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    Scott v. Zoning Board of Adjustment

      Jonathan P. Newcomb, for appellant.

      Sharon Lee Suleta, for appellee Zoning Board of Adjustment.

      Daniel P McElhatton and Jared Noah Klein, for appellees Moyer Street Associates, LLC.
    May 18, 2015
   PADILLA, J.,

Appellant John Scott, appeals this court’s order denying his statutory appeal from the final adjudication of Appellee the Zoning Board of Adjustment.

FACTUAL AND PROCEDURAL HISTORY

On March 25, 2013, Moyer Street Associates, LLC (“intervenor”) applied to the Philadelphia Department of Licenses and Inspections (“L&I”) for. a zoning use/ registration permit for the construction of fourteen (14) residential units with thirteen (13) interior parking spaces at the subject Property (“the property”) located at 412-424 Moyer Street. See findings of fact, ¶ 1; application for zoning/use registration permit no. 460914, The property is a vacant industrial parcel 11,550 square feet in size, located in an ICMX district, on the same block as RSA-5 residential zoning. See findings of fact, ¶ 5; Notes of Testimony, hereinafter N. T., 6/26/13 at 3. The property was last used as an auto salvage yard with a building covering the entirety of the lot, which subsequently fell into disrepair after its vacancy. See findings of fact, ¶ 6-7; N. T. 6/26/13 at 3, 5. The majority of the surrounding properties are residential uses. See findings of fact, ¶ 9; N. T. 6/26/13 at 9.

On April 29, 2013, L&I issued a refusal notice as the proposed residential use was not permitted within the property’s ICMX zoning district, and the proposed development did not meet the applicable requirements for; minimum rear yard depth, minimum aisle width, and provision of accessible parking spaces. See findings of fact, ¶ 2; Notice of Refusal, 4/29/13.

On May 2, 2013, intervenor filed a timely notice of appeal to appellee.

On June 26, 2013, a hearing was held before appellee.

Intervenor noted that, in 2008, appellee had granted use and dimensional variances for a proposed 14 unit residential development; the appeal eventually went to the Commonwealth Court of Pennsylvania, where that court upheld the grant of the use variance but remanded the matter for additional findings regarding the grant of dimensional variances for the project. See findings of fact, ¶ 10-11; N. T. 6/26/13 at 3-4. However, due to changes in marketing conditions, the project did not go forward. N. T. 6/26/13 at 3-4. Intervenor also noted that the current project proposal had been changed to a plan with twelve (12) units. N. T. 6/26/13 at 2.

The proposed homes would have a one (1) car garage located off of the proposed center driveway between two parallel rows of homes; vehicular access would be from the Moyer Street entryway using a single 25’ 3” wide curb cut. See findings of fact, ¶ 19; N. T. 6/26/13 at 4-5. These plans were reviewed and approved by the streets department. See findings of fact, ¶ 19; N. T. 6/26/13 at 4-5. The homes, with the exception of two carriage houses, would be thirty-three (33) feet in height; the carriage houses would be thirty-nine (39) feet in height. See findings of fact, ¶ 20; N. T. 6/26/13 at 6-7. The additional height of the carriage houses was to allow for vehicle clearance. See findings of fact, ¶ 21; N. T. 6/26/13 at 6-7. Each home would be three (3) stories high, with cellars, a roof deck, and a pilot house, consisting of approximately 1800 square feet. See findings of fact, ¶ 22; N.T. 6/26/13 at 5.

Intervenor further noted that there was a required rear yard depth of twenty (20) percent of the lot; though it had originally proposed 8.25 foot deep rear yards, as a consequence of the requirements it had increased the proposed depth to approximately ten (10) feet in the revised plans. See findings of fact, ¶ 31; N. T. 6/26/13 at 4. Because the homes on the adjacent Flora Street properties were built to the existing party wall and had no rear yards, building to within 10 feet of the rear lot line would not affect the neighbors’ light or air. See findings of fact, ¶ 31; N. T. 6/26/13 at 4, 8. Intervenor argued that accessible parking spaces were more appropriately required for industrial and commercial developments with outdoor lots, not residential projects. Additionally, intervenor noted that the proposed width under the carriage house units had been increased from 13.4 feet to twenty-two (22) feet, or two feet short of the required minimum of twenty-four (24) feet, and this revised proposal was approved by the Streets Department. See findings of fact, ¶ 34; N. T. 6/26/13 at 14.

Intervenor submitted a letter from Thomas Bond, a licensed real estate broker with twenty (20) years of experience in the Philadelphia market, stating that the small size of the site, its condition, lack of infrastructure, and constrained boundaries made it infeasible to develop the property for industrial use. See findings of fact, ¶ 24; certified record at 71; N. T. 6/26/13 at 9. Bond further noted that within a two (2) mile radius of the site there were other vacant industrial sites better suited to industrial use, and that it was unlikely the property would sell as an industrial site. See findings of fact, ¶ 24; certified record at 72.

James Moransky, the owner of the property since 2007, testified that he had listed the property for sale for over a year and that there had been no interest in it as an industrial site; almost every inquiry was for residential development and offers were contingent on zoning. See findings of fact, ¶ 26; N.T. 6/26/13 at 15.

Kevin Baird, the property’s equitable owner, also testified that a great deal of site work, including demolition and environmental remediation, was required at the property due to its previous use as a salvage yard and paint factory. See findings of fact, ¶ 28; N. T. 6/26/13 at 15-16. This use had resulted in soil contamination, and preliminary estimated costs to remove that contaminated soil would exceed $100,000.00. See findings of fact, ¶ 28, N. T. 6/26/13 at 15-16, 28-29. He stated that all of the soil would need to be remediated and a steel structure would need to be taken down. N. T. 6/26/13 at 28.

Liz Zimmer, architect for intervenor, advised the board that one of the proposed garages could be revised to meet accessibility standards. See findings of fact, ¶ 33; N. T. 6/26/13 at 12.

Intervenor submitted a letter of support from the Fishtown Neighbors Association (“FNA”). See findings of fact, ¶ 35. FNA acknowledged that reaction to the proj ect had been mixed, but neighbors had been “receptive and supportive” of the residential development of a long vacant building, the aesthetics of the building, and the parking plan. See findings of fact, ¶ 36. However, neighbors were concerned with the project’s density and proximity to existing homes. See findings of fact, ¶ 36. However, the overall vote was positive. See findings of fact, ¶ 36.

Appellant testified that he objected to the back row of homes, which would block his view of Center City and turn the property “into a crime magnet.” See findings of fact, ¶ 39; N. T. 6/26/13 at 34-35. Appellant noted he did not have a roof deck, but a staircase and commercial roof hatch, as well as a roof deck on the first floor. N. T. 6/26/13 at 38,43. However, he keeps the hatch locked and does not have a permit for a roof deck. N. T. 6/26/13 at 38, 43. Appellant also admitted that there were three (3) story homes located on the block. N. T. 6/26/13 at 42.

Joanne Perone testified that the development was too dense, especially with roof decks, and that it would be “overwhelming.” See findings of fact, ¶ 40; N. T. 6/26/13 at 41. She expressed concern about her privacy. See findings of fact, ¶ 40; N. T. 6/26/13 at 41. She presented a petition from fifty-two (52) local residents surrounding the property with their concerns about fire, safety, and density issues; intervener’s counsel objected to the petition as he averred that it misrepresented the property and was thus illegitimate. See findings of fact, ¶41; N. T. 6/26/13 at 57-59.

Michael Poole testified that his concern was for fire safety. See findings of fact, ¶ 42; N. T. 6/26/13 at 54.

Barbara Tamoff testified that she believed the project presented a quality of life issue; that if there were roof decks, there would be parties and trash; and “any number of things going on down there.” See findings of fact, ¶43; N. T. 6/26/13 at 55-56.

Jeffery Young, a representative of Councilman Darrell Clarke’s office, stated that Councilman Clarke had no position on the variance. See findings of fact, ¶ 44; N. T. 6/26/13 at 61.

Larissa Kievan, representing the planning commission, testified that the commission had no objection to the variance. See findings of fact, ¶ 45/ N. T. 6/26/13 at 61.

On October 22, 2013, intervener’s attorney sent a letter to the Zoning Board of Adjustment with revised plans, reducing the number of units to eleven (11), as well as reducing the height of proposed pilot houses, and increasing proposed rear yard depth and driveway aisle width. See findings of fact, ¶ 15-17. Applicant proposed two rows of attached homes with the front facing Moyer Street and the back parallel to the front row, facing a two-way driveway separating the rows. See findings of fact, ¶

17. The back row would have rear yards twelve (12) feet deep, extending from the rear to an existing party wall along the property’s rear lot line. See findings of fact, ¶

18. The wall is shared with existing homes on adjacent properties fronting Flora Street. See findings of fact, ¶ 18. That same day, appellee granted intervener’s the requested variances, with the proviso that the approval was per the revised plans stamped by appellee.

On November 21, 2013, appellant filed a notice of statutory appeal from the final adjudication of the Zoning Board of Adjustment.

On December 20, 2013, Kevin Baird and Moyer Street Associates, LLC filed a praecipe to intervene.

On April 9, 2014, intervenor filed a motion to quash arguing that appellant lacked standing and had filed his appeal in bad faith.

