author: NEALON, J.,

text:
    Sienkiewicz v. PennDOT

      C.P. of Lackawanna County,
    no. 02 CV 1143.

      Edwin A. Abrahamsen, for plaintiff.

      John V. Rovinsky, for the Commonwealth.
    May 2, 2003
   NEALON, J.,

The Commonwealth of Pennsylvania, Department of Transportation has submitted preliminary objections to the amended petition for appointment of a board of viewers filed by plaintiff Richard Sienkiewicz Jr. t/d/b/a Montage Mini-Mart Inc. alleging a de facto condemnation of property by PennDOT. The competent and credible evidence establishes that PennDOT has effectively denied a reasonable and safe means of access to Sienkiewicz’ property for tractor-trailers, buses and large trucks which formerly comprised a considerable portion of Sienkiewicz’ business. Since PennDOT’s permanent interference with Sienkiewicz’ right of reasonable access to his property caused him to close his business, it constitutes a de facto condemnation under the Eminent Domain Code and PennDOT’s preliminary objections will be denied.

I. PROCEDURAL HISTORY

On February 28, 2002, Sienkiewicz filed a petition for appointment of a board of viewers pursuant to section 502(e) of the Eminent Domain Code, Act of June 27, 1964, special sess., P.L. 84, as amended, 26 P.S. § 1-502(e), to determine compensable damages allegedly sustained by him as a result of PennDOT’s de facto condemnation of his property at 2801 Stafford Avenue, Moosic. In response to preliminary objections that were presented by PennDOT, Sienkiewicz filed an amended petition under sections 502(e) and 612 of the Code on May 23, 2002, and PennDOT resubmitted its preliminary objections on June 5, 2002. (See docket entry nos. 1-2,4,7-8.) After the parties filed their respective briefs, oral argument on PennDOT’s prehminary objections was conducted before Judge Michael J. Barrasse on September 17, 2002, at which time Judge Barrasse “instructed counsel for both parties to conduct the depositions of representatives of both parties as well as any witnesses in lieu of presenting such testimony at a hearing.” (See plaintiff’s brief, p. 3.)

Sienkiewicz and PennDOT conducted depositions of several engineers, PennDOT representatives and other witnesses, and after the parties filed six deposition transcripts and accompanying exhibits of record, they requested that the preliminary objections be decided based upon the evidentiary record submitted. (Dkt. entry nos. 12-17, 19.) By notice dated December 31, 2002, this matter was reassigned to the undersigned for disposition and oral argument was scheduled for March 6,2003. On that date, a supplemental affidavit of Richard E. Sienkiewicz Jr. was filed without objection, and following the presentation of oral argument, this matter was submitted for a decision.

II. FACTUAL FINDINGS

(1) On November 8, 1993, Sienkiewicz acquired a 20,643 sq. ft. parcel of land which is located at 2801 Stafford Avenue from Anthony J. and Barbara A. Rinaldi for the purchase price of $200,000. (See defendant’s exhibit no. 8, deed book 1453, pp. 274-77.)

(2) Sienkiewicz’ property is situated near the intersection of Davis Street and Stafford Avenue in the vicinity of the Davis Street exit ramp for southbound traffic traveling on Interstate Route 81. (See defendant’s exhibits nos. 2-4, 7.)

(3) Prior to PennDOT’s reconfiguration of the Davis Street Interchange, Sienkiewicz operated an interstate convenience store on his property which sold gasoline, diesel fuel and convenience items primarily to Route 81 motorists. (See dkt. entry no. 13, pp. 7-8.)

(4) Sienkiewicz’ property (PennDOT’s parcel 26) is situated adjacent to land (PennDOT’s parcel 24) owned by Andrew G. Zubert upon which a competing gas station and mini-mart is located. The Sienkiewicz and Zubert properties are bisected by a strip of realty (PennDOT’s parcel 25) that is allegedly owned by Anthony J. Rinaldi and which has functioned as an extension of Stafford Avenue to Davis Street. (Dkt. entry no. 12, pp. 21-24; defendant’s exhibit no. 2.)

(5) The bisecting strip of roadway, which has been described by the litigants and their representatives as “Old Stafford Avenue,” provided a means by which Davis Street traffic could enter Stafford Avenue and vice-versa and, in the process, access the Sienkiewicz and Zubert gas stations and convenience stores. (Id., pp. 25-26.)

(6) Rinaldi and Jerry Warsky allegedly acquired title to this strip of roadway by way of a deed from John R. Muldowney dated April 12, 1984. (Defendant’s exhibit 8, deed book 1106, pp. 542-44.) On March 17, 1989, Jerry Warsky conveyed certain property to Rinaldi (including that realty which was subsequently purchased by Sienkiewicz on November 8,1993) for $20,000 via a deed that contained the following clause:

“ It is the intention of this conveyance to also include, by way of a quit claim, any remaining land described in parcel 2 of [the] deed between John R. Muldowney, agent, to Anthony J. Rinaldi and Jerry Warsky, dated April 12, 1984 and recorded in Lackawanna County Deed Book 1106, at page 542,..., it being understood that said Anthony J. Rinaldi and Jerry Warsky may own a small strip of land along the northeasterly side of Stafford Avenue having a depth of approximately V to 3' and having a length that has not been accurately determined with the said Jerry Warsky and Frances Warsky conveying, by quit claim, any and all right, title and interest they may have in and to said small strip of land.” (Defendant’s exhibit 10, deed book 1281, pp. 42-45.) (emphasis added)

The Rinaldi-Sienkiewicz conveyance dated November 8,1993, includes a provision which states: “It is the intention of this conveyance not to include any remaining land described in the deed between Jerry Warsky and Frances R. Warsky, his wife, to Anthony J. Rinaldi, dated March 17, 1989 and recorded in the Office of the Recorder of Deeds in and for Lackawanna County in deed book 1281 at page 42, it being understood that Anthony J. Rinaldi will retain a small strip of land along the northeasterly side of Stafford Avenue.” (Defendant’s exhibit 9, deed book 1453, p. 274.) (emphasis in original)

(7) The bisecting strip of land allegedly owned by Rinaldi and identified by the parties as “Old Stafford Avenue” has never been formally dedicated to or accepted by the City of Scranton or the Borough of Moosic as a public roadway. (Dkt. entry no. 12, pp. 29-30, 57-58; dkt. entry no. 17, pp. 12, 19.)

(8) However, PennDOT maps and records from 1965, 1973 and 1983 clearly identify the bisecting strip of land in question (Old Stafford Avenue) as a public road rather than privately owned property. (Dkt. entry no. 14, pp. 19-21, 23-24, 36-38, 51-53, 96, 105-106.)

(9) The general public has continuously used Old Stafford Avenue as a means of ingress to and egress from Davis Street for more than 21 years and the bisecting strip of land has been openly used as a public road during that time period. PennDOT’s own project manager for the Davis Street Interchange constmction attested that Old Stafford Avenue has been used as a public road “[f]or all types of public traffic” for more than 25 years. (Dkt. entry no. 12, pp. 66-67.) PennDOT’s district permit engineer likewise referred to the disputed strip of land as “Old Stafford Avenue,” not Rinaldi’s privately owned property, during his deposition testimony. (Dkt. entry no. 16, pp. 13-14.)

(10) Maintenance of Old Stafford Avenue has been provided by the City of Scranton when necessary, and according to the former director of Public Works for the City of Scranton, the city has treated Old Stafford Avenue “no differently than a dedicated public right-of-way” and has performed “pothole patching” and “snow removal” on that road and has received monetary payments from utilities for pave cut permits relative to Old Stafford Avenue. (Dkt. entry no. 12, pp. 59-60; dkt. entry no. 15, p. 51.)

(11) Prior to the commencement of PennDOT’s construction to reconfigure the Davis Street exit, Sienkiewicz had “open access along” the Stafford Avenue side of his property and motorists exiting Route 81 via the Davis Street exit would access Sienkiewicz’ business by making a right hand turn onto Davis Street, proceeding northwest on Davis Street for approximately 120 feet, turning right onto “Old Stafford Avenue” which bisected the Sienkiewicz and Zubert properties, and entering Sienkiewicz’ gas station/mini-mart property from Stafford Avenue. (Dkt. entry no. 12, pp. 21-22, 25-26.)

(12) Traffic traveling on Old Stafford Avenue was controlled by a posted stop sign at the intersection of Old Stafford Avenue and Davis Street. Therefore, motorists leaving the Sienkiewicz or Zubert properties by way of Old Stafford Avenue were required to stop at a posted stop sign on Old Stafford Avenue before entering Davis Street. (Dkt. entry no. 15, pp. 18-19.)

(13) According to PennDOT, the pre-constmction daily flow of traffic in the area of Sienkiewicz’ property was: (a) Stafford Avenue — 4,753 motorists; (b) Davis Street— 16,569 motorists; and (c) Davis Street exit ramp from Route 81 — 7,597 motorists. (Dkt. entry no. 15, pp. 35-37.)

(14) Because of the marked increase in commercial and residential development on Montage Mountain and the concomitant rise in the volume of traffic at the Davis Street exit, PennDOT decided to reconfigure the Davis Street Interchange from a “diamond” design to higher capacity “loop” ramps to alleviate traffic congestion and accommodate the increasing number of motorists. To accomplish the new design, PennDOT relocated the intersection of Davis Street and Stafford Avenue in the vicinity of Sienkiewicz’ property by moving that intersection 230 feet northwest so as to create three separate intersections situated more than 1,000 feet apart that are controlled by traffic lights. (Dkt. entry no. 12, pp. 16-20; dkt. entry no. 15, pp. 9-14, 20-22.)

(15) Under the newly designed interchange, Sienkiewicz’ property and business are no longer situated at the intersection of Davis Street and Old Stafford Avenue. Under the new configuration, southbound traffic exiting Route 81 via the Davis Street exit can no longer access Sienkiewicz’ property directly by way of Old Stafford Avenue. Rather, such traffic must drive past Sienkiewicz’ property and proceed 350 feet northwest to the new intersection of Davis Street and Stafford Avenue, turn right onto Stafford Avenue, drive past Zubert’s gas station and mini-mart property and travel a circuitous route of 900 feet to arrive at Sienkiewicz’ property. (Dkt. entry no. 12, pp. 33-34,78-79; dkt. entry no. 14, pp. 30-36,42-51, 132, exhibits 8-10; dkt. entry no. 15, pp. 40-42.)

