author: CEISLER, J.,

text:
    Alliance Bank v. Attractive Prop., LLC

      Kenneth Martin Kapner, for appellant

      Elliot H. Berton, for appellee
    July 31, 2013
   CEISLER, J.,

I. PROCEDURAL HISTORY & FACTS

The instant appeal, filed by Attractive Properties LLC and Kenneth M. Kapner, is from an order entered by this court on May 29, 2013 establishing the fair market value of 1514 Taney Street in Philadelphia as $20,503.23.

On December 30, 2011, plaintiff Alliance Bank (hereinafter “petitioner”) filed a mortgage foreclosure action against Attractive Properties LLC and 1514 Taney Street, LLC (hereinafter “respondents”) requesting $48,978.60 in damages. Complaint at ¶12. On April 3, 2012, after respondents did not file an answer to the complaint, petitioner entered a praecipe for default judgment in the same amount. On May 10,2012, in order to satisfy the judgment entered against respondents, petitioner filed a praecipe for writ of execution. The writ directed the Sheriff’s Office to levy upon and sell a property owned by respondents at 1514 South Taney Street, Philadelphia, PA 19146 (hereinafter “subject property”). Praecipe for Writ of Execution at 3. The subject property was subsequently sold to petitioner at sheriff’s sale on August 7, 2012. N.O.T. 5/23/13 at page 46.

On February 12, 2013, petitioner filed a petition to establish the fair market value of real estate pursuant to Pa.R.C.P. No. 3281 (hereinafter “petition to establish fair market value”). The petition requested that the fair market value of the subject property be fixed at $20,503.23. Petition to establish the fair market value at ¶12.

On March25,2013, Mr. Kenneth M. Kapner (hereinafter “intervenor”), intervening on behalf of respondents, filed an answer to the petition to establish the fair market value of real estate pursuant to Pa.R.C.P. No. 3281 (hereinafter “answer”). The answer asserted that the actual fair market value of the subject property was $52,400.00, using an assessment of the subject property from the Philadelphia Actual Value Initiative (AVI) to support their argument. Answer at ¶9

On May 29, 2013, this court held a full hearing on the petition to establish fair market value. At this hearing petitioner called as a witness an independent appraiser who evaluated the subject property on April 15, 2013. N.O.T. 5/23/13 at pages 18-34. The appraiser testified that he valued subject property at $9,000 because he observed extensive internal and external damage. Id. at 30. In reaching this figure, he referenced five comparable properties within one block of the subject property, all of which were in average condition. The highest sale price for which any of these properties was $24,000. Id. at 25. He testified that all of these properties were in better condition than the subject property. Id. Petitioner also presented the testimony of the loan servicing manager who was familiar with the property in question. N.O.T. 5/23/13 at pages 38-53. The loan servicing manager testified that, when driving by the Taney Street property four to five weeks after the August 7, 2012 sheriff’s sale, she observed evidence of significant external damage to the property. Id. at 51.

Intervenor, testifying for respondents, stated that he last visited the subject property in 2010. N.O.T. 5/23/13 at page 58. He stated that the property was abandoned at that time but was not in a state of disrepair. Id. Respondents maintained that the April 15, 2013 appraisal could not accurately indicate the fair market value of the subject property at the time of the August 7,2012 sheriff’s sale. Id. at 64. They further argued that the current condition of the subject property was directly attributable to petitioner’s failure to mitigate damages after the sheriff’s sale. Id.

Following this hearing, this court determined that the fair market value of the subject property was $20,503.23, issuing an order to that effect on May 29, 2013.

On July 1, 2013, Attractive Properties, LLC and intervenor appealed this court’s decision. The following is appellants’ statement of errors reproduced, verbatim, herein:

1. The Honorable Trial Court erred in granting Plaintiff, Alliance Bank’s Petition to Establish Fair Market Value of Real Estate, and we further aver as follows:
a. The Trial Court did not grant intervenor/defendant’s request to dismiss the petition, filed without evidence to support the alleged fair market value in the pleading or otherwise;
b. The Trial Court abused its discretion in allowing, over objection, introduction of plaintiff’s post hoc fair market value appraisal and testimony of the appraiser when the appraisal was performed after the plaintiff’s petition was filed and only possible when the Court granted a 30 day continuance allegedly for an illness of a bank witness, which assertions resulted in counsel’s limited agreement, but without agreement for post hoc introduction of disputed evidence; and
c. The Trial Court abused its discretion in not adopting the City of Philadelphia’s appraised value of the property in question over plaintiff’s asserted value.
2. The Honorable Trial Court committed an error of law and/or abused its discretion when it rejected intervenor/ defendant’s asserted defense, and did not consider in its assessment of the value, plaintiff’s having caused any alleged diminished value from plaintiff’s failure to mitigate damages.
3. The Honorable Trial Court’s order of assessed value was not supported by substantial evidence of record.
As the intervenor/defendant raised certain legal and factual issues at the hearing, and as we are awaiting the trial transcript, and as the Honorable Trial Court granted plaintiff’s requested relief with an order that did not identify the bases, intervenor/defendant cannot assert errors in greater particularity, which will become clearer once this Honorable Court issues its Opinion in Support of Order pursuant to Pa.R.A.P. 1925(a).

II. DISCUSSION

This court respectfully requests that the instant appeal be denied for the following reasons:

1. This court’s decision to establish the fair market value of subject property at $20,503.23 is supported by substantial evidence.
2. This court’s decision to establish the fair market value of subject property at $20,503.23 was not based on the current damaged condition of subject property; Thus, any failure on the part of petitioner to mitigate damages was wholly irrelevant to this court’s findings.

This court’s decision to establish the fair market value of the subject property as $20,503.23 came after a hearing conducted in accordance with 42 Pa.C.S. §8103. Whenever any real property is sold to a judgment creditor in execution proceedings, and the sale price in insufficient to satisfy the amount of the judgment, the judgment creditor “shall petition the court to fix the fair market value of the real property sold” 42 Pa.C.S. §8103(a). If an answer to this petition is filed asserting that the fair market value is more than the value stated in the petition, “the Court shall hear evidence of and determine and fix the fair market value of the property sold.” 42 Pa.C.S. §8103(c)(4).

When determining the fair market value of a property, a trial court is afforded substantial discretion in weighing the available evidence. Walnut St. Federal Sav. And Loan Ass’n v. Bernstein, 147 A.2d 359 (Pa. 1959). Courts may hear evidence from property owners, expert witnesses, or persons with knowledge and experience qualifying them to form a reasonably intelligent judgment as to the value of a property. Id. at 361. In addition, courts generally consider “recent sales of reality of comparable location and description.” Confederation Life Ins. Co. v. Morrisville Properties, L.P and Site Development, Inc. ,715 A.2d1147 (Pa. Super. 1998) (quoting Union Nat’l Bank of Pittsburgh v. Crump, 37 A.2d 733, 735 (Pa. 1944)). Appellate review of a petition to fix fair market value is limited to deciding whether or not there is sufficient evidence to sustain the holding of the lower court, or whether the lower court committed a reversible error of law. Bernstein, 147 A.2d at 361; Shrawder v. Quiggle, 389 A.2d 1135 (Pa. Super. Ct. 1978). Additionally, an appellate court must accept the credibility determinations of the trial court with respect to the credibility of witnesses. Confederation Life Ins. Co, 715 A.2d at 1154 (citing Bryn Mawr Trust Co. v. Healy, 667 A.2d 719, 723 (Pa. Super. Ct. 1995)).

In the instant matter, the evidence presented at the hearing on the petition to establish fair market value explicitly supported this court’s decision to fix the fair market value of the subject property at $20,503.23. This court’s finding is clearly supported by the sale prices of nearby comparable properties. For five nearby comparable properties, all in average condition, the highest sale price listed was $24,000. Given the current condition of subject property, this court’s fixing its fair market value comparably to properties in average condition is more than fair to respondents. Respondents presented no evidence that subject property was ever in above average condition. The last time intervenor even visited subject property was in the year 2010, and he testified that the property had already been abandoned at that time. N.O.T. 5/23/13 at page 58. By the time petitioner’s loan servicing manager visited the property roughly one month after the sheriff’s sale, the back door had been kicked in and the outside of the property was already in disarray. Id. at 51.

Appellants’ request that the fair market value of subject property be fixed at $52,400.00 is based on a less reliable estimate from the City of Philadelphia’s Actual Value Initiative (AVI). The independent appraiser testified that the AVI assessments often exceed the fair market values of properties, and that the entire system carries a high risk of inaccurately assessing individual properties. N.O.T. 5/23/13 at pages 32-33. Instead of relying solely on a potentially undependable AVI calculation, this court based its findings on the more credible and targeted assessment of the subject property that conducted by the independent appraiser. For the aforementioned reasons, this court’s decision to fix the fair market value at $20,503.23 is supported by substantial evidence.

Lastly, appellants’ argument that this court erred in not considering the petitioner’s failure to mitigate damages to subject property is without merit. In fact, the fair market value requested by petitioner and fixed by this court specifically disregards subject property’s current state of disrepair. The value of $20,503.23 requested by petitioner is based on comparable properties of average condition, and thus ignores subject property’s current condition. Because petitioner’s request that the value be fixed at $20,503.23 is not based on subject property’s current condition, the request represents more than double the $9,000 value set by the appraiser on April 15,2013. See Id. at 26-34 (independent appraiser discussing his evaluation of the subject property).