On April 28, 2014, appellant filed a motion for extraordinary relief due to the absence of a certified record from appellee.

On April 30, 2014, appellant filed an answer in opposition to the motion to quash.

On May 7, 2014, this court received a partial certified record from appellee containing its findings of fact and conclusions of law. Appellee found that the proposal was not permitted in the property’s ICMX zoning district, nor did it meet code requirements for rear yard depth, aisle width, or accessible parking spaces, thus requiring both use and dimensional variances. See conclusions of law, ¶ 1. Appellee concluded that intervenor had satisfied the criteria in the Philadelphia Code governing variances, and was appropriate. See conclusions of law, ¶ 3-5. With respect to the residential use, appellee found that efforts to market the property for industrial use were unsuccessful and that it was surrounded by residential properties; the evidence established that the variances sought were the minimum to afford relief. See conclusions of law, ¶ 6-7. Appellee accepted as credible and persuasive testimony indicating the costs of remediating the site and demolishing the existing structure make the number of proposed units the least necessary to make the project feasible. See conclusions of law, ¶ 7. Additionally, appellee found that the project would not negatively impact the public health, safety or welfare, but will return a blighted property to productive use compatible with the surrounding neighborhood. See conclusions of law, ¶ 8.

With regard to the variances, appellee agreed that the accessible space requirements are more properly applied to industrial and commercial developments, and the variance was no longer an issue as intervenor would provide one accessible space. See conclusions of law, ¶ 10. With regard to the aisle width variance, the increase in proposed width to twenty-two (22) feet, or two (2) feet from the minimum, made the variance de minimis. See conclusions of law, ¶ 11. With regard to the variance for rear yard depth, the enforcement of the requirement would result in unnecessary hardship as it would constrain development of the remainder of the site. See conclusions of law, ¶ 11-12.

Appellee concluded that the requested variances were properly granted. See conclusions of law, ¶ 14.

On May 20, 2014, this court granted appellant’s April 28, 2014 motion for extraordinary relief.

On June 4, 2014, this court denied intervenor’s motion to quash.

On June 15, 2014, appellant filed a motion for extraordinary relief.

On July 29,2014, this court granted appellant’s motion for extraordinary relief.

On August 24,2014, this court received a supplemental certified record from appellee.

On September 2, 2014, appellant filed another motion for extraordinary relief.

On September 25, 2014, this court granted appellant’s September 2, 2014 motion for extraordinary relief.

On September 30,2014, appellant filed another motion for extraordinary relief.

On October 14, 2014, appellant filed a motion for evidentiary hearing, arguing that the record was incomplete because appellees did not include the demolition permit that had been granted on February 28, 2013; evidence of mortgages and agreements of sale for 412-424 Moyer Street; because although appellee’s findings of fact stated that the soil was contaminated, Kevin Baird did not “actually use the word ‘contamination;’” because of “missing correspondence;” “missing plans;” “missing L&I refusals;” written proof that Kevin Baird is the equitable owner of the property; “documents online that differ from the physical file;” and a September 24, 2014 deed of sale for Icehouse Unit #10.

On October 23, 2014, this court granted appellant’s September 30, 2014 motion for extraordinary relief.

On November 3, 2014, intervenor filed an answer in opposition to appellant’s motion for evidentiary hearing. Intervenor noted that appellee had been presented with full and accurate information regarding the site demolition, the post hearing correspondence was both permissible and innocuous, and that the record was complete and that none of the documents or issues raised in appellant’s motion had relevance to the determination of the zoning matter.

On November 9, 2014, appellant filed a sur-reply to intervener’s answer. Appellant asserted that the conclusion regarding soil contamination referenced by appellee in its findings of fact must be found erroneous as intervenor acknowledged it never testified that soil contamination existed on the property; that intervener’s proof of ownership, a jurisdictional requirement, was missing from the certified record; that appellant could not be afforded due process when no review of the “final zoning plans” was possible; and that intervenor “acknowledges that ex parte communications are either missing from, or misidentified in, the certified record.”

On November 12, 2014, intervenor filed a sur-reply to appellant’s sur-reply. The sur-reply averred that appellee’s soil contamination conclusion was supported by the record in that testimony and had established that significant remediation was anticipated, and that ownership of the parcel had never been in dispute, as Moyer Street Associates had been the owner of the parcel since My 15, 2008 and still owned the parcel at the time of filing.

On November 13, 2014, appellant filed another motion for extraordinary relief.

On November 19, 2014, intervenor filed an answer in opposition to appellant’s November 13, 2014 motion for extraordinary relief.

On November 20, 2014, this court denied appellant’s motion for evidentiary hearing.

On December 1,2014, appellant filed his brief, arguing that:

Appellee erred as a matter of law when it failed to make any finding that the subject property could not be used for a permitted use;
that appellee erred when it found a hardship as a result of contamination causing costs of remediation to rise and justifying the grant of a variance;
that appellee erred when it found a hardship as a result of intervener’s inability to sell the subject property;
that appellee erred when it failed to make a determination that intervenor’s hardship was “not self-inflicted, resulting from intervener’s purchase”;
that appellee erred when it failed to make a “determination that intervenor’s unspecified hardship was not self-inflicted, resulting from intervenor’s neglect”;
that appellee committed an error of law when it found that the residential accessible parking requirement did not apply;
that appellee committed an error of law when it found that literal enforcement of the rear yard requirement would unnecessarily constrain development;
that appellee erred when it identified a drive aisle variance as de minimis without corresponding finding that the variance would not impact health and safety;
that appellee lackedjurisdictionto review an application in which no refusal was granted, no hearing conducted, and no neighborhood meeting conducted;
that the “refusal is incomplete as it does not evaluate whether the property meets the requirements for a subdivision”;
that appellee violated appellant’s rights to due process when it “permitted communication and acceptance of the new plans without allowing [appellant] to comment on the deficiency”;
that appellee erred when it approved plans in which “the apparent dimensions of the plans exceed the size of the property”; and finally.
that appellee committed an error of law when it failed to make a finding that the subject zoning variance would not be detrimental to the surrounding properties.

On December 8, 2014, this court denied appellant’s November 13, 2014 motion for extraordinary relief.

On December 17, 2014, intervenor filed its brief. Intervenor objected to the vast majority of the argument contained within the brief submitted by appellant on the basis that this court denied appellant’s motion for an evidentiary hearing, and appellant’s brief was “replete” with references to information appearing nowhere in the record. Additionally, intervenor argued that the evidence presented to the board was adequate to support the variances granted; and that the variances were properly granted.

On December 19, 2014, appellant filed a supplemental brief arguing that intervenor had not addressed the majority of appellant’s arguments; that intervenor’s “identity has changed and intervenor’s ownership is once again brought into question” because intervenor had been identified as Moyer Street Associates, LLC instead of Moyer Street Associates, LP; that intervenor’s res judicata claim was fatal to intervenor’s own application; that intervenor offered no case law supporting the argument that the rear yard depth variance granted was proper; that the Streets Department did not approve intervenor’s drive aisle width; that the ADA parking space requirement “applies residential projects” [sic]; and finally, that intervenor’s interpretation of appellant’s property rights was unsupported by case law.

On December 22,2014, intervenor filed a supplemental brief in response to appellant’s supplemental brief. Intervenor argued that the record provided sufficient evidence of hardship; that the drive aisle variance was sufficiently supported by the record; and that intervenors had not “abandoned” their claim that remediation was required and that the record fully supported appellee’s findings.

On December 23, 2014, this court heard oral argument on the merits of the case.

Appellant argued that the conclusions of the ZBA had no basis in law, specifically the conclusion that the drive aisle was de minimis because the drive aisle was a safety issue. N. T. 12/23/14 at 16. Appellant questioned whether fire trucks would be able to reach the back row of homes at the property. N. T. 12/23/14 at 19. Appellant argued that he believed the plans calculated the yard depth incorrectly and that there were no specific facts given about the property that would make the set back not feasible; that the property was too dense and not within the zoning code; and that no unnecessary hardship existed. N. T. 12/23/14 at 19-21. Appellant argued that the property could be put to other uses in the ICMX zoning district, such as a laundromat, day care, or parking lot. N. T. 12/23/14 at 22-23. Appellant argued that evidence of attempts to sell, including the testimony of Moransky and the letter from Thomas Bond, were sham evidence. N. T. 12/23/14 at 28. Appellant additionally asserted that intervenor had “made up” the finding of the contaminated property as contamination was not mentioned in the record, other than intervenor stating that they were in the preliminary stages of testing the soil and that it would be expensive. N. T. 12/23/14 at 26-27.

