author: KUHN, P.J.,

text:
    Commonwealth v. Harrison

      C.P. of Adams County,
    no. CR-1029-2005.

      Shawn Wagner and Sarah Castillo, for Commonwealth.

      Patrick Quinn, for defendant.
    December 5, 2006
   KUHN, P.J.,

Before the court is a pretrial motion filed by defendant onFebruary 13,2006 wherein he seeks suppression of all evidence seized from his residence on September 8,2005. For reasons set forth below, the motion is granted.

BACKGROUND

On September 8, 2005, Trooper Gregg Dietz of the Pennsylvania State Police applied for and obtained a search warrant from Magisterial District Judge John Zepp for defendant’s residence located at 6300 Oxford Road, Huntington Township, Adams County, Pennsylvania. Attached to the application was Trooper Dietz’ affidavit of probable cause, which provides:

“Your affiant is a Pennsylvania State Trooper assigned to the criminal investigation unit at PSP-Gettysburg. I have been employed as a trooper since January 2,1994. In the course of my duties as a trooper, I have investigated numerous offenses listed under the Pa. Crimes Code title 18 along with other offenses listed under title 75 and Act 64 of 1972. In addition to my investigative duties, I have attended numerous classes and seminars specifically related to my current assignment. I have been the affiant and lead investigator where I have executed search warrants and have successfully prosecuted numerous subjects for a wide variety of crimes against both person and property.

“On September 6,2005, this officer was contacted by Adams County Children and Youth Caseworker Kim Walker in reference to a report referred to her by Carroll County Children and Youth. The complainant in this incident is the ex-girlfriend of Harrison’s [sic] and the mother of his two children. She is currently living in a shelter for abused women as a result of altercations with Harrison in the past. They have a custody agreement where he has custody of the children 1,2,4th weekends of the month. The children have been with Harrison the past two weekends.

“In the course of there [sic] relationship, Harrison has made numerous statements to the complainant about his sexual fantasies involving their daughter (2 yoa). He has also told the complainant that there were two different incidents while the couple still lived together (7/03-8/05) where he has assaulted the child. He told the compl. that on one incident he masterbated [sic] and wiped the semen onto his daughter [sic] lips and she licked it. The second incident Harrison described to her was he again master-bated [sic] and put the semen onto a spoon and fed it to the daughter.

“Beginning with Sunday August 28, 2005 when the children were returned to the complainant on Sunday August 28,2005, she recalls smelling an odor which she felt was not normal and smelled like seminal fluid. She proceeded to give the child a bath and as she was bathing him, the compl. reports he called her and said that she should make sure she washes her hair because he left a present there for her and that he ejaculated on her face before he gave the kids back.

“Since that time, Harrison has called the compl. numerous times on the phone talking about comleting [sic] explicit sexual acts on his daughter and other fantasies he has had. On Monday August 29, 2005, he called her and was asking her if it was possible to have intercourse with her and was describing how he had to get his penis wet to do it. He then asked her if it was possible to have oral sex with her and the compl [sic] repeatedly told him that was not going to happen.

“On Wednesday he called the compl. again and was describing what he wanted to do when he picked the children up on Friday, September 9, 2005. He stated he was going to video him and the compl [sic] having sex in the back of the truck and would start by having oral sex on his son.

“On Sunday September 4,2005, the compl. spoke with Harrison on the phone while he had custody of the children. He related that he was on the computer looking at child porn and talking about purchasing a bumper sticker on line that says “I like my dad’s cum” and senidng [sic] it to the compl. He has also printed out pictures of what she described as very young undeveloped girls from his computer. She has stated that he is constantly on the computer and readily talks about viewing child pornography on line. She stated that as of the end of August 2005, she still observed the computer at the residence.

“Based on the above information and my experience as a Pennsylvania State Trooper, I request that a search warrant be issued based on the facts set forth in this probable cauue [sic] affidavit. It is my experience that subjects involved in the viewing of child pornography, ofter [sic] keep pictures, images, andtapes/videos of such that would be present on the subjects [sic] computer or present in his personal possessions. It is my belief based on the above mentioned interview that Harrison does possess a computer at the above residence and, is in possession or has stored or downloaded onto his hard drive, pictures, images, or photographs of child pornography that could be used, if found to be in his possession, evidence of the aforementioned crimes on page on [sic] of this search warrant.”

On the same day the warrant was issued, Trooper Dietz and Pennsylvania State Police Troopers Nicholas Bloschichak and Luigi Dirienzo served it on defendant at his residence. As a result of the execution of the search warrant, the troopers seized two computer towers, two 8 mm cassette tapes, two VHS tapes, and 10 Polaroid photographs of defendant posing nude. A subsequent search of one of the computer towers by a Pennsylvania State Police employed computer crime analyst revealed 77 images depicting minors engaging in prohibited sexual acts. Defendant was charged with 77 counts of possession of child pornography, one count of indecent assault, and one count of corruption of minors.

DISCUSSION

Defendant contends than the affidavit used to support the issuance of the warrant was deficient because (a) it lacked probable cause, (b) it was based on stale information, and (c) the scope of the search was overbroad. Because of the disposition entered on the probable cause issue, the other issues raised by defendant need not be addressed.

Where a motion to suppress has been filed, the burden is placed on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Ruey, 586 Pa. 230, 240, 892 A.2d 802, 807 (2006); Commonwealth v. Hernandez, 892 A.2d 11, 13 (Pa. Super. 2005). Thus, in this case, the Commonwealth has the burden of proving that the affidavit upon which the search warrant was issued was supported by sufficient probable cause.

All persons have a right under both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution to be free from unreasonable searches and seizures. Except for a few established exceptions, searches are considered unreasonable unless conducted pursuant to a warrant, supported by probable cause, and authorized by a neutral and detached magistrate. The standard for determining whether probable cause exists for the issuance of a search warrant was enunciated in Commonwealth v. Dean, 693 A.2d 1360, 1365 (Pa. Super. 1997) as follows,

“Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. The standard for evaluating ... a search warrant is the ‘totality of the circumstances’ test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed 2d 527 (1983), and adopted in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 926 (1985). A magistrate is to make a ‘practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis [for] knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’... The information offered to establish probable cause must be viewed in a commonsense, non-technical manner.... Probable cause is based on a finding of probability, not a prima facie showing of criminal activity, and deference is to be accorded a magistrate’s finding of probable cause.” (citations omitted) (footnote omitted)

Probable cause for a search warrant exists where the facts and circumstances within the knowledge of a police officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in the belief that an offense has been committed. Commonwealth v. Gelineau, 696 A.2d 188, 192 (Pa. Super. 1997).

A court which is required to review the issuance of a search warrant has a similar, but slightly different task than the magistrate:

“[T]he totality of the circumstances test ‘permits a balanced assessment of the relative weight of all the various indicia of reliability (and unreliability) attending to the informant’s tip . . . It is the duty of a court reviewing an issuing authority’s probable cause determination to ensure that the magistrate had a substantial basis for concluding that probable cause existed.... In so doing, the reviewing court must accord deference to the issuing authority’s probable cause determination and must view the information offered to establish probable cause in a commonsense, non-technical manner.” Commonwealth v. Torres, 564 Pa. 86, 96-97, 764 A.2d 532, 537-38 (2001). (citations omitted)

Moreover, the court may only consider evidence within the four comers of the supporting affidavit when determining whether a warrant is supported by probable cause. Commonwealth v. Sharp, 453 Pa. Super. 349, 357, 683 A.2d 1219, 1223 (1996).

In this case, information was provided to Trooper Dietz through a multi-layered referral. It is alleged that defendant’s ex-girlfriend reported information to Carroll County Department of Social Services (CCDSS). That agency allegedly referred the same information to Kirn Walker of Adams County Children and Youth Services (ACCYS). Ms. Walker, in turn, then contacted the trooper-affiant. Defendant has challenged the reliability of the multiple layers of hearsay information used to support the affidavit of probable cause.

An affidavit of probable cause does not have to reflect the personal observations of the affiant. Commonwealth v. Greco, 465 Pa. 400, 405, 350 A.2d 826, 828 (1976). Information received from informants may form the basis of aprobable cause determination. Commonwealth v. Luv, 557 Pa. 570, 576, 735 A.2d 87, 90 (1999). When a probable cause determination is based on information from an informant, the court must examine the informant’s veracity, reliability, and basis of knowledge. In Interest of O.A., 552 Pa. 666, 676, 717 A.2d 490, 495 (1998). Reliability should be established by some objective facts that enable the court to conclude that an informant is reliable. Similarly, an affidavit containing double hearsay need not be categorically rejected and “must be evaluated in conjunction with the other information in the affidavit to determine whether the information is reliable.” Commonwealth v. Singleton, 412 Pa. Super 550, 554, 603 A.2d 1072, 1074 (1992). When an affidavit is based on hearsay, it must contain “(1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was and, (2) reasons why the affiant believed the informant was reliable.” Greco, 465 Pa. at 405, 350 A.2d at 829. The reliability of hearsay within an affidavit may be established by corroboration. Commonwealth v. Frazier, 269 Pa. Super. 527, 535, 410 A.2d 826, 830 (1979). Furthermore, if an informant’s tip provides information demonstrating a special familiarity with the defendant’s affairs, corroboration of this information imparts additional reliability to the tip and supports a finding of probable cause. Commonwealth v. Whitters, 805 A.2d 602, 606 (Pa. Super. 2002).

