author: WECHT, J,

text:
    Vargo v. Schwartz

      C.P. of Allegheny County,
    no. FD 04-2791-003.

      Alida J. Kornreich, for plaintiff.

      Max A. Levine, for defendant.
    February 9, 2007
   WECHT, J,

Defendant Richard K. Schwartz appeals from this court’s November 29,2006 order dismissing his exceptions to a hearing officer’s child support recommendations.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Victoria L. Vargo (Mother) filed an action against Schwartz in February 2004 for the support of two children: Kelcie (bom January 14,2002) and Sydney (bom May 28, 2003). The parties agreed to paternity testing. An interim support order was entered. Schwartz requested a hearing on estoppel, which occurred on September 24, 2004, before Hearing Officer Gary Gilman. Hearing Officer Gilman determined that the estoppel doctrine did not apply and that Mother was free to pursue her support claim.

Schwartz filed exceptions. Following argument and review, this court dismissed Schwartz’s exceptions on February 14,2005. Schwartz appealed the dismissal, but the Superior Court quashed the appeal as interlocutory because no final support order had yet been entered. Vargo v. Schwartz, 396 WDA 2005 (Pa. Super. April 4, 2005).

Weeks later, in March 2005, Schwartz filed a motion for recusal. A hearing was held on March 23, 2005 (on this and other motions), which resulted in an April 8, 2005 order denying the recusal motion.

The final support hearing was originally scheduled for July 13, 2005, but was continued three times, once on Mother’s motion, once on Schwartz’s motion, and once generally. During that time, this court granted Schwartz leave to reopen the record for the purpose of introducing testimony from a September 14, 2004 custody hearing in Vargo v. Johnston, an action that involves another child of Mother, and that is docketed herein at FD 92-3688. A hearing was scheduled for that purpose on February 10, 2006, before Hearing Officer Gilman. Mr. Gilman found that the presumption of paternity did not apply to Vargo v. Schwartz, as there was no intact family. Accordingly, Hearing Officer Gilman’s recommendations provided that Mother could continue to pursue her support action against Schwartz.

In February 2006, Schwartz again filed exceptions. This court denied them on May 24,2006. A support hearing was held on October 17,2006, and an order was entered. Schwartz filed exceptions on October 24, 2006. Schwartz brought a motion to dismiss his own pending exceptions, presumably to speed this appeal. This court signed Schwartz’s proposed order dismissing his exceptions on November 29, 2006.

Schwartz filed his notice of appeal on December 22, 2006. On January 3, 2007, this court issued an order pursuant to Pa.R.A.P. 1925(b) directing Schwartz to file a concise statement of matters complained of on appeal. On January 17, 2007, Schwartz filed his statement with this court.

DEFENDANT’S MATTERS COMPLAINED OF ON APPEAL

In his Rule 1925(b) statement, Schwartz asserts the following claims on appeal:

(1) The trial court erred as a matter of law in failing to apply the doctrine of paternity by estoppel to Mother’s claim for child support against a third-party defendant when established by the evidence that, at the time of conception and thereafter, plaintiff resided together with her husband in an intact family.

(2) The trial court erred in failing to find that the plaintiff, as a matter of law, was estopped from prosecuting a complaint for child support against defendant, as she had in other matters filed verified court pleadings in the Court of Common Pleas, Allegheny County, Pennsylvania, wherein she asserted that her husband was the father of the children at issue, and that she and her husband resided in the same household.

(3) The trial court erred in assigning evidentiary significance to the plaintiff’s act of voluntarily dismissing a claim against her husband for child support. This occurrence, in a separate proceeding, has no probative value with respect to the application of the doctrine of estoppel between the parties in this action.

(4) The trial court erred and abused its discretion in concluding that the facts of record did not establish by clear and convincing evidence that the plaintiff’s marriage is intact, resulting in the necessity of application of the doctrine of paternity by estoppel, barring plaintiff’s child support complaint against a third party.

(5) The trial court committed error by affirming the hearing officer’s independent review of and reliance upon a court child support payment record in Vargo v. Vargo, a record not introduced into evidence in this case. In doing so, the trial court violated the due process rights of the defendant. As review and introduction of this evidence was ex parte, defendant was denied the right to confrontation, cross-examination, and rebuttal regarding evidence interpreted by the court to be against his interests.

(6) The trial court committed error in concluding that plaintiff is not estopped from bringing a child support action against defendant, particularly as she failed to disclose to this court that she was pregnant by her husband at the date of the evidentiary hearing in this matter.

(7) The trial court erred in assigning any weight or credibility to the testimony given by plaintiff in this case, as a transcript of plaintiff’s prior testimony, and the record of proceedings of September 14, 2005, in the case of Johnston v. Vargo (having been introduced into evidence in this matter with permission of this court), reveal that plaintiff made misrepresentations of fact to the court while under oath.

(8) The trial court erred in denying defendant’s motion for recusal.

STANDARD OF REVIEW

The Superior Court reviews paternity decisions in a support action under an abuse of discretion standard. Rodgers v. Woodin, 448 Pa. Super. 598, 602, 672 A.2d 814, 816 (1996). The trial court’s ruling will be upheld absent a misapplication of law or a “manifestly unreasonable exercise of judgment.” Id.

The standard in reviewing a recusal decision is “exceptionally deferential.” Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa. Super. 2005). The Superior Court has recognized that a trial “judge ... is best qualified to gauge his ability to preside impartially,” and accordingly has applied an abuse of discretion standard in reviewing recusal appeals. Id.