Intervenor argued that appellant’s only objection on the record in the zoning board was that he would lose his view of Center City. N. T. 12/23/14 at 29. However, appellant lived at least two hundred (200) feet away feet from the property, with houses between, and testified that he did not have a roof deck or a permit for a roof deck. N. T. 12/23/14 at 29. Instead, appellant had “a hole in his roof or a trap that he could go and take pictures from but he wasn’t using that.” N. T. 12/23/14 at 30. Intervenor further argued that appellee had found, based upon evidence that was made part of the record in an open hearing before appellee, including testimony regarding the costs of remediation of the soil. N. T. 12/23/14 at 31 -32. Intervenor noted there had been testimony about placing the property on the market and about the residential character of the community, and that appellee’s grant of the variance had been reasonable based upon the record. N. T. 12/23/14 at 31. Intervenor further argued that though the code permitted uses such as a day care, the site was still unmarketable as an industrial site and the only interest from prospective buyers were for residential with zoning contingencies. N. T. 12/23/14 at 33-34. Intervenor noted that the twelve (12) foot yard setback was “more than required if it were to be in place today...but [appellee] at the time in 2013 found that this was an appropriate rear yard dimension.” N. T. 12/23/14 at 35. With regard to the drive aisle, there was no testimony on the record regarding its safety or lack thereof. N. T. 12/23/14 at 35-36. Finally, intervenor argued that having fewer units would mean more parking issues as the drives would need to connect directly to the houses, rather than being situated behind them. N. T. 12/23/14 at 35-36.

Appellant argued in rebuttal that the view from his rear yard and front steps were also impacted. N. T. 12/23/14 at 37. Additionally, he argued that eleven (11) units were too many for the size of the lot; that it would be overly dense and create more parking and traffic; that the letter from Bond was referenced but Bond was never referenced. N. T. 12/23/14 at 37. Appellant argued that the expense of rehabilitating the property did not make a hardship. N. T. 12/23/14 at 39.

On February 6, 2015, following a thorough examination of the record and related filings, this court denied appellant’s statutory appeal.

On March 6, 2015, appellant filed a timely notice of statutory appeal to the Commonwealth Court of Pennsylvania.

On March 9, 2015, this court issued its order pursuant to Pa.R.A.P. 1925(b), directing appellant to file his concise statement of matters complained of on appeal within twenty-one (21) days.

On March 30, 2015, appellant filed its eleven (11) page concise statement of matters complained of on appeal. Appellant identified four (4) basic errors complained of, namely that: this court erred when it denied appellant’s motion for an evidentiary hearing; this court erred when it denied appellant’s appeal as the decision was contrary to the “overwhelming and undisputed evidence” that the denial would not have resulted in unnecessary hardship; that this court’s decision to deny appellant’s appeal was contrary to the evidence and that Intervenor’s hardship was self-imposed; and that appellant was denied substantive and procedural due process rights.

DISCUSSION

Appellant challenges this court’s denial of his statutory appeal from the final adjudication of the Zoning Board of Adjustment. The standard of review from a case in which the trial court did not take additional evidence is limited to determining whether the zoning board committed an abuse of discretion or error of law in rendering its decision. Township of Exeter v. Zoning Hearing Board, 599 Pa. 568, 962 A.2d 653, 659 (Pa. 2009). An abuse of discretion may be found only where the zoning board’s findings are not supported by substantial evidence, which is “relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached.” Id. Arguments not made before the zoning board are considered waived for purposes of appeal. 1700 Columbus Associates, LLC v. City of Philadelphia, Zoning Bd. of Adjustment, 976 A.2d 1257, 1268 (Pa. Commw. Ct. 2009). An appellate court errs when it substitutes its judgment on the merits for that of a zoning board. Id.

I. 1925(B) STATEMENT

Prior to reaching the merits of appellant’s appeal, this court must address appellant’s improper 1925(b) statement. The Pennsylvania Rules of Appellate Procedure are clear as to the requirements for appellants’ statements. The statement must set forth only those rulings or errors the appellant intends to challenge; the statement must concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge; the judge shall not require appellant to file a brief in conjunction with the statement; the statement should not be redundant or provide lengthy explanations as to any error, however, where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver. Pa.R.A.P. 1925(b)(4)(i)-(iv). The statement must be “concise” and coherent as to permit the trial court to understand the specific issues being raised on appeal. Tucker, 949 A.2d at 346.

In the instant case appellant has filed what amounts to a rambling, disorganized brief. It is separated into two sections, “errors complained of on appeal,” which concisely identify the issues complained of on appeal, and “preservation of issues complained of on appeal,” which does not. Section “B” of appellant’s brief consists of ten (10) pages of unnumbered paragraphs and is replete with argument, references to his fifty-nine (59) page brief, as well as to information not in the record and not considered either at the zoning board hearing or before this court during oral argument, such as the demolition permit and mortgages on the property. At times the paragraphs listed under the subheadings seem to bear no relation to the error complained of itself. For example, in section (B)(4) of appellant’s statement, in which he complains that this court’s decision violated his substantive and procedural due process rights, he also raises an argument regarding appellee’s grant of a variance with regard to accessible parking. The pages cited in his brief do not mention substantive or procedural due process arguments.

As noted above, a 1925(b) statement should not provide redundant or lengthy explanations as to the errors. For this reason, appellant’s eleven (11) page statement is improper, and this court will not address individually all issues and arguments raised by appellant therein outside of the four (4) arguments addressed below. Where a defendant files a Rule 1925(b) statement containing a multitude of issues that they did not intend to raise or could not raise before the court, such a defendant engages in misconduct. See Kanter v. Epstein, 2004 PA Super 470, 866 A.2d 394, 401 (2004). This is especially true considering that appellate briefing requirements limit appellants’ brief to 14,000 words, including the statement of questions presented on appeal. See Pa.R.A.P. 2135; Pa.R.A.P. 2116. Consequently, all other issues should be considered waived. Kanter, 866 A.2d at 401.

II. DENIAL OF MOTION FOR EVIDENTIARY HEARING

Appellant first argues that this court erred when it denied his motion for an evidentiary hearing due to a number of alleged issues with the findings of fact and conclusions of law that were “made up and contradictory.” Upon motion, if it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, however, if the record below includes findings of fact made by the board whose decision or action is brought up for review and the court does not take additional evidence, the findings of the board shall not be disturbed by the court if supported by substantial evidence. 53 Pa.C.S. § 11005-A. The lower court shall exercise its discretion and “cause an adequate record to be built so as to facilitate a proper review by the appellate court.” Brauns v. Borough of Swarthmore, 4 Pa. Cmwlth. 627, 632, 288 A.2d 830, 833 (1972).

Appellant raises a number of arguments as to why the findings of fact were “contradictory” and incorrect to the point of requiring a hearing de novo. However, the majority of appellants’ issues, including the demolition permit and mortgages, were not discussed at the hearing before the board. Consequently, such arguments are waived on appeal both before this court and before the Commonwealth Court of Pennsylvania. 1700 Columbus Associates, LLC v. City of Philadelphia, Zoning Bd. of Adjustment, 976 A.2d 1257, 1268 (Pa. Commw. Ct. 2009). Similarly, though appellant challenges the lack of evidence of “contamination,” testimony was given that the soil would need to be remediated and that it would be at great expense. N. T. 6/26/13 at 15-16, 28-29. The zoning board, as fact-finder, is the sole judge of credibility; and appellee found this testimony credible and persuasive. Marshall v. City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014).

Upon examination of the record, this court found that it contained: the application for zoning/use registration permit, the notice of refusal, the application for appeal, the notice of decision, the notice of appeal scheduling a hearing date and time, a nine (9) page long findings of fact and conclusions of law, the transcript of the hearing before appellee consisting of fifty-nine (59) pages of testimony from nine (9) witnesses and argument of counsel, building plans, photographs of the property and surrounding neighborhood, and projections of the proposed construction. The total length of the certified record is two hundred thirty six (236) pages.

This court was provided with sufficient facts and information to find that the record was not incomplete and no trial de novo was necessary in this case.

III. UNNECESSARY HARDSHIP

Appellant argues that this court erred when it denied appellant’s appeal because it was “contrary to the overwhelming evidence that [appellee’s] denial of intervenor’s application would not have resulted in an unnecessary hardship.” As noted above, where the court does not take additional evidence, challenges are limited to whether appellee committed an abuse of discretion or an error of law.

a. Use Variance

The law governing the grant of a use variance is well-settled: the reasons for the variance must be substantial, serious, and compelling, and the party seeking the variance bears the burden of proving that “unnecessary hardship will result if the variance is denied.” Valley View Civic Ass ’n v. Zoning Bd. of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district. Id. Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. Id. In evaluating hardship the use of adjacent and surrounding land is unquestionably relevant. Id. Specifically, the Philadelphia Code Philadelphia Code, §14-303(8)(e)(.2), sets forth the following criteria that must be met:

a) That there are unique physical circumstances or conditions...peculiar to the property, and that the unnecessary hardship is due to such conditions...
b) That because of those physical circumstances or conditions, there is no possibility that the property can be used in strict conformity with...this zoning code, and that authorization of a variance is therefore necessary to enable the viable economic use of the property;
c) That the use variance, if granted, will not alter the essential character of the neighborhood...nor substantially or permanently impair the appropriate use or development of adj acent property, nor be detrimental to the public welfare; and
d) That the hardship cannot be cured by the grant of a dimensional variance.

The burden of proof is on the landowner when obtaining variances. Yeager v. Zoning Hearing Board, 779 A.2d 595 (Pa. Cm with Ct. 2001).