(16) With regard to Sienkiewicz’ access by way of Old Stafford Avenue, PennDOT converted that strip of roadway from a public road to privately owned property by paying Rinaldi $100,000 for .47 acres of a right-of-way that PennDOT condemned on Old Stafford Avenue, narrowing Old Stafford Avenue’s width from 45 feet to 24 feet, and declaring the remainder to be owned by Rinaldi. (Dkt. entry no. 12, pp. 51-52, 73-76; dkt. entry no. 14, pp. 42-48,104; dkt. entry no. 17, pp. 18-19, defendant’s exhibit no. 16.) The physical dimensions of Old Stafford Avenue are no longer adequate to accommodate large trucks, tractor-trailers, motor homes, tour buses and large postal trucks which formerly patronized Sienkiewicz’ business and, more importantly, Rinaldi can now deny Sienkiewicz and his customers access to Sienkiewicz’ property via the Old Stafford Avenue since it has been converted to private property by PennDOT. (Dkt. entry no. 12, p. 76; dkt. entry no. 14, pp. 60-63; dkt. entry no. 17, pp. 20-22,26.) As a consequence, neither Sienkiewicz nor his patrons can use the land formerly known as Old Stafford Avenue to gain entry to the Sienkiewicz property. (Dkt. entry no. 12, pp. 36, 73-76.)

(17) With regard to the easterly means of access to Sienkiewicz’ property from the original Stafford Avenue (i.e., that portion of the public roadway that does not include Old Stafford Avenue), PennDOT has changed Sienkiewicz’ ingress and egress from “wide open” uncurbed access comprised of 91 foot and 62 foot wide throats along Stafford Avenue to two 40-foot-wide drop-curb openings carved out of eight-inch high curbing along Stafford Avenue. (Dkt. entry no. 12, pp. 30-31; dkt. entry no. 14, pp. 63-76, exhibits 13-15; dkt. entry no. 16, pp. 15, 22.) According to the American Association of State Highway and Transportation Officials (AASHTO) standards governing Geometry for Highways and Streets, 40-foot-wide drop-curb openings are not reasonably safe means of access for 65-foot tractor-trailers and comparably large buses, motor homes and trucks which would be forced to traverse eight-inch high curbing and possibly “blow a tire” in attempting to access Sienkiewicz’ property via the easterly Stafford Avenue side of that land. (Dkt. entry, no. 13, pp. 22-25, 35; dkt. entry no. 14, pp. 60-76, 78-79, exhibits 13-15.)

(18) The traffic volume projections which have been calculated by PennDOT’s engineering consultants reflect that the newly configured Davis Street Interchange results in a daily decrease of 1,222 trucks and tractor-trailers which will exit Route 81 and pass by Sienkiewicz’ place of business. (Dkt. entry no. 14, pp. 54-57, exhibit no. 10.)

(19) Sienkiewicz has experienced a dramatic reduction in gasoline and convenience items sales since the Davis Street exit ramps and the Stafford Avenue access-ways were reconstructed in December 2002. By way of illustration, Sienkiewicz’ regular gas volumes in December 2002 and January 2003 were 44,103 gallons and 41,499 gallons respectively compared to 75,711 gallons in November 2002, 71,259 gallons in December 2001 and 68,914 gallons in January 2002. Even after factoring in an artificial elevation in sundry sales due to purchases made by construction employees and motorists working at the Davis Street Interchange project, Sienkiewicz suffered a comparable reduction in convenience item sales and revenues. (Dkt. entry no. 13, pp. 13-17, 20-22, 27, exhibit nos. 1 and 4.) Sienkiewicz’ decrease in gasoline and convenience items sales and revenues are largely attributable to the fact that tractor-trailers, motor homes, tour buses, and large trucks can no longer access his property by way of Stafford Avenue. (Id., pp. 22-25, 35.)

(20) As a result of the continuing decline in sales at Sienkiewicz’ gasoline station and mini-mart, Sienkiewicz was forced to cease business operations completely on March 4, 2003. (Dkt. entry no. 19, ¶5.)

III. DISCUSSION

(A) Standard of Review

Preliminary objections in eminent domain proceedings serve a different purpose than those filed under the Rules of Civil Procedure and are intended as a mechanism to resolve expeditiously the factual and legal challenges regarding a taking before the parties proceed to determine damages. In re Condemnation by South Whitehall Township, 2002 WL 32082246, *1 n.3 (Pa. Commw. 2003); In re Condemnation by City of Coatesville, 2002 WL 32071670, *2 (Pa. Commw. 2003). Therefore, preliminary objections are the exclusive method under the Eminent Domain Code for raising objections to a petition for the appointment of viewers asserting a de facto taking or inverse condemnation. Genter v. Blair County Convention and Sports Facilities Authority, 805 A.2d 51, 54 n.6 (Pa. Commw. 2002); McGaffic v. Redevelopment Authority of City of Newcastle, 732 A.2d 663, 666 n.1 (Pa. Commw. 1999), appeal denied, 561 Pa. 633, 747 A.2d 903 (1999). When considering preliminary objections to a petition alleging a de facto taking, the court “must determine first whether, as a matter of law, the averments of the petition for the appointment of viewers, taken as true, in addition to any stipulated facts, are sufficient to state a cause of action for a de facto taking.” Snap-Tite Inc. v. Millcreek Township, 811 A.2d 1101, 1105 n.8 (Pa. Commw. 2002); In re Condemnation by City of Scranton (Milewski), 102 Lacka. Jur. 409, 413 (2001). If the petition fails to allege a viable cause of action, the preliminary objections must be sustained and the petition dismissed or the petitioner allowed to amend the pleading. Millcreek Township v. NEA Cross Co., 152 Pa. Commw. 576, 580, 620 A.2d 558, 560 (1993), appeal denied, 537 Pa. 655, 644 A.2d 739 (1994); In re Condemnation by Commonwealth of Pennsylvania (Zipay I), no. 99 CV 4028, Nealon, J. at pp. 3-4 (Lacka. Cty. March 9, 2000).

However, “[i]f the averments, taken as true might establish a de facto taking, the trial court must take evidence by depositions, or otherwise, so that a judicial determination might be made.” Snap-Tite Inc., 811 A.2d at 1105 n.8. (emphasis in original) Similarly, “if the preliminary objections raise an issue of fact, the resolution of which is necessary for determining whether a de facto taking has occurred, the court must hold an evidentiary hearing.” In re Commonwealth Department of General Services, 714 A.2d 1159, 1162 (Pa. Commw. 1998); Milewski, supra. If the court receives evidence by deposition or hearing, the trial judge as “[t]he fact-finder must resolve evidentiary conflicts” and “the trial court’s findings will not be disturbed if supported by substantial evidence.” Snap-Tite Inc., 811 A.2d at 1105.

PennDOT apparently conceded that Sienkiewicz’ petition raised an issue of fact regarding a de facto condemnation since it did not ask Judge Barrasse to make a preliminary determination with respect to the sufficiency of Sienkiewicz’ averments. Compare Zipay I, supra. Even if such a challenge to the amended pleading had been lodged by PennDOT, Sienkiewicz’ allegations would nonetheless warrant an evidentiary hearing inasmuch as they assert that PennDOT’s redesign and construction of the Davis Street Interchange “prohibit access to [Sienkiewicz’] property located at 2801 Stafford Avenue” and the accompanying change in the grade of the road has caused “a permanent interference with access to” Sienkiewicz’ property. (See plaintiff’s amended petition, ¶¶7, 13.) PennDOT’s preliminary objections likewise raise factual issues concerning the purported de facto condemnation, and as such, also necessitated an evidentiary hearing.

As the party asserting an inverse condemnation, Sienkiewicz bears the burden of proving that a de facto taking has in fact occurred. The Supreme Court of Pennsylvania has observed that a landowner bears a “heavy burden” to establish such a taking by demonstrating that the entity clothed with the power of eminent domain has substantially deprived an owner of the beneficial use and enjoyment of property. Miller & Son Paving Inc. v. Plumstead Township, 552 Pa. 652, 656, 717 A.2d 483, 485 (1998), cert. denied, 525 U.S. 1121 (1999). However, the property owner need not establish a de facto condemnation by “clear and formidable evidence” and is only required to prove such a taking by a “fair preponderance of the credible testimony.” Petition of Ramsey, 31 Pa. Commw. 182, 188, 375 A.2d 886, 889 (1977) (quoting Lizza v. Uniontown City, 345 Pa. 363, 365, 28 A.2d 916, 918 (1942)); In re Condemnation by Commonwealth of Pennsylvania (Zipay II), no. 99 CV 4028, Nealon, J., at p. 5 (Lacka. Cty. April 14,2000). “There is no bright line test to determine when government action shall be deemed a de facto taking”, Newman v. PennDOT, 791 A.2d 1287, 1289 (Pa. Commw. 2002), and “each case turns on its unique factual matrix.” Genter, 805 A.2d at 56; Milewski, 102 Lacka. Jur. at 415.

(B) Right of Reasonable Access

Every property owner has a right of access to his or her property from a public roadway and that right of access has been defined as reasonable ingress and egress to the property and abutting highway. Commonwealth v. Hession Condemnation Case, 430 Pa. 273, 277, 242 A.2d 432, 434 (1968), cert. denied, 393 U.S. 1049 (1969); Newman, 791 A.2d at 1289. The right of access to and from a public roadway is considered a constitutionally protected right which cannot be deprived by the government without just compensation. Wolf v. Commonwealth Department of Highways, 422 Pa. 34, 39, 220 A.2d 868, 871 (1966). In that regard, section 612 of the Eminent Domain Code states that “[a]ll condemnors, including the Commonwealth of Pennsylvania, shall be liable for damages to property abutting the area of an improvement resulting from... permanent interference with access thereto, . . . whether or not any property is taken.” 26 PS. §1-612.