DISCUSSION AND ANALYSIS

Although Schwartz lists eight matters on appeal, he essentially raises four main issues: this court’s dispositions of the presumption of paternity and the paternity by estoppel doctrine; this court’s use of Vargo v. Vargo; this court’s assessment of Mother’s credibility; and this court’s denial of the recusal motion. These issues are addressed hereinbelow.

The Presumption of Paternity and the Paternity by Estoppel Doctrine

Schwartz claims this court erred in finding that Mother’s family was not intact at the time of conception, and that the presumption of paternity did not apply. He also asserts that Mother should have been estopped from claiming Schwartz as the father, because she had asserted that her husband, Kevin Vargo, was the father, and because she was pregnant by Vargo at the time of the evidentiary hearing. Additionally, Schwartz claims this court erred in considering Mother’s dismissal of the claim she had filed against Vargo for Kelcie and Sydney. Schwartz asserts this dismissal has no probative value in the application of the paternity by estoppel doctrine.

The relevant analysis for paternity decisions can be found in Brinkley v. King, 549 Pa. 241, 248-49, 701 A.2d 176, 180 (1997). The presumption of paternity provides that a child conceived or born during a marriage is presumed to be a child of that marriage. Id. at 248, 701 A.2d at 179. The presumption of paternity can be overcome by clear and convincing evidence that the husband either did not have access to the wife or was physically incapable of procreation. Id. The trial court must undertake a two-step inquiry: first, whether the presumption of paternity applies, and second, whether, if the presumption is inapplicable or is rebutted, an estoppel arises. Id. at 250, 701 A.2dat 180.

The presumption does not always apply. As our Supreme Court (per Chief Justice Flaherty) stated 10 years ago in Brinkley:

“It remains to consider how one knows whether the presumption applies in any given case. Traditionally, the answer to this question has been that the presumption applies if the child was conceived or born during the marriage. We now question the wisdom of this application of the presumption because the nature of male-female relationships appears to have changed dramatically since the presumption was created. There was a time when divorce was relatively uncommon and marriages tended to remain intact. Applying the presumption whenever the child was conceived or bom during the marriage, therefore, tended to promote the policy behind the presumption: the preservation of marriages. Today, however, separation, divorce, and children bom during marriage to third-party fathers is relatively common, and it is considerably less apparent that application of the presumption to all cases in which the child was conceived or bom during the marriage is fair. Accordingly, consistent with the ever-present guiding principle of our law, cessante ratione legis cessat et ipsa lex, we hold that the presumption of paternity applies in any case where the policies which underlie the presumption, stated above, would be advanced by its application, and in other cases, it does not apply.” 549 Pa. at 250-51, 701 A.2d at 180-SI. (footnote omitted)

In Fish v. Behers, where the mother and father already were divorced by the time the support action reached a hearing, the court found the presumption inapplicable because its application would not advance the policy underlying that presumption, to wit, “the preservation of marriages.” Fish v. Behers, 559 Pa. 523, 528, 741 A.2d 721, 722 (1999). Elsewhere, our Supreme Court has stated: “If the relationship between husband and wife is such that they have repudiated their marriage vows, although they may be living together after the child was bom,... there is no intact family to protect....” Freedman v. McCandless, 539 Pa. 584, 592-93, 654 A.2d 529, 533 (1995).

Here, Mother and Vargo were separated. There was no marriage to preserve, no policy to vindicate. At the September 24, 2004 hearing, Mother testified that she and Vargo separated in October 2003 and that she had filed for divorce. T. 9/24/04 at 4, 9-11. Mother stated that she and Vargo had “on occasion” engaged in sexual relations since their separation. T. 9/24/04 at 11. Mother also testified that Vargo had been living with her “on and off, he’s been in and out.” T. 9/24/04 at 12. Vargo testified that he stayed with Mother on and off when he had nowhere else to stay. T. 9/24/04 at 81. Mother admitted, “I am not sure what I’m going to do with Mr. Vargo. It’s not looking too good right now....” T. 9/24/ 04 at 86. Hugh Johnston, the father of another of Mother’s children, testified that Vargo beat Mother, that Mother had left the home on occasion, and that the older children had left the house to stay with their maternal grandmother. T. 9/14/04 at 26-28, 13-16.

The record evidence developed at the September 14 and 24,2004 hearings did not paint a picture of an intact family or a marriage that could be preserved. To the contrary, the record established a broken marriage and family that were not magically restored by Vargo’s periodic visits or episodic sex between the parties. In the instant case, Hearing Officer Gilman correctly determined that the presumption of paternity does not apply.