Other courts have used the following test: 1) the physical features of the property are such that it cannot be used for a particular purpose; or 2) the property can be conformed for a permitted use only at a prohibitive expense; or 3) the property is valueless for any purpose permitted by the zoning ordinance.” South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115, 121 (Pa. Cmmw. 2012) (citing Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 812 (Pa. Cmmw. 2005). Unnecessary hardship may be established only where it is shown that compliance with the zoning ordinance would render the property “practically useless.” Evans v. Zoning Hearing Board, 723 A.2d at 686, 691 (Pa. Cmwlth. Ct. 1999). The course of time may effect changes to the property and surrounding areas that may create a hardship which did not exist. S. of S. St. Neighborhood Ass ’n; 54 A.3d at 120.

In the instant case, testimony and evidence established that the property had been vacant for some time, and that intervenors attempted to market it for zoning compliant purposes for at least one (1) year without success. Any interest shown in the property was solely for residential use contingent upon use permits. Additionally, intervenors presented testimony from the owner of the property that it would cost at least $100,000 or more to remove the structure and remediate the soil, as well as providing pictures of the property and its state of decay. Intervenors submitted a letter from a licensed real estate broker with twenty (20) years’ experience, who opined that due to the surrounding residential uses, the small size of the site, lack of infrastructure, and constrained boundaries made the site unsuitable for industrial use. In its conclusions of law, appellee held that the project would not alter the character of the neighborhood as it would establish a residential use compatible with the surrounding neighborhood. Additionally, a dimensional variance would not solve the issue in this case as the property’s ICMX zoning district does not permit residential development. The use variance was thus properly granted, and appellee did not commit an error of law or abuse its discretion in granting it.

b. Yard Depth Dimensional Variance

Appellant additionally objects to the dimensional variance granted for the rear yard depth. When deciding whether to find unnecessary hardship in the case of a dimensional variance, the zoning board “may consider the economic detriment to the applicant if the variance is denied, the financial burden created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.” Philadelphia Code § 14-308(e)(.3). In the instant case the proposed residences would have rear yards twelve (12) feet deep, although the minimum rear yard depth by RSA-5 regulations in § 14-701(2) would require a yard depth of twenty (20) feet.

Intervenor had reduced the units to allow for additional rear yard space. Appellee found that to comply strictly with the regulation, given the size and configuration, requiring a yard of that depth would unnecessarily constrain development of the remainder of the site. Testimony was presented at the hearing before appellee that twelve (12) units was the minimum feasible amount of units necessary in order to make the project profitable. Appellee found intervenor’s testimony credible and persuasive, and consequently granted the variance. There was no abuse of discretion in this decision.

c. Aisle Width Dimensional Variance

Finally, appellant objects to the dimensional variance regarding the drive aisle variance was de minimis “ignored the safety concerns” raised by appellant. Intervenor’s revised plans increased the width to twenty-two (22) feet, or two (2) feet from the minimum required by the code. Appellant presented no testimony or evidence that a firetruck could not fit through the drive aisle, and in fact, the plan had been approved by the Streets Department.

Although included in appellant’s section related to unnecessaiy hardship, the grant of a de minimis variance authorizes a variance in the absence of a showing of the unnecessary hardship standard. Lench v. Zoning Bd. of Adjustment of City of Pittsburgh, 13 A.3d 576, 581-82 (Pa. Commw. Ct. 2011). The grant of such a variance is a matter of discretion with the board, and the burden on an applicant is at its lightest where the request involves a de minimis variance with respect to dimensional requirements, in this case, width. Schomaker v. Zoning Hearing Board of the Borough of Franklin Park, 994 A.2d 1196, 1203 (Pa. Commw. Ct. 2010). There is no set criteria for determining a de minimis variance and such a decision depends on the circumstances of the case. Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 569 Pa. 147, 166 n. 21, 801 A.2d 492, 504 n. 21 (2002). A dimensional change of less than ten (10) percent will be treated as de minimis. Lench, 13 A.3d at 582.

In the instant case, the required aisle dimension is a twenty-four (24) foot minimum aisle width, whereas the plan approved by the Streets Department was twenty-two (22) feet. Two (2) feet represents an 8.33% dimensional change, and thus, appellee properly found that such a variance was de minimis.

IV. HARDSHIP SELF IMPOSED

Appellant next argues that this court erred in finding that the hardship was not self-imposed. As noted above, in cases where this court takes no additional evidence, the standard is whether the zoning board abused its discretion or committed an error of law.

With regard to landowners who purchase with knowledge of the property’s condition and existing zoning restrictions, a hardship is self-inflicted only where he has paid an unduly high price assuming the anticipated variance would justify the price, or where the size and shape of the parcel was affected by the transaction itself. Wilson v. Plumstead Tp. Zoning Hearing Bd., 594 Pa. 416, 429-430, 936 A.2d 1061, 1068-1069 (2007). Pre-purchase knowledge, absent more, does not create hardship. Id.

In its conclusions, appellee found that the property is surrounded by residential properties, attempts to market it for other use were unsuccessful, and that the costs of remediating the site and demolishing the existing industrial structure make the number of units proposed to be the least necessary to make the project feasible. Appellee found intervenors’ testimony and evidence credible and persuasive, including the testimony of Kevin Baird that the only offers for the property were not for industrial or other uses, but for residential contingent on zoning, and that the cost of remediating the soil and demolition would exceed $100,000.00.

Consequently, appellee did not abuse its discretion or commit an error of law in finding that the hardship was not self-imposed.

V. DENIAL OF DUE PROCESS RIGHTS

In his last issue appellant argues that “the court’s decision to deny [appellant’s] appeal was contrary to the overwhelming evidence on record that [appellee] effectively denied appellant substantive and procedural due process rights under the law.” As noted above, appellant filed a motion for an evidentiary hearing in an attempt to admit evidence of “correspondence” and other issues into evidence. Similarly, as noted above, this court properly denied appellant’s motion for an evidentiary hearing and the evidence on the record was sufficient to conduct a meaningful review of the issues on appeal.

Appellant received all process due and has asserted no claim of prejudice or articulated a specific harm. “The statutory notice and publication requirements are to ensure the public’s right to participate in the consideration and enactment of municipal land use decisions.” In re McGlynn, 974 A.2d 525 (Pa. Commw. Ct. 2009). These notice provisions are enacted to protect procedural due process, which is flexible and imposes “only such procedural safeguards as the situation warrants.” Id. Demonstrable prejudice is a key factor in assessing whether procedural due process was denied. Id.

In the instant case, the public hearing was advertised and held in accordance with the Philadelphia Code § 14-303(13)-(15). Appellant appeared, represented by counsel, and participated in voicing his objections on the record. He filed an appeal to this court and participated in oral argument, again represented by counsel. Consequently, appellant’s procedural due process rights were not violated.

Appellant’s argument regarding substantive due process is inapplicable in the instant situation. Substantive due process is the exercise of police power for the purpose of preserving the public health, safety, and morals of the Commonwealth; it is an “esoteric concept interwoven within our judicial framework to guarantee fundamental fairness and substantial justice” in order to protect fundamental liberty interests against infringement by the government. Khan v. State Board of Auctioneer Examiners, 577 Pa. 166, 187-188, 842 A.2d 936, 947-949 (2004). For substantive due process rights to attach there must first be a deprivation of a property right or other constitutionally protected interest. Id. It is unclear from appellant’s 1925(b) statement exactly how his substantive due process rights were violated, however, Pa.R.A.P. 1925(b)(4)(ii) requires that the appellant identify the issue with sufficient detail to identify pertinent issues for the trial judge; where the court must guess at the issues that is not enough for meaningful review. See Pa.R.A.P. 1925(b); Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006).

CONCLUSION

For all of the reasons stated above, this court’s decision should be affirmed and appellant’s appeal dismissed.

      . Poole v. Zoning Bd. of Adjustment of City of Philadelphia, 10 A.3d 381, 382 (Pa. Commw. Ct. 2010).

      . Spelled “Bayard” in the Notes of Testimony.

      . A second attempt by the trial court to encourage appellants to present a proper Pa.R.A.P. 1925(b) statement is unnecessary and not within the trial court’s discretion. Tucker v. R.M. Tours, Inc., 2007 Pa. Super. 352, 939 A.2d 343, 347 (2007).


source: Caselaw Access Project

author: GRAY, J.,

license: Public Domain

text:
    Bair v. Charney

      C.P. of Lycoming County,
    No. CV-15-00,140

      N. Randall Sees, for plaintiffs.

      Marc S. Drier, for defendants Chamey.

      Rodney A. Beard, for defendant Saar’s Tree Service, LLC.
    May 21, 2015
   GRAY, J.,

Before the court are the Chamey defendants’ preliminary objections which essentially consist of a demurrer to every count of plaintiffs’ complaint, an objection to punitive damages, and an objection to lack of specificity as to damages. The following opinion is provided in support of this court’s rulings.

Factual Background

OnJanuary 16,2015, CliffordandLoriBair(“plaintiffs”) filed a complaint and motion for preliminary injunction, requesting expedited consideration on the motion for injunction. On January 23, 2015 and January 26, 2015 David and Leah Charney (Charney defendants) filed preliminary objections to both the motion for injunction and the complaint. On January 29, 2015, plaintiffs filed an answer to the preliminary objections to the motion for injunction. A hearing on the motion for preliminary injunction was scheduled for January 30, 2015. At the time set for the hearing, the parties agreed to an order maintaining the status quo, pending further order of court. Argument on the preliminary objections to the complaint was held on March 11, 2015. Additional time was granted for the submission of further briefs or case-law with respect to the objections. All briefs and additional material with respect to the objections were received by March 17, 2015.