Although the “right of access does not entitle the abutting owner to access at all points along the highway,” a condemning authority is liable for damages if it “permanently interferes with an owner’s access to the property by reasonable and conventional means.” Jackson Gear Co. v. PennDOT, 657 A.2d 1370, 1371 (Pa. Commw. 1995). Accord Fortney v. Bell Telephone of Pennsylvania, 267 Pa. Super. 576, 579-80, 407 A.2d 391, 393 (1979), appeal dismissed, 492 Pa. 265, 424 A.2d 500 (1981). “Reasonable access to one’s property is a question of fact to be determined by the trial court.” Elser v. PennDOT, 651 A.2d 567, 570 (Pa. Commw. 1994) (en banc), appeal denied, 540 Pa. 650, 659 A.2d 988 (1995). If alternative access to the property exists, it must enable the property to be used for the purpose for which it previously had been employed in order to be considered a reasonable means of entry. See Commonwealth v. Appointment of Viewers (McCrady), 399 Pa. 586, 595-96, 160 A.2d 715, 720-21 (1960); Milewski, supra (“[w]hether a particular activity deprives a property owner of the beneficial use and enjoinment of land is dependent upon the type of use the owner has given to the property.”). Cf. Condemnation by PennDOT (Contakos), 93 Pa. Commw. 403, 409, 501 A.2d 1171, 1175 (1985) (where a partial taking interferes with suitable access, rendering it unsuited for its present use or for its highest and best use, this may be considered in determining fair market value of the remainder).

Sienkiewicz’ argument regarding PennDOT’s purported denial of reasonable access to his property is essentially two-fold. First, Sienkiewicz contends that by requiring westbound traffic on Davis Street to travel past his gas station, to a traffic light and past his competitor’s station before accessing Sienkiewicz’ property, PennDOT has created an overly circuitous detour which represents an unreasonable permanent interference with access. Second, Sienkiewicz maintains that PennDOT’s narrowing of the channels of ingress and egress to Stafford Avenue prevent gasoline tankers, tractor-trailers and larger trucks from entering or exiting the property without traversing over the eight-inch curbs and creating a hazard. According to Sienkiewicz, he has been forced to close his business since his diesel fuel customers have been denied reasonable and safe access to his property, thereby resulting in a de facto condemnation.

(C) “Old” Stafford Avenue Ownership

Before considering the merits of Sienkiewicz’ arguments, a threshold determination must be made regarding the ownership of “Old Stafford Avenue” which bisected the properties owned by Sienkiewicz and Zubert. PennDOT contends that this particular strip of roadway has always been privately owned by Anthony J. Rinaldi such that Sienkiewicz has never had any constitutionally protected right of access via that private road. Sienkiewicz counters that although the roadway may have been owned by Rinaldi’s and Warsky’s predecessor-in-title at one time, it was converted into a public roadway under the “public user” doctrine and became an extension of Stafford Avenue. If “Old Stafford Avenue” was a public road, PennDOT cannot permanently interfere with Sienkiewicz’ right of reasonable access to and from that road without just compensation.

Under Pennsylvania law, there are three methods by which the existence of a public road may be established: (1) through the introduction of court records showing the road to have been opened under the Act of June 13, 1836, P.L. 551, 36 PS. §1781 et seq.; (2) by demonstrating the requisite public use and municipal maintenance under the Second Class Township Code; or (3) by prescription which requires uniform, adverse, continuous use of the road under claim of right by the public for 21 years. Stewart v. Watkins, 427 Pa. 557, 558-59, 235 A.2d 604, 605 (1967); Lagler v. Upper Milford Township Zoning Hearing Board, 67 Pa. Commw. 200, 202, 446 A.2d 712, 713 (1982). It is undisputed that the strip of land in question has never been formally dedicated to or accepted by the City of Scranton or the Borough of Moosic, and as such, the first method of establishing a public road is inapplicable.

With respect to the second alternative, section 2307 of the Second Class Township Code provides that: “[e]very road which has been used for public travel and maintained and kept in repair by the township for a period of at least 21 years is a public road having a right-of-way of 33 feet even though there is no public record of the laying out or dedication for public use of the road.” 53 P.S. §67307. Under this statute, the existence of a public road may be established by (1) public travel on the road for 21 years, and (2) municipal maintenance of the road for 21 years. Stewart, supra at 559, 235 A.2d at 606; Morgan v. Richter, 724 A.2d 983, 986 (Pa. Commw. 1999). In Stewart, a public roadway was adequately proven by a landowner who introduced decades old maps “showing the road as a township road” and testimony of snowplowing some 10 years earlier. Stewart, supra at 560, 235 A.2d at 606 (holding that “[w]hile this [plowing 10 years earlier] is not 21 years, several persons testified that repairs were made when necessary”).

As to the third option, “[establishment by prescription is composed of two main elements: adverse and continuous public use and such use for a period of at least 21 years.” SEPTA v. Pennsylvania Public Utility Commission, 95 Pa. Commw. 341, 345, 505 A.2d 1046, 1048 (1986). Accord Morgan, 724 A.2d at 987 (“In order to merit a declaration that a road is public by means of common-law prescription, one must show that the public used the road uniformly, adversely and continuously under a claim of right for 21 years.”). The evidence need not show a constant use in order to prove continuity; rather, continuity is demonstrated by a settled course of conduct indicating “an attitude of mind on the part of the user or users that the use is the exercise of a property right.” Keefer v. Jones, 467 Pa. 544, 548, 359 A.2d 735, 737 (1976). However, the use must be by the general public as opposed to a limited segment of the public, and “[a]lthough public use does not mean use by every member of the local community, the legal concept nevertheless requires evidence of continuous use sufficient to constitute a benefit to the local community as a whole.” SEPTA, supra, 95 Pa. Commw. at 348, 505 A.2d at 1049.

The competent and credible evidence in the record establishes the existence of “Old Stafford Avenue” as a public roadway under either of the latter two options. PennDOT’s own project engineer testified that the parcel in question was used by the general public as a means of travel for more than 21 years. Documents submitted by PennDOT also demonstrate maintenance of the road by the City of Scranton as evidenced by its snow removal, blacktopping and receipt of utility payments for pave cut permits. Although this documentary evidence does not specifically confirm the details of city maintenance for more than 21 years, the record reflects that maintenance was performed when needed and there is no indication in the record to the contrary. See Stewart, 427 Pa. at 560, 235 A.2d at 606.

Furthermore, there is substantial evidence in the reproduced record of the establishment of a public roadway by prescription. Old Stafford Avenue was continuously, adversely and openly used by the general public for access to and from Davis Street for a period in excess of 21 years. As such, it was transformed into a public roadway and Sienkiewicz possessed a right of reasonable ingress to and egress from it. Having concluded that Old Stafford Avenue was a public road prior to the commencement of PennDOT’s construction of the new Davis Street Interchange, we will consider the merits of Sienkiewicz’ assertions of a de facto condemnation.

(D) Circuitous Access

PennDOT’s construction and reconfiguration of the Davis Street Interchange will now require westbound Davis Street traffic to travel approximately 350 feet to a traffic light in order to turn right onto Stafford Avenue and proceed past his competitor, Zubert, to gain entry to Sienkiewicz’ property. Motorists must travel a total distance of 750-900 feet from the Davis Street exit to access the Stafford Avenue entrance to Sienkiewicz’ gas station and mini-mart. Sienkiewicz asserts that this 750-900-foot detour past Zubert’s property is so circuitous as to constitute a permanent unreasonable interference with his right of reasonable access. (See plaintiff’s brief, pp. 15-17.) See also, Montague, The Circuitous Route Taken to Deny Property Owners Damages in Ac cess Cases: “Where Has All The Fairness Gone?”, 32 Urb. Law. 523 (Summer 2000).

Our appellate courts have recognized “that a detour might be so long and circuitous as to represent an unreasonable permanent interference with access.” Jackson Gear Co., 657 A.2d at 1371. The Supreme Court has cautioned, however, that “[o]ur cases are legion that, where the result of a condemnor’s action is to compel the allegedly affected property owner to travel a short distance farther to reach the system of streets going in a specific direction, this slight inconvenience is not compensable.” Hession, 430 Pa. at 278, 242 A.2d at 434. Subsequent decisional precedent has established that circuitous detours of more than several miles may constitute compensable deprivation of reasonable access whereas less onerous routes generally have been regarded as noncompensable inconveniences. Compare Jackson Gear Co., supra (detour of between 6 and 11.5 miles required by erection of medial barriers represented permanent unreasonable interference with right of access); PennDOT v. Guyette, 103 Pa. Commw. 402, 405-406, 520 A.2d 548, 549-50 (1987) (requiring 18-wheel trucks to travel an additional 7.45 miles in order to enter a commercial property held to be compensable under code), appeal denied, 516 Pa. 644, 533 A.2d 714 (1987) and Appeal of PennDOT, 164 Pa. Commw. 81, 87-88, 644 A.2d 1274, 1277 (1994) (1.3 mile detour required by barrier was not so circuitous as to be a substantial or unreasonable interference with access), appeal denied, 540 Pa. 605, 655 A.2d 993 (1995); Washington Blvd. v. PennDOT, 34 Pa. Commw. 356, 360-61, 383 A.2d 1289, 1291 (1978) (circuitous travel covering 2.8 miles found not to be so unreasonable as to constitute a taking under 26P.S. §1-612).

The degree of circuity at issue in this litigation is far less burdensome than those detours which have been declared reasonable by the courts. The total distance which now must be traveled by motorists departing the Davis Street exit with the intention of patronizing Sienkiewicz’ business is less than 1,000 feet. Since detours of 1.3 miles and 2.8 miles have been determined to be noncompensable under section 612 of the code, the detour in the case sub judice cannot be considered an unreasonable permanent interference with access.

Sienkiewicz submits that although the length of the detour may be minimal, the new traffic patterns designed by PennDOT on Davis Street have greatly reduced the number of interstate motorists who patronize his commercial property since they must now pass Zubert’s gas station and mini-mart before arriving at Sienkiewicz’ business. While this reconfiguration may have decreased the volume of passing motorists, the Supreme Court has long recognized “that owners of properties abutting state roads have no cognizable legal interest in preserving a particular flow of traffic on those roads.” Carlino v. Whitpain Investors, 499 Pa. 498, 502, 453 A.2d 1385, 1387 (1982); Hession, 430 Pa. at 281, 242 A.2d at 436 (“no compensable right exists in any given traffic pattern; having no right to the continuation of the existing traffic pattern, [landowners] may not demand compensation for a change in that pattern.”). Indeed, in its seminal holding in Wolf, the court squarely addressed the argument currently being advanced by Sienkiewicz and held:

“Nor does the right of ingress or egress to or from one’s property include any right in and to the existing public traffic on the highway, or any right to have such traffic pass by one’s abutting property. The reason is that all traffic on public highways is controlled by the police power of the state, and what the police power may give an abutting property owner in the way of traffic on the highway it may take away, and by any such diversion of traffic the state and any of its agencies are not liable for any decrease of property values by reason of such diversion of traffic, because such damages are ‘damnum absque injuria,’ or damage without legal injury.” Wolf, 422 Pa. at 47, 220 A.2d at 875 (quoting State of Missouri v. Meier, 388 S.W.2d 855, 857 (1965)).