Decisional authority next requires the court to determine whether an estoppel has arisen. The paternity by estoppel doctrine provides that, “because of a person’s conduct (e.g., holding out the child as his own, or supporting the child), that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child’s mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father.” Freedman, 539 Pa. at 591, 654 A.2d at 532-33. (footnote omitted) Evidence of fraud is relevant, and can preclude application of the estoppel doctrine. J.C. v. J.S., 826 A.2d 1, 4 (Pa. Super. 2003). The court must inquire whether the man against whom estoppel is asserted continued to act as a father once the biological father was revealed. Id. at 4-5. Additionally, the biological father should not be able to benefit from his participation in a fraud regarding paternity. Kohler v. Bleem, 439 Pa. Super. 385, 397, 654 A.2d 569, 575-76 (1995),

The case of Gebler v. Gatti, 895 A.2d 1 (Pa. Super. 2006), is informative. In Gebler, the mother concealed from Gatti the fact that the child might not be his. Id. at 2. Once Gatti learned the child was not his, he no longer held himself out as the child’s father. Id. at 4-5. While the child in Gebler was only 18 months old at the time the true paternity was revealed, the Superior Court noted that, even when a relationship between father and child has been established, evidence of fraud can preclude the application of the estoppel doctrine. Id. at 5. Relying on the fact that Gatti stopped acting as a father and the “strong public policy against permitting a party who has acted in reliance upon a misrepresentation to suffer harm as a result,” the Superior Court declined to invoke estoppel against Gatti. Id.

There is evidence of fraud in this case. Mother admitted that she knew the children were not Vargo’s. T. 9/24/ 04 at 32. Yet it was not until October 2003 that Mother chose to inform Vargo that he was not the children’s father. T. 9/24/04 at 11. While it is true that Vargo was on the birth certificates, had put the children on his medical insurance, had provided financial support, and had taken the children to the doctor, he did most of those things prior to finding out he was not the father. T. 9/24/04 at 18-24. As a matter of law, the focus is on the husband’s actions after the revelation of paternity. J.C., 826 A.2d at 4-5. Vargo continued to keep the children on his health insurance so they would not be at risk if they “were sick,” and he occasionally played with them. T. 9/24/04 at 27, 81. But Vargo “told everyone” beginning in October 2003 that the children were not his. T. 9/24/04 at 29. And while Vargo was ordered Jo pay support for an older child (Timothy) who was his biologically, he was not ordered to pay support for either of the children in question in this case. T. 9/24/04 at 52.

Mother also testified that Schwartz participated in the fraud. Schwartz knew “for a long time that they were his kids,” and he told Mother not to tell Vargo. T. 9/24/04 at 90. As a matter of law, Schwartz may not benefit from his participation in the fraud perpetrated against Vargo by attempting to foist an estoppel upon Vargo.

Schwartz also claims that the court should not have considered Mother’s dismissal of her claims against Vargo for support of the children. T. 9/24/04 at 52. Schwartz asserts that this dismissal is not probative in the face of the estoppel doctrine. However, part of the court’s inquiry scrutinizes the husband’s actions subsequent to learning the true paternity. Whether the husband provided financial support or was ordered to pay support are relevant inquiries which help to determine whether the husband held out the children as his own. In view of the fraud involved, and Vargo’s actions after learning the children were not his, the estoppel doctrine does not apply.

As neither the presumption of paternity nor the estoppel doctrine applies, there is no legal disability precluding Mother from pursuing her support claim against Schwartz.

The Use of Vargo v. Vargo in This Case

Schwartz alleges this court erred in allowing the hearing officer to use the transcript and child support record of Vargo v. Vargo. Schwartz asserts that this consideration violated his due process rights. However, it was Schwartz’s attorney that introduced the transcript of Vargo v. Vargo as an exhibit in the September 24, 2004 hearing. T. 9/24/04 at 43. Schwartz also referenced the support order against Vargo in the portions of the Vargo v. Johnston transcript read into evidence at the February 10, 2006 hearing. T. 2/10/06 at 14-15. By introducing this evidence, Schwartz made the Vargo support order an issue in this case. Once Schwartz raised the issue, it was not inappropriate for the hearing officer to observe that Vargo had been paying child support for one child.

Additionally, as noted above, part of the inquiry is into the husband’s actions subsequent to learning the true paternity. Once again, whether the husband provided financial support or was ordered to pay support are relevant to the question of whether he held the children out as his own. Flearing Officer Gilman properly considered this evidence.

The Court’s Assessment of Mother’s Credibility

The fact-finder is the judge of a witness’ credibility. In re Funds in the Possession of Conemaugh Township Supervisors, 562 Pa. 85, 89, 753 A.2d 788, 790 (2000). Indeed, it is the duty of the fact-finder to determine the credibility of the witness. Anchel v. Shea, 762 A.2d 346, 358 (Pa. Super. 2000).

It was Hearing Officer Gilman who saw Mother and heard her testimony in person and on the record. The hearing officer was aware of any inconsistencies in Mother’s testimony, as well as all other testimony, and the record before him as a whole. Hearing Officer Gilman concluded that the objective evidence supported the contention that this was not an intact family. R. 2/10/06 at 2.

This court found the hearing officer’s conclusions to be reasonable in view of the evidence of record. The testimony from the various transcripts, overall, does not paint a picture of a functional, intact family.

The Court’s Denial of the Recusal Motion

When a motion for recusal is made, the judge must make an independent analysis of his or her ability to remain impartial. Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006). In performing this analysis, the judge must decide whether further involvement in the case would “create an appearance of impropriety and/or would tend to undermine public confidence in the judiciary.” Id. Once the judge makes the decision, it is final. Id. If the decision is later challenged, the burden of proof is on the party requesting disqualification to show the judge was biased, prejudiced or unfair. Id. Additionally, if the record before the Superior Court reveals that the party received a fair and impartial trial, the alleged disqualifying factors become moot. Reilly by Reilly v. SEPTA, 507 Pa. 204, 223, 489 A.2d 1291, 1300 (1985).

