4135 vehicles per day; and,
“Whereas, the Township, ACEDC, the County and the Department have agreed that the Township will not issue additional building permits for construction within the proposed ACEDC project after the ADT from the ACEDC project reaches 4135 vehicles per day, until advised in writing by the Department that a supplemental HOP for full build-out (Phase II) of the proposed ACEDC project has been issued or is not required;..."

A careful reading of this language refutes the county’s suggestion. The relevant terms of the HOP are not a prohibition on the commencement of the Phase II improvements prior to traffic reaching 4,135 vehicles per day but, rather, a requirement that Phase II improvements be completed once traffic reaches 4,135 vehicles per day before additional building permits are issued for the commerce park. A full and fair reading of the HOP establishes that PennDOT granted the county and ACEDC a concession to phase the required roadway improvements so that development of the Pella Windows Inc. site could commence without a full build-out of the roadway infrastructure for the commerce park. Rather than setting a conditional threshold which must be satisfied before additional roadway improvements could be commenced, the HOP requires that the roadway infrastructure be completed before the commerce park is fully utilized. Contrary to the argument of the county, the HOP actually encourages prompt completion of the road improvements through the requirement that all parties to the agreement “cooperate with the Department for the issuance of the Phase II supplemental HOP for the construction of Phase II improvements.” Highway occupancy permit construction and security agreement, June 16,2000, paragraph 4. This clear language presents no restriction on commencement of the Phase II improvements. Since the terms of this document are unambiguous, I find, as a matter of law, that they do not control or affect the timing of the county’s obligation to fund the road improvements. The county’s distorted interpretation of this language is rejected.

Although I have found that the HOP is immaterial in regard to the timing of the county’s obligation to fund the Phase II improvements, it is equally clear that the various documents executed between the parties are not specific in setting a date when the county’s obligation accrues. Although the original option agreement between the parties notes that “time is of the essence” (Option agreement, February 14,1996, paragraph 19), it does not specify a particular date for necessary roadway improvements other than to indicate that the “county agrees to fully cooperate with and assist and support [HH] in obtaining all governmental permits and approvals in sewer and water and other utility services and capacity as [HH] may reasonably determine are necessary or appropriate for [HH’s] intended development of the option parcel.” Id. at paragraph 11. Similarly, the addendum, although incorporating the time of the essence clause of the original option agreement, is silent in regard to a specific date in which Phase II improvements would commence. The documents incorporated in the addendum are consistent in that they do not speak to a specific date for construction of Phase II improvements. Nevertheless, the lack of an express completion date for the Phase II improvements, and thus the county’s obligation to fund those improvements, is not fatal to my analysis. Where a contract is non-specific as to the time of performance, Pennsylvania law imputes an understanding that performance will be completed within a reasonable time. See Farnsworth, Contracts (3d ed. 1982), §3.28, p. 197 (courts have . . . had little difficulty in supplying and enforcing terms under which a specified duty ... is to be performed within a “reasonable” time if no other time is stated); Restatement (Second) of Contracts, §204 (when the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court); Lefkowitz v. Hummel Furniture Co., 385 Pa. 244, 247, 122 A.2d 802, 804 (1956) (“[W]here no time for performance is provided in the written instrument the law implies that it shall be done within a reasonable time...”).

Instantly, the parties entered a variety of agreements which contemplated development of the option parcel. At the time they reached agreement, the parties intended that access to the option parcel would be obtained through a spur road connecting with the boulevard. Undoubtedly, all parties were anxious for development to occur promptly. However, absent road access, development on the option parcel is impossible. Thus, it is reasonable to conclude that the Phase II improvements were contemplated to commence with HH’s development of the option parcel.

Although the court may supply a term providing for a performance of contractual obligations within a reasonable time, it is not necessary for me to do so under the current circumstances. Pursuant to their contractual obligations, ACEDC joined with HH in obtaining the second highway occupancy permit required for the Phase II improvements. HH did not, nor could, unilaterally commence construction of the Phase II improvements as they were not legal owners of the property upon which the improvements were being conducted. ACEDC’s own actions refute the county’s argument that a traffic volume of 4,135 on V-Twin Drive was a condition precedent to Phase II improvements. By transferring management of the commerce park development to ACEDC, the county ceded any ability that it had to control the timing of those improvements. Nevertheless, the county’s contractual obligation to fond those improvements remained unimpeded. Once ACEDC chose to commence those improvements in furtherance of the general goal of developing the commerce park, the county’s obligation to fund the Phase II improvements was triggered. In reaching this conclusion, I am reminded that at all times relevant to this litigation, the Adams County Commissioners were voting board members of ACEDC. It is nonsensical to conclude that, although an entity with which the county is intimately involved applied for permission to construct the boulevard, the county is relieved from fulfilling their contractual obligations based upon a theory that construetion of the boulevard was premature. Accordingly, I find the county’s argument meritless.