I have determined to first examine the information provided by defendant’s ex-girlfriend. If that information, in and of itself, is insufficient to establish probable cause for the issuance of a search warrant, then I need not determine whether that information continues to be sufficient when passed to the affiant through multiple sources.

The Commonwealth argues that the affidavit contained sufficient probable cause for a search warrant to issue because the ex-girlfriend has a special familiarity with defendant and his residence. Therefore, her statement that defendant has viewed child pornography on his home computer and her observations of printed child pornographic images in his residence is sufficient to establish her reliability and probable cause. The Commonwealth goes so far as to suggest that these facts create not a mere suspicion, but a substantial likelihood, that child pornographic images would be found on defendant’s computer. Defendant counters that the affidavit lacks the requisite corroboration to make the ex-girlfriend’s information reliable.

The issue before the court may be stated as follows: where an ex-girlfriend reports that (1) she lived with defendant from July 2003 through August 2005; (2) she is the mother of his two children; (3) she is living in a shelter for abused women as a result of altercations with defendant; (4) the parties have a custody agreement whereby defendant has custody of the children three weekends per month; (5) she claims that during their relationship defendant has made statements of having sexual fantasies about the children and of having engaged in sexual conduct with his daughter; (6) defendant readily talks about viewing child pornography on his computer; and (7) the computer was in defendant’s residence as of the end of August 2005, is there sufficient probable cause to issue a search warrant to seize defendant’s computer and “any other items related to this crime.” There is scant Pennsylvania authority speaking directly to this issue. However, this court is guided by one Pennsylvania trial court decision and several out-of-state decisions.

In Commonwealth v. Kirkpatrick, 16 D.&C.4th 49, 50 (Monroe Cty. 2005), an individual, residing at the same address as the defendant, opened a file located on a shared computer network. When the file was opened, it contained file names entitled “8-year-old boys,” “10-year-old girls,” “kindergarten kids,” and “dad with daughters.” Id. After investigating officers executed a search warrant at the defendant’s residence and seized two hard drives from his computer, a forensic analysis of the hard drives revealed several images indicating child pornography. Id. at 50-51. The defendant filed a motion to suppress, arguing that the affidavit of probable cause lacked probable cause because it merely alleged that the defendant had a computer with these file names and that they, in and of themselves do not suggest a violation of 18 Pa.C.S. §6312(d)(1). Id. at 57.

The Monroe County Court of Common Pleas found that the affidavit was frustratingly sparse because it merely set “forth the titles of four computer files without providing any clear indication as to what those files contained or to whom they belonged.” Id. at 62-63. Consequently, the court held that based on a four comers analysis, the titles of the four files, in themselves, were not sufficient to indicate child pornography and substantiate a finding of probable cause. Id. at 63.

The defendant also contended that there was insufficient proof of the veracity of the infonnant (Ms. Renda) to support the issuance of a valid warrant. Id. After examining the affidavit, the court found that Ms. Renda’s credibility was not suitably established. Id. Although the affidavit described how and why she came into contact with the file names, it failed to include any information that would tend to demonstrate her veracity or reliability in that regard. Id. Additionally, the court found that there was “no language in the affidavit to demonstrate that the affiant was able or attempted to corroborate the information he received.” Id. at 65. Therefore, the court held that the search warrant was not properly granted by the magistrate. Id.

Similarly, in the instant case the affidavit sets forth how and why the ex-girlfriend obtained the information she reported, but it completely lacks any information that would tend to support her veracity. In fact, unlike the informant in Kirkpatrick, here there is a reason to suggest that she might not be credible. Here, the ex-girlfriend, along with her children, lived with defendant apparently during a time when he might have been viewing child pornography and, purportedly, told her of his fantasies and conduct with his daughter. However, there is no indication that she reported this conduct to any authorities. Only after being physically abused and forced to reside in a shelter did she first report her information. Even then, the information was reported to a child welfare agency in Maryland and not to the police. Despite her purported knowledge of defendant’s propensity toward child pornography and of his sexual fantasies, she allegedly entered into an agreement for defendant to have custody of the children three weekends per month. After what may have been the second or third (but certainly no later than the fifth) such weekend, she reported her concerns to the agency. Any reasonable person examining similar allegations should proceed cautiously and seek some assurance that these allegations are not being advanced to gain advantage in a custody dispute. As in Kirkpatrick, the lack of corroboration of any of the ex-girlfriend’s allegations makes her statements constitutionally unreliable.

The Commonwealth has cited State v. Wible, 51 P.3d 830 (Wash. Ct. App. 2002) in support of its position. There, while working on the defendant’s computer, two repairmen came across several files which they believed to be child pornography and images from two video files which were sexual in nature and depicted young girls. Id. at 833. The repairmen reported their observations to police who obtained a search warrant. Id. Wible filed a motion to suppress challenging the reliability of the informants. Id. The court noted the following: “affidavits relying on information from citizen informants must (1) set forth the underlying factual circumstances from which the informant makes his conclusions so that a magistrate can independently determine the reliability of the manner in which the informant acquired his information and (2) set forth facts from which the officer can conclude the informant is credible and his information is reliable.” Id.

The court found that the affidavit contained facts sufficient to satisfy the basis of knowledge prong based on the informants’ personal observations of the computer images. Id. at 834. Additionally, the file names supported the report that the images depicted minors and were sexual in nature. Id. Furthermore, the court concluded that the affidavit satisfied the reliability prong because named citizen informants are presumed reliable. Id. at 835. Wible’s motion to suppress was denied. Id. at 837.

At first glance, this case seems to support the Commonwealth’s position that there was a substantial basis to support the magistrate’s finding of probable cause. However, in Wible the reporting citizens, unlike the ex-girlfriend here, appear to be disinterested persons. Furthermore, they had actual possession of the computer and gave the police specific descriptions of what they observed. Other than reporting that defendant printed pictures of very young girls at some unknown time, the ex-girlfriend’s information was based solely on what she was told. In other words, the details she described and her motives for reporting the offense were more suspect than in Wible and required more corroboration.

The Commonwealth has also cited Elardo v. State, 163 S.W.3d 760 (Tex. Ct. App. 2005) apparently for the purpose of arguing that information is presumed reliable when it is provided by a private citizen whose only contact with the police was to witness a crime. The Commonwealth contends that the ex-girlfriend is a private citizen who witnessed a crime and therefore her information should be deemed reliable.

In Elardo, the defendant’s daughter-in-law went to the defendant’s home to retrieve a television and observed him viewing child pornography on his computer. The daughter-in-law reported this observation to the police who, in turn obtained a search warrant. During the search, the police seized images of child pornography. The defendant’s suppression motion was denied by the trial court. On appeal, the Texas Court of Appeals reversed, finding that “[w]hile the affidavit in support of the warrant did contain facts indicating that the information may have been obtained in a reliable manner by the informant, the warrant did not contain any facts concerning why the information was reliable or any other indicia or [sic] reliability. Under the totality of the circumstances, the affidavit was not sufficient to constitute a substantial basis for determining that probable cause existed.” Id. at 763-64.

I do not find Elardo to be beneficial to the Commonwealth.

Texas, like Pennsylvania, follows Illinois v. Gates. The Elardo court noted that Gates did not dispense with the two-pronged test developed in Aguilar-Spinelli but rather held that it should not be applied too rigorously. Elardo, 163 S.W.3d at 766. Instead, the totality of the circumstances test is followed which, by necessity, includes an examination of the veracity, reliability, and basis of knowledge, i.e., the personal observation of the informant. Id. at 767. The strong nature of the basis of knowledge factor, however, is not sufficient to compensate for a complete lack of the veracity or reliability factors. Id. A deficiency in one of these factors, however, may be compensated for by a strong showing as to the other factors. Id.

Elardo noted some courts have held that information provided by private citizens whose only contact with the police was to witness the crime is presumed to be reliable. Id. at 768-69. This concept developed because the Supreme Court in Gates, 462 U.S. at 233-34 suggested that “if an unquestionably honest citizen comes forward with a report of criminal activity- — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Whether a court views that circumstance as a presumption of reliability or a reason to lessen the scrutiny applied to the basis of knowledge factor, it would be incredulous to argue that simply alleging that an informant witnessed a crime, without more, is constitutionally sufficient for the issuance of a search warrant. A magistrate should not merely ratify the bare conclusions of others. The extent of the knowledge and the circumstances under which that knowledge was obtained must also be examined. Reduced scrutiny is not equivalent to blind adherence. The magistrate is bound to view the totality of the circumstances not just the conclusions drawn by the police.

Unfortunately for the Commonwealth, a commonsense reading of the four comers of the affidavit does not lead one to the conclusion that the ex-girlfriend is an “unquestionably” honest private citizen who is merely reporting a crime she witnessed. Instead, for the reasons set forth above, her integrity must be scmtinized, rather than presumed, by a neutral and detached magistrate.

The importance of police corroboration of information supplied by an informant was recently illustrated in U.S. v. Solomon, 432 F.3d 824 (8th Cir. 2005). There, Solomon’s housemate (Tradup) reported to police she had learned that the defendant was a registered sex offender and, out of concern, she searched his bedroom for information regarding his sex offense. Id. at 826. She found what she believed to be images of child pornography. Id. She also discovered a child’s bathing suit under Solomon’s pillow and a girl’s clothing slip inside his dresser drawer even though he did not have children. Id. The police met with Tradup and she turned over nine images of alleged child pornography she claimed she had taken from the defendant’s bedroom. Id. Police also verified that Solomon was a sex offender and that his name appeared on a sign in front of the house address provided by Tradup. Id. Based on this information, the police obtained a search warrant and recovered a computer hard drive. Id. Evidence discovered resulted in the defendant being charged under federal law with possession of child pornography. Id.