Schwartz presented two grounds for recusal in his motion: this court’s knowledge of paternity test results that had been excluded by Hearing Officer Gilman and this court’s knowledge of Schwartz.

On the first issue, Schwartz contends that this court was prejudiced in its review of the paternity test results that were attached to and mentioned in one of Mother’s briefs. The test results had been excluded by Hearing Officer Gilman prior to the involvement of Mother’s attorney in the case. While this court (like Mr. Gilman) was aware of the paternity test results, this awareness neither biased this court’s decision-making process nor created an appearance of impropriety. As a matter of current, controlling law, the results were not relevant. As the foregoing analysis and discussion makes clear, they did not impact the disposition of this case.

With respect to Schwartz’s second issue, in March 2005, Schwartz accompanied his lawyer to court for the presentation of amotion for reconsideration, whereupon this court noticed him in the gallery. This court first learned and noticed at that time that the Schwartz in this case is the Schwartz known to this court as a former member of Allegheny County Council. This court did not have a personal relationship with Schwartz, and only knew him from the past through occasional, cordial encounters with him, his wife, and his daughter in governmental and political settings between approximately 1999 and 2003. As stated, this court did not realize it was acquainted with the Schwartz in this case until he was present in the courtroom; his name alone on the file was not familiar enough to raise the acquaintance in this court’s mind. If every judge was required to recuse him/ herself each time a professional or political acquaintance was in court, it would be the very rare case that could be heard. This court was and is convinced that it was neither biased nor gave the appearance of bias.

This court performed the required analysis of its ability to remain impartial. It found that there was no bias or prejudice, nor the appearance of same, whether for or against either party. As both parties received a fair and impartial hearing and adjudication, the recusal claim is without merit.

CONCLUSION

For the foregoing reasons, this court’s November 29, 2006 order should be affirmed.

      . Mother has additional children who are not subject to this support order.

      . The order was revised on October 18,2006 to reflect the fact that it was not consented to by both parties.

      . Schwartz referenced only the November 29, 2006 order on exceptions in his notice of appeal. He did not mention the April 8,2005 order on recusal until he filed his 1925(b) concise statement. To the best of this court’s knowledge, no order consolidating these two separate orders for appeal purposes has been entered or even sought. Nevertheless, this court addresses both orders in this opinion in view of Schwartz’s 1925(b) filing.

      . T. indicates transcript, followed by the date of the hearing. R. denotes hearing officer recommendations, followed by the date of the recommendations.

      . Citations for 9/14/04 relate to the transcript of the record proceedings in Vargo v. Johnston.

      . Mother stated that, as a result of a January 13, 2004 hearing, Vargo was not ordered to pay support for Kelcie and Sydney.

      . As set forth hereinabove, the disposition of this case derives squarely from application of controlling appellate precedent. The undersigned nonetheless takes note of the compelling opinion of the Honorable Richard Renn in Hamersley v. Brown, no. 05-FC-1682-Y03 (York Cty. June 26, 2006) (notice of appeal filed at 1162 MDA 2006; submitted to Superior Court panel January 22, 2007). In Hamersley, Judge Renn has encouraged the Superior Court to review the applicability of the presumption of paternity and estoppel doctrine in view of the current state of the family. The undersigned joins in Judge Renn’s reasoning. In an age when family relations have changed and DNA testing can provide prompt and accurate paternity determinations, these doctrines may have outlived their usefulness. In an age when there is easy access to court records via the Internet, children whose paternity has been questioned enjoy little security in “knowing” their father based on nothing more than what our Supreme Court has called the “two great fictions of the law of paternity.” Brinkley, 549 Pa. at 249, 701 A.2d at 180. In any case where paternity is questioned, there necessarily is a question as to whether the family is still intact. And, given the fluid nature of today’s family, it is hard to define what an intact family is. With changing social realities and the ready availability of accurate genetic testing, the twin “fictions” of presumption of paternity and paternity by estoppel increasingly seem quaint vestiges of a bygone era. In their current form, these devices are no longer sound law or policy. As Chief Justice Flaherty reminded us in Brinkley, cessante ratione legis cessat et ipsa lex (where stops the reason, there stops the rule). 549 Pa. at 250, 701 A. 2d at 181. The reason has stopped. The rule should as well. It is time that our appellate courts revisit the issue.

      . The Superior Court has placed this appeal on the Family Fast Track, and the record is due on Monday, February 12, 2007. Nonetheless, Schwartz failed to order the required transcript from the March 23, 2005 record proceeding on his recusal motion until directed to do so by the Superior Court. Hence, in preparing this opinion, this court was compelled by the February 12, 2007 due date and the lack of transcript to proceed by recollection concerning the March 23, 2005 testimony and argument. On the afternoon of Thursday, February 8, 2007, as this court finalized this opinion for submission to the Superior Court, this court received a copy of Schwartz’s letter to the Superior Court advising that the March 23, 2005 hearing transcript finally had been filed. No transcript was provided to this court. This court, through staff, telephonically requested a copy of the transcript from staff of Schwartz’s counsel, who provided it late in the afternoon on Thursday, February 8, 2007. This court now has carefully reviewed the March 23, 2005 transcript in its entirety. Because that transcript dovetails with and supports the points made by this court hereinabove, and because the record is due in the Superior Court on Monday, February 12,2007, this court has not undertaken to revise and supplement this opinion to add citations to the March 23, 2005 record nor to quote from, or comment on, that record. This court stands on the transcript of the hearing, and believes that a reading of the March 23, 2005 transcript will usefully substantiate and amplify for the Superior Court the points made by this court in the text of this opinion.


source: Caselaw Access Project

author: CHARLES, J.,

license: Public Domain

text:
    Erie Insurance Exchange v. Heisey

      C.P. of Lebanon County,
    no. 2005-00443.