Assuming, arguendo, that the subject property was in average condition immediately after the sheriff’s sale, its fair market value would not have exceeded the value set by this court. It is true that ambiguity exists as to exactly when subject property fell into its current state of disrepair; nonetheless, the fair market value fixed by this court resolves that ambiguity in appellants’ favor by treating the property as if it were in average condition. As such, any unmitigated damages to subject property were wholly irrelevant to this court’s determination of fair market value.

III. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be denied.

      . After there were no bidders at the sheriff’s sale, Petitioner bought the property for $4,159.12, which is only the costs charged by the sheriff. N.O.T. 5/23/13 at page 47.

      . The answer also included a petition of Mr. Kenneth M. Kapner, individually, as a former member of Attractive Properties, LLC, to intervene. Mr. Kapner stated that he was a former member of Attractive Properties, LLC, who was the guarantor of the initial loan agreement between petitioner and respondents. Answer at ¶13-20. At the May 29, 2013 hearing on the matter, both parties consented to Mr. Kapner’s intervention. N.O.T. 5/23/13 at page 41-45.

      . AVI is a program for the assessment of all real property-land and buildings-in Philadelphia, effective tax year 2014, at their current market value. The AVI program is part of Philadelphia’s Office of Property Assessment (OPA). More information is available at: http://www.phila. gov/OPA/Assessments/Pages/HowOPAAssessessProperty.aspx.

      . The appraiser referred to subject property as a “shell”, further explaining that “there was no mechanical systems that were operable in the property. In this case there was no heating system, heating furnace or boiler at all.” N.O.T. 5/23/13 at page 27. The appraiser testified that at some point before his April 15, 2013 appraisal, subject property had become a crack house. Id. at page 21.


source: Caselaw Access Project

author: DOYLE, J.,

license: Public Domain

text:
    Riley v. Harleysville Mutual Insurance Company

      Douglas V. Stoehr, for plaintiff

      Daniel J. Twilla, for defendant
    August 5, 2013
   DOYLE, J.,

This matter comes before the court for consideration of motions for summaiy judgment filed by both parties. Oral argument on both motions was heard on July 17, 2013. These motions are ready for disposition.

PROCEDURAL BACKGROUND

This matter is an action for declaratory judgment. The complaint was filed on January 4, 2013. The answer and new matter was filed on February 4,2013. Plaintiff replied to the new matter on February 14, 2013. The parties both filed motions for summary judgment on May 30, 2013 with briefs in support. Defendant filed a response to plaintiff’s motion for summary judgment on June 27, 2013 with a brief in opposition. Plaintiff filed a response to defendant’s motion for summary judgment on July 1, 2013 with a brief in opposition.

FACTUAL BACKGROUND

The facts are as follows: Plaintiff was injured in a motor vehicle accident on September 18, 2011. At the time of the crash she was occupying a business vehicle owned by a plumbing company, Charles D. Riley, Inc., and a co-purchaser, James M. Riley, plaintiff’s husband. Plaintiff settled with the tortfeasor’s insurance company. She also settled an underinsured motorists claim with the insurance company that insured the vehicle. Plaintiff was not fully compensated for her injuries after these settlements and made an excess underinsured motorists claim on her personal automobile policy with the defendant. The defendant denied coverage based on the “household exclusion”.

The household exclusion in the Harleysville policy reads as follows:

“A. We do not provide Underinsured Motorists Coverage for ‘bodily injury’ sustained:

1. By you while ‘occupying’, or when struck by, any motor vehicle you own which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.
2. By a ‘family member’:
a. Who owns an auto, while ‘occupying’, or when struck by, any motor vehicle owned by you or any ‘family member’ which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.
b. Who does not own any auto, while ‘occupying’, or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy.”
The policy contains the following definition:
“A. Throughout this policy, ‘you’ and ‘your’ refer to:
1. The ‘named insured’ shown in the Declarations; and
2. The spouse if a resident of the same household.”

SUMMARY OF PLAINTIFF’S ARGUMENTS

Plaintiff argues that defendant should provide her coverage because she was not occupying a vehicle she owned at the time of the accident. She argues that the word “you” cannot encompass both her and her husband, James, without being ambiguous and/or absurd in application. Plaintiff further argues that if the word “you” is ambiguous or absurd in application, it must be construed against the defendant as the drafter of the policy and that the every day meaning of language should not be tortured in interpreting the policy.

SUMMARY OF DEFENDANT’S ARGUMENTS

Defendant argues that both plaintiff and her husband are named insureds and they are therefore both “you” under the terms of the policy. James is also the resident spouse of plaintiff and therefore is Included within the definition of “you”. Defendant argues that because the insurance company will not insure against unknown risks it would not have written a policy that would provide coverage for an insured injured in a vehicle she regularly used that was not insured under the policy. Defendant states that the word “you” is used in the plural and means the same thing every time it is used and therefore includes both plaintiff and James each time.

STANDARD OF REVIEW

Motions for summary judgment are governed by Pa. R.C.P. 1035.2 which provides that after the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2

In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 438 (Pa. 2001). The court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205, 206 (Pa. 1991).

DISCUSSION

The task of interpreting an insurance contract is generally performed by a court rather than by a jury. Gene & Harvey Builders v. Pennsylvania Mfrs. Ass’n, 512 Pa. 420, 426, 517 A.2d 910, 913 (Pa. 1986) (citations omitted). When analyzing a policy, words of common usage are to be construed in their natural, plain, and ordinary sense. Mitsock v. Erie Insurance Exchange, 909 A.2d 828, 831 (Pa. Super. 2006) (quotations and citations omitted). When the language of the insurance contract is clear and unambiguous, a court is required to give effect to that language. Although a court must not resort to a strained contrivance or distort the meaning of the language in order to find an ambiguity, it must find that contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer. Id. Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 201, 519 A.2d 385, 390 (Pa. 1986)

The issue in this case is whether the terms of the household exclusion contained in the policy are susceptible to more than one reasonable interpretation when applied to the facts of this case. In other words, the court must decide whether the household exclusion is ambiguous.

We conducted a thorough review of prior cases interpreting the household exclusion. We found two cases in which the household exclusion language was identical to that found in this policy.

In the case of Old Guard Ins. Co. v. Houck, 2002 PA Super. 161, 801 A.2d 559 (Pa. Super. 2002) the husband and wife insureds were injured while riding on a motorcycle they owned. The tortfeasor’s insurance carrier tendered its policy limits. The insureds filed UIM claims on both the policy on the motorcycle which was insured by Guide One and the policy on their personal automobile policy with Old Guard. Old Guard denied coverage on the basis that there was no UIM coverage available because of the exclusion which precluded recovery by a named insured or his/her spouse living in the same household from an accident in a motor vehicle not insured under the

Old Guard policy. 801 A.2d at 560.

The court framed the issues before it as whether the household exclusion applied in this situation and whether the household exclusion violated public policy. Id. Although the issue of ambiguity was not in front of the court in Houck it concluded, “We hold that a person who carries inadequate UIM coverage with one insurer is not entitled to recover UIM benefits from a second insurer where a clear and unambiguous household exclusion in the second insurer’s policy precludes recovery of UIM benefits for damages suffered while occupying a vehicle owned by the insured and not insured for UIM coverage under the policy with the second insurer. Id. at 568.

The opinion in Houck does not reveal whether the policy in that case contained a definition of the word “you”, however, as applied to the facts of that case it was not ambiguous. In that case, as opposed to this one, both the husband and wife were injured and both filed claims. Also, the court refers to the motorcycle as “their” motorcycle, suggesting that they were both owners of it. Id. at 560. Additionally, the other policy under which the insureds made UIM claims was also in both insureds’ names because it was for their personal automobiles. Based on factual differences, Houck is distinguished from the instant case.

In the second case with the same policy language, Mr. Massey, a partner in a company called Pro Machine, was injured while operating a motorcycle. Cont’l Cas. Co. v. Pro Mach. 2007 PA Super. 18, 916 A.2d 1111 (Pa. Super. 2007) Massey owned both the motorcycle and an automobile. He used both vehicles to make customer calls on behalf of Pro Machine. 916 A.2d at 1113. Pro Machine had a commercial insurance package that included automobile insurance. When Massey was injured while operating the motorcycle he recovered the policy limits from the tortfeasor and the UIM policy limits from his own insurance company. He then filed a claim with Pro Machine’s policy. The insurer denied coverage and claimed that Massey was not a named insured and the motorcycle was not a covered motor vehicle pursuant to the household exclusion. Id. at 1114.

The household exclusion in the policy had the same language as in this case. Id. at 1117. Further, the policy indicated that, “[tjhroughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” Id. The court considered whether Massey qualified as “you”. The analysis centered on whether Massey was a Named Insured or not because the policy had been issued to a Pro Machine as a partnership. Id. at 1121-22. The court determined that Massey was a Named Insured in part because the UIM endorsement referred to family members of insureds and the court reasoned that the policy had been issued to a partnership which could not have family members and therefore the coverage must have been extended to the individual partners as insureds. Id. at 1122. The court went on to conclude that coverage was only available to Massey if he was operating his motorcycle in his capacity as a partner of Pro Machine at the time of the accident. That fact was not in the record so the case was remanded. There was no discussion of whether the term “you” was ambiguous or not.