Solomon moved to suppress the evidence obtained during the search on the basis that the warrant was not supported by probable cause. Id. at 827. The motion was denied. Id. The Eighth Circuit noted that when an affidavit is based on information from an informant, that person’s reliability, veracity, and basis of knowledge are relevant to whether the affidavit provides sufficient probable cause to support the issuance of a warrant. Id. The court had no difficulty concluding that probable cause existed. Id. First, the informant had an exceptionally strong basis of knowledge that the evidence would be found in the defendant’s home because she lived there and personally discovered the child pornography and other suspicious items. Id. Second, the fact that Tradup met with the police allowed them the opportunity to assess her credibility. Id. Third, she supported her allegations by supplying the police with photos she indicated had been retrieved from Solomon’s bedroom. Id. at 828. Fourth, the police were able to corroborate other information such as Solomon’s criminal record and his address. Id.

In the instant matter, an examination of the ex-girlfriend’s basis of knowledge, veracity and reliability within the four comers of the affidavit reveals serious concerns. Here, the informant had a somewhat limited (rather than strong) basis of knowledge that child pornography would be found in defendant’s home. She reported that she had lived with defendant over several years, defendant was constantly on his computer, he still had the computer in his residence as of the end of August 2005 at some (unknown) time in the past “he has also printed out pictures of what she described as very young undeveloped girls from his computer,” and he verbally told her that he had recently been viewing child pornography. However, the ex-girlfriend did not personally meet with the trooper nor did she provide him with any prints or other evidence which might provide some veracity to her allegations. Furthermore, the affidavit does not even allege that the trooper verified through any other source that defendant resided at the address to be searched. In other words, here, unlike Solomon, there was no information set forth in the affidavit from which the informant’s veracity or reliability could be determined. Therefore, in this case, the mere assertion that she was a private citizen reporting an alleged crime is not sufficient to establish probable cause.

Under the totality of the circumstances analysis, her limited knowledge, in my opinion, is inadequate to compensate for the complete lack of information supporting her veracity and/or reliability. Therefore, I find that there was not a substantial basis upon which the issuing magistrate could determine the existence of probable cause.

Accordingly, I am compelled to conclude that defendant’s omnibus pretrial motion must be granted.

      . After several continuances, the matter was submitted to the court on May 26, 2006 and briefs were filed by July 11, 2006. By opinion dated August 7, 2006, the motion was denied. The Commonwealth filed a motion for reconsideration on August 18, 2006 which resulted in an order vacating the court’s earlier opinion The parties were given the opportunity to file supplemental briefs.

      . Through the network, the file was linked back to the defendant’s computer.

      . The affidavit of probable cause read:
      “That on March 16,2005 this Affiant who is employed by the Stroud Area Regional Police Department received a [sic] information from Gabriela Renda regarding possible child pornography. She stated that she was having problems with her computer that is located in her bedroom at her residence of 756 Main St. She stated that while she was trying to figure the problem out, she opened a file that is located in a shared Network File. This network is shared via a router and is connected to a computer that [sic] owned by Christopher Kirkpatrick who lives in another bedroom at the same address. This is a LAN (Local Area Network) service that is subscribed from Blue Ridge Cable. This subscription is subscribed to Renda and she also pays for this service. When she opened this file, it had files in to [sic] that she thought was [sic] suspicious. She saw several files that were named (8-year-old boys), (10-year-old girls), (kindergarten kids), and one named [Qdad with daughtersQ].” Id. at 56.

      . 18 Pa.C.S. §6312(d)(1), Possession of child pornography, states: “Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.”

        The defendant further argued that in order for the affidavit to satisfy 18 Pa.C.S. §6312(d)(1), “it would have had to include at a minimum, a statement that... the informant had viewed the computer files and actually saw images that depicted acts that are prohibited under section 6312(a) as well as sufficient facts to demonstrate her reliability as an informant.”

      . The file names were “11-year-old,” “8-year-old Rape,” and “8-year-old Smile.”

      . Under Washington law, “when the informant is an ordinary citizen ... and his identity is revealed to the issuing magistrate, intrinsic indicia of the informant’s reliability may be found in his detailed description of the underlying circumstances of the crime observed or about which he had knowledge. If the underlying circumstances are sufficiently detailed to satisfy the first prong oiAguillar-Spinelli, they may themselves provide built-in credibility guides to the informant’s reliability, thus fulfilling the second prong as well. The detailed information encompassed in the affidavit’s internal content attests to the informant’s reliability by its very specificity; no independent corroboration is required. Id. at 835.

      . The search warrant was based on the following affidavit of probable cause in relevant part: “A reliable source provided affiant with information that he/she has been in the residence described above within the last 12 hours and has seen the visual material on a computer in the above described residence. The reliable source also witnessed the party named above, viewing the visual material at that time. The reliable source advised that he/she has known the above party for a number of years and has been told on several occasions that the party above keeps this type of visual material in the residence.” Id. at 766.

      . Because of the potential unreliability of statements given by anonymous informants, the United States Supreme Court developed the Aguilar-Spinelli analysis which required a two-prong test: (1) the informants obtained the relevant information in a reliable manner and (2) the informant was reliable. See Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969).

      . In Elardo, the state argued that the magistrate had a substantial basis to determine there was probable cause because the source of the infonnation was a private citizen whose only contact with the police was to witness the crime. Id. at 768. The court noted that “[i]f the affidavit had alleged that the reliable source was reliable because she was a private citizen whose only contact with the police was to witness the crime, the state’s argument may be correct.” Id. at 769. Nevertheless, “the state’s argument fails . . . because the affidavit failed to mention that the reliable source was a private citizen whose only contact with the police was to witness the crime.” Id. Likewise, in the instant case similar averments were not present. I am not suggesting that deficiency is critical. Instead, it is but one arrow in the quiver which must be included under the totality of the circumstances analysis.

      . Unlike the affidavit in Elardo which simply stated that a “reliable source” [the daughter-in-law] observed Elardo in the act of viewing computer images in his home within the past 12 hours, the affidavit in this case describes a history which provides the ex-girlfriend with a motive to fabricate. Again, the court is not suggesting that she did fabricate any portion of her report. The issue is not whether she was or was not truthful but rather what information was available from which a magistrate could conclude that her information was reliable.

      . There may be some question whether simply viewing child pornography on a computer is a crime in light of the recent decision in Commonwealth v. Diodoro, 2006 Pa. Super. 308, 313-14 (Pa. Super. 2006) wherein the Superior Court held that “absent... evidence that the defendant knowingly downloaded or saved pornographic images to his hard drive or knew that the web browser cached the images,” the defendant could not be found criminally liable for possession of child pornography.

      . The Commonwealth argues that the ex-girlfriend did, in fact, meet with the trooper before he applied for the search warrant. However, this information is referenced in a Pennsylvania State Police Incident Report dated November 4,2005. Nowhere in the affidavit is it alleged that such a meeting occurred. Therefore, the court is unable to consider that meeting.

      . 1 am mindful of the old adage that bad facts make bad law. There is no question that the police found material at defendant’s home which would meet the definition of child pornography. This court certainly does not condone the exploitation of children for this type of depraved behavior. Furthermore, any normal person would be outraged and disgusted if the balance of the ex-girlfriend’s allegations were true. Nevertheless, in a society based on law, courts cannot afford to allow the results to justify the means.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Bush v. Nyce

      C.P. of Berks County,
    no. 05-13744.

      David S. Sobotka, for plaintiff.

      Alan B. Ziegler, for defendant.
    November 27, 2006
   LASH, J.,

The matters before this court are the exceptions of defendant, Sabrina L. Nyce (Mother), to the findings of fact, conclusions of law and recommendation of the support master, entered as an order of court on July 27,2006, modifying a previous order for child support entered December 15,2005. Because the record in this case does not warrant a modification of the previous support order, we vacate the order entered July 27, 2006, and reinstate the order entered December 15, 2005, for the reasons set forth herein.

The parties are the natural parents of a minor child, Brady Scott Bush, bom January 5, 2000. Plaintiff, Matthew S. Bush (Father), had originally filed for child support on September 26, 2005. The matter proceeded to a hearing resulting in an order being entered December 15, 2005, requiring Mother to pay child support in the amount of $427 per month based on her monthly net income of $2,278.64 and Father’s monthly net income of $2,829.05.

On or about May 1, 2006, Father filed a petition for modification of an existing support order. In the petition, Father set forth the following reasons for his basis that the circumstances have changed substantially: “I have been unable to work the overtime used to collect at the [first] support hearing, and I believe that the defendant has resumed working overtime or possibly working a second job.”

A hearing was held before the support master on July 26, 2006. The next day, the support master entered his recommendation, modifying the support obligation to $448 per month, based upon Mother’s monthly net income of $2,482.71 and Father’s monthly net income of $2,723.68, in accordance with the guidelines. The support master also recommended that Mother pay the sum of $ 152 per month as contribution towards Father’s daycare expense, for an overall recommendation, exclusive of arrears, of $600 per month.