Although discussion thus far has been limited to HH’s claim for reimbursement for highway improvements generally, an additional issue arises in addressing the claim for one-half of the costs of the boulevard which is not relevant to discussion concerning the U.S. Route 30/U.S. Route 15 improvements. Specifically, the county contests their responsibility for half of the costs of improvements of the boulevard on the basis that the contractual documents are silent as to their liability in this regard. Indeed, my reading of the contractual documents supports their factual claims that the contracts are silent on this matter. However, I do not reach the conclusion that the county suggests.

Unquestionably, the contracts at issue do not expressly state that the county shall pay one-half of the costs of the boulevard. That fact, however, does not end our inquiry. Pennsylvania contract law recognizes the doctrine of necessary implication in interpreting duties pursuant to a contract. The Superior Court, in Daniel B. Van Campen Corporation v. Building and Construction Trades Council of Philadelphia, 202 Pa. Super. 118, 195 A.2d 134 (1963), described the principle as follows:

“The law is clear that in the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract. Accordingly, a promise to do an act necessary to carry out the contract must be implied.” Id. at 122, 195 A.2d at 136-37. See also, John B. Conomos Inc. v. Sun Company Inc., 831 A.2d 696 (Pa. Super. 2003). Where it is clear that an obligation is within the contemplation of the parties at the time of contracting or is necessary to carry out their intentions, the court may imply it. Slater v. Pearle Vision Center Inc., 376 Pa. Super. 580, 586, 546 A.2d 676, 679 (1988). Since the doctrine of necessary implication serves to allow the court to enforce the clear intentions of the parties and avoid injustice, the court does not need to find an ambiguity before it will employ the doctrine. Id. While the doctrine permits the court to imply a term necessary to carry out the purpose for which the contract was made, it must be apparent that the obligation is within the contemplation of the parties at the time of contracting and abundantly clear that the parties intended to be bound by such term.

Although the record is sparse in this regard, a diligent search of the record has failed to uncover any factual dispute concerning the understanding of the parties. In fact, the only real discussion of the issue is found in the deposition testimony of the county’s special counsel. In discussing the timing of the county’s obligation under the addendum agreement, special counsel indicated: “if and when the duty to construct the boulevard arises from whatever set of circumstances or edict by whomever, I think that the option agreement and the addendum provisions regarding the access road are pretty clear, and at that point the county will have financial obligations regarding part of the cost of the boulevard and part of the cost of Route 30 . . . and the Route 15 improvements.” Deposition of John White, Esquire, May 20, 2005, 88:7-88:14.

At a later deposition, general counsel reiterated that belief:

“Question: Do you recall you providing me the opinion that — and I’ll let you read it. It’s line 5 through line 14 — that it was your opinion in December of 2003 — the same time you wrote the memo, correct?
“Answer: Um-hum.
“Question: — that if and when the boulevard construction arises from whatever circumstances or edict or by whomever, that you thought the county had a pretty clear obligation to fond — and I’m paraphrasing — the boulevard and you said part of the cost to Route 30.1 assume you meant part of the boulevard and the Route 30 improvements.
“Answer: Um-hum.
“Question: Is that an accurate statement?
“Answer: Yes.
“Question: Do you still believe that to this day?
“Answer: Yes, I do.” Deposition of John White, September 13, 2006, 18:1-18:16.

Additional support for the understanding that the county would assume the remaining half of the costs of the boulevard is found in deposition testimony of Commissioner Weaver. In discussing paragraph 2(d)(vi) of the addendum, the following exchange occurred:

“[Attorney Piermattei] What was your understanding with the intent of that paragraph?
“[Commissioner Weaver] Well, let me read the whole paragraph.
“[Attorney Piermattei] Okay.
“[Commissioner Weaver] Yeah, the intent there was to basically carry forward from the original option agreement the possibility of; again, sharing in the cost of that boulevard should the boulevard be used as access to both North Ridge parcels and the county/Economic Development Parcels ...Deposition of Thomas Weaver, May 18, 2005, 60:17-61:1.