Given the procedural posture, for the purposes of deciding the objections, the court accepts as true the averments of plaintiff’s complaint. The complaint provides the following pertinent facts. The plaintiffs and the Charney defendants own land adjoining each other in the Township of Watson, Lycoming County. Plaintiffs own a strip of land (“Strip”) which separates the land on which the plaintiffs and the Charney defendants have their homes. The dispute arises from a right-of-way on or encompassing this Strip. Plaintiffs aver that the Strip includes a driveway shared by plaintiffs and defendants. Plaintiffs aver “[a] roadway located on the property is the subject of a right-of-way use and maintenance agreement.” Complaint, ¶7 (emphasis added). Plaintiffs attached the right-of-way use and maintenance agreement (“maintenance agreement”) to the complaint as Exhibit B. That maintenance agreement recognizes the existence of a “perpetual easement and right-of-way agreement (“perpetual easement”), dated September 30, 1998, and recorded in Lycoming Count Deed Book 3122, Page 151. The perpetual easement provides “a perpetual easement and right of ingress, egress and regress over and along the Roadwayf.]” See, Complaint, Exhibit “B.” The deed (attached as Exhibit “A”), the maintenance agreement and the perpetual easement all describe the easement as a “Roadway” and as 50 feet wide. However, the survey, which is attached to the complaint as Exhibit “C,” shows a 10 foot asphalt drive on the Strip. The location and dimensions of the roadway were defined prior to the plaintiffs taking ownership. The Strip contained twelve trees until they were removed by the Charney defendants with use of the Saar’s Tree Service, LLC’s equipment, despite warnings that such removal was unlawful and constituted a trespass.

Plaintiffs’ complaint contains seven counts, as follows. Count 1 is for trespass (entering the property for a purpose not permitted under the maintenance agreement). Count 2 is for conspiracy (acting with a common purpose to remove and deprive plaintiffs of their trees or convert them). Count 3 is for conversion of the trees. Count 4 is for negligence in destroying the trees. Count 5 is for breach of contract, that is, the maintenance agreement. Count 6 is for quiet title with respect to a forfeiture of the perpetual easement. Count 7 is for an injunction to enjoin further trespass, including excavation and laying blacktop to expand the size of the roadway.

Legal Standards

Preliminary Objections

A party may file preliminary objections based on the legal sufficiency or insufficiency of a pleading (demurrer) pursuant to Pa. R.C.P. 1028(a)(4). A demurrer tests the legal sufficiency of the complaint. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 714 (Pa. Super. 2005). When reviewing preliminary objections in the nature of a demurrer, the court must “accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012), citing, Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007). In deciding a demurrer “it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.” Melon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citations omitted). “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubtC Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)(emphasis added).

Interpretation of Easement/Right of Way

The legal requirements for interpretation of an easement provide that the court may only look at the document itself initially to determine whether the words are plain and unambiguous. “If on the face of the document no doubt arises that the words are used in their primary sense, and if, read in that sense, they are plain and unambiguous, the matter is concluded[.]” Witman v. Stichter, 149 A. 725, 726-727 (Pa. 1930). “[W]hen the terms of an express grant of an easement are general, ambiguous, and not defined by reference to the circumstances known to the parties at the time of the grant, the express easement is to be construed in favor of the grantee.” See, Lease v. Doll, 403 A.2d 558, 562 (Pa. 1979). See also, Duquesne Light Co. v. Longue Vue Club, 63 A.3d 270, 280; 2013 PA Super 8 (Pa. Super. 2013).

However, when a latent ambiguity exists, the court may look to extrinsic facts to determine the scope of the easement. Baney v. Eoute, 2001 PA Super 260, 784 A.2d 132 (Pa. Super. 2001). A latent ambiguity exists when the parties to the easement know that the metes and bounds description of the easement significantly differs from the roadway in existence at the time the easement is created. Id. Non-use of an implied easement does not extinguish or limit the implied easement arising from the failure to dedicate a public road. Croyle v. Dellape, 832 A.2d 466 (Pa. Super. 2003).

Punitive Damages

It is well settled in Pennsylvania that “punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” See, Feld v. Merriam, 485 A.2d 742, 747-748 (Pa. 1984), citing, Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963) see also, Phillips v. Cricket Lighters, 883 A.2d 439, 445-446 (Pa. 2005); Hutchison Ex. Re. Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005). Pennsylvania has embraced the RESTATEMENT (SECOND) OF TORTS §908(2) with respect to punitive damages. To prevail in a punitive damages claim, plaintiff must establish that: “(1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed” and (2) the defendant “acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, supra, 870 A.2d at 771.

Discussion

As the Charney defendants raised numerous objections, the court will discuss each objection in the order in which it appears in the Charney defendants’ preliminary objections.

Objection 1 to Count 1-Trespass.

The Charney defendants object to the trespass count because they assert that they have a perpetual easement over the entire 50 foot strip of land and have a right to keep the land open and to perform maintenance on the roadway. The court believes that the plaintiffs alleged sufficient facts to support a claim for trespass. “One who intentionally enters the property of another without the privilege to do so is chargeable with trespass” Haan v. Wells, 30 Pa. D. & C.5th 562 (C.P. Lackawanna 2013), citing, Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 450, 91 A.2d 232, 235 (1952); Woodham v. Dubas, 256 Fed.Appx. 571, 576 (3d Cir. 2007). “Pennsylvania has adopted the Restatement (Second) of Torts § 158 which imposes liability for trespass if the intruder enters or remains on the land of another without consent.” Id., citing, Rawlings v. Bucks County Water Sewer Authority, 702 A.2d 583, 586 (Pa. Cmwlth. 1997). “It is immaterial whether the trespass is committed willfully and with the intent to invade another’s interest, and a defendant is liable for trespass which is the product of an innocent mistake based upon the trespasser’s honest or reasonable belief that the property in question is his/her own.” Id, citing, Kopka, supra.

The crux of the dispute between the parties pertains to what the boundaries of the perpetual easement are, to determine to what extent there may have been a trespass. The deed, perpetual easement, maintenance agreement and map book dated 8/21/72 all refer to a 50 foot wide private roadway. Plaintiffs, however, allege that a driveway sits on the roadway which has been shared by the parties as the perpetual easement until this controversy developed. In essence plaintiffs appear to aver that a latent ambiguity exists which requires the court to construe the easement as limited to the driveway and not to the entire Strip of land. There appears to be a dispute of fact as to whether a latent ambiguity existed at the time of the creation of the easement. If plaintiffs’ allegations are accepted as true, that such an ambiguity existed at the formation of the perpetual easement, then under Baney, supra, parol evidence would be available to construe the boundaries of the perpetual easement as limited to the driveway. Under those circumstances, as in Baney, the defendants would have no right to clear the trees outside the narrow roadway that had been in existence. Defendants could be liable in trespass for going outside the driveway. The court believes that the Plaintiffs should amend their complaint to “state unequivocally that the roadway at the time of the signing of the right-of-way agreement was significantly more narrow than the metes and bounds description.” Plaintiffs’ Brief, at 2.

The court believes that the Charney defendants could be liable for trespass for going beyond the scope of the easement for egress or ingress, beyond maintenance or beyond keeping the property free of blockage, even if the easement includes the full 50 foot property. The plaintiffs’ assert that the only rights that Charney defendants have to the property are set forth in the maintenance agreement. That agreement provides that “the Roadway shall remain a private right-of-way for the use of the parties hereto, their heirs, grantees, successors, assigned and invitees only, as access to their respective residences, or properties, and shall not be used or permitted to be used by other persons or for other purposes.” The Charney defendants claim that they had a right to keep the property free of blockage and open. They further asset a right to perform maintenance on the property. Such assertions are more appropriate for an answer than for an objection. In ¶ 10 of the complaint, plaintiffs alleged that “[o]n or around December 3, 2014, the Chamey defendants began leaving the surface of the roadway with their vehicles, deliberately and maliciously running into and damaging one of the trees located on the property.” Accepting this allegation as tme, the court believes that a fact-finder could conclude that the Chamey defendants’ actions went beyond the scope of keeping the property free of blockage or performing maintenance.

Objection 2 to Count 2 — Conspiracy.

The Chamey defendants object to the conspiracy claims on the grounds that there are insufficient allegations that the actions complained of were unlawful.

“The essential elements of a claim for civil conspiracy are as follows: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in pursuance of the common purpose, and (3) actual legal damage.” Phillips v. Selig, 2008 PA Super 244, 959 A.2d 420, 437 (Pa. Super. 2008) (citations omitted.)

In the present case, plaintiffs allege that all of the defendants devised a plan to fell the trees and haul them away without permission or compensation. The court believes these allegations suffice to state a claim for conspiracy to unlawfully deprive plaintiffs of the trees and convert the trees for their own purposes.

Objection 3 to Count 3 — Conversion.