      Allan C. Molotsky, for plaintiff.

      Greer H. Anderson, for defendants.
    February 12, 2007
   CHARLES, J.,

On February 19, 2002, Janie S. Ream tragically lost her life when Warren Heisey shot her three times in the head. The echoes of these shots are still reverberating today, as Ream’s estate is seeking to collect money under Heisey’s homeowner’s insurance policy with Erie Insurance Exchange. Predictably, Erie argues that Heisey’s murder of Ream is not an event covered under its policy.

For reasons that follow, we will declare that no coverage exists under Erie’s policy for the senseless act of violence committed by Heisey.

I. PROCEDURAL HISTORY

On February 26,2004, Dawn R. Ream, administratrix of the estate of Janie Ream initiated a civil action against Heisey under Pennsylvania’s wrongful death and survival acts. This complaint sought monetary damages as a result of Ream’s premature-death at the hands of Heisey. The complaint also alleged that Heisey suffered from a mental illness at the time he shot and killed Ream. According to the complaint: “Because of defendant’s mental illness, and his mental state in general, defendant’s actions were not intentional, conscious or knowing.” (¶12 of complaint.)

A copy of this complaint was mailed to Erie by Estate’s attorney. (Exhibits G, H and J to stipulation of facts.) Erie disavowed any responsibility to defend or indemnify Heisey. (See exhibit I to stipulation of facts.) Eventually, Estate requested and received a default judgment against Heisey and we conducted a bench trial on damages, awarding a total of $226,861 by order dated November 4, 2005.

On March 31,2005, Erie filed a declaratory judgment action against Heisey and Estate, seeking a declaration that it had no duty to neither defend nor indemnify Heisey as a result of the shooting that occurred on February 19, 2002. Erie alleged that the shooting by Heisey was an intentional act for which no coverage exists under its homeowner’s insurance policy. Estate filed an answer and new matter to Erie’s declaratory judgment complaint, alleging that Heisey’s acts were not intentional because he had been suffering from a serious mental illness at the time.

Following discovery, both parties submitted motions for summary judgment. On October 18,2006, the parties submitted an extensive stipulation of facts that included police reports, psychiatric reports, court documents relative to Heisey’s criminal charges and information pertaining to Erie’s insurance policy. We conducted oral argument on the cross-motions for summary judgment on January 26, 2007 and have received briefs from both sides. The issue of whether Erie’s policy provides coverage to Heisey is now before us for disposition.

II. FACTUAL SUMMARY

The factual basis for the parties’ motions for summary judgment is contained exclusively within the joint stipulation of facts submitted to this court. A significant percentage of that stipulation presents information regarding the criminal investigation and prosecution of Heisey. Based upon the stipulation, we will summarize the facts surrounding the February 19, 2002 incident.

Prior to February 19, 2002, Ream was involved in a romantic relationship with Heisey. (¶12 of stipulation.) According to one of Ream’s best friends, Ream decided to “kick Warren out” of her residence and communicated this to him at some point during the day of February 19, 2002. (See exhibit K.) At about 7:30 p.m. on February 19, Ream contacted the Pennsylvania State Police via the 911 emergency line. She was speaking in a “frantic voice” and stated that her “ex-boyfriend” was outside her home. She pleaded with police to “hurry” and stated “he’s nuts.” Heisey entered the home, but Ream did not terminate her telephone conversation with the police dispatcher. Upon review of the 911 tape, police heard Ream’s voice state “He’s got a gun,” “No. Warren. What’s the matter with you?” and “Come on, Warren.” Also depicted on the 911 tape was a male voice saying “Out the door. The car’s up the street. Now get going ... no arguing.” The dispatcher described Ream’s voice as “becoming more frantic” and described sounds that were perceived as accompanying a struggle. Three gunshots were then heard on the 911 tape. (Exhibit G to the stipulation.)

When police arrived, they observed Heisey entering his vehicle. The vehicle sped away from the scene. Police pursued the vehicle. Ultimately, the vehicle stopped after striking the front end of a Pennsylvania State Police patrol car. Heisey was then apprehended. Located inside his vehicle was a .22 caliber revolver and ammunition. (All information on this paragraph is contained in the affidavit of probable cause attached as exhibit I to the stipulation and in the transcript of the 911 call that was attached as exhibit G to the stipulation.)

According to the autopsy report, Ream died as a result of multiple gunshot wounds. All three wounds were located in Ream’s head. Any one of the wounds would have been fatal. (See exhibit N to stipulation.)

As a result of this incident, Heisey was charged with numerous crimes, the most serious of which was criminal homicide. (Exhibit O to stipulation.) The criminal complaint charged that Heisey “intentionally, knowingly, recklessly or negligently caused the death of Janie Ream by shooting Ream in the head with a .22 caliber revolver in the kitchen of Ream’s residence.” (Exhibit O to stipulation.) Attorney Jerry Russo was hired to represent Heisey. He proffered an insanity defense.