“When a trial court modifies an existing support order, that action is justified only when supported by clear and positive evidence after a hearing on the merits.” Keating v. Keating, 407 Pa. Super. 31, 42, 595 A.2d 109, 115 (1991). We also note that the petitioner must, in the petition, “specifically aver the material and substantial change in circumstances upon which the petition is based.” Yerkes v. Yerkes, 573 Pa. 294, 298, 824 A.2d 1169, 1171 (2003), citing Pa.R.C.P. 1910.19(a).

In his petition, Father relies on two bases for establishing a material and substantial change in circumstances. The first is that he suffered a reduction in income due to a loss of available overtime. While the support master accepted this reason as valid, the reduction amounted to just a little over $100 per month net. This amount is too insubstantial to warrant a modification of the support order. The second issue, that Mother has augmented her income, was expressly rejected by the support master in his findings.

In essence, the support master’s basis for modification appears to be his finding that Father commenced paying daycare for the child and that Mother should share in this expense. However, this issue was not raised in Father’s petition to modify. The issue therefore cannot be considered under Pa.R.C.P. 1910.19(a). We also note that, according to Father’s testimony, Father had only enrolled the child in daycare sometime in mid-June 2006, after the petition had already been filed. (N.T., p. 14.)

The record is also incomplete on the issue of daycare. The support master states: “Part of the time during the summer, the mother has the child and it is not clear if she is using the same daycare.” Under the custody order, Mother spends a significant amount of time with the child, which the master approximated at 31 percent of yearly overnight visits. If the support order were to be modified on the basis of the accrual of daycare expenses, the record would have to be augmented to sufficiently account for Mother’s daycare expenses, if any. Since the daycare issue was not raised in the petition, Mother could not be expected to satisfactorily address this concern at the time of the hearing.

We enter the following order:

ORDER

And now, November 27,2006, upon consideration of the exceptions of defendant, Sabrina L. Nyce, to the findings of fact, conclusions of law and recommendation of the support master, upon review of the file, and after argument held, said exceptions are sustained. The order entered July 27, 2006 is vacated. The previous order entered for child support dated December 15, 2005 is reinstated. The Domestic Relations Section of Berks County shall make any necessary adjustments to reflect the appropriate amount for arrears.


author: CULLEN, J.,

text:
    Millersville University v. Millersville Borough Zoning Hearing Board

      C.P. of Lancaster County,
    no. CI-05-05950.

      James H. Thomas, for appellant.

      Neil L. Abert, for appellee.
    August 18, 2006
   CULLEN, J.,

On July 13, 2006, Millersville University filed a notice of appeal to the Commonwealth Court from this court’s order of June 29, 2006, denying the university’s request for a variance and a special exception. Accordingly, this opinion is filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. The relevant procedural background is set out in the court’s opinion and order of June 29, 2006.

DISCUSSION

In its statement of matters complained of on appeal, the university raises three primary issues: (1) whether certain findings of fact made by the court constitute an abuse of discretion or an error of law; (2) whether the court erred in denying the university’s request for a variance; and (3) whether the court erred in denying the university’s request for a special exception. The standard of review applicable to these claims is as follows.

Where a trial court does not take additional evidence as permitted by 53 P.S. §11005-A, an appellate court normally reviews the zoning hearing board’s decision to determine if it committed an error of law or abused its discretion. Eastern Consolidation & Distribution Services v. Board of Commissioners, 701 A.2d 621, 623 (Pa. Commw. 1997) (citing Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983)).

Where the trial court does not take additional evidence but makes its own findings of fact based on the record before the zoning hearing board pursuant to 53 P.S. §11005-A, an appellate court must examine the trial court’s decision, not the board’s, for evidentiary support. Id. (citing Koutrakos v. Zoning Hearing Board, 685 A.2d 639, 642 (Pa. Commw. 1996)). The scope of review then becomes “whether the trial court committed an abuse of discretion or an error of law.” Id. (citing Faulkner v. Board of Adjustment, 154 Pa. Commw. 616, 619, 624 A.2d 677,679 (1993)). An appellate court may determine that the trial court abused its discretion “only if its findings are not supported by substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983)). If the record demonstrates such substantial evidence, then the appellate court is bound by the findings of fact made by the trial court. Macioce v. Zoning Hearing Board, 850 A.2d 882, 887 n.9 (Pa. Commw. 2004).

1. Whether Certain Findings of Fact Made by the Court Constitute an Abuse of Discretion or an Error of Law

The university raises 13 issues regarding the court’s findings of fact. These issues are labeled by the university as letters “a” through “m.”

In its issue labeled “a,” the university argues that findings of fact numbers 31, 32, 36 and 38 are deficient because baseball fields are a permitted use under the zoning ordinance and the university’s application was not for a baseball field, but rather to remove buildings. This argument, however, fails to raise a claim that the findings of fact are not supported by substantial evidence. On the contrary, an examination of the record reveals that the findings of fact correctly state that the application did not contain all of the information required by the ordinance.

Further, the ordinance classifies the area including the houses at issue as a Historic Preservation Overlay District. Zoning Ordinance, September 23, 2003 at §309; Zoning Map, September 23, 2003 at 1-2. In order to demolish a building within this district, the university must demonstrate compliance with section 309(D) of the ordinance. Zoning Ordinance, September 23, 2003 at §309(D). Section 309(D)(2) specifies that an application for demolition of a historic building must comply with the requirements of section 103(D). Id. at section 309(D) (2). Neither section 309 nor section 103 exempts from its requirements applicants whose proposed structures would otherwise be permitted by the underlying R1A Residential/University District. The findings of fact at issue merely state that the university failed to fully meet the requirements of section 103 of the ordinance.

The university’s contention that it did not have to comply with all of the provisions of the ordinance because its application was only to demolish buildings and not to construct a baseball field is undercut by the language in its application. On page 1 of its application, the university designates that its proposed use is “Houses to be removed for new baseball field.” Zoning Hearing Board application, March 31, 2005 at exhibit A-2. Similarly, on page 1 of its supplemental form, the university states: “The four properties are vacant buildings that were previously used as single family dwellings. We request permission to demolish all four to construct a baseball field along N. Prince Street on several parcels that include these four.” Id. On page 3 of the supplemental form, the university describes that the “intended use of the properties on which these houses sit is a baseball field,” that the character of the structure to be constructed is a “baseball field and grandstands,” and that an “outfield fence will be on the southern part of the property.” Id. The university also submitted site plans that depict a baseball field.

Numerous witnesses for the university testified before the Millersville Borough Zoning Hearing Board as to the construction of a baseball field, and the language of the zoning ordinance specifically requires consideration of proposed structures. Id. at exhibit A-29; N.T., May 11, 2005 at 77, 91, 95-121, 123, 125-29, 132-33, 137-38, 142, 154-58, 156-68; Zoning Ordinance, September 23, 2003 at sections 309(D)(4)(e), 103(D). Under these circumstances, the court could not view the application without properly considering the planned use as a baseball field.

As the university’s application did not comply with sections 103(D)(4)(b)(l), 103(D)(4)(b)(2), 103(D)(4)(f), and 103(D)(4)(h), the court correctly noted these deficiencies in its findings of fact.

In its issue labeled “b,” the university states: “Finding of fact number 46 suggests that the university’s structural engineer’s reports did not comply with the requirements of the ordinance because they did not contain a ‘structural analysis.’” Concise statement of matters complained of on appeal at 2.

This issue fails to assert a claim that the finding of fact is not supported by substantial evidence, but rather demonstrates that the university merely disapproves of the language that the court used to frame the finding of fact. While the university may not view the language favorably, its disapproval does not make the finding of fact erroneous.

Section 309 of the ordinance requires that an application for demolition of a historic building include “a report from a structural engineer describing the structural condition of the building proposed to be demolished, removed or relocated.” Zoning Ordinance, September 23, 2003 at section 309(D)(2)(b). The university submitted reports from a structural engineer, Steven Strock, with its application. Zoning Hearing Board application, March 31, 2005 at exhibit A-44 — A-47. On cross-examination before the board, Mr. Strock was asked by a member of the board: “I know the answer to this question, but I want to get it on the record, that you did the structural analysis.” N.T., May 11, 2002 at 67. Mr. Strock responded: “It was — a visual review of the properties. It’s not a structural analysis.” Id. The board member questioned: “But you also work for the college.” Id. Mr. Strock answered: “Yes, I do.” Id. This evidence was accepted by the court and summarized in findings of fact numbers 44 through 46. Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 13 (C.C.P. June 29,2006). These findings of fact accurately reflect the evidence presented to the board and should not be disturbed on appeal.

In its issue labeled “c,” the university asserts that finding of fact number 61 is in error because the application includes a letter to a zoning officer that complies with section 309(D)(2)(f) and section 309(D)(2)(g) of the ordinance. Those sections provide that an application to demolish a historic building include the “proposed disposition of materials” and a “time line for implementation of proposed use for the property.” Zoning Ordinance, September 23, 2003 at sections 309(D)(2)(f)-(g). The letter that the university sent to a William E. Nace, a zoning officer, provides in pertinent part as follows:

“As a supplement to the application, the following information is also being provided: (see section 309.D.2)

“(f) The disposition of materials will be to approved facilities including landfills.

“(g) The time line for the development of the athletic fields will begin upon approval of the special exception. The university plans a continuous pursuit of the project.” Zoning Hearing Board application, March 31, 2005 at exhibit A-2.