Interestingly, although the comments of special counsel and Commissioner Weaver challenge whether the county has any obligation on theories related to “direct access” and timing, neither question nor dispute the extent of the county’s obligation to fund half of the costs of the boulevard in the event an obligation is found to exist. In fact, a painstaking review of the record in this matter fails to reveal any factual question as to the extent of the county’s obligation in this regard. Moreover, other than general denials in the pleadings, the county has failed to direct the attention of this court to any part of the record which would present a factual dispute concerning the understanding of general counsel and Commissioner Weaver.

The record, rather than establish a factual dispute on this issue, actually corroborates the conclusion that inclusion of the missing term is necessary to carry out the intent of the parties and to prevent injustice. Setting aside any issues as to the timing of the obligation or the meaning of “direct access,” it is apparent within the four comers of the addendum that the parties contemplated that access to the option parcel would be by a connection street from the boulevard. It is equally clear that the entire transaction was based upon the mutual desire of the parties to develop the option parcel. As previously mentioned, logic, as well as the rules of science and nature, dictates that access to a parcel is necessary for its development and use. Where two parties contract for the transfer of a property with the express understanding that access to the transferred property will be across seller’s property upon purchaser paying half of the cost of that access, and where no other parties are involved in the transaction, it is clear that the parties contemplated the seller to pay the remaining costs. To hold otherwise would be to frustrate the clear intent of the parties.

Based on the foregoing, I find that entry of summary judgment is appropriate in favor of HH and against the county on the breach of contract claim to the extent that Adams County is responsible to reimburse HH for the full costs of the State Route 30/State Route 15 improvements as well as half of the costs for construction of the boulevard and other costs and fees permitted pursuant to the agreements between the parties. Additionally, the county will be directed to specifically perform the remaining obligations under the option agreement and addendum to the option agreement to the extent the same will not be reimbursed through monetary damages. Having found in favor of HH in regard to the breach of contract action, the promissory estoppel adds nothing to the dispute between the parties and, therefore, is stricken. The remaining count in HH’s complaint is a count of fraud against the individual commissioners.

To demonstrate fraud, the plaintiff must establish the following elements: “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by reliance.” Martin v. Hale Products Inc., 699 A.2d 1283, 1288 (Pa. Super. 1997). Our courts have recognized, however, that the breach of a promise to do something in the future is not actionable in fraud. Shoemaker v. Commonwealth Bank, 700 A.2d 1003, 1006 (Pa. Super. 1997). Thus, non-performance of an agreement is not, in and of itself, evidence of fraud. Permenter v. Crown Cork and Seal Co. Inc., 38 F. Supp.2d 372, 382 (E.D. Pa. 1999); affirmed, 210 F. 3d 358 (3d Cir. 2000).

Ironically, it is the county’s arguments in defense of the breach of contract claim which spawns the cause of action for fraud. In defending the breach of contract action, the county has claimed that their obligation to fund the improvements has not yet accrued since the traffic volume on V-Twin Drive has not reached the number listed in the HOP. The county further argues that they are not responsible for the highway improvement costs since the boulevard’s intended role as a main access has been usurped by the development of V-Twin Drive. HH suggests that if the factual record and/or contract interpretation support either of these theories, then county officials acted with bad faith in the formation of the contractual relationship between the parties.

The county’s suggestion that their responsibility to fund Phase II improvements does not accrue until the attainment of a particular traffic volume on V-Twin Drive facially bolsters HH’s cause of action for fraudulent misrepresentation. For example, there are clear indications in the record that county officials were aware that the traffic volume for the commerce park referred to in the HOP would never be met. In referring to the thought process of ACEDC, of which the three county commissioners were directors, Catherine Cress-well related that the ACEDC board felt fairly comfortable that the 4,135 traffic volume number was not going to be exceeded because of the large tract of land being taken by Pella. She explained, “If we would have put 10 businesses back there, it would have been more likely that that would be a number we would exceed. But because we were placing one business on so much of the acreage, we felt that our estimates were actually shown what we might max out at 3,000 to 3,200.” Deposition of Catherine Cresswell, December 15, 2005, 43:21-44:2. If this is true, the county’s current argument, followed through to its logical conclusion, suggests the county entered an agreement with HH for the development of property which required HH to access the proposed development over a route which the county knew would never be constructed because of a lack of traffic volume necessary to trigger the road development. Such an interpretation would make the option parcel valueless, thereby raising serious questions as to the county’s good faith. I do not impute such a deceptive intent on the part of county officials but, rather, interpret their current argument as a creative, yet unpersuasive, means to limit county liability.