The Massey case was also factually distinct from the instant case. Massey involved a business policy issued to a partnership. Mr. Massey owned the vehicle he occupied at the time of the accident. Unlike in this case, there was no other person involved to whom the word “you” could apply.

Conversely, in this case there are multiple ways the word “you” could be meant, “you” could mean Theresa Riley. It could also mean James Riley. It could also mean both Theresa and James Riley because both of them are Named Insureds on the policy and they are also both resident spouses of each other. We come back to the question of whether the terms of the household exclusion contained in the policy are susceptible to more than one reasonable interpretation when applied to the facts of this case.

Defendant argues that the definition of the word “you” from the policy must be applied. The word “you” is defined in the policy to mean “the ‘named insured’ shown in the Declarations and the spouse if a resident of the same household.” (emphasis supplied). This is using “and” in the inclusive sense.

When the definition of “you” from the policy is directly substituted in the language of the household exclusion, it reads:

“We do not provide Underinsured Motorists Coverage

for ‘bodily injury’ sustained:

1. By [the named insured shown in the Declarations and the spouse if a resident of the same household] while ‘occupying’, or when struck by, any motor vehicle [the named insured shown in the Declarations and the spouse if a resident of the same household] own which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.
2. By a ‘family member’:
a. Who owns an auto, while ‘occupying’, or when struck by, any motor vehicle owned by [the named insured shown in the Declarations and the spouse if a resident of the same household] or any ‘family member’ which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle...”

In this interpretation, coverage would result because the exclusion would require both Theresa and James to have sustained bodily injury and be occupying or struck by the same vehicle which they both also owned before section 1 would apply and both Theresa and James to own the occupied vehicle before section 2 (a) would apply. In this case only Theresa is making a claim and only James owns the vehicle.

If the “and” in the definition of “you” is not taken to be inclusive, the use of the word “you” is ambiguous because Theresa and James are both named insureds on the policy. The court cannot determine for certain from a plain reading of the policy whether “you” refers to one named insured instead of both, whether it refers to the same named insured every time it is used, or whether it refers to one named insured in one instance and the other one in the other instance.

In construing insurance contracts, the instrument must be strictly construed against the writer. Miller v. Boston Ins. Co., 420 Pa. 566, 570, 218 A.2d 275, 277 (Pa. 1966) (citations omitted). In close or doubtful insurance cases, our error should be in favor of coverage for the insured. Motley v. State Farm Mut. Auto Ins. Co. 502 Pa. 335, 340, 466 A.2d 609, 611 (Pa. 1983).

This insurance policy was drafted by the defendant. Any ambiguity should be construed against the defendant and in favor of coverage. The most reasonable interpretation of this provision in the court’s mind is that “you” means the person bringing the claim alone both times it is used in section (A) (1) of the exclusion and plaintiff is therefore entitled to coverage under that section.

Defendant argues that if section (A)(1) does not exclude coverage section (A)(2) does because plaintiff is James Riley’s family member, she occupied a vehicle that was not covered by Harleysville, and James Riley owned the vehicle she occupied. Plaintiff counters that this was not the section under which Harleysville denied coverage and argues that the vehicle was co-owned by the plumbing company. Plaintiff further argues that the family member exclusion is also ambiguous when applied to this case.

When we apply both the definition of “you” from the policy and the definition of “family member” from the policy, section (A)(2) reads:

2. By a [person related to [the named insured shown in the Declarations and the spouse if a resident of the same household] by blood, marriage or adoption who is a resident of your household]:
a. Who owns an auto, while ‘occupying’, or when struck by, any motor vehicle owned by [the named insured shown in the Declarations and the spouse if a resident of the same household] or any [person related to [the named insured shown in the Declarations and the spouse if a resident of the same household] by blood, marriage or adoption who is a resident of your household] which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle...”

In this interpretation coverage would result again because Theresa, the injured person, is not a person related to both her and to James by blood, marriage, or adoption. If we do not give the word “and” in the definition of “you” inclusive effect, Theresa could be a person related just to James by marriage, however, James would have to be the person making the claim on the policy. This interpretation would not be reasonable given that Theresa is also a named insured on the policy and was the person who suffered bodily injury in this case. Therefore, as above, we strictly construe the ambiguous term “you” against the drafter and find that section (A) (2) cannot apply to Theresa Riley because she, the claimant, is “you” and she is not a “family member”.

For these reasons we enter the following:

ORDER OF COURT

And now, this 5th day of August 2013 this matter having come before the court for consideration of the parties’ motions for summary judgment, it is hereby ordered, directed, and decreed that the plaintiff’s motion is granted and the defendant’s motion is denied.

      . Neither Theresa Riley nor James Riley is a named insured on the policy that insured the vehicle.

      . Although plaintiff argues that the definition of “you” from the policy does not apply to the endorsement, we note that the endorsement contains language indicating that the terms of the policy apply unless they are modified by the endorsement.


author: PICCIONE, J.,

text:
    Taylor Steel, Inc. v. Three Rivers Building Products, LLC

      Shawn P. McClure, for plaintiff

      Benjamin I. Feldman, for defendant
    August 5, 2013
   PICCIONE, J.,

Before this court for disposition is the plaintiff’s, Taylor Steel, Inc. (hereinafter, the “plaintiff’), motion for summary judgment pursuant to Pa.R.C.P. 1035.2 (hereinafter the “motion”). This current action was commenced on November 7, 2012, when the plaintiff filed the complaint for breach of contract against the defendant, Three Rivers Building Products, LLC formerly known as Harmony Doors, LLC doing business as OSG Doors and as Opening Solutions Group, LLC (hereinafter, the defendant). In the complaint, the plaintiff avers that the defendant entered into a contract with the plaintiff for the sale of goods, in the amount of $90,271.75, on a commercial credit basis. The plaintiff further avers that it delivered the goods to the defendant which accepted the goods and made partial payments toward the balance owed for the goods. The plaintiff alleges that as of October 15, 2012, a balance of $57,382.45 remains owed on the debt, and the defendant has ceased payment. As such, the plaintiff requests that the defendant be ordered to pay the remaining balance as well as the legal rate of interest, six percent, on the balance. The plaintiff attached copies of sales invoices and payment history between the plaintiff and the defendant to the complaint.

On December 7, 2012, the defendant filed its answer. In the answer, the defendant admits to having entered into an agreement with the plaintiff for the sale of goods and making partial payments; however, the defendant denies that it should be responsible to pay any type of interest or penalty for late payment. In addition, the defendant does not respond to the other allegations, due to its claim that the invoices attached to the complaint are illegible and that the plaintiff has paraphrased and interpreted the terms of the agreement and made conclusions of law based on the interpretation.

The defendant’s answer also contains a new matter. Therein, the defendant asserts that in July, 2012, Mr. Louis Figueroa (hereinafter, “Figueroa”), the President of Credit Decisions International, Ltd, an agent of the plaintiff who is responsible for overseeing the collection of the defendant’s debt, and Ms. Cynthia Caleris (hereinafter, “Caleris”), an agent of the defendant, agreed that payments could be made in the amount of $2,500 per week. The defendant asserts that it adhered to this payment schedule as evidenced by the plaintiff’s acknowledgment of its acceptance of the partial payment. The defendant further avers that in October 2012, the plaintiff notified the defendant that it would no longer accept partial payment. The defendant claims to have been willing to continue to make payments in accordance with the alleged modified agreement but for the plaintiff’s refusal to accept payment. As such, the defendant argues that it has not breached any contract, and the complaint should be dismissed accordingly.

On December 28, 2012, the plaintiff filed its reply to the new matter (hereinafter, the “reply”). In the reply, the plaintiff avers that the payment agreement was not modified, but that its acceptance of $2,500 per week was the plaintiff accepting consideration in exchange for a forbearance of its right to bring a legal action to collect the outstanding balance. Further, the plaintiff alleges that, in October 2012, it did not renege on an agreement to accept a modified payment schedule; rather it notified the defendant that it would no longer accept sporadic and untimely payments.

On March 26, 2013, the plaintiff filed the instant motion, requesting summary judgment for $57,382.45 and continuing interest at the legal rate of six percent and costs. Attached to the motion as “exhibit 4,” is an affidavit of Mr. Robert Isaacson (hereinafter, “Isaacson”), the plaintiff’s Credit Manager. In the affidavit, Isaacson attests to the accuracy of the invoices and the debt owed by the defendant. Also attached to the motion as “exhibit 5” is an affidavit of Figueroa in which he avers that the defendant’s promise to make partial payments of $2,500 per week was not a modification of the terms of payment agreement, but consideration in exchange for the plaintiff’s forbearing from taking action to collect the debt. In the motion, the plaintiff asserts that the facts established throughout the complaint, answer, new matter, and reply, in addition to the affidavits, leave no genuine issue of material fact, and it is entitled to judgment as a matter of law.