While this letter mentions the disposition of materials, it hardly provides the information that the ordinance contemplates. The very nature of a demolition project entails the disposal of materials to facilities, including landfills. If such a statement fully provided the information that the governing body intended when it drafted the ordinance, then the requirement that the application discuss the proposed disposition of materials would be superfluous. This incongruity was recognized by the court which determined that the limited information provided by the university did not fulfill the requirements of the application process. Finding of fact number 61 reflects this determination and is supported by the record and the ordinance.

Similarly, the university’s time line for the “proposed use of the property” is incomplete. Zoning Ordinance, September 23, 2003 at sections 309(D)(2)(g). While demolition of the buildings may begin upon approval of the special exception, the proposed construction of the field will not begin for an unstated amount of time. Construction may begin within weeks, months, or even years. The court, therefore, stated in its finding of fact number 61 that the university failed to satisfy the requirements of the ordinance, a detennination that is supported by the record.

In its issue labeled “d,” the university concedes that finding of fact number 72 is accurate. Since this finding of fact is admittedly supported by the record, it should not be disturbed on appeal.

The university contends in its issue labeled “e” that it satisfied the requirements of section 309(D)(2)(1) of the ordinance. That section requires an application to specify the “form of ownership or operation of the property, whether sole proprietorship, for-profit or nonprofit corporation, limited partnership, joint venture, or other.” Zoning Ordinance, September 23,2003 at section 309(D) (2)(1). The university’s application designates that it owns the properties, but does not specify the form of ownership. Zoning Hearing Board application, March 31, 2005 at exhibit A-2. Although most universities are nonprofit corporations, some are for-profit corporations or other entities. Under the ordinance, the university should have included this information in its application. Finding of fact number 72 reflects this deficiency.

In its issue labeled “f,” the university claims that finding of fact number 86 is in error. This assertion is contrary to the testimony before the board. Arthur Dickinson, the director of Capital Construction and Design for the university testified that renovation of the buildings would be extremely costly and economically unfeasible and that the cost would come close to matching the appraised values of the buildings. N.T., May 11, 2005 at 79-80; Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 21 (C.C.P. June 29, 2006). On cross-examination, the following exchange took place.

“Mr. Doran: . . . Did you do, like, a cost analysis or something or have somebody come in and give estimates on what it might cost to repair what we were talking about, some of the reports?

“The Witness: No. I mean, we — the facilities department sits down and does estimates, you know, all the time about repairs that we have to do, not only in the larger buildings on the campus, but also on the smaller houses on — you know, on George Street, as well as West Cottage, as well as on Frederick Street.

“Mr. Doran: So do you have some numbers for each one of these, if I read them down, what we’re talking about here or—

“The Witness: No. I didn’t—

“Mr. Doran: Is there anything done on those?

“The Witness: I did not do—

“Mr. Doran: Okay. Okay.

“The Witness: —exact estimates, no.” N.T., May 11, 2005 at 83.

Mr. Dickinson admitted that although his department makes estimates all the time, he did not do so for the buildings in question. Id. The court accepted this testimony as accurate and reflected its determination in finding of fact number 86.

The university asserts in its issue labeled “g” that findings of fact numbers 88 and 91 are in error. While the university concedes that finding of fact number 88 correctly states the witness’ testimony, it contends that other testimony evidences that moving the baseball field would incur the loss of another field, would place the university in violation of title IX, and would raise safety issues for the university. In other words, the university does not claim that the finding of fact is unsupported by the evidence, but rather wishes that the court would have included other information which it views as more favorable to its position. The court resolved issues of credibility and conflicting testimony in making its findings of fact without regard to whether the evidence tends to bolster or harm a party’s case. Findings of fact numbers 88 and 91 are adequately supported by the evidence and, thus, should not be disturbed on appeal.

Information about the potential loss of another field which the university argues should have been included in the findings of fact is contained in number 91. That finding of fact states: “On cross-examination, Ms. Rydell admitted that the baseball field could be constructed elsewhere and the buildings preserved, but that decision would restrict the university to only constructing the baseball field and one other field, as opposed to the four fields that its master plan currently shows.” Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 22 (C.C.R June 29, 2006); N.T., May 11, 2005 at 142, 157-58.

The remaining information which the university argues should have been included in the findings of fact is irrelevant. While the court sympathizes with the university’s difficulties in complying with title IX, the surrounding community cannot be made to bear this burden for the university. Further, the landscape architect that designed the baseball field, Mr. Sproles, discussed possible safety issues in connection with the size of a wall that would be needed in order to construct the field in its proposed location and still retain the buildings. N.T., May 11, 2005 at 113-15. There was little other testimony regarding this subject, and finding of fact number 88 reflected Mr. Sproles’ opinion that a wall could be built and the baseball field located farther west. Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 21 (C.C.R June 29, 2006); N.T., May 11, 2005 at 115-16. As the record lacked evidence about the safety issues of a field located farther west, the court did not include this information in its findings of fact.

In its issue labeled “h,” the university contends that finding of fact number 93 is inaccurate and contains a conclusion. The university, however, does not specify what about number 93 is incorrect, and this court is unable to perceive any inaccuracy or an inappropriate conclusion.

Section 309 of the ordinance requires an applicant to provide credible evidence that “adaptive reuse opportunities do not exist due to constraints related to the buildings proposed to be demolished, removed or relocated or the lot on which it is located.” Zoning Ordinance, September 23,2003 at section 309(D)(4)(d). During the hearing, a member of the board explained that the term “adaptive reuse opportunities” refers to the renovation of buildings from their current use into a new use. N.T., May 11, 2005 at 86-87. For example, in this case an adaptive reuse opportunity would be renovating the buildings which were once permanent residences for community members into temporary housing for graduate students. Id. at 87. This potential to adaptively reuse a building involves an analysis of the cost of renovating the building from one use into another use. Id. at 86. Mr. Dickinson testified for the university as to adaptive reuse opportunities. Id. at 86-87, 90-92. On redirect examination, the university questioned Mr. Dickinson and the following dialogue took place. Id. at 90-92.

“By Mr. Thomas: . . . Does — the fact that these four buildings sit at 135 to 205 North Prince Street, do — those lots, are they a constraint to adaptive use of the buildings?

“A. Well, the — the property for R1A use, okay, is— those properties sit within that framework. Okay? The permitted use for fields, which was in our master plan, is what we want to use those buildings for. If we put — if we make them residential property then we can’t do what we intended to do with the property.

“Q. So the lots are a constraint to what you—

“A. That’s—

“Q. — wanted to do?

“A. That’s correct.

“Q. Now, you were asked in some detail about cost. And if I understand correctly, you made a general estimate about costs and determined that it was not feasible to use these as residential buildings.

“From the university’s perspective, is its cost impacted by protocols like the state procurement and construction policies?

“A. Well, again, I’m not really in a position to answer that question. You’d have to ask Dr. Rydell.

“Q. If the state — if the university were to try to do construction, would it be bound to use, for example, prevailing wage as a state organization?

“A. In most cases, yes. If we did them in — over a certain dollar figure, we would have to use prevailing wages.

“Q. Do you know what that—

“A. Yeah. That’s 25,000.

“Q. So all of these would involve more than 25,000, based on your estimates, and would involve prevailing wage.

“A. That is correct.

“Q. And is that another constraint on fixing up these buildings?

“A. Yes, it is.” Id.

The court found Mr. Dickinson’s testimony to be an accurate assessment of the university’s position regarding adaptive reuse opportunities. As the potential for such opportunities is an element required by the ordinance, the court summarized Mr. Dickinson’s testimony and framed it as finding of fact number 93. Any language that may suggest a conclusion only highlights Mr. Dickinson’s opinion and testimony as opposed to a determination by the court. Since finding of fact number 93 is substantially supported by the record, it should not be disturbed on appeal.

In its issue labeled “i,” the university argues that finding of fact number 97 is not relevant to Mr. Shock’s testimony and should not have been included in the court’s opinion and order. This argument, however, fails to state a claim that the finding of fact is not supported by substantial evidence. For this reason alone, number 97 should not be disturbed.

Further, the record clearly indicates that finding of fact number 97 is relevant. Mr. Shock testified as to his opinion whether demolition of the buildings would adversely affect the historic significance or character of the neighborhood. N.T., May 11, 2005 at 47, 55. Whether Mr. Shock has the qualifications necessary to render such an opinion has probative value. Such qualifications or the lack thereof tends to make the existence of an adverse affect on the historic character of the community more or less probable and, therefore, the challenged finding of fact is relevant as it states: “Mr. Strock has not had any training in historic structures or historic preservation.” See Pa.R.E. 401 (defining relevant evidence); Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 23 (C.C.P. June 29, 2006).

In its issue labeled “j,” the university asserts that finding of fact number 107 “mischaracterizes Mr. Shock’s testimony” and that no evidence was presented “that the buildings were deteriorating from vandalism or weather damage while owned by the university.” Concise statement of matters complained of on appeal at 4.

Finding of fact number 107 accurately reflects Mr. Stock’s testimony. In his structural reports, Mr. Strock described the poor condition of the buildings. Zoning Hearing Board application, March 31, 2005 at exhibits A-44 — A-47. On direct examination, the following testimony occurred.

“Q. During the time that the university owned these buildings, did it do anything to allow the buildings to get into the condition that you described in your structural condition report?