Although Wolf was decided prior to the enactment of the Eminent Domain Code in 1964, the legal principles articulated therein remain controlling. See Appeal of PennDOT, 164 Pa. Commw. at 86 n.7, 644 A.2d at 1276 n.7. Because a landowner does not have “a property right in the traffic which flows by his door,” Hession, 430 Pa. at 282, 242 A.2d at 436, the diversion of traffic from Davis Street to Stafford Avenue by way of a somewhat circuitous route is not tantamount to a compensable de facto condemnation. See In re Condemnation by Delaware River Port Authority, 667 A.2d 766, 768-69 (Pa. Commw. 1995); Appeal of PennDOT, 164 Pa. Commw. at 83-86, 644 A.2d at 1275-76 (reversing lower court finding of a de facto taking even though the business owner had “established that potential customers of petitioner’s used car lot-related businesses no longer stop and patronize petitioner and/or are, by the detour, being funneled to petitioner’s competitor.”). Consequently, Sienkiewicz cannot prove a compensable taking under section 612 as a result of the re-routing of traffic from Davis Street to Stafford Avenue.

(E) Stafford Avenue Ingress and Egress

Relying on McCrady, supra, Sienkiewicz alternatively argues that PennDOT’s actions in narrowing his 90-foot-wide and 60-foot-wide entry and exit ramps on Stafford Avenue to two 40-foot-wide dropped-curb openings prevent gasoline tankers, tractor-trailers, buses and large trucks from accessing his property without dangerously crossing eight-inch curbing. Sienkiewicz maintains that this lack of reasonable access from Stafford Avenue has resulted in a dramatic decline in tractor-trailer, bus and large truck business which previously constituted a considerable portion of his diesel fuel and mini-mart revenue. It is undisputed that Sienkiewicz’ monthly gasoline and convenience items sales declined dramatically after the marked narrowing of the Stafford Avenue accessways, thereby compelling him to close his business completely on March 4, 2003. PennDOT counters that since McCrady was a pre-Eminent Domain Code holding, its legal analysis is inapplicable to this case.

In McCrady, PennDOT devised a construction plan concerning a highway which bordered a landowner’s commercial property that contained a gasoline station and restaurant. Under PennDOT’s plan, “five access-ways, 36 feet in width, were provided as means of ingress and egress to the gasoline station, the restaurant and the parking area.” McCrady, 399 Pa. at 589, 160 A.2d at 717. Not unlike the Stafford Avenue access ramps in the case at bar:

“[t]hese accessways were located in such position that ingress and egress to and from the gasoline station, the restaurant and parking area were rendered exceedingly difficult and, in some instances, impossible. The narrow width of the accessways prevented the entry of large trucks and truck-trailers representative of a considerable volume of the business of the gasoline station unless such trucks or truck-trailers first turned to the left into the most southerly lane of the westbound two lane route no. 5 or drove over the almost insurmountable curbing. Socony Mobile Oil Co., [the landowner’s] lessee of the gasoline station, notified [the landowner] it would have to surrender its lease because of the fact that the construction of the curbing and accessways made unprofitable the operation of the gasoline station. Upon completion of the work of construction of the curbing [the landowner] was forced to close both his gasoline station and the restaurant.” Id. at 589-90, 160 A.2d at 717. (emphasis added)

In upholding the lower court’s de facto taking finding in favor of the landowner, the Supreme Court reasoned that “[w]hile the Commonwealth did provide five access-ways, . .. such ways were of such width and so located as to effect a practical denial of any access to the property for the purposes for which it was employed.” Id. at 595, 160 A.2d at 720. Thus, the McCrady court held that “[e]quity, justice and an adherence to principles long recognized by this court in eminent domain proceedings require that this verdict be upheld.” Id. at 598, 160 A.2d at 721.

Twelve years after the adoption of the Eminent Domain Code in 1964, an en banc panel of the Commonwealth Court revisited this issue in Finkelstein v. PennDOT, 23 Pa. Commw. 628, 354 A.2d 14 (1976). In that case, a landowner “filed a petition for the appointment of viewers, alleging that the Commonwealth unreasonably interfered with access to his property by constructing curbs where it was formerly possible to enter the lot to patronize his tenant’s cleaning establishment” which ultimately ceased operations. Finkelstein, 23 Pa. Commw. at 629-30, 354 A.2d at 15. Relying upon McCrady, the trial court dismissed PennDOT’s preliminary objections and PennDOT appealed asserting “that the existence of the curb[ed] depression in the southern boundary and the driveway at the western boundary constituted such reasonable and convenient access to [the] property as to preclude a claim for permanent interference of access under section 612.” Id. at 630, 354 A.2d at 15-16. In affirming the lower court ruling, the en banc panel observed that as a result of PennDOT’s construction, “the landowner has been ‘faced with the alternatives of either ceasing any commercial operations on the premises or of relocating the buildings in which such operations took place to fit in with the new construction, particularly the location of the new accessways and curbing.’ ” Id. at 631-32, 354 A.2d at 16. The Finkelstein court distinctly “noted that McCrady was a pre-code case,” but nonetheless concluded:

“However, since section 612 now allows such damages against the Commonwealth ‘whether or not any property is taken,’ and since ‘permanent interference with access’ is not defined by the code, a practical and logical approach is to apply pre-code law to determine if access has been permanently interfered with. Accordingly, the analysis used in McCrady is appropriate in the present case.” Id. at 632 n.3, 354 A.2d at 16 n.3.

Similarly, the property owner in Tracy v. PennDOT, 43 Pa. Commw. 218, 220, 402 A.2d 286 (1979) argued that “[p]rior to [PennDOT’s] road widening a good percentage of [his] patrons were truck drivers,” but were not thereafter “because tractor-trailer trucks [could] not get out of his lot safely” due to the narrowing of access “throats.” On appeal from the lower court’s dismissal of PennDOT’s preliminary objections, the Commonwealth Court analyzed Wolf, Hession and their progeny and distinguished them as “barrier” and “circuity” cases. Finding that the appeal was “controlled by a different strain of access cases” such as McCrady and Finkelstein, the court stated that “the trial court was correct in dismissing [PennDOT’s] preliminary objections” and held:

“This is not a situation where the customers must take a longer route. As found by the trial court, the customers are effectively denied entry. A large proportion of [the landowner’s] customers are tractor-trailer trucks. They can get in the ... lot but they cannot get out safely from [Route] 119 and they cannot even get in safely from [Route] 26119. It is not a question of circuity or rerouting — the traffic which still goes by [the landowner’s] property, but trucks with trailers cannot physically negotiate the parking lot with the new curbing. The problem here is not changed or circuited access, but for trucks it is no access at all.” Id. at 221, 401 A.2d at 287-88. (emphasis in original) Cf. Newman, 791 A.2d at 1290 (finding that property owner suffered a de facto condemnation as a result of a road construction project since “[djuring PennDOT’s 27-month construction, there was no reasonable ingress and egress from Newman’s property, which resulted in the closure of Newman’s business.”); PennDOT v. Richards, 124 Pa. Commw. 432, 441, 556 A.2d 510, 514-15 (1989) (although construction activities did not preclude complete access, the road work constituted a substantial and permanent impairment recoverable under the code since motorists could not access the property without scraping the bottom of their vehicle on account of grading differences); Friedman v. City of Philadelphia, 94 Pa. Commw. 572, 575-76, 503 A.2d 1110, 1111-12 (1986) (distinguishing between a construction project which adversely impacts an individual’s business and one that causes closure of a business and holding that temporary construction activities which force owners out of business constitute permanent interference establishing a de facto condemnation).

The credible evidence contained in the record submitted for our review establishes that PennDOT’s narrowing of Sienkiewicz’ Stafford Avenue accessways has effectively denied tractor-trailers, buses and large trucks a reasonable and safe means of ingress to and egress from Sienkiewicz’ property. As a consequence, Sienkiewicz has experienced a significant decline in gasoline and convenience items sales and has been forced to close his business. Based upon the sound appellate reasoning in McCrady, Finkelstein and Tracy, and in light of the purpose for which Sienkiewicz previously used his commercial property, PennDOT’s actions in this regard constitute a de facto condemnation under section 612 of the Eminent Domain Code. Accordingly, PennDOT’s preliminary objections will be denied and the board of viewers will be directed to determine the amount of just compensation due under 26 P.S. §1-612.

ORDER

And now, May 2,2003, upon consideration of the “preliminary objections to amended petition for board of view” filed by defendant PennDOT, the memoranda of law, deposition testimony, exhibits and evidence submitted by the parties, and the oral argument of counsel on March 6, 2003, and based upon the factual findings and legal reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

“(1) Defendant’s preliminary objections to plaintiff’s amended petition for appointment of a board of viewers are denied and dismissed.
“(2) It is judicially declared that there has been a de facto taking by the defendant of the plaintiff’s property at 2801 Stafford Avenue, Moosic, Lackawanna County.
“(3) The board of viewers appointed by order dated February 27, 2002, is directed to receive testimony and evidence to determine the amount of just compensation to be awarded to the plaintiff for the defendant’s de facto taking of the plaintiff’s property.

      . At the time of the Stewart decision in 1967, the above-quoted provision was found in section 1105 of the Second Class Township Code, Act of May 1, 1933, P.L. 104, 53 P.S. §66105 (repealed). That statute was amended by the Act of November 9, 1995, P.L. 350, no. 60, which codified the relevant language of section 1105 into 53 P.S. §67307.


source: Caselaw Access Project

author: DOBSON, J.,

license: Public Domain

text:
    Goda v. White Cliff Leasing Partnership

      C.P. of Mercer County,
    no. 2002-917.