Defendants object to the claims for conversion on the grounds that they had the right to remove the trees that blocked the 50 foot roadway. Plaintiffs have sufficiently alleged a claim for conversion of the trees, regardless of whether the defendants had a right to clear the 50 foot roadway. “Under Pennsylvania law, conversion is the deprivation of or interference with another’s right of property in, use of, or possession of a chattel without the owner’s consent and without lawful justification.” Deitrick v. Costa, 2014 U.S. Dist. LEXIS 183442 (M.D. Pa. Oct. 21, 2014), citing, PTSI, Inc. v. Haley, 2013 PA Super 130, 71 A.3d 304, 314 (Pa. Super. 2013) (citations omitted); also citing, RESTATEMENT (SECOND) OF TORTS § 222A (1965) (“defining conversion as “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the foil value of the chattel””).

In the present case, plaintiffs alleged that the defendants felled, destroyed, removed and hauled away trees that belonged to the plaintiffs without permission or compensation. Plaintiffs further alleged that defendants used the Strip of property for purposes other than those set forth in the perpetual easement, specifically that they used the Strip for the purposes other than ingress, egress or regress. On its face, that is sufficient for conversion. Plaintiffs were not provided an opportunity to transplant the trees or to take control over the lumber. Defendants may file an answer setting forth their allegations that they believed they were permitted to clear the 50 foot Roadway or to perform maintenance on the Strip. However, they are not entitled to a demurrer to the conversion count.

Objection 4 to Count 4 — Negligence.

“[T]o state a cause of action for negligence, a plaintiff must allege facts which establish the breach of a legally recognized duty or obligation of the defendant that is causally connected to actual damages suffered by the plaintiff.” Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 596 (Pa. 2012) Plaintiffs allege defendants breached their duty to exercise due care with respect to exercising their rights under the perpetual easement and maintenance agreement and that their failure to exercise due care resulted in harm and damages to them. As such, the court believes plaintiffs sufficient pled claims for negligence against the defendants.

Objection 5 to Count 5 — Breach of Contract.

“The necessary material facts that must be alleged for such an action are simple: there was a contract, the defendant breached it, and plaintiffs suffered damages from the breach.” McShea v. City of Philadelphia, 995 A.2d 334, 340 (Pa. 2010)(citations omitted). Plaintiffs allege that defendants breached the perpetual easement and maintenance agreements by going beyond the rights outlined in paragraph 2 of the maintenance agreement. That provision limits use of the easement for the purpose of access to their residences. Plaintiffs allege defendants used the roadway to access, remove and destroy trees. As such, the court believes that plaintiffs have sufficiently alleged a claim for breach of contract claim.

Objection 6 to Count 6 — Quiet Title

Defendants demur to plaintiffs’ claim of quiet title in which plaintiffs’ seek to establish that defendants forfeited their rights to the perpetual easement. Specifically, plaintiffs ’ alleged that “ [a] s a result of their unconscionable and unlawful infringement upon the rights of plaintiffs, the lawful owners of the property, the Charney defendants have forfeited any right to use the property or the roadway located upon it.” Complaint, ¶60. The court is not aware of any cases that support this claim. Accordingly, the demurrer is granted to this count.

Objection 7 to Count 7 —■ Injunction

Plaintiffs seek to enjoin defendants from trespass onto the disputed areas of the Strip and to preclude defendants from laying blacktop or expanding the cart-way within the roadway. “It is hornbook law that a court of equity possesses jurisdiction to enjoin repeated trespasses on land as well as to enjoin a nuisance.” Jones v. Wagner, 425 Pa. Super. 102, 624 A.2d 166 (Pa. Super. 1993)(citations omitted.) As such, defendants demurrer to the claim for an injunction, on the grounds that there is no current violation, is overruled.

Objection 8 to All Counts on The Basis of The Release.

The Charney defendants demur on the grounds that the parties entered a mutual release that precludes recovery. Specifically the release provides the following. “Mutual Releases. Each of the parties hereto hereby releases and agrees to defend, indemnify and hold harmless the other parties, their heirs, grantees, successors and assigns, against and from any and all claims or rights of action arising out of or related to any personal injury or property damage resulting from the Roadway’s condition.” In the present case, the plaintiffs do not assert damage as a result of the Roadway’s condition; they assert damage as a result of the Chamey defendants alleged trespass, conversion, breach of contract, and negligence. As such, defendants’ objection 8 is overruled.

Objection 9 and 10 as to Saar’s Tree Service

The court will not consider the Chamey defendants’ objections that were purportedly raised on behalf of the Saar’s defendants; such objections, numbered 9 and 10 are overruled without prejudice.

Objection 11 For Lack of Specificity as to Damages

The Chamey defendants object to Counts 1 through 6 on the grounds that they ask for “special compensatory damages for allegedly unlawful destruction of trees” but fail “to state the specific value alleged to be plaintiffs’ damage.” As to Count 1, plaintiffs aver that as a result of the destruction of trees, “the property has been and continues to be materially degraded and damaged.” Complaint, ¶31. In Count 2, plaintiffs aver that they suffered damage in “the loss of twelve trees and the diminution in value of the property.” Complaint, ¶ 36. These averments are incorporated by reference in the remaining counts. In Count 3, plaintiffs aver that they have been deprived of the trees as well as use or possession of the property as a whole. Complaint, ¶40. For Count 4, plaintiffs essentially aver that they were damaged by the destruction of twelve trees. Complaint, ¶¶ 46-47. For Count 5, plaintiffs aver that the defendants destroyed twelve trees and as a result of the breach of the maintenance agreement, defendants “caused damage to plaintiffs.”

A pleading must meet the specificity requirements of Pa. R.C.P. No. 1019 and 1028 to enable the defendants to prepare an adequate defense. The court believes that — where the amounts of damages plaintiffs are seeking are known and easily ascertainable — plaintiffs should include the amounts in their pleading. If those amounts are not known and not easily ascertainable they should plead that as an averment. Accordingly, the court will sustain the objection.

Objection 12 to All Claims for Punitive Damages.

As to the demurrer to the claim for punitive damages, the court concludes that the plaintiffs have alleged sufficient facts in support of its punitive damage claim. To prevail in a punitive damages claim, plaintiff must establish that: “(1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed” and that (2) the defendant “acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, 870 A.2d 766, 771 (Pa. 2005) Accepting as true “all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts” with any doubt being “resolved by the overruling of the demurrer,” the court concludes that plaintiffs plead sufficient facts to establish that defendants had a subjective appreciation of the risk of harm to which plaintiffs were exposed and acted or failed to act in a manner that showed conscious disregard of that risk.

Specifically, accepting plaintiffs allegations as true, on or about December 3, 2014, Mr. and Mrs. Charney deliberately and maliciously ran their vehicles off the asphalt roadway and into one of the trees on the property and damaged it. Despite notice, defendants went beyond the asphalt roadway and damaged and removed trees. Under the perpetual easement and maintenance agreement, defendants only with the right to be on the roadway for ingress, egress and regress or arguably maintenance such as snow removal, not to destroy trees. In particular, pursuant to the complaint, defendants were aware that plaintiffs sought to protect the trees, particularly the 45 year old redwood. No arrangements were made to attempt to transplant the trees or save them in anyway. Moreover, the defendants took the chopped up pieces from the trees without compensation.

The court believes that a fact-finder could find that the defendants had a subjective appreciation of the risk of harm to plaintiffs that their right to their trees and right to expect the easement to be used solely for egress and ingress were placed at risk by their actions. There is no allegation in the complaint that the defendants acted to clear the boundary and/or to maintain the roadway. Such matters are for the fact-finder, unless no evidence in support of one or the other party may be maintained, allowing for an appropriate motion.

ORDER

And now this 21st day of May, 2015, it is ordered and directed as follows.

1. The Charney defendants’ demurrer to Count 1 is overruled. However, the court will treat the objection in part as an objection for lack of sufficient specificity of a pleading as to the claim of a latent ambiguity in an easement. As such, the court sustains the objection as to lack of specificity to Count 1. It is ordered and directed that plaintiffs shall file an amended complaint within twenty days, setting forth specific facts in support of their claim that a latent ambiguity existed at the time the perpetual easement was created. The complaint should set forth facts in support of the claim that such latent ambiguity should be construed to limit the boundaries of the perpetual easement to the driveway and not the full 50 feet.
2. The Charney defendants’ demurrer to Count 2-5, 7, 8, 9, 10 and 11 are overruled.
3. The Charney defendants objection (numbered 11) to lack of specificity as to damages to all counts is sustained in accordance with the previous discussion. In their amended complaint, plaintiffs shall specify whether they seek loss to the value of land and/or the value of lumbar and/or the value of the trees, and where known or easily ascertainable, and the complaint shall set forth the amounts demanded. If the amounts are not known or easily ascertainable, the complaint shall set forth the amounts known and that the damages that are not known.
4. The Charney defendants’ demurrer to Counts 5 is sustained.
5. This matter is placed on the court’s January 2016 Trial Term. A separate scheduling order will be issued this date.

      . The Chamey defendants filed 12 objections, 10 of which were demurrers. In addition to demurrers to each specific count, the Chamey defendants demurred to all counts on the basis of a release in the use and maintenance agreement. The Chamey defendants also demur to all counts on behalf of the Saar’s defendants on the grounds that were acting as agents of the Chamey defendants. In addition to the demurrers, the Chamey defendants object to the lack of specificity in the complaint as to the value of damages sought for the unlawful destruction of trees. The Chamey defendants also object for failure to conform to law and/or lack of capacity to sue with respect to all counts as to defendant Saar’s Tree Service, LLC. Finally, the Chamey defendants demur as to all claims for punitive damages.