On January 22,2003, Dr. Abraham Hostetter met with Heisey for the puipose of evaluating his mental capacity on the date of the shooting. (Exhibit Q to stipulation.) As a result of Dr. Hostetter’s initial report, the district attorney and Heisey’s lawyer stipulated that Heisey should be transferred to a secure forensic psychiatric unit for more testing and treatment. (Exhibit P to stipulation.) On November 20, 2002, Dr. Mangala Khadilkar of the Norristown State Hospital issued a report that diagnosed Heisey as having bipolar disorder with psychosis. The treatment team at Norristown considered Heisey competent to proceed with his trial. (Exhibit R to stipulation.) Shortly after the Norristown State Hospital report, Dr. Hostetter supplemented his initial opinion by a letter dated January 27, 2003. Dr. Hostetter concluded that Heisey’s psychiatric condition was a “dementing process.” However, Dr. Hostetter stopped short of rendering an opinion declaring Heisey to, be legally insane. (Exhibit S to stipulation.)

On April 4, 2003, Heisey entered a plea of guilty but mentally ill to third-degree murder, burglary, four counts of aggravated assault, four counts of recklessly endangering another person and fleeing and eluding a police officer. The court accepted this plea, concluding that Heisey “understood the nature and consequences of his act when he committed it.” (Exhibit T to stipulation.) Heisey was sentenced to an aggrpgate indeterminate sentence of incarceration, the minimum of which was 21 1/2 years and the maximum of which was 50 years. (Exhibit T.) At all times pertinent to the civil litigation now before us, Heisey has resided in either a secure psychiatric facility or prison.

III. CONTENTIONS OF THE PARTIES

A. Erie’s Arguments

Erie has submitted three.primary arguments. Because one of these arguments is not pertinent to our decision, we will only be outlining the two arguments upon which we will base our decision:

(1) The shooting death of Janie Ream does not constitute a covered occurrence — Erie points out that its policy 2only provides coverage for an “occurrence” that takes place during the policy period. (See exhibit F at p. 14 under “Our Promise.”) The term “occurrence” is specifically defined in the policy as “an accident, including continuous or repeated exposure to the same general harmful conditions.” (Exhibit F atp. 5, definition of “occurrence.”) Erie argues that the shooting death of Ream was not an occurrence under these policy conditions. Hence, Erie asserts that its policy does not provide liability coverage to Heisey.

(2) The intentional act exclusion of Erie’s policy precludes coverage — Erie’s policy also contains various exclusions. Of import to this case is the so-called “intentional act exclusion.” This exclusion precludes coverage that was “expected or intended by anyone we protect ....” (See exhibit F at p. 15, exclusion no. 1.) Erie argues that Heisey’s shooting of Ream was an intentional act for which its exclusion precludes coverage.

B. Estate’s Arguments

Estate focuses on Heisey’s mental health status. Estate points out that Heisey’s plea to the charge of homicide was one of “guilty but mentally ill.” This plea was based upon a diagnosis of bipolar disorder with psychosis rendered by a psychiatrist shortly after Heisey’s arrest. Estate’s argument is summarized on page 4 of her brief: “Because Heisey could not have formed intent because he did not understand the consequences of his actions, Heisey’s acts were not intentional, and therefore Erie owes Heisey the duty to indemnify under its insurance policy.” (Heisey’s brief at p. 4.)

IV. DISCUSSION

When construing the language of an insurance policy, our goal is to ascertain the intent of the parties as manifested by the language of the written instrument. QBE Insurance Corp. v. M & S Landis Corporation, 915 A.2d 1222 (Pa. Super. 2007), citing Madison Construction Company v. Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100 (1999). If the language of a policy is clear, it is to be applied as written. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). We are to supply an interpretation to the meaning of an insurance policy only if the terms are ambiguous so that “more than one reasonable interpretation” can be gleaned. Madison Construction Company, supra at 606, 735 A.2d at 106. Generally speaking, “courts should try to read policy provisions to avoid ambiguities, if possible, and not torture language to create them.” Brosovic v. Nationwide Mutual Insurance Company, 841 A.2d 1071, 1073 (Pa. Super. 2004). As instructed by the Pennsylvania Superior Court en banc, when the wording of an insurance policy is clear, we are to “enforce it.” Donegal Mutual Insurance Company v. Baumhammers, 893 A.2d 797, 818 (Pa. Super. 2006).

In this case, we are confronted with two policy provisions. The first involves the definition of a covered “occurrence” and the second pertains to the so-called “intentional act exclusion.” Our analysis with respect to each of these policy provisions will be set forth below.

(1) Did An “Occurrence” Exist Within the Meaning of the Policy?

Our first duty in a coverage dispute is to examine whether an occurrence exists that would trigger coverage, Minnesota Fire and Casualty Company v. Greenfield, 579 Pa. 333, 855 A.2d 854 (2004) atn.6. Our Superior Court has determined that a policy provision which defines “occurrence” as an “accident” is clear and unambiguous. Donegal Mutual Insurance Company v. Baumhammers, supra at p. 806. Because the Erie policy at issue here defines “occurrence” as an “accident,” we must determine whether Ream’s death was an “accident.”