      William G. McConnell and Richard W. Epstein, for plaintiff.

      Thomas T. Frampton, for defendants.
    May 21, 2003
   DOBSON, J.,

The matters before this court for disposition are defendants White Cliff Leasing Partnership’s, Lehigh Nursing Corporation’s, PennMed Consultants Inc.’s, Francis A. Hayman Jr.’s and Lloyd Berkey’s preliminary objections to plaintiff Michael Goda’s amended complaint. For the reasons set forth below, defendants’ preliminary objections are sustained in part and denied in part.

For purposes of reviewing preliminary objections based upon demurrer, “all well-pleaded material, factual averments and all inferences fairly deducible therefrom” are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 942 (Pa. Super. 2000). When presented with preliminary objections whose end result would be the dismissal of a cause of action, a court should sustain the objections only where “it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief.” Bourke v. Kazaras, 746 A.2d 642, 643 (Pa. Super. 2000). (citations omitted) Furthermore, “[i]t is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.... Put simply, the question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999). (citations omitted)

Goda filed a multi-count complaint against the defendants to which all of the defendants except Steven Ferguson M.D. filed preliminary objections. The court issued an opinion and order (Goda I) striking Counts VII (negligence per se), VIII (breach of contract), IX (breach of third party contract), and XII (Unfair Trade Practices and Consumer Protection Law). The court granted Goda leave to amend his complaint with respect to Counts VIII and XII, as well as leave to replead his negligence per se claim as part of his negligence claim. Goda then filed an amended complaint to which the defendants filed preliminary objections. These preliminary objections are now properly before the court.

In Goda /, the court set forth the salient facts, which are re-stated herein: White Cliff is a skilled care nursing home facility licensed in Pennsylvania to provide services, to those unable to independently care for themselves. White Cliff also participates in the Medicare/Medicaid program. As such, it is subject to various statutes applicable to Medicare and Medicaid, as well as provider agreements between itself and Medicare and Medicaid.

Lehigh is a Pennsylvania corporation engaged in the business of operating skilled nursing facilities and is the general partner of White Cliff. White Cliff or its general partner, Lehigh, retained the services of PennMed to manage the day-to-day operations of White Cliff. Hayman is a limited partner of White Cliff; CEO, secretary, treasurer and owner of 100 percent of general partnership stock of Lehigh; and president of PennMed. Berkey is the nursing home administrator of White Cliff.

On February 25,1997, Anne Goda (plaintiff decedent) was admitted as a resident of White Cliff. Plaintiff decedent remained a resident of White Cliff from the date of admission until her death on May 16,2001. Goda maintains that the quality of care delivered to plaintiff decedent from White Cliff fell below an acceptable standard of care.

As a result of the inadequate care provided by White Cliff, plaintiff decedent suffered various conditions and injuries, including but not limited to recurrent urinary tract infections, stage IV pressure sores, osteomyelitis, sepsis, dehydration, internal bleeding and death. Consequently, Goda commenced the instant suit by filing a survival action and a wrongful death action against White Cliff, Lehigh, PennMed, Hayman and Berkey.

I. NEGLIGENCE PER SE

White Cliff, Lehigh, PennMed, Hayman and Berlcey filed preliminary objections in the nature of demurrer with respect to Goda’s negligence claims, which are set forth in Counts I, II, III and VI. Defendants argue that the regulations set forth in the Omnibus Budget Reconciliation Act of 1987 (OBRA) and the Pennsylvania Health Care Facilities Act (PHCFA) cannot be used to establish a cause of action for negligence per se. The defendants’ preliminary objections are sustained in part and overruled in part.

In Goda I, the court determined that a private cause of action did not exist under either OBRA or PHCFA. The absence of a private cause of action in a statutory scheme, however, does not necessarily preclude that statute’s use as the basis for a claim of negligence per se. See Wagner v. Anzon Inc., 453 Pa. Super. 619, 630, 684 A.2d 570, 574 (1996). Although, “[tjhere is a close relationship between whether a statute provides a private cause of action and whether it protects an individual that would support application of the negligence per se doctrine.... This is so because both private causes of action and negligence per se ‘address the question of whether the policy behind the legislative enactment will be appropriately served by using it to impose and measure civil damages liability.’... Therefore, the absence of a private cause of action in a statutory scheme is an indicator that the statute did not contemplate enforcement for individual harms.” Id. at 630, 684 A.2d at 575, quoting Lutz v. Chromatex Inc., 718 F. Supp. 413, 428 (M.D. Pa. 1989).

To establish a claim for negligence per se, the plaintiff must establish: (1) that the purpose of the statute is “at least in part, to protect the interest of a group of individuals, as opposed to the public generally;” (2) that the statute clearly applies to defendant’s conduct; (3) that the defendant violated the statute; and (4) that the violation was the proximate cause of plaintiff’s injuries. Id. Regarding the first requirement, Pennsylvania has adopted the Restatement (Second) of Torts §286 (1965), which provides that:

“the court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
“(a) to protect a class of persons which includes the one whose interest is invaded, and
“(b) to protect the particular interest which is invaded, and
“(c) to protect the interest against the kind of harm which has resulted, and
“(d) to protect that interest against the particular hazard from which the harm results.”

With respect to the issue of whether Goda can base his negligence per se claim upon OBRA, defendants argue that the regulations set forth in OBRA were not enacted to protect the interests of the plaintiff decedent. Defendants maintain that the regulations are part of an administrative scheme that was created to ensure that the participating states and ultimately the certified facilities comply with the requirements set forth by the federal government to participate in the Medicare and Medicaid program. In fact, defendant argues OBRA was never intended to be the basis for civil liability. The court rejects this argument and holds that Goda can base his negligence per se claim upon OBRA.

The court must initially determine if the purpose of OBRA is, at least in part, to protect the interest of a group of individuals, as opposed to the public generally. To do so, the court will follow the guidelines of section 286 and first determine if plaintiff decedent was a member of the class the statute was intended to protect. The central purpose of OBRA is “to improve the quality of care for Medicaid-eligible nursing-home residents, and either to bring substandard facilities into compliance with Medicaid quality of care requirements or to exclude them from the program.” Beverly Health & Rehabilitation Serv. Inc. v. Thompson, 2002 WL 31109618 (D.D.C. 2002), quoting H.R.Rep. no. 100-391(1) at 452, reprinted in 1987 U.S.C.C.A.N. at 2313-272. Plaintiff decedent, who was a Medicaid recipient and nursing home resident, falls within the class of individuals intended to be protected.

Since plaintiff decedent falls within this class, the court must determine if OBRA and its corresponding regulations were enacted to protect the interests of plaintiff decedent’s health and welfare. The regulations of OBRA are designed to protect the interests of a Medicaid nursing home resident of a facility participating in the Medicaid program. Under 42 C.F.R. §483.25 “[e]ach resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the comprehensive assessment and plan of care.” Additionally, 42 C.F.R. §483.40 provides that “[e]ach resident must remain under the care of a physician.” The court, therefore, believes that OBRA was enacted to protect the plaintiff decedent’s health and welfare; thus the second element of section 286 is satisfied.

The final two elements of section 286 are also met with respect to certain provisions of OBRA. Goda alleges in his amended complaint that plaintiff decedent suffered a myriad of harms that OBRA was enacted to protect her from. However, the only regulation alleged in the amended complaint that satisfies the final two elements of section 286 is 42 C.F.R. §483.25(j), which provides “[t]he facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.”

The remainder of the OBRA provisions and regulations cited in the amended complaint may not be used to support a cause of action for negligence per se. These various provisions and regulations set forth goals for a nursing home to attain. For example, under 42 C.F.R. §483.25(c)(l) a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores and under 42 C.F.R. §483.65 a facility must establish and maintain an infection control program. The court believes that the defendants’ failure to develop policies and procedures to attain the goals set forth in these provisions and regulations does not breach the requisite standard of care to establish a negligence claim, as a result Goda cannot use these provisions to maintain a cause of action for negligence per se.

With respect to the issue of whether Goda can base his negligence per se claim upon PHCFA, this court concludes that PHCFA was not intended to protect a particular class of individuals. Therefore, Goda cannot base his negligence per se claim on this statute.

In Wagner v. Anzon Inc., a class of individuals, who resided within a half-mile radius of a lead processing facility, attempted to maintain a cause of action for negligence per se based upon the facility’s violation of the Philadelphia Air Management Code of 1969. See Wagner, 453 Pa. Super. 619, 625, 684 A.2d 570, 573 (1996). After reviewing the code, the court concluded that “the purpose of the code was to protect the ‘atmosphere over the city’ of Philadelphia, with a concommitant [sic] benefits to its ‘inhabitants.’ There is no indication ... the code was meant to protect a particular class of individuals; rather it was enacted in ‘furtherance of the health and welfare of [the] city’s inhabitants ....’” Id. at 628, 684 A.2d at 574-75.

The case sub judice is similar to Wagner Goda attempts to base his negligence per se claim upon PHCFA. The purposes of PHCFA are set forth in 35 P.S. §448.102:

“The General Assembly finds that the health and welfare of Pennsylvania citizens will be enhanced by the orderly and economical distribution of health care resources to prevent needless duplication of services. Such distribution of resources will be furthered by governmental involvement to coordinate the health care system. Such a system will enhance the public health and welfare by making the delivery system responsive and adequate to the needs of its citizens, and assuring that new health care services and facilities are efficiently and effectively used; that health care services and facilities continue to meet high quality standards; and, that all citizens receive humane, courteous, and dignified treatment. In developing such a coordinated health care system, it is the policy of the Commonwealth to foster responsible private operation and ownership of health care facilities, to encourage innovation and continuous development of improved methods of health care and to aid efficient and effective planning using local health systems agencies. It is the intent of the General Assembly that the Department of Health foster a sound health care system which provides for quality care at appropriate health care facilities throughout the Commonwealth.”

Thus, the intent of PHCFA was to have the Department of Health implement a system to enhance the delivery of health care services to promote public health. PHCFA does not apply to a particular class of individuals, but instead to the general public. It is concerned with improving the quality of care delivered by a health care facility to improve public health. The court does not believe that users of health care facilities constitute a particular class of individuals, since the vast majority of residents of the Commonwealth have utilized or will utilize the services of a health care facility. Nor does the court believe it is appropriate to create a sub-class of individuals inclusive only of nursing home residents given the broad definition of health care facilities under PHCFA.