HH depicts the county’s second defense in similar fashion. They observe that if it is found to be factually correct that the county intended V-Twin Drive, rather than the boulevard, to be the main access, then the county acted in bad faith in intentionally misrepresenting critical information to HH concerning development of the commerce park. HH cites to a factual record which indicates that V-Twin Drive was actually developed prior to execution of the addendum to the option agreement. Thus, they allege, if the county’s current argument that the addendum agreement was somehow contingent upon the boulevard being used as a main access, then the county committed fraud in the addendum to the option agreement by materially misrepresenting use of the boulevard as the main access when, in fact, the county had no such intent.

It is indeed curious, in light of the county’s argument, that the county signed off on subdivision plans in September 2000 which included the boulevard as a primary access to the commerce park at a time subsequent to the completion of V-Twin Drive. Curiosity is further peaked by the actions of ACEDC on that same date in entering into an agreement with HH which references the boulevard as being “a main entrance.” Confirmation of the county’s continued representations that the boulevard was contemplated to be the main entrance is found in the April 2001 addendum which was executed by the county commissioners. Since very little at the commerce park has changed since the county and ACEDC made these contractual representations to HH, one might argue from the record that the county induced HH to enter into an agreement based upon representations that the boulevard was a main access when the county commissioners knew that statement to be false. Nevertheless, I find that granting HH’s request for summary judgment is inappropriate.

In ruling upon this issue, I am mindful that summary judgment may only be granted where there are no disputed issues of fact. It is obvious from the record that HH’s claim for fraud is replete with factual issues, thereby precluding summary judgment. More importantly, in light of the resolution of the contractual issues as discussed above, it is impossible for me to find a material misrepresentation when I have found that the county is legally bound by the contractual language executed between the parties. In essence, by finding the representations in the agreements to be enforceable, I have rejected the interpretations enunciated by the county. Since HH’s claim of fraud is based upon an interpretation which I have rejected as a matter of law, the element of a fraudulent misrepresentation is lacking. Moreover, since HH’s contractual rights have been found to be valid and enforceable, I am unable to find any injury or damages sufficient to support judgment in favor of HH based upon a theory of fraud. Accordingly, HH’s motion for summary judgment on the fraud count is denied.

The defendants have filed numerous motions for summary judgment which essentially mirror HH’s motions; however, they suggest that the record supports summary judgment in their favor. As each of these issues has been thoroughly discussed above, the county’s motions for summary judgment are denied with the exception that the motion for summary judgment in regard to Count IV, fraudulent misrepresentation against defendants Weaver, Stokes, and Collins, is granted.

In sum, stripped of all its technical legalese, the issue and factual background before the court is quite basic. HH and Adams County entered agreements for HH’s purchase of the option parcel from the county with the express understanding that the county would pay for the road infrastructure necessary to access and develop the option parcel. The option parcel is currently in full development to the undisputed benefit of the county’s tax base. Significant improvements at the Route 30/Route 15 interchange have been completed to the benefit of commerce park properties and the citizens of Adams County. It is unquestionably the county’s obligation to fund these improvements.

For the foregoing reasons, the attached order is entered.

ORDER

And now, January 11, 2007, it is hereby ordered that plaintiffs’ motion for summary judgment is granted in regard to Counts I and II of the amended complaint and denied in regard to Counts III and IV of the amended complaint. Defendants’ motion for summary judgment is denied in regard to Counts I, II and III of plaintiffs’ amended complaint and granted in regard to Count IV of plaintiffs’ amended complaint. Count III is stricken as moot. Summary judgment on Count I and Count II of the amended complaint is granted in favor of plaintiffs in regard to liability only. A pretrial conference for trial on the issue of damages is scheduled for February 5, 2007 at 10 a.m. in Room 411 of the Adams County Courthouse at which time counsel are directed to appear. It is ordered that the parties be available either in person, or by telephone, at the time of the conference. Failure of any party to be available may result in the imposition of sanctions including legal fees.

      . ACEDC is a private, not-for-profit corporation incorporated in 1989 for purposes of providing county-wide economic development services. ACEDC is funded, in part, by Adams County. At all times relevant to this litigation, the three Adams County Commissioners, in their official capacity, were members of the board of directors.