On April 18, 2013, this court ordered oral argument to be heard on the motion and ordered the parties to file briefs. On May 8, 2013, the defendant submitted its response to plaintiff’s motion for summary judgment (hereinafter, the “response”). Attached to the response is an affidavit of Caleris. In her affidavit, Caleris claims to have negotiated with Figuero, and both parties agreed to modify the payment plan to $2,500 per week. Caleris claims that as part of this modified agreement, the plaintiff agreed to forbear from pursuing legal actions as a means of collection. Briefs in support of the parties’ positions were submitted by both parties, and this court heard the oral argument on June, 24 2013.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure:

After the relevant pleadings are closed, but within such a time as not to unreasonably delay trial, any party may move for summary judgment in whole or in party as a matter of law:
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discoveiy or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. The moving party bears the burden of demonstrating that no issue of material fact exists. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa. Super. 1999). “In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 194-195 (Pa. 2007).

In order for summary judgment to be granted in a breach of contract action, the moving party must established that the following elements exist with no remaining question of material fact: (1) a contract exists; (2) breach of a duty imposed by the contract has occurred; and (3) damages have been incurred through the breach. Fritz v. Glen Mills Sch, 894 A.2d 172, 179 (Pa. Commw. Ct. 2006). Because this contract is between two merchants for the sale of goods, the Uniform Commercial Code (hereinafter, the “U.C.C.”) governs the contract and dictates that not all terms (such as price) must be expressly stated in writing as to make the contract binding. 13 Pa. C.S.A. § 2201; 13 Pa. C.S.A. §2104.

Neither party denies existence of a contract for sale of goods, nor does either party deny that there is an outstanding balance owed in fulfillment of the contract. Because a debt is owed, failure to pay would undoubtedly result in damages. Therefore, further analysis as to the appropriateness of summary judgment relies on the second element: whether the defendant breached the contract.

Pursuant to Section 2511 of the U.C.C., in order to have complied with the terms of the contract, unless otherwise stated, the buyer must deliver payment to the seller to “tender and complete any delivery.” 13 Pa. C.S.A. § 2511. However, the manner of tendering the payment may vary based on the terms of the agreement between the parties. 13Pa.C.S.A. §2511.

In addition, a contract may be modified with the consent of the parties. 13 Pa.C.S.A. § 2209. A contract may be modified without consideration. Id. Determination as to whether or not a parol modification of a contract has occurred and what the terms of the modification are is a question that is properly within the jury’s province and unless a party’s claim of modification is entirely unsupported, the trial court should not rule that the modification did not exist. ADP, Inc. v. Morrow Motors Inc., 969 A.2d 1244, 1249 (Pa. Super. 2009) (citing E. Texas Motor Freight, Diamond Div. v. Lloyd, 484 A.2d 797 (1984)). Furthermore, the non-moving party may rely entirely on an affidavit to create a genuine issue of material fact regarding whether or not a modification occurred. ADP, Inc. v. Morrow Motors Inc., 969A.2d 1244, 1249 (Pa. Super. 2009) (citing Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004, 1008-1009 (Pa. Super. 1999)).

In the instant action, there remains question as to whether or not the contract was modified through the plaintiff’s acceptance of the payment of $2,500 per week, which the defendant and Caleris aver was paid regularly for at least twelve weeks. The affidavit of Caleris may imply that the parties modified the contract, in which case it is uncertain if the defendant breached the terms of the modified contract.

As stated above, this court must view the evidence in the light most favorable to the non-moving party. As such, the court finds that a genuine issue of material fact remains as to whether or not the contract was modified, what the terms of the modification are, and whether the defendant complied with the terms of the modification. These questions of fact are properly determined by the juiy as the fact finder. Therefore, the plaintiff’s motion for summary judgment pursuant to Pa.R.C.P. 1035.2 is hereby denied.

ORDER OF COURT

And now, this 5th day of August, 2013, this matter being before the court on June 24,2013 for oral argument, regarding the plaintiff’s motion for summary judgment pursuant to Pa.R.C.P. 1035.2, with Shawn P. McClure, Esquire, appearing and representing the plaintiff, and Benjamin I. Feldman, Esquire, appearing and representing the defendant, and after a complete and thorough review of the arguments presented and submitted by counsel, the court hereby orders and decrees as follows:

1. The plaintiff’s motion for summary judgment pursuant to Pa.R.C.P. 1035.2 is hereby denied, pursuant to the attached opinion.
2. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at his last known address as contained in the court’s file.

      . The defendant disputes whether the plaintiff is entitled to interest on the debt, but not that a debt is owed.


author: HODGE, J.,

text:
    Greathouse v. Greathouse

      Susan M. Papa, for plaintiff.

      Michael G Dailey, for defendant.
    August 6, 2013
   HODGE, J.,

Before the court for disposition are competing petitions for contempt filed on behalf of the plaintiff, Heather D. Greathouse (hereinafter, “mother”), and the defendant, Stanley L. Greathouse, III (hereinafter, “father”). The court has also been presented with a motion to compel production of documents filed on behalf of father. Prior to disposing of the pending petitions and motions, the court will summarize the relevant procedural and factual background of this case.

Mother and father were married on June 23, 2001. During the course of their marriage, the parties had two minor children, Paydon A. Greathouse, bom November 15, 2003, and Timothy J. Greathouse, bom March 12, 2006. Mother initiated the instant action on May 8, 2009 by filing a complaint in divorce. Mother subsequently filed a petition for custody on September 2009. The parties have remained separated throughout the duration of this action. The current custody order, dated January 10,2012, provides mother with primary physical custody of the minor children. Father has partial custody every other weekend from Friday at 7:30 p.m. until Sunday at 8:00 p.m. and every Wednesday from 4:00 p.m. until 8:00 p.m. Father additionally has custody on alternating Sundays from 1:15 p.m. until 8:00 p.m.

Analogous with many divorce cases, there is also an existing support action between the parties. The current support order requires husband to pay Wife $569.29 per month in child support and $205.15 per month in spousal support, for a total support obligation equaling $774.44 each month. Husband’s monthly spousal support obligation included an upwards mortgage adjustment deviation equaling $71.70. Pursuant to Rule 1910.16-6(e) of the Pennsylvania Rules of Civil Procedure, wife was responsible for making the mortgage payments, home insurance and associated taxes. On March 4, 2013, the existing support order was modified to require mother to obtain health insurance for the minor children. Mother requested the modification due to communication problems with father regarding the children’s health insurance.

On May 31, 2013 the court was presented with competing petitions for contempt and for special relief. In father’s petition, father set forth allegations that mother failed to make the requisite payments on the mortgage pertaining to the marital residence and that mother failed to provide proof of payment for real estate taxes or homeowner’s insurance for the marital residence. Alternatively, mother alleged that father purchased an iPod for their oldest child, Pay don, and instructed Pay don to withhold account information for the iPod from mother. Mother stated that father provided Paydon with internet access to social media applications mother characterized as inappropriate. Mother also alleged that father makes disparaging comments about her in front of their children.

Father additionally presented a motion to compel production of documents and for special relief on May 31, 2013, which the court granted in part and denied in part. The court granted father’s request for complete, detailed and verified response to defendant’s first request for production of documents and for a walk-through of the marital residence. Father also requested the court to direct the parties to mutually agree upon a real estate appraiser and split the costs associated with an appraisal of the marital residence; the court denied this request.

Mother subsequently requested this court to reconsider its order granting father’s request to walk through the marital residence and inspect the same prior to the case proceeding to equitable distribution. The court granted Mother’s request for reconsideration. The court heard testimony regarding all of the pending petitions on July 31,2013.

The testimony established that father is consistent on his support payments. There is an existing arrearage order, but it is the result of a retroactive implementation date. Mother is responsible for making the monthly mortgage payment, but she has not met her obligation. Mother reasoned that her efforts to bring the mortgage current have been refused by the bank because mother and father are acting unilaterally. Mother stated that she did not provide father with verification of the children’s health insurance, but mother stated that her oversight was not intentional. She had been overwhelmed by other issues involving the children. No testimony was presented in regards to real estate taxes or homeowner’s insurance for the marital residence.

With respect to mother’s petition for contempt, the testimony establishes the following facts: When the parties’ oldest child, Paydon, was 8 years old, father’s mother and sister purchased an iPod for Paydon. At some point, father registered her iTunes account on Paydon’s iPod so that Paydon could download applications, commonly referred to as apps, on her iPod. Mother knew Paydon was in possession of the iPod, but she was informed by Paydon that her father and aunt told her not to share her account information with mother. Mother chose to be complacent about this request. Father stated that he closely monitored Paydon when she was using the iPod. Mother stated that Paydon also used the iPod at her residence, and mother provided Paydon with Wi-Fi access when Paydon was home with her. Mother was unaware, however, that Paydon had an iTunes account on her iPod.

In April, 2013, Father approached mother to inform her that he discovered that Paydon established an Instagram account and posted pictures of herself on the account. Father and Mother both discovered that inappropriate comments were posted as well. Mother additionally discovered that an older man, who had no connection to Paydon or to the parties, was following Paydon’s posts. Mother and father discussed this issue over the course of two weeks via e-mail, but they were unable to reach an agreement on how to resolve the problem. The court ultimately intervened and directed the iPod to be provided to attorney Shaw, the children’s guardian ad litem, until a hearing was conducted. Prior to the hearing, and after the iPod was provided to attorney Shaw, father purchased an iPhone for Paydon. Father stated that he purchased the iPhone so that he could call Paydon and so that Paydon could continue to play games and listen to music. Father additionally stated that he purchased Paydon an iPhone because the court took away Paydon’s iPod.