H. UTPCPL

The defendants also filed preliminary objections in the nature of a demurrer to Count IX (UTPCPL) of Goda’s amended complaint. The defendants argue that the services outlined in paragraph 95 and the subsections of paragraph 27 referenced therein are medical services, as those services were provided by the defendants to provide medical care to plaintiff decedent. The defendants’ preliminary objections are sustained with leave to amend only those allegations specifically enumerated in paragraph 95.

In Goda I, the court held that a nursing home could be held liable for unfair or deceptive acts prohibited by the UTPCPL that pertain to non-medical goods and services. This court then granted Goda leave to amend his complaint in order to conform to this holding. Goda, in his amended complaint, alleges:

“That many of the services provided by the defendants were non-medical services; said non-medical services being the providing for nutrition, proper hydration, proper staffing, proper development of written policies, proper cleanliness, observations of conditions, seeing that the staff is properly educated, provide adequate supervision and monitoring of the staff, and relevant to these non-medical services, the defendants were negligent in the providing of the same as set forth in paragraph 27(c)-(d), (g)-(h), (m), (o), (q)-(s), (v)-(w), (y)-(z), (dd), (ff), (hh)-(ii), (kk)-(nn), (pp), (rr)-(tt), (vv)-(ww) and (xx).” Goda’s amended compl., ¶95.

The court, in order to determine if Goda’s allegations pertain to medical or non-medical services, must define each term. To do so, the court believes it is necessary to review the decisions of Foflygen v. Zemel, 420 Pa. Super. 18, 615 A.2d 1345 (1992), and Gatten v. Merzi, 397 Pa. Super. 148, 579 A.2d 974 (1990). The underlying rationale for the Foflygen and Gatten decisions is that the General Assembly did not intend for the UTPCPL to apply to claims against physicians in connection with the treatment of a patient because the term “trade and commerce,” as used in the statute, was not intended to encompass medical services. In Gatten, the court reasoned:

“Under our law, the liability of a physician is premised upon either fault, lack of informed consent, or a specific contract warranting certain results.... It is clear that the legislature, in passing the Act, did not intend to disturb existing common and statutory law regarding when liability for the rendition of medical services attaches to a physician.” 397 Pa. Super. at 152, 579 A.2d at 976.

With this in mind, the court believes that for purposes of determining the applicability of the UTPCPL medical services are those evaluative, diagnostic, preventative, therapeutic and supervisory services that are customarily provided by or at the direction of a physician or health care worker in order to treat a patient. Medical services, as defined above, do not fall within the ambit of the UTPCPL, as liability for rendering such services must be premised upon either fault, lack of informed consent, or a specific contract warranting certain results.

The court believes that the following allegations pertain to medical services and therefore are stricken from the Count IX:

(1) Allegations regarding plaintiff decedent’s pressure sores, specifically paragraph 27(c)-(d), (g), (o), (q), (s) and (y)-(z);

(2) Allegations regarding plaintiff decedent’s pain assessment, specifically paragraph 27(m) and (y);

(3) Allegations regarding plaintiff decedent’s decubitus ulcers, specifically paragraph 27(h);

(4) Allegations regarding plaintiff decedent’s sepsis, specifically paragraph 27(r);

(5) Allegations regarding plaintiff decedent’s pneumonia, specifically paragraph 27 (vv);

(6) Allegations regarding plaintiff decedent’s incontinence, specifically paragraph 27(dd);

(7) Allegations regarding defendants’ failure to properly assess plaintiff decedent’s history and physical, identify any complications and co-morbidities, and perform a proper psycho-social assessment, specifically paragraph 27(y); and

(8) Allegations regarding defendants failing to ensure plaintiff decedent’s care plan was properly implemented, failing to oversee nursing staff, failing to provide professional services that meet a professional standard of quality, failing to have an attending physician properly oversee care, specifically paragraph 27(w), (hh), (mm)-(nn) and (xx).

Additionally, Goda’s remaining allegations in paragraph 95 of the amended complaint are not sufficiently pled. For instance, Goda alleges that non-medical services include nutrition, hydration, proper staffing, proper development of written policies, observations of condition, seeing that the staff is properly educated, providing adequate supervision and monitoring of the staff. The court does not know what Goda means by nutrition, hydration or proper staffing; what Goda means by proper staffing; what is the subject matter of the written policies; what are the types of conditions Goda refers to; and what tasks carried out by the staff did the defendants fail to monitor. These allegations could involve either medical or non-medical services.

Goda, therefore, must file a second amended complaint amending paragraph 95 of his amended complaint. Goda must specifically allege (1) that a particular service was non-medical, meaning that the service does not fall within the aforementioned definition of medical services, and (2) that the particular service was provided in a manner that violated the provisions of the UTPCPL.

Hence this order:

ORDER

And now, May 21, 2003, it is hereby ordered that the defendants’ preliminary objections in the nature of demurrer as to paragraphs 29, 38,44, 52 and 80 of Goda’s amended complaint are sustained in part with respect to those portions of the above referenced paragraphs that attempt to set forth a cause of action for negligence per se based upon PHCFA and with respect to those portions of OBRA that do not involve 42 C.F.R. §483.25(j).

It is further ordered that the defendants’ preliminary objection in the nature of demurrer as to Count IX of Goda’s amended complaint is sustained in part with leave to amend paragraph 95.

It is further ordered that Count IX of Goda’s amended complaint is stricken without leave to amend with respect to Francis A. Hayman Jr.

      . This issue was considered in McCain v. Beverly Health and Rehabilitation Serv. Inc., 2002 WL 1565526 (E.D. Pa. 2002) and in Diggs v. Susquehanna Center for Nursing and Rehabilitation, 35 D.&C.4th 373 (Dauphin Cty. 1996). Both courts concluded that despite the fact that the Medicare/Medicaid Acts do not provide for a private cause of action, a plaintiff could maintain a cause of action for negligence per se under the statute. The court in McCain specifically addressed the OBRA provisions of the Medicare/Medicaid Act. The defendants cite Chalfin v. Beverly Enterprises, 745 F. Supp. 1117 (E.D. Pa. 1990) in support of their position. In Chalfin, the court held that the regulations contained in OBRA could not be used as a basis for a negligence per se claim. This holding, however, was abrogated by McCain.

      . The legislative findings of the code provides in part:
      “Section 3-301(1) — The City Council of the City of Philadelphia finds:
      “(a) that the atmosphere over the city is polluted to a degree which
      “(.1) is harmful and detrimental to the health, welfare and safety of the inhabitants,...
      “(.3) interferes with the comfortable enjoyment of life, property and recreation, and with the comfort and operation of business and industry, ...
      “(d) that effective control and elimination of air contaminants is essential to the furtherance of the health and welfare of the city’s inhabitants, to the conduct of the normal pursuits of life, recreation, commerce and individual activity, and to sustaining life in an urban area;
      “(e) that the emission of toxic air contaminants into the community air increases the risks respecting acute and long-term health effects;
      “(f) that the presence of toxic substances in a workplace is a potential source of toxic emissions into the community air.” Wagner, 453 Pa. Super. at 628, 684 A.2d at 574, quoting Philadelphia Air Management Code §3-301 (1)(a), (d)-(f).

      . Section 448.103 defines health care facility as “any health care facility providing clinically related health services, including, but not limited to, a general or special hospital, including psychiatric hospitals, rehabilitation hospitals, ambulatory surgical facilities, long-term care nursing facilities, cancer treatment centers using radiation therapy on an ambulatory basis and inpatient drug and alcohol treatment facilities, both profit and nonprofit and including those operated by an agency or state or local government. The term shall also include a hospice.” 35 P.S. §448.102.

      . In Goda I, this court required Goda to file an amended complaint specifically setting forth what unfair and deceptive practices defendani Hayman engaged in as an individual. Goda, however, fails to do so in his amended complaint, therefore, Count IX of the amended complaint is stricken with respect to Hayman.

      . A physician is “[a] practitioner of medicine; a person duly authorized or licensed to treat diseases; one lawfully engaged in the practice of medicine.” Black’s Law Dictionary 1147 (6th Ed. 1990). A health care worker would include nurses, EMTs, dietitians and the like.

      . For example, nutrition could refer to the development of a prdper dietary plan, which would be a medical service, or it could refer to physically delivering plaintiff decedent meals on a timely basis, which would be a non-medical service.


author: CULLEN, J.,

text:
    In re Appeal From Decision of Board of Supervisors of Penn Township

      C.P. of Lancaster County,
    no. CI-02-00219.

      Tracy Thomas Cadzow, for appellants.

      Josele Cleary, for Penn Township.

      Melvin Hess and J. Dwight Yoder, for Manheim Auto Auction.
    October 10, 2002
   CULLEN, J.,

This land use appeal was filed by Richard M. Canfield, Elizabeth M. Canfield, Steve Courtney, Joyce R. Courtney, Steve Erb, Carol Erb, Jason M. Enterline, Michelle L. Enterline, Jeffrey Slater, Dana Slater, Shirlene Miller and John K. Kreider (collectively, appellants) from the December 10, 2001 decision of the Penn Township Board of Supervisors granting the application of Manheim’s Pennsylvania Auction Services Inc., doing business as Manheim Auto Auction, for a conditional use to expand its automobile auction facility within Penn Township.

Appellants have presented two issues for resolution: (1) whether the opinion by the Honorable Lawrence F. Stengel of this court that ordinance no. 2000-04 rezoning 268 acres of farmland in the agricultural zone is void ab initio effectively nullifies the board of supervisors’ conditional use approval for the same 268-acre property; and (2) whether the board of supervisors abused its discretion or committed an error of law by granting Manheim’s Pennsylvania Auction Services Inc.’s request for conditional use where the Auction has failed to show that it has met the required standards of the Penn Township Zoning Ordinance. Penn Township, Pa., Official Zoning Ordinance (June 28, 1993).

Upon consideration of the record in this matter and the briefs and arguments of counsel, the court is compelled to sustain the land use appeal and reverse the decision of the board of supervisors.

The real estate in question (property) consists of approximately 268 acres located on the west side of Power Road and the north side of Auction Road in Penn Township, Lancaster County, Pennsylvania. On September 21,2000, Penn Township enacted ordinance no. 2000-04 which changed the zoning classification of the property from agricultural to limited commercial. The Auction is the equitable owner of the property. (Exhibit T-1.)