      . There is no indication of any breach of contract by NRA in delaying the exercise of their rights under the option agreement.

      . Since this language is at the heart of the disagreement between the parties, it is set forth specifically as follows:
      “It is contemplated by the parties that the access to the option parcel shall be only by a spur or connection street from the main entrance drive (the boulevard) as set forth in the ‘Background’ section of the [NRA] — Adams County Economic Development Corporation agreement, dated September 1, 2000. [NRA] shall be obligated to pay or otherwise provide funding for one-half of the cost of constructing such main access road (the boulevard) from the U.S. Route 30 right of way to the south side of the aforementioned spur or connector street, as well as the full cost of said spur or connector street from said main access road. [County] shall be responsible for any improvements to U.S. Route 30 and/or U.S. Route 15, including but not limited to cartway widening, acceleration deceleration and turning lanes, and traffic signals, which may be required in connection with obtaining highway occupancy permits for the construction of the boulevard (the main access road to the remaining lands of the [county] from U.S. Route 30). In the event that [NRA] desires to pursue the option of having any sort of direct access from U.S. Route 30 to service the option parcel only, the following shall prevail: (i) [NRA] shall be solely liable for any and all such costs and expenses in connection with, or arising from, such direct access, including, but not necessarily limited to, the expense of constructing such direct access, as well the expense of any and all improvements to or modifications of U.S. Route 30 and/or U.S. Route 15 which may be required in connection with such direct access____”

      . For purposes of clarity, both NRA and HH will hereinafter be interchangeably and collectively referred to as “HH.”

      . The initial complaint was filed in this matter on December 30, 2003. After the pleadings were closed and discovery completed, both parties moved for summary judgment. By order dated August 17,2006, HH was granted permission to file an amended complaint. All parties were also granted additional time to conduct further discovery. On August 22, 2006, HH’s amended complaint was filed. Pleading, once again, has been concluded and the record has been supplemented through additional discovery. On October 26, 2006, a revised motion for summary judgment was filed by HH. Answer to the revised motion for summary judgment has been filed pursuant to the Pennsylvania Rules of Civil Procedure. Both parties have been granted time to file supplemental briefs. This matter is now ripe for disposition.

      . The subdivision plan is recorded in plat book 78, page 92 in the Adams County Recorder of Deeds Office.

      . See June 7, 2000 memorandum from special counsel White to Adams County Commissioners, John R. White, Esquire deposition defendant’s exhibit no. 17.

      . The record is unclear as to whether ACEDC or Adams County is currently title holder to the strip of land upon which the boulevard lies. Although during argument it was suggested that this strip of land is currently owned by ACEDC, perusal of public record fails to disclose any deed transferring title to this strip of land from Adams County to ACEDC. Nevertheless, it is clear that the property is not owned by HH.

      . Both parties, in their briefs, extensively discuss the testimony of witnesses, as well as other documentation, in interpreting the intent of the parties. For instance, Catherine Cresswell, in her deposition, acknowledges that at the relevant time it was her understanding that direct access is straight access from U.S. 30 onto the lot itself. Cress-well deposition, p. 20. A December 18, 2003 memorandum from special counsel to the commissioners implicitly supports this understanding. On the other hand, representatives of the county testified that they construed the language to mean that “if [HH] was the entity that used the boulevard for access, then they would have to pay for it.” See Weaver deposition, pp. 62-66. If I had found the terms of this contract to be unambiguous, these diversions in testimony would create a factual dispute precluding summary judgment. See Fine v. Checcio, 582 Pa. 253, 870 A.2d 850 (2005). However, since I find the terms of the addendum to be unambiguous, extraneous references to items outside of the agreement are immaterial. Where a written contract is unambiguous and held to express the embodiment of all negotiations and agreements prior to its execution, as the addendum does, neither oral testimony nor prior written agreements or other writings are admissible to explain or vary the terms of the contract. Lenzi v. Hahnemann University, 445 Pa. Super. 187, 195, 664 A.2d 1375, 1379 (1995). In such instances, the interpretation and construction of the contract is a matter of law to be decided by the court. Roman Mosaic and Tile Co. v. Thomas P. Carney Inc., 729 A.2d 73, 77 (Pa. Super. 1999).