“A. As far as 139 goes, I believe so, yes.

“Q. What did you do there?

“A. I believe the fire department used that property.

“Q. So the Millersville Fire Department used that for some training exercises?

“A. Yes.

“Q. But other than that, the condition of the buildings are pretty much the way they were when the University purchased them.

“A. Yes.” N.T., May 11, 2005 at 51.

If Mr. Stock’s testimony ended there, the university may be correct that number 107 could be in error; however, Mr. Strock elaborated upon the university’s care of the buildings on cross-examination. Mr. Strock was asked: “Did the university do anything to protect the properties against vandalism or weather damage or anything?” Id, at 53. He responded, “Not that I know of.” Id. Also during cross-examination, Mr. Strock was asked: “Do you feel leaving the properties vacant for two to three years with no heat in there, you know, through the winters, that this helped contribute to any of the conditions you’re talking about not being . . ..” Id. at 65-66. He answered:

“The Witness: They’re saying they were heated for part of that time. 205 is — I’m sorry, 135 is still heated, actually. 205 is still heated. 139 and 203 are not. Some of the damage, no. It had more to do with other things. But I’m sure some of it is. I’m sure it’s some of both.” Id. at 65-66.

The court accepted this testimony as credible evidence of the university’s actions toward the buildings and fully expressed this testimony in finding of fact number 107.

In its issue labeled “k,” the university argues that, even if its application was deficient, such deficiency does not justify a denial of its request for a special exception.

This claim does not challenge a finding of fact. The court noted that the university’s application failed to provide all of the information required by the ordinance. Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 32 (C.C.P. June 29,2006). The court’s denial of the request for a special exception was based upon its conclusion that the university failed to demonstrate that it met the specific requirements and standards applicable to a special exception. Id. at 33-45.

The university observes in its issue labeled “1” that “the findings of fact are not findings of fact; rather, they are summaries of certain portions of testimony.” Concise statement of matters complained of on appeal at 4.

While there is no requirement that specific evidence be cited to support each finding of fact, the court chose to frame its findings with reference to evidence in the record. See Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 816 (Pa. Commw. 2005) (concluding that evidence does not have to be cited). In this regard certain findings either summarize or directly quote portions of evidence that the court found credible and pertinent to the issues involved. Since the findings of fact represent the court’s resolution of factual questions and support its reasoning, they should not be disturbed on appeal. See Eastern Consolidation & Distribution Services v. Board of Commissioners, 701 A.2d 621, 623 (Pa. Commw. 1997) (explaining the standard of review applicable to findings of fact).

In its final issue challenging the court’s findings of fact, the university contends that other findings could have been made to support the conclusion that the university complied with the specific requirements of the ordinance. The university, however, does not cite any evidence that would support such a conclusion, and based on its review of the record, the court determined that the university failed to comply with the ordinance. Under these circumstances, the university’s argument lacks merit.

2. Whether the Court Erred in Denying the University’s Request for a Variance

The university raises one issue labeled “a” regarding the denial of its request for a variance. In this issue, the university asserts that the zoning officer suggested it request a variance from the requirement of providing an appraisal for the property located at 203 North Prince Street, that its application was never rejected as incomplete, and that it presented substantial evidence on the value of the property.

There is no evidence to support the university’s claim that a zoning officer suggested that it apply for a variance. Even if, for the sake of argument, one assumes that the university’s assertions are correct, they still do not support the conclusion that the university is entitled to a variance. The court set forth its reasons for denying the variance at pages 28 through 31 of its June 29, 2006 opinion and order, and the issue does not require further discussion.

3. Whether the Court Erred in Denying the University s Request for a Special Exception

In its first issue, labeled “i,” the university contends that the court committed an error of law in determining the university’s application did not comply with the requirements of the ordinance. The university argues that it did not have to comply with all of the provisions of the ordinance because a baseball field is a permitted use that does not require a special exception.

The university submitted an application to the board requesting a special exception to demolish four buildings to construct a baseball field. See supra p. 301; Zoning Hearing Board application, March 31,2005 at exhibit A-2. Section 309(D)(2) of the ordinance requires that an application include the information required by that section and section 103(D). Zoning Ordinance, September 23, 2003 at section 309(D)(2). Neither section exempts from its requirements applicants whose proposed structures would otherwise be permitted by the underlying R1A Residential/University District. Id. at section 309(D)(2) and section 103(D). The court, therefore, did not err in determining that the university failed to comply with the application requirements contained in the ordinance.

In its issue labeled “ii,” the university argues that the court committed an error of law in concluding that the university “did not establish its proposal as one which the legislature expressly designated to be appropriate and as one which is presumptively consistent with the health, safety, and general welfare of the community.” Concise statement of matters complained of on appeal at 4 (citing Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 33 (C.C.R June 29, 2006)). To support its argument, the university asserts that baseball fields are permitted by right under the zoning ordinance.

While the construction of a baseball field may be permitted by the underlying R1A Residential/University District, the ordinance classifies the area including the buildings as an Historic Preservation Overlay District. Zoning Ordinance, September 23, 2003 at sections 301(D)(4), 309; Zoning map, September 23,2003 at 1-2. In such a district, buildings may not be demolished, removed, or otherwise relocated unless the zoning officer grants a special exception. Zoning Ordinance, September 23, 2003 at §309(D)(1). A special exception may only be granted pursuant to section 309(D) of the ordinance. Id. Section 309(D)(4) places on the applicant the burden of providing credible evidence that it complied with the requirements of the ordinance. Id. at section 309(D)(4). By complying with the specific standards of section 309(D)(4), an applicant identifies the proposal as one which the legislature expressly designated to be appropriate and as one which is presumptively consistent with the health, safety, and general welfare of the community. See Bray v. Zoning Board of Adjustment, 48 Pa. Commw. 523, 526-27, 410 A.2d 909, 910-11 (1980) (explaining an applicant’s burden of proof and the applicable presumption).

Since the university did not comply with the specific requirements of section 309(D)(4) regarding its proposal to demolish four buildings and to construct a baseball field, it failed to designate its proposal as one that is presumptively consistent with the health, safety, and general welfare of the community. The university’s argument, therefore, lacks merit, and the court’s conclusion should be affirmed.

The university’s remaining issues which are labeled “iii” through “xvi” challenge the court’s conclusion that the university failed to comply with the specific standards of sections 309(D)(4)(a)-(g).

In its issue labeled “iii,” the university argues that the court erred as a matter of law when it determined the university failed to demonstrate that demolition of the buildings in question will not adversely affect the historic character of the community. This issue was adequately addressed at pages 33 through 35 of the court’s June 29, 2006 opinion and order and will not receive further discussion.

In its issue labeled “iv,” the university asserts that the court erred in defining “community” in a manner other than as the specific area in question.

In its opinion, the court examined Mr. Sproles’ testimony that demolition of the buildings and construction of a baseball field would not alter the historic character of the neighborhood. Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 34 (C.C.P. June 29,2006). Mr. Sproles’ opinion considered only the properties that can be seen from a drive down North Prince Street. Id. The court concluded that while these properties may be the closest in proximity to the proposed baseball field, they are by no means the entire relevant community. Id.

The court based this determination upon the plain language of the ordinance. Section 309(D)(4) of the ordinance states that an applicant must provide credible evidence that “the demolition, removal or relocation of the building in question will not adversely affect the historic significance or architectural integrity of the neighboring historic buildings or the historic character of the neighborhood or community.” Zoning Ordinance, September 23,2003 at section 309(D)(4)(a). Aneighborhood is an area near or next to a specified place. Black’s Law Dictionary 1060 (7th ed. 1999). In the housing context, it describes people living in a particular vicinity and forming a community. Id. A community includes all of those homes and businesses within a particular vicinity or locality. Id. at 273.

While the properties along North Prince Street would certainly be part of the relevant community, so would any properties to the west of the buildings in question or along streets in close proximity to North Prince Street. A community is more than a single street. The university had the burden of providing credible evidence that the historic character of the neighborhood or community would not be adversely affected by the proposal to demolish buildings and construct a baseball field. Zoning Ordinance, September 23,2003 at section 309(D)(4)(a). Based upon its review of the record, the court determined that the university failed to meet this burden. Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 33-35 (C.C.P. June 29, 2006). Thus, the university’s argument lacks merit.

In its issue labeled “v,” the university asserts that the court abused its discretion in concluding that the university did not present any evidence to support its assertion that the homes in question and the surrounding homes have “no historic significance or architectural integrity.” Concise statement of matters complained of on appeal at 5. This issue was addressed in the court’s opinion and order of June 29, 2006 at pages 34 and 35. The court acknowledged that the homes are not eligible for listing in the National Register of Historic Places, but concluded that this- fact does not mean the buildings, which are over a hundred years old, have absolutely no historic significance or architectural integrity. Id. The court, therefore, decided that the university failed to meet its burden.

In its issue labeled “vi,” the university contends that the court abused its discretion in finding that the university failed to demonstrate that there is no feasibility to continue the properties’ current use. This issue was addressed at pages 36 through 38 of the court’s June 29, 2006 opinion and order and does not require further discussion.

The university claims in its issue labeled “vii” that the court abused its discretion and committed an error of law in concluding the university’s particular needs and master plan are irrelevant to a determination of feasibility. The basis for the court’s conclusion regarding this issue was set out at pages 36 through 37 of its June 29, 2006 opinion and order.