Mother was very upset when she learned father provide Paydon with an iPhone. Mother asserted that father ignored the court’s directions and circumvented its intentions by making such a purchase. Mother believes father opened the door to a plethora of problems by permitting his sister to establish an iTunes account on Paydon’s iPod. Mother believes father’s contemptuous behavior is further exemplified by his subsequent purchase of an iPhone for Paydon.

Alternatively, father stated that he continues to closely monitor Paydon when she uses the iPhone. Father set up specific safety provisions on the iPhone, through Verizon, to limit Paydon’s access to inappropriate applications and overall access. Father stated that he and his sister are the only individuals who have the account information. Father argues that the problem lies in mother’s failure to properly supervise Paydon when using such devices, and father sees no problem with Paydon actually possessing an iPod or iPhone. Father supported his assertions by establishing that many of the inappropriate applications were downloaded onto Paydon’s iPod when mother had custody of Paydon or while Paydon was at daycare.

When considering a petition for civil contempt of court, the Pennsylvania courts have consistently stated that:

Each court is the exclusive judge of contempts against its process. The contempt power is essential to the preservation of the court’s authority and prevents the administration of justice from falling into disrepute. When reviewing an appeal from a contempt order, the appellant [sic] court must place great reliance upon the discretion of the trial judge. On appeal from a court order holding a party in contempt of court, our scope of review is very narrow. We are limited to determining whether the trial court committed a clear abuse of discretion.

Langendorfer v. Spearman, 797 A.2d 303, 307-08 (Pa. Super.2002) (quoting Garr v. Peters, 773 A.2d 183, 189 (Pa. super.2001)).

In order to sustain a finding of civil contempt, the complainant must prove certain distinct elements by a preponderance of the evidence: (1) that the contemnor had notice of the specific order or decree which she is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent. Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).

After thoroughly reviewing the evidence presented, in addition to the court’s files, it is apparent that this case has an acrimonious history. Mother and father have been before the court on multiple occasions for contempt proceedings. The issues constantly involve their children, and the parties are unable to act appropriately even when doing so is clearly in the children’s best interests. Mother and father acknowledge that they are unable to communicate even regarding issues directly affecting their minor children.

The court finds that neither party satisfied their burden of establishing that the other acted with wrongful intent, which must be proven to sustain an allegation of contempt. Fortunately, however, the parties’ petitions were simultaneously presented in the form of petitions for special Relief, thereby invoking the equitable powers of the court. See Prol v. Prol, 935 A.2d 547, 553 (Pa. Super. 2007) (citing Johnson v. Johnson, 864 A.2d 1224 (Pa. Super.2004), appeal denied, 878 A.2d 865 (Pa. 2005)).

In disposing of father’s petition for contempt and for special relief, the court believes that it is necessary for wife to bring the mortgage current on the marital residence. The court is unaware of the totality of the parties’ marital estate, but the court believes that it is completely irresponsible to lose such a significant asset to foreclosure. Mother and father must work together, through their counsel if necessary, so that mother can make all necessary arrangements to bring the mortgage current.

With respect to mother’s failure to provide father with the children’s health insurance information, mother is admonished for her oversight. The court finds mother’s non-feasance to be even more disparaging after considering the fact that mother specifically requested to be responsible for obtaining health insurance for the children because of Father’s failure to communicate appropriately and provide Mother with necessary information. Mother has provided Father with verification of insurance for the children, prior to the July 31, 2013 hearing, and for this reason alone the Court finds it unnecessaiy to sanction mother.

Mother’s petition for contempt and for special relief presents a more complicated set of facts. Father permitted Paydon to have an iPod and an iPhone. Father’s sister established an iTunes account on each device, with father’s permission, without discussing the decision with mother or informing or permitting mother to have access to the account information. Alternatively, mother allowed Paydon to operate the iPod in her residence unsupervised with Wi-Fi connectivity.

The parties’ inability to communicate with respect to these devices, places Paydon’s safety and well-being in jeopardy because there is no consistence when monitoring Paydon’s internet use. On one hand, mother unilaterally blames father for providing Paydon with the devices and not discussing his decisions with mother. Father blames mother for providing Paydon with access to her Wi-Fi account, and not monitoring Paydon when she used the iPod. Moreover, father refuses to provide mother with account information so that she has some level of control when Paydon did use the iPod in her home. The parties are clearly unable to accept responsibility for their own faults and consistently blame the other parent. The parties’ stubborn attitudes place the court in a position where it has to micro-manage their parenting choices. Because Padyon’s safety has already been placed at risk, neither party can purchase or provide Paydon or Timothy with an iPod, iPhone or other such electronic device. Until the parties can mutually agree on these types of purchases, and provide each other with the corresponding account information and passwords, the minor children will not be permitted to have access to these types of devices.

The court will dispose of father’s motion to compel production of documents in the attached order of court, which corresponds to this opinion.

ORDER OF COURT

And now, this 6th day of August, 2013, with this case being before the court on competing petitions for contempt and for special relief and on defendant’s motion to compel production of documents and for special relief, with the plaintiff, Fleather D. Greathouse, appearing and being represented by Susan M. Papa, Esquire, and with the defendant, Stanley L. Greathouse, III, appearing and being represented by Michael G. Dailey, Esquire, and consistent with the corresponding opinion, the court hereby orders and decrees as follows:

1. Plaintiff’s petition for contempt and for special relief is granted in part and denied in part as follows:

a. Plaintiff’s petition for contempt is denied.
b. Plaintiff’s petition for special relief is granted. The parties are prohibited from providing their minor children with smart phones, iPods, tablets or other electronic devices unless the parties can mutually agree upon the purchase and provide each other with all relevant account information.
c. Plaintiff and defendant are prohibited from permitting any other person from purchasing these types of electronic devices or from establishing accounts on existing devices for the minor children.
2. Defendant’s petition for contempt and for special

relief is granted in part and denied in part as follows:

a. Defendant’s petition for contempt is denied.
b. Defendant’s petition for special relief is granted. Plaintiff shall immediately bring the mortgage on the marital residence current. Defendant is directed to cooperate with plaintiff and the mortgage lender to assist plaintiff in this regard.
c. Plaintiff is further directed to provide defendant with an updated copy the children’s medical insurance cards if not already provided.

3. Defendant’s motion to compel production of documents and for special relief is granted pursuant to the following provisions:

a. Plaintiff shall immediately supplement the discovery provided to defendant on June 26, 2013 by filing a verification attesting to the same, pursuant to Rule 4007.4 of the Pennsylvania Rules of Civil Procedure.
b. Defendant’s request to conduct a walk-through of the marital residence is granted, pursuant to Rule 4009.27. Defendant’s request shall be limited to common areas of the marital residence, such the living room, kitchen, dining room, etc., and shall not include plaintiff’s bedroom, personal bathroom or personal effects. Defendant shall be accompanied by a constable while completing the walk-through.
c. Plaintiff shall compose an inventory of defendant’s possessions remaining in the marital residence within

seven (7) days from the date of this order.

d. Defendant is directed to make arrangements, through counsel if necessary, to obtain his personal property located in the marital residence.
e. Defendant is permitted to have the marital residence appraised. Defendant shall be responsible for all costs associated with the appraisal.

4. All pending requests for sanctions and attorney’s fees made on behalf of the respective parties are denied.

5. In reviewing the domestic relations case, the court determined that defendant continued to receive a downward deviation for health insurance premiums paid on behalf of the minor children subsequent to the modification directing plaintiff to obtain health insurance. The domestic relations case is therefore remanded to the Domestic Relations Section of Lawrence County for a review conference, which shall be scheduled by Domestic Relations at its earliest convenience.

6. All prior orders of court, not inconsistent with this order of court, shall remain in full force and effect.

7. The prothonotary shall properly serve notice of this order of court upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.

      . Wi-Fi is a popular technology that allows an electronic device to exchange data or connect to the internet wirelessly using radio waves. A device that can use Wi-Fi, like an iPod, can connect to a network resource such as the Internet via a wireless network access point.

      . On devices such as an iPod, iPod or iPhone, an iTunes account must first be set up and resigistered with the device in order for a user to download applications. While the devices still have internet accessibility without an account being created, applications are not available.

      . Instagram is an online photo-sharing, video-sharing and social networking service that enables its users to take pictures and videos and share them on a variety of social networking services, such as Facebook, Twitter, Tumblr and Flickr.


author: TUCKER, J.,

text:
    Gargiolo v. City of Philadelphia Zoning Board of Adjustment

      Stephanie Kindt, for appellant.

      Andrew S. Ross, for appellee Philadelphia Zoning Board.

      Leslie M. Gerstein, for appellee Intervenors H.A. Steen Industries, Inc.