On August 2, 2001, the Auction filed an application for conditional use of the property, and the board held hearings on September 26, 2001, October 9, 2001, and October 29, 2001.

The Auction currently operates a facility located on the west side of Route 72, north and south of Auction Road (existing facility) for the sale of motor vehicles at auction to automobile dealers. (N.T. September 26,2001, p. 35.) The property adjoins this existing facility. (Exhibit A-l.) Because it lacks adequate land to store all of the vehicles it sells, the Auction proposed to consolidate all of its operations on the existing facility and the property. (N.T. September 26, 2001, pp. 35-40.) It intends to improve the property with a parking compound and a structure identified as a “super recon center.” (Exhibits T-l, A-3, A-4.) The recon center, which will not be open to the general public, will provide body work, minor mechanical repairs, reconditioning and washing of vehicles to prepare them for sale. (N.T. September 26,2001, pp. 47,75, 91-93.) Construction of the recon center will eliminate the need to have vehicles moving to and from the existing facility and the property for servicing prior to sale. Id. at 96-97.

The Auction’s plan (exhibit A-4) indicates that the majority of the property is within Phase I and a small portion of the property is within Phase II. Phase I includes the recon center, parking facilities, and storm water management facilities. Id. The plan does not show any improvements in the area identified as Phase II, but if additional parking areas are necessary in the future, these could be located in Phase II. (N.T. September 26, 2001, p. 89.)

The Auction requested that Penn Township vacate a portion of Power Road extending northward from the intersection of Power Road and Auction Road. (N.T. September 26, 2001, p. 42; October 9, 2001, p. 153.) If this request was granted, the Auction would make the former Power Road the main access into the property and the existing facility, install a cul-de-sac to terminate the portion of Power Road extending southward from Sun Hill Road and grant all necessary utility easements. Id. (Exhibit A-5.) The Auction would also close the present exits from its existing facility to Park Hill Road (N.T. September 26, 2001, p. 42) and make improvements to Auction Road and Junction Road along the frontage of the property.

The land on the west side of Junction Road would be used for storm water management for both the property and the existing facility (N.T. October 9, 2001, pp. 157-60; exhibit A-4) thereby allowing the Auction to seek approval to modify the existing facility to remove the detention basins and use that area for parking. Id.

The Auction’s witnesses testified that its proposals met the requirements of the ordinance for the conditional use, and the Auction also submitted documentary evidence as further support.

In opposition to the Auction’s proposal, appellants presented the testimony of Hugh Cadzow, a registered landscape architect, concerning the sufficiency of the application for conditional use. Mr. Cadzow has prepared applications for special exception and conditional use hearings, but he has never reviewed such applications on behalf of a municipality. (N.T. October 29, 2001, p. 348.) Mr. Cadzow noted that exhibit A-4 did not include all of the information required by the ordinance. Id. at 335-46. He conceded that he did not review the entire application, id. at 350, and he did not testify that such information was not included elsewhere in the application or otherwise presented at the two prior hearings.

No evidence was presented to the board that the application would be detrimental to the public health, safety or welfare, or that the application failed to meet the criteria for automobile auction facilities specified in section 461 of the ordinance.

The board rendered a written decision on December 10, 2001, granting the Auction’s application for conditional use under sections 213.3.1 and 461 of the ordinance to expand its existing automobile auction business on the property and allowing it an extension of two years from that date to obtain a zoning permit. The approvals were subject to 42 conditions imposed by the board.

On January 9, 2002, appellants filed an appeal from the board’s decision.

On January 15, 2002, the Auction filed a notice of intervention pursuant to 53 P.S. §11004-A.

DISCUSSION

The first issue concerns the effect of the decision of April 5, 2002, by the Honorable Lawrence F. Stengel of this court declaring ordinance no. 2000-04 void as a matter of law. Appellants contend that the effect of this determination is to nullify the board’s decision granting the application for conditional use. The board and the Auction, on the other hand, assert that this claim has been waived and, even if not waived, is without merit.

The Pennsylvania Municipalities Planning Code provides for the filing of a land use appeal notice “which concisely sets forth the grounds on which the appellant relies.” 53 P.S. §11003-A(a). The Rules of Court of Lancaster County require that in a land use appeal the appellant set forth “all specific legal and factual grounds relied upon for the appeal.” Local Rule no. 27I.A.2.L

Under the well established doctrine of waiver, new and different theories of relief may not be raised for the first time on appeal. 813 Associates v. Zoning Hearing Board of Springfield Township, 84 Pa. Commw. 420, 479 A.2d 677 (1984). Where there is an opportunity to raise an issue or to present evidence before a municipal body and a party fails to do so, that party has waived the right to do so at a later date. Mack v. Zoning Hearing Board of Plainfield Township, 126 Pa. Commw. 80, 558 A.2d 616 (1989).

Adherence to this rule serves a salutory purpose in land use appeals. In the words of the Commonwealth Court:

“More importantly, the grounds for appeal requirement of section 1003-A(a) plays a necessary role by winnowing the scope of a land use appeal....Allowing land use appellants the right to raise new issues after expiration of the appeal period would not only afford them a substantial advantage not currently provided by the Code but would also expand litigation in an area already heavily burdened.” Gall v. Zoning Hearing Board of Upper Milford Township, 723 A.2d 758, 760 (Pa. Commw. 1999), appeal denied, 559 Pa. 682, 739 A.2d 545 (1999). (citation omitted)

A review of the record of the proceedings before the board reveals that appellants failed to present evidence or argue that the application for conditional use should be denied on the ground that ordinance no. 2000-04 was invalid due to the failure to provide notice of the proposed amendment as mandated by the Pennsylvania Municipalities Planning Code or for any other reason. This issue was not included in appellants’ notice of land use appeal filed January 9,2002. Appellants do not contend that they fall within any exception to the waiver doctrine, and they ignore this issue in their brief.

Appellants had ample opportunity to raise the issue of the invalidity of ordinance no. 2000-04 at any of the three hearings on the application for conditional use held before the board, but failed to do so. They also failed to present this issue in their notice of land use appeal. The invalidity of ordinance no. 2000-04 is a new and different theory of relief which may not be raised for the first time on appeal. Accordingly, the court concludes that this issue has been waived and cannot constitute grounds for reversing the board’s decision.

The second issue, which has been properly preserved, is whether the board abused its discretion or committed an error of law by granting the Auction’s application for conditional use where the Auction has failed to show that it has met the required standards of the Penn Township Zoning Ordinance.

Where the court has not held a hearing or taken additional evidence, the scope of review in a land use appeal is limited to a determination of whether the municipal body has committed an error of law or a manifest abuse of its discretion. Allegheny West Civic Council Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 689 A.2d 225 (1997) (citing Larsen v. Zoning Board of Adjustment of the City of Pittsburgh, 543 Pa. 415, 672 A.2d 286 (1996)). An abuse of discretion will be found only if the board’s findings are not supported by substantial evidence. Id. 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); Collier Stone Company v. Township of Collier Board of Commissioners, 735 A.2d 768 (Pa. Commw. 1999).

The reviewing court must accept the credibility determinations made by the municipal body which hears the testimony, evaluates the credibility of the witnesses and serves as fact-finder. Young v. Pistorio, 715 A.2d 1230 (Pa. Commw. 1998) (citing Borough of Youngsville v. Zoning Hearing Board of Borough of Youngsville, 69 Pa. Commw. 282, 450 A.2d 1086 (1982)); Collier Stone Company v. Zoning Hearing Board for the Township of Collier, 710 A.2d 123 (Pa. Commw. 1998). The reviewing court is not to substitute its judgment on the merits for that of the municipal body. East Torresdale Civic Association v. Zoning Board of Adjustment of Philadelphia County, 536 Pa. 322, 639 A.2d 446 (1994); In re Appeal of Deamer from Decision of West Earl Township Supervisors, 77 Lanc. L. Rev. 301 (2001).

A conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body rather than the zoning hearing board. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Commw. 1997). A conditional use is a use which the governing body has determined is not adverse in and of itself to the public interest. Susquehanna Township Board of Commissioners v. Hardee’s Food Systems Inc., 59 Pa. Commw. 479, 430 A.2d 367 (1981). The existence of a conditional use provision indicates legislative acceptance of the proposition that the use is consistent with the zoning plan and should be denied only where the adverse impact on the public interest exceeds that which might be expected in normal circumstances. In re Application for Conditional Use Approval of Saunders, 161 Pa. Commw. 392, 636 A.2d 1308 (1994).

The applicant for a conditional use has the burden to demonstrate compliance with the specific criteria of the ordinance. Levin v. Board of Supervisors of Benner Township, 669 A.2d 1063 (Pa. Commw. 1995). Once the applicant meets the requirements of the ordinance, he has made out his prima facie case and the application must be granted unless the protestants present sufficient evidence that the proposed use has a detrimental effect on the public health, safety and welfare. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Commw. 1997).

Appellants concede that they made no attempt to show that the proposed use was detrimental to the public health, safety or welfare. (N.T. October 29, 2001, p. 379.) Accordingly, the only issue to be resolved is whether the Auction has met its burden of establishing compliance with the requirements of the zoning ordinance.

Section 704.1 of the Penn Township Zoning Ordinance sets forth the specific information to be included in a conditional use application and states:

“704.1 Filing of conditional use — For any use permitted by conditional use, a conditional use must be obtained from the board of supervisors. In addition to the information required on the zoning permit application, the conditional use application must show:
“(1) Ground floor plans and elevations of proposed structures;
“(2) Names and addresses of adjoining property owners including properties directly across a public right-of-way;
“(3) A scaled drawing (site plan) of the site with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of this ordinance;
“(4) A written description of the proposed use in sufficient detail to demonstrate compliance with all applicable provisions of this ordinance;” Penn Township, Pa., Official Zoning Ordinance §704.1 (June 28, 1993).

The Auction maintains that it has satisfied these requirements since its application for conditional use included ground floor plans and elevations of proposed structures (exhibit T-l, exhibit C) names and addresses of adjoining property owners (exhibit T-l, exhibit B) a scaled drawing of the site (exhibit T-l, exhibit D) and a written description of the proposed use. (Exhibit T-l, exhibit E.)