      . More specifically, plaintiffs aver the following. On or about December 3, 2014, Mr. and Mrs. Charney deliberately and maliciously ran their vehicles into one of the trees on the property and damaged it. Plaintiffs placed metal stakes and guy wires around the front of the tree to protect it. On December 3, 2014, the Charney defendants entered the property and removed the stakes and guy wires which further damaged the tree. Charney defendants were advised they had no right to be anywhere on the property other than on the roadway for ingress, egress and regress. After seeing a representative of Saar’s on the property on December 29,2014, plaintiffs contacted Saar’s who informed them they were being hired to remove a spruce and redwood. Plaintiffs informed the representative of Saar’s that the redwood, which was at least 45 years old, was on plaintiffs’ property and that Saar’s had no right to remove it. On January 13, 2015, plaintiffs learned that all 13 trees had been removed, including the redwood. They believe Saar’s permitted the Charney defendants to use Saar’s equipment.

      . § 908 Punitive Damages
      (1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
      (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. Restat 2d of Torts, §908

      . The Saar’s defendant has not filed any objections to the complaint.

      . Plaintiffs’ contention that a latent ambiguity existed at the time of the creation may be inferred from reading the complaint in conjunction with the brief. However, there is no verified allegation of that factual assertion.

      . Nonetheless, the court notes that in their amended complaint, plaintiffs should specify how the defendants actions were negligent as opposed to intentional, how they differ from their breach of contract claim and the extent of noneconomic damages incurred.

      . As the demurrer to Count 6 has been sustained, the court need not discuss the specificity of that Count.


author: WETTICK, J.,

text:
    Dittman v. UPMC

      C.P. of Allegheny County,
    No. GD-14-003285

      Gary F. Lynch, Edwin J. Kilpela, Jr., Benjamin J. Sweet, Jamisen A. Etzel, Michael L. Kraemer, David M. Manes, Elizabeth Pollock-Avery and Karen Hanson Riebel, for plaintiffs.

      John C. Conti, Christopher T. Lee and Andrew T Tillapaugh, for defendants.
    May 28, 2015
   WETTICK, J.,

The preliminary objections of defendants (“UPMC”) seeking dismissal of both counts within plaintiffs’ two-count second amended class action complaint are the subject of this opinion and order of court.

The named plaintiffs and the members of the class consist of all 62,000 UPMC employees as well as an untold number of former employees, whose names, birthdates, Social Security numbers, confidential tax information, addresses, salaries, and bank account information were stolen from UPMC’s computer systems. The complaint alleges that UPMC had a duty to protect the private, highly sensitive, confidential and personal financial information, and the tax documents of plaintiffs and the members of the proposed class (Second Am. Compl. ¶ 28).

Apparently to show the magnitude of the problem of thefts of confidential information, plaintiffs allege that a 2013 Identity Fraud Report released by Javelin Strategy & Research states that in 2012 identity fraud incidents increased by more than one million victims and fraudsters stole nearly $21 billion. This study found 12.6 million victims of identity fraud in the United States in the past year, which equates to one victim every three seconds. The report also found that nearly one in four data breach letter recipients became a victim of identity fraud, with breaches involving Social Security numbers to be the most damaging (Second Am. Compl. ¶ 30).

COUNT I-NEGLIGENCE

In Count I—Negligence—plaintiffs allege that UPMC had a duty to exercise reasonable care to protect and secure its employees’ personal and financial information within its possession or control from being compromised, stolen, lost, misused, and/or disclosed to unauthorized parties.

Paragraphs 52-62 of plaintiffs’ negligence count read as follows:

52. Plaintiffs incorporate and re-allege each and every allegation contained above as if fully set forth herein.
53. UPMC had a duty to exercise reasonable care to protect and secure plaintiffs’ and the members of the proposed classes’ personal and financial information within its possession or control from being compromised, lost, stolen, misused, and/or disclosed to unauthorized parties. This highly confidential personal and financial information includes but is not limited to Social Security numbers, dates of birth, full legal names, addresses, bank account information, and other personal information.
54. UPMC’s duty included, among other things, designing, maintaining, and testing its security systems to ensure that plaintiffs’ and the members of the proposed classes personal and financial information in their possession was adequately secured and protected.
55. UPMC further had a duty to implement processes that would detect a breach of its security systems in a timely manner.
56. In light of the special relationship between plaintiffs and members of the proposed classes and UPMC, whereby UPMC required plaintiffs and members of the proposed classes to provide highly sensitive confidential personal and financial information as a condition of their employment, UPMC undertook a duty of care to ensure the security of such information.
57. Through its acts or omissions, UPMC breached its duty to use reasonable care to protect and secure plaintiffs’ and the members of the proposed classes’ personal and financial information within its possession or control. UPMC breached its duty by failing to adopt, implement, and maintain adequate security measures to safeguard plaintiffs’ and members of the proposed classes’ personal and financial information, failing to adequately monitor the security of its network, allowing unauthorized access to plaintiffs’ and the members of the proposed classes’ personal and financial information, and failing to recognize in a timely manner that plaintiffs’ and members of the proposed classes’ personal and financial information had been compromised.
58. UPMC’s failure to comply with widespread industry standards relating to data security, as well as the delay between the date of the intrusion and the date plaintiffs and members of the proposed classes were informed of the data breach further evidence UPMC’s negligence in failing to exercise reasonable care in safeguarding and protecting plaintiffs’ and the members of the proposed classes’ personal and financial information in its possession or control.
59. But for UPMC’s wrongful and negligent breach of the duties owed to plaintiffs and the members of the proposed classes, the data breach would not have occurred and plaintiffs’ and the members of the proposed classes’ personal and financial information would not have been compromised.
60. The injury and harm suffered by plaintiffs and the members of the proposed classes was the reasonably foreseeable and probable result of UPMC’s failure to exercise reasonable care in safeguarding and protecting plaintiffs’ and the members of the proposed classes’ personal and financial information in its possession or control. UPMC knew or should have known that its systems and technologies for processing and securing plaintiffs’ and members of the proposed classes’ personal and financial information had significant vulnerabilities.
61. As a result of UPMC’s negligence, plaintiffs and the members of the proposed classes have incurred damages relating to fraudulently filed tax returns.
62. As a result of UPMC’s negligence, plaintiffs and the members of the proposed classes are at an increased and imminent risk of becoming victims of identity theft crimes, fraud and abuse.

This negligence count is based on plaintiffs’ contention that UPMC owed a duty of care to UPMC employees who were victims of third-party criminal activity. However, the only losses that the UPMC employees sustained are economic losses. Under the economic loss doctrine, no cause of action exists for negligence that results solely in economic losses unaccompanied by physical injury or property damage. Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 985 A.2d 840, 841 (Pa. 2009); Adams v. Copper Beach Townhome Communities, L.P., 816 A.2d 301 (Pa. Super. 2003).

Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005), does not apply because, as explained in the Supreme Court’s opinion in excavation technologies at 843, Bilt-Rite served to “clarify the elements of the tort as they apply to those in the business of supplying information to others for pecuniary gain.” Id. at 843, quoting Bilt-Rite at 280. See Sovereign Bank v. B.J.'s Wholesale Club, Inc., 533 F.3d 162, 177-78 (3d Cir. 2008) (“The Pennsylvania Supreme Court [in Bilt-Rite] never suggested that it intended to severely weaken or undermine the economic loss doctrine in a case such as this. It simply carved out a narrow exception when losses result from the reliance on the advice of professionals”).

The present case does not involve defendants in the business of supplying information for economic gain.

Plaintiffs contend that a duty of care should be imposed on UPMC to protect the confidential information of its employees. Plaintiffs rely on Pennsylvania Supreme Court case law (most recently Seebold v. Prison Health Servs., Inc., 57 A.3d 1232 (Pa. 2012)), discussing the factors a court should consider in determining whether to impose a duty of care:

The common pleas court sustained PHS’s preliminary objections based on the no-duty contention. Initially, the court recited that, in determining whether a defendant owes a duty of care to a plaintiff, several factors are considered, including: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. See Seebold v. Prison Health Servs., Inc., No. 07-00024, slip op. at 2 (C.P. Lycoming, Dec. 4, 2008) (citing Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000)).

Seebold, at 1234.

Where only economic losses are involved, the Pennsylvania appellate courts have already balanced the competing interests through the adoption of the economic loss doctrine. Thus, the Seebold/Althaus factors should not be considered where the plaintiff seeks to recover only economic losses.

Moreover, even when I consider the factors described in Seebold/Althaus, I do not find that the courts should impose a new affirmative duty of care that would allow data breach actions to recover damages recognized in common law negligence actions.

In the situation in which a person’s confidential information was made available to third persons through a data breach, I find that the controlling factors are the consequences of imposing a duty upon the actor and the overall public interest in the proposed solution. Plaintiffs’ proposed solution is the creation of a private negligence cause of action to recover actual damages, including damages for increased risks, upon a showing that the plaintiff’s confidential information was made available to third persons through a data breach.