      George J. Kroculick, for appellee Intervenors CBS Outdoor and Clear Channel Outdoor.
    August 8, 2013
   TUCKER, J.,

I. PROCEDURAL HISTORY & FACTS

This matter comes before the court on the grant of Intervenors H.A. Steen Industries, Inc.’s, CBS Outdoor Group’s and Clear Channel Outdoor’s Inc.’s (hereinafter referred as “Intervenors” and alternatively as “sign owners”) motion to quash Scenic Philadelphia’s zoning agency appeal. Mot. to quash (02/25/2013). The court granted Intervenors’ joint motion to Quash Scenic Philadelphia’s zoning agency appeal due to Scenic Philadelphia’s (hereinafter referred to as “Scenic”) lack of standing to bring the instant appeal in the Philadelphia Court of Common Pleas. Scenic timely appealed the Court’s ruling to the Commonwealth Court on May 17, 2013. Appeal to Commonwealth Court (05/17/2013). The court ordered Scenic to file of record a concise statement of matters complained of pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (05/21/2013). The court will not reproduce the 1925(b) statement as per its usual custom. A discussion ensues:

The facts and record in this matter are extensive. Sometime in 2007, the Pennsylvania Department of Transportation (“PennDOT”) unveiled its long-term plan to widen and rebuild United States Interstate 95 (hereinafter “1-95”), which runs through sections of Philadelphia. Mot. to quash (02/25/2013). PennDOT’s project would require the taking of numerous outdoor advertising signs dotted alongside 1-95. Id. In an effort to prevent a taking and the attendant economic impact of a taking on the Commonwealth and the City of Philadelphia, the City of Philadelphia drafted an ordinance to allow the owners of the advertising signs to keep their property by relocating the advertising signs beyond the right of way of the PennDOT 1-95 expansion project. Id. The ordinance draft was approved by the sign owners, the mayor of the City of Philadelphia, City Council of Philadelphia, the City of Philadelphia Law Department and PennDot for compliance with the Philadelphia Code and the Federal Highway Beautification Act. Id. The ordinance established a new process to apply for and obtain a permit to relocate signs affected by the expansion project. Mot. to quash (02/25/2013); Certified record (01/23/2013)(Philadelphia, PA, Philadelphia Code §14-1642 (“1-95 Condemnation Corridor”), Bill No. 100678, introduced October 21, 2010). In June of 2011, the ordinance was approved by the City Council of Philadelphia and signed into law by the Mayor of Philadelphia. Id.

By the fall of 2011, the sign owners were notified that the advertising signs needed to be relocated out of the path of the expansion project by January 2012. Id. The instant matter concerns three (3) outdoor advertising signs. The three (3) advertising signs are located on the east side of 1-95, on the Conrail yard on Richmond Street in Philadelphia. Mot. to quash (02/25/2013). The sign owners and Conrail submitted permit applications to the Philadelphia Department of Licenses & Inspections (“L&I”) for permission to relocate the signs. Id. On April 12, 2012, L&I approved the permit applications and issued zoning permits for the demolition and relocation of the three (3) outdoor advertising signs. Certified record (01/07/2013)(“Findings of Fact”). L&I also issued permits for the use of the outdoor signs for advertising. Certified record (01/07/2013)(“Findings of Fact”).

On May 9, 2012, Stephanie Kindt, Esq., General Counsel of Scenic, formally Society Created to Reduce Urban Blight (“SCRUB”), filed an appeal of the issuance of the zoning permits to the Philadelphia Zoning Board of Adjustment (“ZBA”) on behalf of Scenic as an organization and “its members residing in the Olde Richmond and New Kensington CDC neighborhoods.” Certified record (01/07/2013)(“Findings of Fact”). The sign owners requested permission to intervene in the ZBA hearings; this request was granted and a public hearing was held before the ZBA on June 13, 2012. Id. The ZBA ultimately upheld the issuance of the zoning permits. Id.

In regards to the ZBA hearing, the court notes the following facts: First, the June 13, 2012 hearing was restricted to the issue of whether L & I issued the permits in accordance with the subject ordinance, which is codified at Philadelphia Code §14-1645. Certified record (01/07/2013)(“Findings of Fact”). Second, the ZBAheard a consolidated appeal on three permits related to three signs; however, the ZBA issued three separate rulings ultimately upholding the issuance of the permits. Id. Third, Scenic’s standing to bring an appeal before the ZBA was challenged by standing objection of both the Intervenors and the City of Philadelphia. Id. The ZBA left the issue of Scenic’s standing “unresolved;” however, the record is clear that Scenic was prevented from putting forth evidence and cross-examining witnesses at the June 2012 ZBA hearing. Id. (“Findings of Fact”)(“Notes of Testimony”). Instead, Scenic was limited to giving testimony in the form of statements. Id.

On July 13, 2012, Scenic commenced the instant appeal in the Philadelphia County Court of Common Pleas. Commencement by appeal (07/13/2012). The court notes that Scenic filed the instant appeal on behalf of Scenic the organization and five (5) individuals. Id. The Intervenors intervened as of right in this matter by praecipe. Praecipe to intervene (07/24/2012); Praecipe to intervene (08/10/2012); Praecipe to intervene (08/10/2012). After the scheduling order in this matter was modified to allow additional time to file briefs, this matter was listed for oral arguments. Order entered by J. Tucker (02/01/2013); listed for oral arguments (02/01/2013). On February 25, 2013, Intervenors filed the instant motion to quash Scenic’s appeal. Mot. to quash (02/25/2013). Scenic filed its answer to the motion to quash and the court issued a rule to show cause why Intervenor’s requested relief should not be granted. Ans. (Mot./pet. filed)(03/l 9/2013); rule issued (03/22/2013). The rule was returnable on April 17, 2013. N.T. (04/17/2013). The court did not take additional evidence at the rule hearing. At the conclusion of the rule, the court granted Intervenors’ motion to quash and dismissed Scenic’s appeal with prejudice due to Scenic’s lack of standing to bring the appeal. Order entered — final disp. (04/18/2013).

II. LEGAL ANALYSIS

The court properly granted Intervenors’ motion to dismiss Scenic’s appeal due to Scenic’s lack of standing.

1. Governing Principals — Standing

The issue in this matter is rather straightforward: does Scenic as an organization have standing to appeal the ZBA’s June 2012 decision to uphold the issuance of three zoning permits by L&I? To be clear, the court quashed the instant appeal due to Scenic’s lack of standing to bring the appeal; other so called charges of error against this court unrelated to the issue of standing are irrelevant. 1925(b) statement (05/21/2013)(stating that the court erred in granting motion to quash based on the filing of an untimely brief). The court does not view the underlying legal principals here to be complex. Where complexity arises, it does so due to the way Scenic has sought to involve itself in this matter. However, the court will begin its analysis with an overview of the evolution of standing as it relates to zoning hearing appeals in the Commonwealth of Pennsylvania and Philadelphia to aid its discussion of why Scenic does not have standing to bring the instant appeal.

Standing is the requirement that the person bringing an action be adversely affected by the matter they seek to challenge to assure that they are an appropriate party to bring the matter to a judicial resolution. Pennsylvania Game Commission v. Dept. of Environmental Resources, 555A.2d812(Pa. 1989); Robinson Tp. v. Com.,52A.3d 463 (discussing standing as it relates to a municipality, council members, landowners, an environmental association, and a medical doctor in regards to a constitutional challenge to legislation regulating oil and gas operations in the Commonwealth). Not only has the notion of standing evolved as it relates to zoning issues, but the issue of standing has a particular meaning as it relates to zoning issues in the City of Philadelphia. As discussed below, in Philadelphia, both individuals and organizations must demonstrate that they have standing to challenge zoning actions.

In 1992, the Commonwealth Court of Pennsylvania analyzed and applied the now well-known factors for determining standing to challenge the validity of government action in Pittsburgh Trust for Cultural Resources v. Zoning Bd. of Adjustment of the City of Pittsburgh, 604 A.2d 298 (Pa. Cmwlth. 1992). The court in Pittsburgh Trust stated:

Our Supreme Court has consistently held that, in order to have standing to challenge the validity of governmental action, one must generally have a substantial, direct, and immediate interest in the claim sought to be litigated. A substantial interest is one in which there is “some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.” A “direct” interest requires a showing that the matter complained of causes harm to the party’s interest. An “immediate” interest is something more than a “remote consequence” and centers on the causal nexus and proximity between the action complained of and the injury to the party challenging it. The requirement that the interest be “immediate” is also met where it falls within the “zone of interests sought to be protected by the statute or constitutional guarantee in question.” Finally, the rationale underlying the requirement that the party be “aggrieved” or “adversely affected” by the action at issue is to ensure that a legal challenge is made by the appropriate party.

Pittsburgh Trust, 604 A.2d at 303-304 (citations omitted). Pittsburgh Trust is significant because the Commonwealth Court affirmed the trial court’s determination that an association and trust had standing to appeal a variance issued by the City of Pittsburgh which allowed the construction of an amusement facility in a historic district. Id. at 303-305. In making its decision that trust had standing to challenge the issuance of the variance, the trial court considered the trust’s financial investment in the subject historic district and the trust’s “fundamental commitment of nurturing cultural activity in an area ostensibly protected from proliferation of amusement arcades by the [variance].” Id. at 304. In making its decision that the association had standing to challenge the issuance of the variance, the trial court considered the association’s mission statement and because the association represented members suffering “immediate or imminent injury because of the disputed action.” Thus, Pittsburgh Trust stood for the proposition that an organization’s mission statement and representation of members who were injured gave the organization itself standing in zoning matters.

Shortly thereafter, in a separate case specific to the City of Philadelphia, the Commonwealth held that: 1) where no objection is made to an organization’s standing before the zoning hearing board, that issue is waived on appeal in the court of common pleas; and 2) that the Philadelphia Code provides for broad standing to “any persons or persons” aggrieved by a decision of the ZBA. Society Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of the City of Philadelphia (Revere), 682 A.2d 1 (Pa. Cmwlth. 1996)(vacating and remanding back to court of common pleas for disposition).