In its issue labeled “viii,” the university challenges the court’s conclusion that the term “feasibility” refers to an objective analysis of the potential to continue a structure’s current use. This conclusion was thoroughly discussed at pages 36 through 37 of the court’s June 29, 2006 opinion and order and does not require further discussion.

In its issue labeled “ix,” the university argues that the court erred in concluding the university “did not present evidence as to what the cost of correcting problems would be or whether the cost would be unfeasible.” Concise statement of matters complained of on appeal at 6. The court discussed any relevant evidence at pages 37 through 38 of the court’s June 29, 2006 opinion and order.

In its issue labeled “x,” the university argues that the court abused its discretion and committed an error of law in finding that the university failed to demonstrate that other uses permitted within the underlying zoning district have been denied or are unfeasible due to constraints on the buildings proposed to be demolished. The university also argues that the court’s treatment of the master plan imposes requirements on the application beyond those of the ordinance.

The court discussed its conclusion that the university failed to meet its burden at pages 38 through 39 of its June 29, 2006 opinion and order. Similarly, the court concluded the university’s particular needs and master plan are irrelevant to a determination of feasibility at pages 36 through 37 of the opinion.

In its issue labeled “xi,” the university asserts that the court abused its discretion and committed an error of law when it determined the university failed to demonstrate that other adaptive use opportunities do not exist due to constraints related to the buildings proposed to be demolished. This issue was addressed by the court at pages 39 and 40 of its June 29, 2006 opinion and order.

The university contends in its issue labeled “xii” that the court abused its discretion and committed an error of law in determining the university failed to demonstrate that the proposed baseball field will not adversely affect the historic character of the community. In particular, the university argues that the properties are not encompassed by a Historic Preservation Overlay District, but rather “are essentially an isolated island within the university community.” Concise statement of matters complained of on appeal at 7.

This argument challenges the governing body’s decision to zone the area including these buildings as an Historic Preservation Overlay District. Such a challenge is inappropriate under the circumstances. The court applied the ordinance as written and its decision was re-fleeted at pages 40 through 42 of its June 29, 2006 opinion and order.

In its issue labeled “xiii,” the university argues that the court abused its discretion and committed an error of law in concluding the university failed to demonstrate that the proposed baseball field will not adversely affect the historic character of the community. This issue was addressed by the court at pages 40 through 42 of its June 29, 2006 opinion and order. The court noted that other privately owned properties will be affected by the construction of a baseball field. Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 33-35 (C.C.P. June 29, 2006); N.T., May 11, 2005 at 109-10.

In its issue labeled “xiv,” the university asserts that the court abused its discretion and committed an error of law in concluding that while the university may have taken steps to assure that neighboring properties will not be structurally damaged by the construction, “it has presented no evidence that the character of these buildings and the historic community as a whole will not be adversely affected by the construction of a modern baseball field.” Millersville University v. Millersville Borough Zoning Hearing Board, no. CI-05-05950, op. and order at 41 (C.C.P. June 29, 2006). The university also contends that there is no evidentiary support for the court’s statement that “[ijnevitably baseball fields have fences, metal seats, illuminated scoreboards, ancillary structures such as dugouts or equipment sheds, announcers and/or music over loudspeaker systems, and spectators to attend the games.” Id.

This issue was addressed by the court at pages 40 through 42 of its June 29, 2006 opinion and order. Further, a baseball field’s associated structures, noise, and spectators are matters of common knowledge.

In its issue labeled “xv,” the university asserts that the court abused its discretion and committed an error of law when it concluded the university failed to demonstrate that the permitted or adaptive uses of the buildings proposed to be demolished would not provide a reasonable rate of return based on a reasonable initial investment. This issue was discussed at pages 42 and 43 of the court’s June 29, 2006 opinion and order, and does not require further discussion.

In its issue labeled “xvi,” the university argues that the court abused its discretion and committed an error of law when it found that the university failed to demonstrate that it has not contributed to the buildings existing conditions. The court addressed this issue at pages 43 through 45 of its June 29, 2006 opinion and order.

The issues raised by the university on appeal are insufficient to support its position, and the order of June 29, 2006, denying the request for a variance and the request for a special exception should be affirmed.

This opinion and the opinion of June 29, 2006, constitute the trial court’s opinion for purposes of Pa.R.A.P. 1925(a).


author: HANNA,/,

text:
    In re Temes

      C.P. of Indiana County,
    no. 11139 CD 2006.

      Alan Georges Temes, pro se.
    September 15, 2006
   HANNA,/,

This matter comes before the court on plaintiff’s petition for a change of name. For the reasons set forth below, the court denies this petition.

FACTS AND PROCEDURAL HISTORY

On June 2, 2006, Alan Georges Temes filed a pro se petition to change his name to: “Alan Georges Temes a.k.a. talks to trees”. The court took testimony on this petition on July 28, 2006. At the hearing, Mr. Temes stated that he wished to add “a.k.a. talks to trees” to his name and henceforth use both his birth name and his new name. Upon further questioning from the court, it became clear that Mr. Temes wished to use the two names interchangeably, rather than as an entire name, and in essence was asking the court to approve his use of two different legal names. Mr. Temes explained that his parents were Holocaust survivors, he was the last of his family and he wished to honor his heritage and not give up his birth name. At the same time, he has used the name “talks to trees” professionally and personally for five to six years and wishes to formalize his use of that name. He provided the court with copies of two conference catalogs at which he had spoken under the name “talks to trees” and testified that he uses the name “talks to trees” on course syllabi. Mr. Temes explained that he has adopted the name “talks to trees” largely as a result of an experience he had when his father was quite ill. After receiving bad news about his father’s health, Mr. Temes went to the Botanical Gardens in Brooklyn, NY. While there, he was leaning against a tree and began to feel a sense of communication with the tree, eventually talking to the tree as a way of relieving his stress. The name “talks to trees” is spiritually meaningful to Mr. Temes and he feels it communicates more about who he is than his familial name.

DISCUSSION AND ANALYSIS OF ISSUES

The court initially notes that Mr. Temes’ petition is insufficient for technical reasons. Pennsylvania law requires that notice of the name change petition and the hearing date be published in two local newspapers. 54 Pa.C.S. §701(a.l)(3)(ii)(A). Mr. Temes provided proof of publication of notice in the Indiana Gazette and the Indiana Law Journal. Unfortunately, the notice published in the Indiana Law Journal did not specify the proposed name change. For this reason, the petition is procedurally insufficient and cannot be granted. Nonetheless, the court will consider Mr. Temes’ request for name change and the novel issue it presents.

The Judicial Change of Name Statute was created to prevent fraud by those attempting to avoid financial obligations. Matter of McIntyre, 552 Pa. 324, 328, 715 A.2d 400, 402 (1998). The Pennsylvania Supreme Court has interpreted the Change of Name Statute to indicate a liberal policy regarding change of name requests. In re Grimes, 530 Pa. 388, 392, 609 A.2d 158, 160 (1992). Judicial involvement should focus on determining that persons are not using a name change to avoid financial obligations. Id. However, courts should exercise discretion in granting a name change “in such a way as to comport with good sense, common decency, and fairness to all concerned and the public.” Id. (citing Petition of Falcucci, 355 Pa. 588, 592, 50 A.2d 200, 202 (1947)). Where a proposed name change may cause confusion or suspicion in business and social settings, such a name change should be denied on the grounds that it is contrary to public interest. See In re Ravitch, 754 A.2d 1287 (Pa. Super. 2000) (holding that the petition of a woman wishing to change her surname to “R.” should be denied on the grounds that it would promote suspicion and distrust in public settings).

Mr. Temes proposes a name change that the court views as having two components. One component is the desire to add the phrase “talks to trees” to his birth name. The second component is his plan to use the initials “a.k.a.” to join those two names together and use “Alan Georges Temes” in some settings and “talks to trees” in other settings. The court will address these two components separately, beginning with the use of “talks to trees.”

There is no social interest in denying Mr. Temes the legal use of the name “talks to trees.” A name is an intimate choice intricately bound up with one’s identity and used to convey personal information to society. Shakespeare perhaps said it best: “Good name in man and woman, dear my lord, is the immediate jewel of their souls.” Tragedy of Othello, Act III, scene iii, 155. While Shakespeare was referring to the importance of reputation, society has long recognized the value of a name and the investment an individual has in his or her name. The name “talks to trees” is meaningful to Mr. Temes and while perhaps nontraditional in Euro-American society, it is certainly not confusing or offensive to common decency. If Mr. Temes wished to change his name to “Alan Georges Temes talks to trees,” there would be no legal reason to deny the request.

The use of “a.k.a.” to join Mr. Temes’ birth name with “talks to trees” is more problematic. The phrase “aka”, usually used as shorthand for “also known as” is used to connote aliases. Its use as part of a legal name would certainly promote confusion as to whether or not “talks to trees” was a part of Mr. Temes’ legal name or whether it was an informal name used occasionally by Mr. Temes. Misunderstandings would arise and the name would engender suspicion and distrust in some settings. When granting a name change, courts must use “good sense” and “fairness to the public.” In re Grimes, 509 Pa. at 392, 609 A.2d at 160 (citing Petition of Falcucci, 533 Pa. at 592, 50 A.2d at 202). In this case, good sense and fairness to the public require that the court deny the use of “a.k.a.” as part of a legal name.

Wherefore, the court makes the following order.