The public interest is not furthered by this proposed solution. Data breaches are widespread. They frequently occur because of sophisticated criminal activity of third persons. There is not a safe harbor for entities storing confidential information.

The creation of a private cause of action could result within Pennsylvania alone of the filing each year of possibly hundreds of thousands of lawsuits by persons whose confidential information may be in the hands of third persons. Clearly, the judicial system is not equipped to handle this increased caseload of negligence actions. Courts will not adopt a proposed solution that will overwhelm Pennsylvania’s judicial system.

Also, assuming that liability is not absolute, there are not any generally accepted reasonable care standards. Use of “expert” testimony and jury findings to develop standards as to what constitutes reasonable care is not a viable method for resolving the difficult issue of the minimum requirements of care that should be imposed in data breach litigation, assuming that any minimum requirements should be imposed.

Under plaintiffs’ proposed solution, in Pennsylvania alone, perhaps hundreds of profit and nonprofit entities would be required to expend substantial resources responding to the resulting lawsuits. These entities are victims of the same criminal activity as the plaintiffs. The courts should not, without guidance from the Legislature, create a body of law that does not allow entities that are victims of criminal activity to get on with their businesses.

In Seebold, the Pennsylvania Supreme Court stated that more is involved in a court’s decision as to whether to create a new duty than considering the five Seebold/ Althaus factors. The Seebold opinion stated: “To the extent that the task of rendering duty versus no-duty decisions continues to reside with jurists, we acknowledge that it is one to which we are the least well suited.” Id. at 1245. “[W]e have often recognized the superior tools and resources available to the legislature in making social policy judgments, including comprehensive investigations and policy hearings.” Id. Thus, the five factors should be considered in the context of court rulings adopting “the default position that, unless the justifications for and consequences of judicial policymaking are reasonably clear with the balance of factors favorably predominating, we will not impose new affirmative duties.” Id. “Before a change in the law is made, a court, if it is to act responsibly must be able to see with reasonable clarity the results of its decision and to say with reasonable certainty that the change will serve the best interests of society.” Id., quoting Hoven v. Kelble, 256 N.W.2d 379, 392 (Wis. 1977). See also Lance v. Wyeth, 85 A.3d 434, 454 (Pa. 2014).

I cannot say with reasonable certainty that the best interests of society would be served through the recognition of new affirmative duties of care imposing liability on health care providers and other entities electronically storing confidential information, the financial impact of which could even put these entities out of business. Entities storing confidential information already have an incentive to protect confidential information because any breach will affect their operations. An “improved” system for storing confidential information will not necessarily prevent a breach of the system. These entities are also victims of criminal activity.

It is appropriate for courts to consider the creation of a new duty where what the court is considering is sufficiently narrow that it is not on the radar screen of the legislature. In that situation, the courts are filling gaps that are not likely to be filled by the legislature. However, where the legislature is already considering what courts are being asked to consider, in the absence of constitutional issues, courts must defer to the legislature.

The legislature is aware of and has considered the issues that plaintiffs want this court to consider. As of this date, the only legislation which the general assembly has chosen to enact requires entities that suffer a breach of their security systems to provide notification. Furthermore, the legislature gives the office of attorney general exclusive authority to bring an action for violation of the notification requirement (i.e., no private actions are permitted).

See pages 14-15 set forth below of UPMC’s supplemental brief in support of preliminary objections, which describe the general assembly’s consideration of data breaches:

2. The general assembly has considered the creation of civil liability for data breaches and decided against the imposition of such a duty.

The Pennsylvania general assembly extensively considered data breaches and the issues related thereto prior to enacting the breach of personal information notification act (the “Data Breach Act”). 73 P.S. § 2301, et seq. (effective June 20, 2006). Ultimately, the general assembly did not, by way of the data breach act, enact legislation establishing a duty of protection or providing individuals with a private cause of action in the event of a data breach. Instead, the general assembly mandated only that entities which suffer a “breach of the security of the system” must provide notification of the disclosure of personal information. See 73 P.S. § 2303 (“Any entity that maintains, store or manages computerized data that includes personal information shall provide notice of any breach of the security of the system following discovery of the breach...”).

In the data breach act, the general assembly also established an enforcement action — expressly reserved for the Attorney General of Pennsylvania — for violation of the notification requirement. 73 P.S. § 2308 (“The office of attorney general shall have exclusive authority to bring an action ....”). Significantly, the general assembly did not adopt or establish (1) a duty to protect or safeguard the security of computerized data against malicious and criminal attacks by third parties or (2) a cause of action for private litigants in the event of unauthorized access to the individuals’ personal information.

Indeed, review of the legislative history of Pennsylvania’s Data Breach Act reveals that the general assembly considered incorporating an expansive civil liability provision, which would have permitted a person to recover “actual damages.” S.B. 712, Printer’s No, 859, § 8. The initial version of the bill was referred to the Communications and Technology Committee on June 3, 2005. History of S.B. 712 of 2005. Thereafter, on June 13, 2005, the bill was reported as amended by committee and the “Civil Relief’ provision was amended to reflect its current form. S.B. 712, Printer’s No. 898, § 8. Under its current form, only a failure to notify is actionable and only the attorney general may assert the claim. 73 P.S. §2308.

(Emphasis in original.)

In summary, the general assembly has considered and continues to consider the same issues that plaintiffs are requesting this court to consider under the Seebold/Althaus line of cases. The only duty that the general assembly has chosen to impose as of today is notification of a data breach. It is not for the courts to alter the direction of the general assembly because public policy is a matter for the legislature.

I find to be persuasive the opinion of an Illinois appellate court in Cooney v. Chicago Pub. Sch., 943 N.E.2d 23, 28-29 (III. App. Ct. 2010), which rejected the plaintiffs’ request that the court create a new common law duty to protect and safeguard confidential information because the legislature had already imposed a duty of notification:

While we do not minimize the importance of protecting this information, we do not believe that the creation of a new legal duty beyond legislative requirements already in place is part of our role on appellate review. As noted, the legislature has specifically addressed the issue and only required the [defendant] to provide notice of the disclosure.

Cooney, 943 N.E.2d at 29 (emphasis added).

For these reasons, I dismiss Count I of plaintiffs’ complaint.

COUNT II-BREACH OF CONTRACT

I now consider defendants’ preliminary objections seeking dismissal of Count II— breach of contract.

Plaintiffs contend that the relationship between plaintiffs and UPMC is governed by an implied contract. Under the terms of this implied contract, plaintiffs have agreed to make their personal information available to UPMC and UPMC has agreed “to protect the security of such information” (Second Am. Compl. ¶ 64). This implied contract requires “UPMC to safeguard and protect plaintiffs’ and the members of the proposed classes’ personal and financial information from being compromised and/or stolen” (Second Am. Compl. ¶ 66). Plaintiffs allege that “UPMC did not safeguard or protect plaintiffs’ and the proposed class members’ personal and financial information from being accessed, compromised, and/or stolen. UPMC did not maintain sufficient security measures and procedures to prevent unauthorized access to plaintiffs’ and the proposed class members’ personal and financial information” (Second Am. Compl. ¶ 67). “Because UPMC failed to safeguard and/or protect plaintiffs’ and the proposed Class members’ personal and financial information from being compromised or stolen, UPMC breach[ed] its contracts with plaintiffs and the members of the proposed classes” (Second Am. Compl. ¶ 68).

For there to be an implied contract, there must be a meeting of the minds. Restatement (Second) of Contracts, § 4. An implied contract is not an agreement imposed on parties to achieve justice.

In this case, there is no evidence that there has been any meeting of the minds.

Plaintiffs’ complaint does not describe an agreement between the parties. Plaintiffs do not describe any exchanges between plaintiffs and UPMC in which UPMC made any promises.

UPMC requires its employees to furnish confidential information needed in order for the employees to be paid and for UPMC to comply with governmental reporting requirements. There is no apparent reason why UPMC would enter into an agreement with its employees to allow its employees to sue UPMC in the event of a data breach. To the contrary, UPMC would anticipate that it is likely to experience data breaches, and common sense requires a finding that it would not agree to allow others to bring private actions against UPMC.

In summary, I am dismissing Count II because there are no factual allegations supporting a finding of an agreement between the parties under which UPMC agreed to be liable to its employees for criminal acts of third parties. While an implied contract may be found to exist “where the surrounding circumstances support a demonstrated intent to contract” (Tyco Electronics Corp. v. Davis, 895 A.2d 638, 640 (Pa. Super. 2006)), in this case, there are no circumstances that would establish a common understanding that UPMC was agreeing to allow its employees to sue UPMC for damages sustained from a data breach.

For these reasons, I enter the following order of court:

ORDER OF COURT

On this 28 day of May, 2015, it is hereby ordered that defendants’ preliminary objections are sustained, and both counts within plaintiffs’ second amended class action complaint are dismissed.

      . Numerous iterations of the law were proposed in the house of representatives and the senate, some of which provided an even more expansive array of damages to individuals victimized by data breaches. For example, H.B. 2006 of the 2005-2006 session of the general assembly provided for the award of actual damages and a fine of up to $ 150,000.00. H.B. 2006, Printer’s No. 2925. The general assembly chose by collective action, however, to enact a version without such provisions.