In 1999, the Commonwealth Court presided over a Philadelphia zoning case where appellant therein, Scenic’s predecessor, SCRUB, challenged a landowner’s request for a variance. Society Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of City of Philadelphia (Procacci), 729 A.2d 117, 120 (Pa. Cmwlth. 1999). In Proccacci, SCRUB’s then president and founding member testified as both an individual and on behalf of SCRUB; no residents or other aggrieved individuals participated in the proceeding before the ZBA. Id. Nevertheless, the court in Proccacci held that pursuant Philadelphia’s broad taxpayer standing provisions, the lower court erred in quashing SCRUB’S zoning appeal for lack of standing. Id. at 121-122 (comparing and contrasting the narrow zoning standing provisions of the Municipalities Planning Code with the broad taxpayer zoning standing provisions of the Philadelphia Code).

The law governing standing in Philadelphia Zoning appeals remained the same until 2004, when an amendment to the Pennsylvania Home Rule Act narrowing the test for standing in zoning hearing appeals in Cities of the First Class, namely the City of Philadelphia, became effective. 53 P.S. §13131.1; See Society Created to Reduce Urban Blight v. Zoning Bd. Adjustment (Preston), 908 A.2d 967 (Pa. Cmwlth. 2006)(declining to apply the Home Rule Act retroactively to a zoning appeal that commenced prior to the effective date of the amendment).

In 2009, the Supreme Court of Pennsylvania formally outlined the standing requirements for Philadelphia zoning hearing proceedings pursuant to the 2004 amendment to the Home Rule Act in Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132 (Pa. 2009). The court in Spahn established the following principles: 1) the Pennsylvania General Assembly’s amendment to the Home Rule Act, known as Section 17.1, governs the issue of standing in Philadelphia zoning hearing proceedings; 2) a party must establish that they are an “aggrieved person” under Section 17.1; and 3) “aggrieved person” has a particular meaning under the law pursuant to the William Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975). Spahn, 977 A.2d at 1149-1153. Specifically, the court in Spahn stated:

Under William Penn, a party is aggrieved if the party can show an interest that is substantial, direct, and immediate. In order to be substantial, there must be some discernible effect on some interest other than the abstract interest all citizens have in the outcome of the proceedings. In order to be direct, the party must show some causation of harm to his interest. In order to be immediate, there must be a causal connection between the action complained of and the injury to the person challenging it.

Id. at 1151-1152 (citations omitted); Pittsburgh Trust, 604 A.2d at 303-304.

Applying these principles, the court in Spahn held that civic associations failed to establish that they were “aggrieved” under Section 17.1 and William Penn, despite their laudable organizational mission and purpose. Spahn, 977 A.2d at 1152-1153. In addition, the court in Spahn held that the civic associations’ members failed to establish that they had standing under Section 17.1 and William Penn. Id. Spahn represents, then a departure from the broad organizational standing requirements of Pittsburgh Trust. The court finds the principles outlined in Spahn as binding on this court, where as here, Scenic is seeking to challenge the issuance of zoning permits in the City of Philadelphia.

As a threshold matter, the issue of standing is properly before this court because the issue was preserved at the zoning hearing. Society Created to Reduce Urban Blight (Revere), 682 A.2d at 3. On May 9,2012, Scenic appealed L&I’s issuance of permits to Intervenor’s “on behalf of Scenic [ ], and members residing in the Olde Richmond and New Kensington CDC neighborhoods....” Certified record (01/23/2013)(Pt. 21). A ZBA hearing was held on June 13,2012; all Intervenors before this court intervened before the ZBA. Id. The City of Philadelphia also entered its appearance on behalf of the city and L& I at the June 13,2012 ZBA hearing. Id. (Pt. 5-7 “Notes of testimony”).

From the outset, the attorney for the city and L&I requested clarification of Scenic’s role in the appeal; specifically, counsel requested that the “members” residing in the community be identified for the record. Id. (NT. (06/13/2012) at 3). After completing direct examination of the city and L&I’s witness, the ZBA called for cross-examination. Id. (NT. (06/13/2012) at 6). At this point, the ZBA inquired as to the role of Scenic and its two attorneys, to which Scenic’s attorney responded that she was representing six (6) individuals as well as Scenic as an organization. Id. After establishing that the six (6) individuals were not present at the hearing, the ZBA determined that since the individuals were not present, Scenic’s attorney could not cross-examine witnesses presented by the city, L&I or Intervenors. Id. (NT. (06/13/2012) at 7-9). The city, L& I and Intervenors proceeded to call additional witnesses for direct examination. Id. (NT. (06/13/2012) at 10-16). The ZBA spent the remainder of the hearing essentially ruling on the Intervenors’ objections to Scenic’s attempt to testify about matters not before the ZBA. Id. (NT. (06/13/2012) at 26-34). Scenic was not allowed to make a closing statement. Id. (NT. (06/13/2012) at 32).

Despite the ZBA’s statement in its findings of fact and conclusions of law that “the issue of standing was left unresolved,” it is clear from the record that the ZBA ruled, upon objection, that Scenic did not have standing at the public hearing. S cenic was prevented from cross-examining witnesses; testifying on behalf of the six “individuals” it claimed to represent; and making a closing statement. Certified record (01/23/2013) (NT. (06/13/2012). Lastly, the court notes that even if the issue of standing before the ZBA was left “unresolved,” standing before this court is properly at issue. Baker v. Zoning Hearing Bd. of West Goshen Tp., Chester County, 367 A.2d 819 (Pa. Cmwlth. 1976)(distinguishing between standing to appear before a zoning hearing board and standing to appear before a court); N.T. (04/17/2013) at 30. Therefore, the issue of Scenic’s standing is properly before this court.

2. Scenic did not establish its standing to bring the instant appeal

Turning to the instant matter, there are two (2) reasons that Scenic does not have standing to bring the instant appeal. Although an organization may have standing to appeal a zoning issue to the Philadelphia Court of Common Pleas, such organization must establish standing either through its members or through the organization itself.

First, Scenic and its members must demonstrate that they have a substantial interest, that is, a discernible effect of L&I granting Conrail and Intervenors permits to move advertising signs on some interest other than the abstract interest all citizens have in the outcome of the proceedings. Spahn, 977 A.2d at 1151-1152. Second, Scenic and its members must demonstrate that they have a direct interest, which is some causation of harm to their interests by the grant of permits to relocate advertising signs. Id. Third, Scenic and its members must demonstrate that their interest is immediate, which is that there is a causal connection between the grant of permits to move advertising signs and some injury or harm to Scenic and its members. Id. Here, Scenic has failed to establish standing under the principles of Spahn and William Penn either through: (a) its members and constituents; or (b) through the organization itself.

a. Scenic failed to establish that it’s “members” are “aggrieved” under the principles of Spahn and William Penn.

To be clear, an organization’s members may have standing to participate in zoning hearing appeals in Philadelphia. Spahn, 977 A.2d at 1149-1153. Where an organization’s members have standing to participate in zoning hearings, the organization itself has standing to participate in zoning hearings as a party along with its members. Id. at 1150, 1152. However, the organization must demonstrate that its members indeed have standing pursuant to Spahn and William Penn, namely that its members are “aggrieved.” Id.

Here, Scenic and its members are challenging the grant of the permits to relocate advertising signs for the following reasons: 1) they claim that the permit applications do not clearly delineate which signs are to be relocated ; 2) they believe that the property where the signs are to relocated is overused; 3) the signs are currently located too close to Interstate 95 in violation of the Federal Highway Beautification Act; 4) they believe the property where the signs are to be relocated currently has too much advertising per square foot; and 5) finally, that the ordinance allowing the relocation of the signs is somehow unconstitutional because the permit applications provide an address for only one of the signs and not all three of the signs. Certified record (01/23/2013)(“N.T. (06/13/2012)(20-22, 25). The court includes Scenic’s arguments here only to discern its “interest” in the instant appeal; the court did not make a determination as to the merits of any of these claims. Scenic states that Scenic as an organization has standing to bring the instant appeal “because its members [ ] have standing, and because the issue in question is directly on point with [Scenic’s] stated mission.” 1925(b) statement (05/21/2013).

First, Scenic failed to establish that its members have a substantial interest in this matter. The record is clear that the Scenic members live less than a mile away from at least one of the signs for which a relocation permit was granted; this translates to several hundred feet between the signs and the homes of Scenic members. Certified record (01/23/2013)(“Pt. 8”); N.T. (04/17/2013) at 21. The record is also clear that 1-95, an eight lane highway, separates the Scenic members from the advertising signs. Id. In addition, the record is clear that the three signs which are the subject of this appeal will be moved further away from the Scenic members’ homes; indeed the signs are being moved between twenty-five (25) and thirty (30) feet east of their existing location, which, as Scenic points out in the materials submitted to the ZBA, is .27 miles from the Delaware Waterfront. Certified record (01/23/2013)(“Pt. 8 — Maps”); N.T. (04/17/2013) at 14-15). The record is clear that the three relocated signs will be the same height as the existing signs. Certified record (01/23/2013)(N.T. (04/17/2013) at 14-15).