      . Interestingly, the county’s position that all parties incorporated the terms of the HOP in the addendum agreement contradicts their previous argument concerning whether the boulevard constitutes “direct access” to the option parcel. Paragraph 5 of the HOP provides, in relevant part, “The parties agree that no lot within the proposed ACEDC project shall have direct access to S.R. 30.” Their current argument that the addendum bound HH to the terms of the HOP leads to the unavoidable conclusion that all parties agreed that “direct access” to the option parcel would not occur. To conclude otherwise would require a finding that the HOP did not apply to the option parcel or, on the other hand, that the county intentionally participated in a breach of the HOP when they negotiated the addendum to the option agreement with HH. 1 will not presume that county officials intended to breach any legal obligation but, rather, interpret the net effect of the documents as reinforcing the conclusion that the boulevard is not “direct access” as contemplated by the parties.

      . When a motion for summary judgment is made and supported by the factual record, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in the Rules of Civil Procedure, must set forth the specific facts showing that there is a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 151, 303 A.2d 826, 829 (1973).

      . The complaint lists Commissioners Harry Stokes, Thomas Weaver, and Thomas Collins as defendants. Commissioners Stokes and Collins are no longer members of the current board, having been replaced by the current Commissioners Glenn Snyder and Lucy Lott. Neither Commissioner Snyder or Lott, in their individual capacity, is a party to this action.


author: COX, J.,

text:
    Commonwealth v. Essey

      Larry J. Keith, for Commonwealth.

      Norman J. Barilla, for defendant.
    December 3, 2007
   COX, J.,

Before the court for disposition is the omnibus pretrial motion filed on behalf of defendant, Charles G. Essey, which consists of a motion to quash information, a motion for writ of habeas corpus, and a motion to suppress test results.

On May 19, 2007, Pennsylvania State Trooper Harry Gustafson was dispatched to Byers Avenue, South New Castle Borough, Lawrence County, Pennsylvania, to investigate a single vehicle accident. Upon his arrival, Trooper Gustafson noticed that a truck was in a ditch off to the north side of the road. It was apparent that the vehicle struck the embankment and came to a stop after making contact with a street sign. Trooper Gustafson first spoke with the witness who contacted the state police. The witness stated that she came upon the accident, stopped, and talked to defendant, who was standing by the driver’s side door of the truck. The witness asked if defendant was all right, and he responded that he was fine and emphatically requested that she not contact the police. Defendant told the witness that he had not been drinking; however, the witness Could smell alcohol on his breath and determined that he was intoxicated. The witness turned on the emergency flashers in defendant’s vehicle and took defendant’s keys. The witness also had defendant sit in her vehicle with her.

Trooper Gustafson requested that defendant exit the witness’ vehicle, so he could question defendant about the accident. Defendant explained that he left a wedding reception at the local fire hall, which was located within view of the accident site, and as he was operating his vehicle, he turned too sharply and just missed the turn. Trooper Gustafson noted that defendant was dry, even though it was raining heavily. During his conversation with defendant, Trooper Gustafson also noticed many indications that defendant was currently intoxicated, such as slurring speech, staggering gait, and bloodshot eyes. Defendant subsequently failed field sobriety tests. APBT test was administered and the reading was .224 percent blood alcohol content. Defendant was transported to Jameson Hospital where a blood test was administered, which indicated that defendant’s blood alcohol content was .27 percent. Defendant was subsequently charged with driving under the influence.

I. MOTION TO QUASH INFORMATION/ MOTION FOR WRIT OF HABEAS CORPUS

In his motion to quash information and motion for writ of habeas corpus, defendant contends that the Commonwealth has failed to provide sufficient evidence that defendant operated the motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving.

Where a criminal defendant seeks to challenge the sufficiency of the evidence presented at his preliminary hearing, he may do so by filing a writ of habeas corpus. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1991); Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). A petition for writ of habeas corpus is the proper means for testing a pretrial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 449 Pa. Super. 378, 674 A.2d 249 (1996). In evaluating an accused’s entitlement to pretrial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). In a pretrial habeas corpus proceeding, as in a preliminary hearing, the Commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 479 A.2d 1073 (1984). The standard in determining whether the defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes have been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989). Aprima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Commonwealth v. Fountain, 811 A.2d 24 (Pa. Super. 2002). The weight and credibility of the evidence is not a factor at this stage, the Commonwealth only needs to present evidence of each element of the crime charged. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001).