ORDER

And now, September 15,2006, upon consideration of plaintiff’s petition for a name change, it is hereby ordered and directed that the petition is denied.

      . The court derives these facts from the pleadings and the testimony of Mr. Temes at the hearing.

      . Mr. Temes is a professor of health and physical education.


author: McINERNEY, J.

text:
    Bruce v. The Fountains at Logan Square v. Amtech Elevator Services and ABS Services Inc.

    C.P. of Philadelphia County,
    October Term, 2002,
    no. 3804.

      Kathleen Wilkinson, for appellants (The Fountains).

      William Rubert and RichardHohn, for appellees (Am-tech Services and ABM).
    September 15, 2006

      . Defendant ABM Industries Inc. was incorrectly identified as “ABS” and as ABM Inc. on different occasions.

   McINERNEY, J.

Defendant/ third-party plaintiff, The Fountains at Logan Square LLC, appeals this court’s entry of nonsuit in favor of third-party defendants/appellees, Amtech Elevator Services and its insurer, ABM Industries Inc.

The suit arose from an accident on January 15, 2001, in which Robert Scott Bruce was seriously injured, and his co-worker Thomas D. Stinson was killed, when the scaffolding in an elevator shaft gave way and they fell several stories to the ground. The men were remodeling an elevator at The Fountains, a retirement facility in Philadelphia, as part of a larger modernization project. It is undisputed they were acting within the course and scope of their employment with Amtech at the time of the accident. All claims resulting from this accident were settled except for the third-party plaintiff claim brought by The Fountains against Amtech for the failure of Amtech, a subcontractor on the project, to include The Fountains as an additional insured on its insurance policy for the project.

A jury began to hear evidence on The Fountains’ claim against Amtech on March 12, 2006. The trial was divided into two phases — liability and damages. The liability phase concerned the issue of whether Amtech, as the subcontractor, had a contractual obligation to name The Fountains as an additional insured on its insurance policy. The Fountains’ general contractor, Uniwest Construction, did not perform elevator work. Consequently, they put the elevator portion of the contract out to bid, retaining Zipf Associates Inc. to formulate the bid solicitation. The purpose of the bid was to hire a subcontractor to perform the elevator work. The bid specifications entitled, “Elevator Installation and Modernization Specifications for Logan Square East” (Zipf specifications), outlined the work to be done on the elevators for The Fountains’ renovation project. However, in addition to the work, section 1.07(A) of the Zipf specifications stated, “The elevator contractor shall maintain a comprehensive general liability insurance policy throughout the term of the contract, including completed operations, blanket contractual and broad form property damage in a casualty or liability insurance company acceptable to the owner.” Section 1.07(B) went on to state, “Insurance shall fully protect . . . the owner . . . and any other owner representatives identified by the owner, from all loss.” It is the effect of this clause that is at issue in this case.

The Fountains maintained that as a result of submitting the winning bid, based on the language of section 1.07(B), Amtech was obligated to name it as an additional insured and was in breach of its contract by failing to do so. However, Uniwest, as the general contractor, upon awarding the bid to Amtech, forwarded a “Subcontractor/Purchase agreement” letter on March 3, 2000 (Trial exhibit D-l) to Amtech, which included specific instructions regarding insurance coverage requiring only that Uniwest be named as an additional insured:

“(d) We need your insurance agent to send us a certificate of insurance coverage listing Uniwest Construetion Inc. as an additional insured. The enclosed ‘accord’ certificate, exhibit ‘G,’ shows our minimum insurance requirements for this project.”

Nowhere in the agreement between Amtech and Uni-west is The Fountains specified or referenced. In fact the only reference to the Zipf specifications in the contract between Uniwest and Amtech was confined to exhibit “B,” “scope of work” (Trial exhibit D-l), which states:

“(2-1) Furnish and install elevator work in accordance with ‘elevator installation and modernization specifications for Logan Square East’ as prepared by Zipf Associates and dated July 6, 1999.”

It is this reference and Amtech’s acceptance of the bid which The Fountains maintained contractually obligated Amtech to name them as an insured. However, a plain reading of the contract carries no such obligation and, as a matter of law, following the close of The Fountains’ case, this court granted Amtech’s motion for nonsuit.

While the Zipf specifications were referenced with regard to “scope of work,” it was undisputed their purpose was to establish the parameters for the elevator work to be done to enable Uniwest to solicit bids for the work and hire a subcontractor. The specifications were not intended nor did they constitute a contract between The Fountains and the eventual bid winner. And, in fact, The Fountains’ own testimony revealed Amtech did submit one revision, an increase in cost, that was ultimately accepted by Uniwest. The contract between Amtech and Uniwest is clear and unambiguous as to Amtech’s obligations.

The awarding of the bid to Amtech by Uniwest did not create a contract between Amtech and The Fountains. Nor did the awarding of the bid to Amtech bind Amtech to provide insurance for The Fountains. Once the decision was made to award the bid to Amtech, Uniwest extended a contract to Amtech, which Amtech accepted. It is that contract which binds Amtech. Although as noted previously, that contract refers to the Zipf specifications in terms of the elevator work to be done, it by no means constitutes a wholesale incorporation of those specifications. The unambiguous language of the contract is clear that it is the elevator repair and maintenance work to be done that is incorporated, but nothing else. Uniwest contracted with Zipf because they do not do elevator work; however, as general contractor Uniwest was responsible for the entire project, and while they might not have known what needed to go in the elevator contract, they knew how to require insurance and they only required Amtech to name themselves.

The Fountains argues that Joseph DeMaio acting on behalf of Amtech, in submitting a bid in response to the Zipf specifications, was contracting to abide by all the terms of the Zipf specifications. The undisputed facts are clearly otherwise. Although it is true Amtech submitted a bid, and did file an exception in their bid with reference to a particular portion of the elevator work, it was a bid and not the final contract. The contract then followed, a contract which did not require Amtech to name The Fountains.

The terms of the “Subcontract/Purchase agreement” dated March 3, 2000, do not specify inclusion of the tenns of an original bid. They in fact supersede the terms of the bid. According to Corbin on Contracts §3.22:

“An offer may be so made as to empower a single offeree to accept many times, or to empower many offerees to accept. In the former case, the resulting series of contracts between the two parties may be either unilateral or bilateral, and may be wholly independent of each other or may be related in some way to each other.”

The bid and subcontract are not a “series” of contracts. Once the bid was awarded the subcontract was offered and accepted and superseded the bid, with only the “work to be performed” incorporated. Uniwest only required indemnification for itself and Amtech complied.

The Supreme Court recognized the principle of substitution of previous terms by subsequent ones in Hatalowich v. Redevelopment Authority of Monessen, 454 Pa. 481, 485 n.5, 312 A.2d 22, 24 n.5 (1973).

“We affirmed the denial of the general contractor’s claim for damages occasioned by the tile firm’s refusal either to sign the subcontract or to perfonn the work. Our decision was based upon the lack of identity between the terms of the original oral offer and those of the written contract proposal.”

In the alternative, The Fountains argued that they were an intended third-party beneficiary of the contract between Uniwest and Amtech. As a matter of law, they were unable to establish that claim.

By not including a reference to insurance coverage for The Fountains in Uniwest’s contract with Amtech, The Fountains cannot claim third-party beneficiary status: “in order for a third-party beneficiary to have standing to recover on a contract, both contracting parties must have expressed an intention that the third-party be a beneficiary, and that intention must have affirmatively appeared in the contract itself. Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 57, 70 A.2d 828, 830-31 (1950).” Scarpitti v. Weborg, 530 Pa. 366, 370, 609 A.2d 147, 149 (1992).

The one exception, normally confined to beneficiaries of an estate, “allows a third-party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself, Spires, supra, unless the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983).” Scarpitti v. Weborg, 530 Pa. 366, 372-73, 609 A.2d 147, 150 (1992).

If Uni west and The Fountains intended Amtech to be a named insured they knew how to do that. Similarly, if Uniwest and Amtech intended The Fountains to be a third-party beneficiary, they knew how to express that. They did not.

Nor does The Fountains’ reliance on the case of Borough of Wilkinsburg v. Trumbull-Denton Joint Venture, 390 Pa. Super. 580, 568 A.2d 1325 (1990), require a different result. Wilkinsburg stands for the proposition that only the contracting parties can expect to be covered as third-party beneficiaries:

“Trumbull was required to obtain public liability insurance naming Wilkinsburg as an additional insured to protect the borough and its agents from claims arising from operations under the contract.”

Trumbull was found liable when it: “purchased a policy of comprehensive general liability insurance from CNA but failed to have Wilkinsburg named as an additional insured on this policy.” Id. at 582, 568 A.2d at 1325.

It was therefore determined that The Fountains, by not being included in Uniwest’s contract with Amtech, lacked standing to recover from Amtech. The Fountains’ only recourse, if any, for the failure of Amtech to name The Fountains lies with its general contractor, Uniwest.

For all of the foregoing reasons, this court’s entry of nonsuit should be affirmed.

      . After filing post-trial motions, but prior to the hearing, The Fountains filed a notice of appeal to the Superior Court (no. 99 EDA 2006), which was quashed as not ripe for adjudication.

      . The Fountains make much of the fact that Amtech began work on the project prior to the signing of this agreement. We do not find that of much significance except as it reflects on Uniwest’s somewhat lax attitude with reference to protecting anyone including themselves before beginning work.