The record is clear that none of Scenic’s members appeared at the ZBA hearing scheduled to resolve their appeal; according to their attorney, none of the members could attend the appeal hearing because all of the members have “day jobs.” Certified record (01/23/2013) (N.T. (06/13/2012) at 9-10). Because the ZBA could not establish the standing of the members, Scenic’s attorneys were limited to providing public comment without the right to testify or cross-examine witnesses. The court considered the certified record of the ZBA appeal hearing as complete.

The record is also clear that none of Scenic’s members appeared at the motion to quash hearing before this court. N.T. (04/17/2013); according to their attorney, none of the appellants could attend the motion to quash hearing because they are from a “working class neighborhood,” and because they shouldn’t have to take off work to “attend a hearing over something that should have been taken care of in terms of just following the City’s Zoning Code.” Id. at 22. Due to the absence of the very members on which Scenic seeks to base its standing, the court simply heard oral argument on the motion to quash. Id. at 1-33. Simply put, Scenic failed to demonstrate that its members have a substantial interest, that is, a discernible effect of L&I’s decision to grant Conrail and Intervenors permits to move advertising signs further away from their respective properties. Scenic’s members’ interest in this regard is no greater than the abstract interest all citizens have in the outcome of the instant proceedings. Spahn, 977 A.2d at 1151-1152.

Second, Scenic failed to demonstrate that its members have a direct interest, which is some causation of harm to their interests by the grant of permits to relocate advertising signs. Id. Scenic has failed to establish that there is some causation of harm to any interest in L&I’s decision to grant permits to relocate outdoor advertising signs further away from its members’ properties. Spahn, 977 A.2d at 1151-1152; certified record (01/23/2013) (“Pt. 8 — Maps”); N.T. (04/17/2013) at 14-15). Again, the court notes that the signs will be the same height as the existing signs. Certified record (01/23/2013)(“Pt. 8 — Maps”); N.T. (04/17/2013) at 14-15). Scenic’s members have not shown a direct interest in this matter.

Third, and last, Scenic failed to demonstrate that its members have an immediate interest, which is a causal connection between the grant of permits to move advertising signs and some injury or harm to Scenic and its members. Id. Scenic has not established that its members suffered some injury or harm under the facts of this case. Therefore, Scenic has not established that there is a causal connection between the grant of permits and some perceived harm. It follows then, that Scenic has not established that any of its members have any interest in the instant proceedings that is immediate. Scenic did not establish that its members have a substantial, direct and immediate interest in L&I’s issuance of a variance under the facts of this case.

b. Scenic failed to establish that Scenic as an organization is “aggrieved” under the principles of Spahn and William Penn.

Scenic makes the novel argument that it has automatic standing to bring this appeal as an organization because the issues in this matter are “directly on point” with Scenic’s mission statement. 1925(b) Statement (05/21/2013). Organizations may have standing to participate in zoning hearing appeals in Philadelphia. Spahn, 977 A.2d at 1149-1153. Indeed, pursuant to the Philadelphia Code, “[i]t is the policy of the [City] Council to protect the interests of community and neighborhood groups and organizations and to make available to such groups and organizations access to the courts where such groups and organizations seek to protect their interests under this Title.” Philadelphia Code 14-1807(7).

However, pursuant to Spahn and William Penn, organizations still have to demonstrate that they are “aggrieved.” Spahn, 977 A.2d at 1149-1153; Philadelphia Code 14-1807(7)(c). Organizations usually meet this standard by demonstrating that its members have standing, which as explained above, Scenic failed to do. Robinson Tp., 52 A.3d at 475 (explaining that while organization standing is cognizable, it is necessary for an organization to show “that at least one member has suffered or is threatened with suffering a “direct, immediate, and substantial injury to an interest as a result of the challenged action”).

Here, Scenic has not demonstrated that it is “aggrieved” in that Scenic, the organization, has an interest in this matter that is substantial, direct, and immediate. First, Scenic, operating as a non-profit organization, has not demonstrated that it has an interest in L&I’s issuance of zoning permits to Conrail and Intervenors to relocate advertising signs that is substantial. N.T. (04/17/2013). There is no discernible effect of L&Fs action on some interest of Scenic that is beyond the abstract interest that all citizens of Philadelphia have in the outcome of zoning proceedings. Spahn, 977 A.2d at 1149-1153.

Second, Scenic, operating as an organization, has not demonstrated that it has an interest that is direct. Spahn, 977 A.2d at 1149-1153. There is no evidence of causation of harm to any interest of Scenic. N.T. (04/17/2013). Third, Scenic, operating as an organization, has not demonstrated that it has an immediate interest, such that a causal connection between L&I’s issuance of zoning permits to Conrail and Intervenors to relocate advertising signs and some injury to Scenic. Spahn, 977 A.2d at 1149-1153; N.T. (04/17/2013).

The court notes that:
Scenic Philadelphia is a citywide nonprofit organization working with citizens and community groups to improve the visual environment and quality of life in their neighborhoods. This mission is consistent with an interest in the visual environment experienced by Scenic’s members.

Certified record (01/23/2012)(“Letter to ZBA of 6/13/2012”). Having amission statement that is related to or even directly promulgated to deal with a particular zoning issue is not enough to establish organizational standing in zoning proceedings or zoning appeals in Philadelphia. Spahn, 977 A.2d at 1149-1153; N.T. (04/17/2013) at 22-23. Scenic, the city wide nonprofit organization, has the same interests as the citizens of Philadelphia at large; general taxpayer standing is not enough. Id. Scenic is not the proper plaintiff or appellant to bring this action; they cannot stand in as a proxy for the proper plaintiff or appellant. Robinson Tp., 52 A.3d at 471 (stating that “the standing requirement in Pennsylvania ‘is to protect against improper plaintiffs’”).

Indeed, Scenic did not even attempt to demonstrate its standing to bring the instant appeal as an organization, presumably because Scenic somehow thought that representing six individuals pro bono gave Scenic the organization standing to bring an appeal as a party before the court of common pleas. N.T. (04/17/2013). The existence of a lawyer-client relationship does not establish standing to bring an appeal before this court. A lawyer-client relationship is a relationship between an attorney and his or her clients. A key indication of whether or not a lawyer-client relationship exists is the presence of an engagement letter outlining the boundaries of the relationship and other ethical requirements. Once retained, counsel, does not become a party to the litigation for which he or she is retained. Instead, counsel simply enters his or her appearance on behalf of the client and puts forth oral argument. Counsel does not have standing to bring an appeal on counsel’s own behalf pursuant to a lawyer-client relationship, nor do counsel’s statements to the court become testimony or evidence. It follows that staff attorneys for an organization cannot establish the organization’s standing to bring an appeal through a lawyer-client relationship with its members. The staff attorneys for the organization would simply enter their appearance on behalf of their clients and put forth oral argument. These principles are fundamental.

The court makes a distinction relevant to the disposition of this matter. First, an organization may appear before the court of common pleas as of right where they appear and participate in the hearing before the ZB A. Callowhill Center Associates, LLC v. Zoning Bd. of Adjustment, 2 A.3d 802, 809 -810 (Pa. Cmwlth. 2010). However, intervening as of right is procedurally different than having standing to file an appeal to the court of common pleas outright. Id. (stating that “the holding of Spahn prevents taxpayers from filing appeals unless they are able to satisfy the standard articulated in William Penn and demonstrate an interest in their matter that is greater than any other citizen of Philadelphia”). Scenic, operating as an organization, has not demonstrated that it has standing to appeal L&I’s issuance of a variance under the facts of this case. This is not a case where Scenic is seeking to intervene in an appeal filed by a party having proper standing to appeal. Scenic has not established its standing to bring an appeal in this matter as an organization.

III. CONCLUSION

The court granted appellee’s motion to quash appellant scenic’s appeal. Scenic failed to demonstrate that either Scenic, operating as an organization, or members have standing to appeal a decision by the Philadelphia Zoning Board to uphold the issuance of variances to relocate outdoor advertising signs.

      . H.A. Steen Industries, Inc., CBS Outdoor Group and Clear Channel Outdoor own the subject outdoor advertising signs. H.A. Steen Industries, Inc., CBS Outdoor Group and Clear Channel Outdoor are in the business of building, maintaining and leasing outdoor advertising signs to local and national advertisers. Mot. to quash (02/25/2013). CBS Outdoor is the agent of Conrail, landowner on which the three signs are located. Certified record (01/07/2013)(“Findings of Fact”).

      . Section 17.1 of the Home Rule Act provides that “[i]n addition to any aggrieved person, the governing body vested with legislative powers under any charter adopted pursuant to this act shall have standing to appeal any decision of a zoning hearing board or other board or commission created to regulate development within the city. As used in this section, the term ‘aggrieved person’ does not include taxpayers of the city that are not detrimentally harmed by the decision of the zoning hearing board or other board or commission created to regulate development.” 1949, April 21, P.L. 665 §17.1, added 2004, Nov. 30, P.L. 1523, No. 193 §2, imd. effective.

      . In response to the ZBA’s question of why the individuals were not present at the hearing, Scenic’s attorney replied “My witnesses have day jobs. It’s very difficult for them to come.” N.T. (06/13/2012) at 9(emphasis added). The court notes that one of the “witnesses” was actually an intern working for Scenic. Id. at 8.

      . The court notes that the historical version of the Philadelphia Code governing zoning issues was repealed August 22, 2012. This matter is analyzed under the historical zoning and planning code.