Four Pennsylvania cases have addressed the identical insurance language at issue in this case within the context of intentional attacks. See Donegal Mutual Insurance Company v. Baumhammers, supra; Gene’s Restaurant Inc. v. Nationwide Insurance Co., 519 Pa. 306, 548 A.2d 246 (1988); Britamco Underwriters Inc. v. Grzeskiewicz, 433 Pa. Super. 55, 639 A.2d 1208 (1994); and Britamco Underwriters Inc. v. Weiner, 431 Pa. Super. 276, 636 A.2d 649 (1994). Two of these cases were resolved in favor of coverage (Baumhammers and Weiner), while two were resolved against coverage (Gene’s Restaurant and Grzeskiewicz). An analysis of the reasoning for the disparate decisions will guide us as we contemplate the facts before us.

In Gene’s Restaurant, a restaurant was sued as a result of its employee’s intentional assault upon a patron. Pennsylvania’s Supreme Court declared that this event was not accidental, and therefore did not constitute an “occurrence”; “willful and malicious assault alleged in the complaint is not an accident but rather is an intentional tort. As such, it is not covered by the policy ....” Id. at 309, 548 A.2d at 247. In reaching this conclusion, the Supreme Court emphatically stated that an “ ‘occurrence’ must be [accidental] which a malicious, willful assault and beating could never be.” Id. at 309 n.l, 548 A.2d at 247 n.l.

Similarly, Grzeskiewicz involved an assault at an insured bar. The assault occurred when one patron attacked another with a broken beer bottle. A panel of our Superior Court held that no occurrence existed. The court essentially concluded that irregardless of whether negligence by an insured may have led to the incident, an attack could never be considered an accident.

A different result was reached in Weiner, supra. There, like in Grzeskiewicz, a bar patron sued the insured bar because he was assaulted and injured by another patron. The court emphasized that the complaint alleged that the bar was negligent in failing to adequately protect business invitees who had a known propensity for violence. In Weiner, the Superior Court held that this was enough to trigger a duty to defend.

The last, and arguably most important, appellate court decision is Baumhammers, supra. In Baumhammers, the en banc Superior Court conducted a lengthy analysis of the language in Gene’s Restaurant, Weiner, and Grzeskiewicz. In its analysis, the Superior Court specifically rejected its own panel’s decision in Grzeskiewicz, supra, describing the language of that case as compelling an “anomalous result.” Id. at 809. Relying on the language in Gene’s Restaurant, Weiner, and the Third Circuit of Appeals decision in Nationwide Mutual Fire Insurance Company v. Pipher, 140 F.3d 222 (3d Cir. 1998) (applying Pennsylvania law), the Superior Court in Baumhammers focused on whether the insured, and not a third person, was the one who perpetrated the attack.

Baumhammers was spawned when Richard Baumhammers embarked on a shooting spree, killing five people and seriously injuring another. Mr. Baumhammers was subsequently convicted of first-degree murder. Thereafter, several victims sued Baumhammers’ parents, alleging that the parents were negligent because they did not take possession of Baumhammers’ gun or alert authorities when they knew or should have known that Baumhammers was going to begin his deadly spree. Faced with this scenario, the Superior Court accepted as self-evident that the acts of Richard Baumhammers were intentional and not accidental. However, the Superior Court distinguished between intentional conduct of an insured and intentional conduct of third persons. The court noted, “It is the intentional conduct of the insured which precludes coverage, not the acts of third parties.” Id. at 809, citing Pipher at 226. (emphasis in original) Because Donegal’s policy insured Baumhammers’ parents, and because the allegations against Baumhammers’ parents sounded in negligence, the court held that coverage existed, holding “negligence leading to intentional acts may nevertheless be considered an ‘accident’ and thus an ‘occurrence’ where so defined.” Id. at 810. (footnote omitted)

One other appellate decision deserves mention because it addresses the meaning of “accident” within an insuranee context. The case of Kvaerner Metals Division v. Commercial Union Insurance Company, 589 Pa. 317, 908 A.2d 888 (2006), involved a faulty workmanship damages claim. Even though Kvaerner did not involve an act of criminality, the language used by the Supreme Court is nonetheless helpful. In Kvaerner, the Supreme Court recognized that its decision hinged upon “what constitutes an accident under the policy.” Id. at 332, 908 A.2d at 897. In searching for a definition of accident, the Supreme Court consulted Webster’s New College Dictionary to define accident as “an unexpected and undesirable event,” or “something that occurs unexpectedly or unintentionally.” The key term in the ordinary definition of “accident” is “unexpected. ” Id. at 333, 908 A.2d at 897-98, citing Webster’s II New College Dictionary (2001) at 6. (emphasis supplied)

From the above, we reach the following conclusions:

(1) Erie’s insurance policy, which defines “occurrence” as an “accident,” is clear and unambiguous. Accordingly, we must enforce it as written.

(2) Under Pennsylvania law, our decision of whether an incident was accidental must focus upon whether it was unexpected by the insured.

(3) When one person attacks another, resulting harm will not be “unexpected” by the attacker.

(4) As it relates to a perpetrator such as Heisey, an attack upon another human being will never be considered an “accident” under Pennsylvania law.

In light of the above conclusions, we hold that Heisey’s act of shooting and killing Ream was not an “accident.” Accordingly, as it relates to Heisey, the shooting of Janie Ream was not an “occurrence” that would trigger coverage under Erie’s homeowner’s insurance policy. We therefore grant Erie’s motion for summary judgment and deny the one filed by Estate.