It is unreasonable to allow a vehicle operator to be exonerated for driving under the influence because there is no other witness of the single vehicle accident, so long as there is sufficient circumstantial evidence that the defendant was in actual physical control of the motor vehicle. Commonwealth v. Taylor, 237 Pa. Super. 212, 217, 352 A.2d 137, 139 (1975). The Taylor court concurred with the court in Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375 (1974), that circumstantial evidence, such as the appellant being seated in the vehicle, the motor running, and the lights on, as sufficient circumstantial evidence to prove driving under the influence. Id.

In Commonwealth v. Johnson, 833 A.2d 260, 263-64 (Pa. Super. 2003), the court held that circumstantial evidence, such as only two vehicles were involved in the accident, the only people at the scene of the accident were the appellant and the occupants of the other vehicle, the appellant’s car had front end damage, and the victim’s vehicle had rear end damage, was sufficient evidence to prove the appellant was in actual physical control of the motor vehicle. The Johnson court reasoned that the “inference that appellant drove his vehicle to the accident scene is strongly supported by the fact that shortly after the accident, appellant was found leaning against the driver’s side door of his vehicle which had just been involved in an accident.” Id. The Johnson court rejected the appellant’s argument that he could not be convicted of DUI because no one witnessed him operating the vehicle, but was observed standing outside of the vehicle when police arrived because it is in direct conflict with well-established case law. Id., 833 A.2d at 264-65.

In the case sub judice there were no eyewitnesses regarding defendant’s driving prior to the accident; however, the Commonwealth has provided circumstantial evidence to prove that defendant operated his vehicle while under the influence of alcohol to a degree that rendered him incapable of safe driving. The witness stated that when she arrived defendant was standing by the driver’s side door of the vehicle. At that time, witness noticed that defendant emitted a strong scent of alcohol. Defendant soon became nervous and did not want the police called to the scene of the accident. Moreover, defendant admitted that he had been to a wedding reception located at the fire hall within view of the accident. There was no indication that defendant left the accident site prior to the witness’ arrival, and the witness indicated that she had defendant wait in her vehicle until Trooper Gustafson arrived. Also, defendant stated that he turned too sharply and just missed the turn, which tends to indicate that the accident had recently taken place.

The circumstantial evidence provided by the Commonwealth is sufficient to prove that defendant did operate his vehicle while he was intoxicated to an extent that rendered him incapable of safe driving. The accident had just occurred prior to the witness’ arrival and defendant never left the accident site. The witness indicated that defendant sat in her vehicle from the time she arrived until Trooper Gustafson arrived. Defendant himself admitted to Trooper Gustafson that he was operating the vehicle at the time of the accident, and the terminology defendant used indicates that the accident occurred shortly before the trooper arrived. Thus, there was no opportunity for defendant to imbibe alcohol after the accident and the proximity of the accident site to the fire hall, where defendant admitted to being prior to the accident, indicates that defendant was intoxicated at the time of the accident.

Defendant cites to Commonwealth v. Enscoe, no. 1038 of 2006, C.R. (2007), which was decided in the Court of Common Pleas of Lawrence County, as support for his argument. However, this court finds no support for defendant’s argument in that case. In Enscoe, the court determined that the Commonwealth could not establish that the defendant was intoxicated to a degree that made him incapable of safe driving. Enscoe involved a single vehicle accident, where a vehicle careened off the road and struck a swimming pool, and police officers later found the defendant sleeping in his vehicle that had sustained front end damage and was located near a garage. The Enscoe court determined that the Commonwealth failed to provide direct or circumstantial evidence that the defendant was in fact operating the vehicle and could not establish the time at which the accident occurred; however, the court noted that the Commonwealth “could have shown that the tire tracks leading to the swimming pool were freshly made, indicating the accident had just occurred.” Id.

Defendant also relies on Commonwealth v. Kelley, 438 Pa. Super. 289, 652 A.2d 378 (1994), in which the court held that the Commonwealth did not provide sufficient evidence that the appellant was operating his vehicle while under the influence of alcohol where the appellant suffered head injuries stemming from a physical altercation with his brother and a single vehicle accident, which the appellant estimated could have taken place at midnight and rescue workers did not arrive until 3 a.m. The Kelley court held that the Commonwealth was only able to prove that the appellant was intoxicated about one hour and 45 minutes after the accident and not when the accident occurred; thus, the facts and circumstances did not lead inescapably to the inference that the appellant was intoxicated to a degree that rendered him incapable of safe driving at the time he was operating the vehicle. Id. at 298, 652 A.2d at 382-83.