The Auction supplemented its application by presenting additional evidence for consideration by the board during the three public hearings. This evidence included testimony by four witnesses, traffic studies, and proposals for storm water management, the closure of “satellite” parking lots, and improvements to the land in the form of new roads, access and traffic patterns to ease congestion.

Appellants argue that the application is deficient in that it does not include items required by sections 701.2 and 701.3 of the ordinance which set out the requirements for zoning permits, and they rely on the testimony of Hugh Cadzow, a registered landscape architect, to support their position.

The board rejected Mr. Cadzow’s testimony as not credible since he had not reviewed the entire application and had not attended the hearings at which the Auction had presented its evidence. The finding that Mr. Cadzow’s opinions lack credibility is binding on the court. Young v. Pistorio, 715 A.2d 1230 (Pa. Commw. 1998); Collier Stone Company v. Zoning Hearing Board of the Township for Collier, 710 A.2d 123 (Pa. Commw. 1998). This credibility determination, however, does not end the inquiry.

The board made no finding that the Auction’s application contained the information required by sections 701.2 and 701.3 of the ordinance which set out the information which must be provided on the zoning permit application. On the contrary, in its conclusions of law, the board implicitly recognized that the Auction had not provided all of the required information.

“(14) It is not possible for an applicant to delineate the ‘exact location and dimensions of any structures’ (zoning ordinance §701.2. IB), ‘location of all. . . proposed buildings, driveways, . . .’ (zoning ordinance §701.3.2), ‘engineering plans for treatment and disposal of sewage’ (zoning ordinance §701.3.4) and similar matters prior to submission and approval of a preliminary plan.

“(15) To require an applicant for conditional use approval to delineate ‘exact location and dimensions of any structures,’ ‘location of all... proposed buildings, driveways ...,’ ‘engineering plans for treatment and disposal of sewage’ and similar matters would place an applicant in a catch-22 in light of the requirement at section 601.01 of the subdivision ordinance that an applicant obtain conditional use approval before the applicant can submit a preliminary plan.” (Decision, December 10, 2001, conclusions of law, paragraphs 14, 15.)

Having reviewed the record before it, the court is compelled to find that the conclusion it is not possible for an applicant to provide the information required by sections 701.2 and 701.3 of the ordinance is not supported by substantial evidence.

Zoning ordinances are to be construed in a sensible manner to preserve their validity. Council of Middletown Township v. Benham, 514 Pa. 176, 523 A.2d 311 (1987). A municipality cannot construe its ordinances in a manner which effectively precludes compliance with them. Id. The board cited no evidence in the record nor gave a cogent explanation why compliance with the requirements of sections 701.2 and 701.3 of the ordinance is not possible. The ordinance requires only that the specified information be provided in the application for conditional use, not that any zoning permit or preliminary plan approval be obtained from the appropriate municipal authority prior to submission of the application for conditional use.

In its findings of fact, the board stated that since the enactment of the ordinance in 1993, it has considered numerous applications for conditional use and has never required an applicant to submit an application which meets all of the requirements of section 701 of the ordinance. (Decision, December 10, 2001, findings of fact, paragraphs 77 and 78.) The board did not require the Auction to do so in its application which resulted in the 1995 decision. (Id., findings of fact, paragraph 79.)

The board’s interpretation of its own ordinance is entitled to weight and deference by the court. Borough of Milton v. Densberger, 719 A.2d 829 (Pa. Commw. 1998). However, deleting specific requirements from the ordinance as written does not constitute interpretation. The principles of the Statutory Construction Act are applicable to municipal ordinances. Board of Supervisors of Richland Township v. Tohickon Creek Associates, 123 Pa. Commw. 111, 553 A.2d 492 (1989) (citing Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commw. 129, 358 A.2d 433 (1976)). These principles require that the ordinance be construed, if possible, to give effect to all of its provisions, Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commw. 129, 358 A.2d 433 (1976), and that if the words are clear and free from ambiguity, the letter of the ordinance is not to be disregarded under the pretext of pursuing its spirit. See 1 Pa. C.S. §§ 1921(a), (b). The Auction cannot, over appellants’ objection, rely on a practice of “interpreting” the ordinance which simply deletes specific requirements for a conditional use. Inconvenience to the applicant is not a valid reason to dispense with compliance with the ordinance as written.

Zoning is the legislative division of a community into areas in each of which only certain designated uses of land are permitted so that the community may develop in an orderly manner in accordance with a comprehensive plan. Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958). The Auction contends that zoning regulates the use of land, not the particulars of its development and construction, citing In re Brickstone Realty Corp., 789 A.2d 333 (Pa. Commw. 2001). The Auction stressed to the board and argues to the court that application for conditional use is only the first step in the land development process in this case.

It is correct, as the Auction asserts, that an application for a zoning permit is a separate procedure apart from the application for conditional use and would be required only after a landowner has been granted conditional use. In re Application for Conditional Use Approval of Saunders, 161 Pa. Commw. 392, 636 A.2d 1308 (1994). In Saunders, the requirements for conditional use were relatively few and simple. If, on the other hand, the requirements for conditional use are more stringent under the particular ordinance, all of the requirements must nonetheless be met. East Manchester Township v. Dallmeyer, 147 Pa. Commw. 671, 609 A.2d 604 (1992); In re Appeal of Baird, 113 Pa. Commw. 637, 537 A.2d 976 (1988).

The Auction cites the decision of the Commonwealth Court in In re Brickstone Realty Corp., 789 A.2d 333 (Pa. Commw. 2001), in support of its position that compliance with the provisions of section 704.1 to furnish the information required on the zoning permit application is unnecessary at this stage of the development process.

In Brickstone Realty Corp., the zoning hearing board denied an application for a special exception to construct a hotel. Id. Among the issues on appeal was the alleged failure of the developer to meet requirements of the zoning ordinance by providing a floor plan of the proposed hotel drawn to scale and a plot plan showing distances to buildings on adjacent lots. Id. The Commonwealth Court rejected this argument finding that the plans presented by the developer indicating the nature, size and location of the proposal were adequate. Id. The opinion, however, does not indicate whether the information the opponents of the project claimed was missing was required by the ordinance to obtain a special exception or only later in the land development process. As the specific requirements for obtaining a special exception under the ordinance were not identified, this opinion does not require affirmance of the board’s decision in the present case.

Finally, appellants argue that the application must be rejected because it is only a “concept plan,” and cite In re Appeal of Stoltzfus from Upper Leacock Township Zoning Hearing Board, 73 Lanc. L. Rev. 162 (1992). Since the court has concluded that the application fails to conform to the requirements of the ordinance, it is not necessary to address this issue. The court notes, however, that the application in this instance is certainly more definite than the proposal before the court in Stoltzfus.

For the reasons set forth above, the court must conclude that the Penn Township Board of Supervisors erred in determining that the Auction had met the requirements of section 704 of the ordinance and in granting the Auction’s application for conditional use. The court, therefore, enters the following:

ORDER

And now, October 10, 2002, the appeal from the December 10, 2001 decision of the Penn Township Board of Supervisors granting the application of Manheim’s Pennsylvania Auction Services Inc., doing business as Manheim Auto Auction for conditional use approval is sustained. The decision of the Penn Township Board of Supervisors is reversed.

      . The property is more specifically described in exhibit A of ordinance no. 2000-04 which is part of the application for conditional use. (Exhibit T-l.)

      . Automobile auction facilities and automobile storage compounds are allowed as conditional uses in a limited commercial zone. Penn Township, Pa., Official Zoning Ordinance §213 (June 28, 1993).

      . In their brief, appellants refer to a previous application for conditional use of the property submitted by the Auction on November 14, 2000, and subsequently withdrawn on July 30, 2001. This prior application is not part of the record certified to the court and, therefore, will not be considered in this appeal. Mack v. Zoning Hearing Board of Plainfield Township, 126 Pa. Commw. 80, 558 A.2d 616 (1989); In re Appeal of Deamer from Decision of West Earl Township Supervisors, 77 Lanc. L. Rev. 301 (2001).

      . In closing argument before the board, appellants’ counsel conceded that no attempt had been made to introduce such evidence. (N.T. October 29, 2001, p. 379.)

      . In their notice of land use appeal, appellants raised six issues on appeal. Any issue not briefed and argued is deemed waived. Chamberlain v. Adamstown Borough Zoning Hearing Board, 76 Lanc. L. Rev. 324 (1998).

      . In re The Appeal of the Challengers from the Decision of the Penn Township Zoning Hearing Board, no. CI-01-03787, Lancaster County, April 5, 2002.

      . The boilerplate assertion that appellants reserve the right to revise or supplement the legal and factual grounds for their appeal upon further review of the record is insufficient to avoid application of the waiver doctrine. Not only would such an approach eviscerate the waiver doctrine, but it is contrary to the provisions of the Pennsylvania Municipalities Planning Code regarding the time for filing and the contents of land use appeals. 53 P.S. §§11002-A; 11003-A(a). Further, it should be noted that appellants never attempted to file a revised or supplemental notice of land use appeal.

      . After argument in this matter, appellants’ counsel submitted a letter to the court on September 24, 2002, in which she argues that in subsequent proceedings before the Penn Township Zoning Hearing Board the board of supervisors and the Auction allegedly made certain admissions regarding the zoning classification of the property which are contrary to their pleadings, briefs and argument before the court in this land use appeal. Counsel for the board of supervisors and the Auction have taken issue with this assertion. It is unclear from this correspondence exactly what appellants’ counsel is talking about. However, none of the documents referred to by appellants’ counsel are included in the record before the court, and no attempt has been made to supplement the record as provided in the Pennsylvania Municipalities Planning Code. Accordingly, the court will not consider any of the issues raised in this untimely submission.

      . In view of its determination that appellants have waived the right to challenge the decision of the board on the ground that ordinance no. 2000-04 is invalid, the court need not address the other arguments advanced by the board or the Auction. The court notes also that the record before it is inadequate to address these arguments.

      . The four witnesses were the general manager of the Auction’s current facility, the vice-president of the construction company which prepared certain exhibits, the project manager and the Auction’s attorney.

      . The subdivision ordinance referred to is not part of the record certified to the court as part of this land use appeal.

      . If in the board’s opinion section 704.1 as it exists is unduly burdensome, the board is free to amend that section of the ordinance.