Enscoe and Kelley are clearly distinguishable from the case sub judice because the Commonwealth in this case provided enough circumstantial evidence to establish that defendant was intoxicated at the time of the accident, and in Enscoe the Commonwealth could not establish the time that the defendant drove his vehicle into the swimming pool and when the defendant ingested the alcohol. Here, Trooper Gustafson even noted that defendant was not wet from the heavy rain as he would have been if he had left the accident site and walked back to the wedding reception or if the accident had occurred a substantial time before the witness arrived because defendant was standing outside of the vehicle. In Enscoe, the Commonwealth failed to prove whether the tire tracks were fresh or not to determine the time of the accident, which the court indicates may have established the Commonwealth’s case. Moreover, Kelley is inapplicable because in Kelley the accident clearly occurred hours before the emergency personnel arrived at the scene and the appellant had received head and facial injuries. In Kelley, the appellant had the opportunity to ingest alcohol in the extenuated period between the accident and the arrival of the emergency personnel, and the evidence in the case sub judice does not indicate a period of time for which defendant could have ingested alcohol after the accident or any other circumstance that proves that defendant was not intoxicated at the time of the accident.

II. MOTION TO SUPPRESS TEST RESULTS

Defendant argues that Trooper Gustafson did not have the requisite probable cause that defendant was operating the vehicle; therefore, the chemical test results obtained as a result of his investigation were in violation of the Fourth and Fourteenth Amendments of the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution.

To determine if probable cause exists one must look to the totality of circumstances and take into account the police officer’s knowledge and trustworthy information, so long as that is sufficient to warrant a person of reasonable caution to believe the offense has been committed by the person to be arrested. Commonwealth v. Peters, 915 A.2d 1213, 1220 (Pa. Super. 2007). It is well established in Pennsylvania law that evidence of an automobile accident alone is insufficient to meet the constitutional probable cause requirement to perform a search and seizure, such as a chemical test. Commonwealth v. Danforth, 395 Pa. Super. 1, 10-11, 576 A.2d 1013, 1018 (1990) (Police officer did not suspect intoxication and the typical indicators of intoxication were not present and the results of a blood test taken during the appellant’s medical treatment for injuries he suffered were inadmissible.). However, probable cause does exist where the facts and circumstances surrounding an automobile accident indicate that the defendant has consumed alcohol. Commonwealth v. Thur, 906 A.2d 552, 567 (Pa. Super. 2006). The Thur court noted that indicators, such as “red eyes, labored speech and a moderate odor of alcohol, appellant looked, smelled (and sounded) like he had been drinking alcohol,” provided probable cause to support the admissibility of the blood test. Id.

In the case sub judice, Trooper Gustafson was dispatched to the scene of a single vehicle accident, after the Pennsylvania State Police were contacted by the witness. In addition to viewing the wreckage from the accident, Trooper Gustafson noticed the scent of alcohol on defendant’s breath. Moreover, Trooper Gustafson also noted that defendant had slurring speech, staggering gait, and bloodshot eyes. Clearly, these indicators are enough to provide probable cause in light of the court’s ruling in Thur. Thus, Trooper Gustafson possessed the requisite probable cause that defendant was intoxicated while operating his motor vehicle, which allows for the admissibility of the blood test.

For the reasons set forth in this opinion, defendant’s omnibus pretrial motion in the form of a motion to suppress test results, motion to quash information, and a motion for writ of habeas corpus is denied.

ORDER

Now December 3, 2007, this case being before the court on November 6,2007, for a hearing on the omnibus pretrial motion for relief filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Larry J. Keith Esquire, assistant district attorney for the County of Lawrence and the defendant, Charles G. Essey, represented by counsel, Norman J. Barilla Esquire and after a hearing held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the omnibus pretrial motion filed by the defendant consisting of a motion to quash information, motion for writ of habeas corpus and a motion to suppress test results is hereby denied.

(2) The office of the district attorney shall list the defendant for the January 2008 criminal jury trial list.

(3) The clerk of courts shall serve a copy of this order of court upon counsel of record, Larry J. Keith, Esquire and Norman J. Barilla, Esquire.

      . The court will treat these motions as a petition for writ of habeas corpus, which is the traditional mode for a pretrial challenge that the Commonwealth has insufficient evidence to establish a prima facie case. Commonwealth v. Kohlie, 811 A.2d 1010, 1013 (Pa. Super. 2002); see also, Commonwealth v. Ballard, 501 Pa. 230, 232 n.1, 460 A.2d 1091, 1092 n.1 (1983).