(2) Intentional Act Exclusion

Most homeowner’s insurance polices contain so-called intentional act exclusions. These exclusions have been applied by our appellate courts to deny coverage where an insured “desired to cause the consequences of his act or if he acted knowingly that such consequences were substantially certain to result.” United Services Automobile Association v. Elitzky, 358 Pa. Super. 362, 375, 517 A.2d 982, 989 (1986); Donegal Mutual Insurance Company v. Ferrara, 380 Pa. Super. 588, 552 A.2d 699 (1989); Baumhammers, supra at 822; and Germantown Insurance Company v. Martin, 407 Pa. Super. 326, 595 A.2d 1172 (1991). In determining whether an actor intended his harm, our appellate courts have referenced the definition of intent set forth in the Restatement (Second) of Torts, §8A. See Elitzky, supra at 369, 517 A.2d at 986 and Baumhammers, supra at 822. There, the word intent is used “to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Restatement (Second) of Torts, §8A. In assessing a person’s intent, “an actor is presumed to intend the natural and probable consequences of his actions.” Baum-hammers, supra at 823, citing Commonwealth v. Sirianni, 286 Pa. Super. 176, 183 n.7, 428 A.2d 629, 633 n.7 (1981).

At oral argument, we questioned whether Estate and/ or Heisey should be estopped from challenging intent given that Heisey entered a plea of guilty to third-degree murder. In response to our inquiry, we were directed to the case of Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 618 A.2d 945 (1992). There, the court emphasized that third-degree murder is founded upon malice and that malice does not necessarily prove that acts were intentional; legal malice may be predicated on a failure to perceive the risk an action can take. Id. at 560, 618 A.2d at 952. While Stidham did acknowledge that an insured’s guilty plea is admissible as an admission against interest, the mere fact of the plea, by itself, does not establish an intentional act. Therefore, we must look beyond Heisey’s plea to examine all of the other facts and circumstances presented.

In this case, the record clearly reveals that Heisey entered the residence of Janie Ream against Ms. Ream’s wishes. A confrontation occurred that was recorded in large part via the 911 emergency .system. The recording revealed that Ream was reluctant to comply with Heisey’s desire to transport her somewhere else. When Ream expressed her reluctance, Heisey discharged his .22 caliber revolver three times. Each shot struck Ream in the head.

When one individual takes a gun and discharges it three times into the head of another, only one conclusion can be reached — the shooter intended to kill the victim. Without disputing this general proposition, Estate nonetheless argues that Heisey’s act was not intentional because it was the product of a mental illness. In support of this proposition, Estate presents an opinion from Dr. Abraham Hostetter and asserts that we are bound by Dr. Hostetter’s opinion because he was the only expert who produced an opinion within the stipulated statement of facts.

We disagree with both the premise — that a mental illness can negate intent for purposes of evaluating the intentional act exclusion — and the conclusion — that Heisey lacked intent due to his mental illness — of Estate’s argument. Therefore, we will reject it.

Legally, an act will not be transformed from intentional to unintentional merely because a psychiatrist provides evidence of mental incapacity. In Baumhammers, the court applied an experiential and common sense definition of “intent” and stated “psychiatric testimony may not be used to suggest that Baumhammers’ acts were unintentional.” M at 823.

Even more explicit is the case of Germantown Insurance Company v. Martin, supra, which is very close factually to the one now before us. Martin involved an incident where Robert Martin entered a home and shot three people, killing two. The victims’ family sued Martin, claiming that they had been harmed by a “negligent shooting.” The trial court concluded that Martin was deranged and ordered Germantown Insurance Company to defend Martin. The Superior Court reversed based upon the intentional act exclusion. Of significant import was the Superior Court’s language regarding the psychiatric issue:

“That Martin’s acts were senseless, irrational and incomprehensible to the trial court or anyone else has no bearing on determining coverage under the policy. The record before us discloses Martin brought about the harm he intended. Obviously, no rational person would go on a shooting spree, but this in no way lessens the intentional character of the conduct, if such intent is evidenced.

“As occurred in this trial, once the court moves beyond the clear meaning of the policy and delves into the subjective state of mind or rationality of the actor, it becomes a contest between psychiatric experts, one of whom can be found to testify on any position. The psychiatric testimony in this case appears to be irrelevant to the issue of coverage for purposes of Germantown representation.” Id. at 334, 595 A.2d at 1176. (footnote omitted) Based upon Baumhammers and Martin, our focus must be upon the conduct of Heisey, and not his mental capacity.

Even if Heisey’s subjective psychiatric condition was legally relevant, we would still reject Estate’s argument. In this case, Heisey shot Ream three times, striking her in the head with all three shots. Thereafter, he fled the scene and led police on a high-speed chase. Under Pennsylvania law, an actor who discharges a gun at a vital part of another’s body is presumed to have a specific intent to kill. See Commonwealth v. Packard, 767 A.2d 1068 (Pa. Super. 2001). In addition, an individual who flees from the scene of a crime can be inferred to have consciousness of guilt. See e.g., Commonwealth v. Rios, 546 Pa. 271, 291, 684 A.2d 1025, 1035 (1996). To us, the report of Dr. Hostetter issued in 2006 is not sufficient to overcome all of the other evidence that is probative of Heisey’s intent to kill Ream.

In this case, we are satisfied that Heisey committed an intentional act, as that term is defined in Erie’s policy. Accordingly, the policy does not provide coverage for Heisey. For this reason also, we will grant Erie’s motion for summary judgment and deny the one filed by Estate.

V. CONCLUSION

Based upon the foregoing, we conclude that Heisey’s shooting of Ream was not an “accident.” Therefore, it was not a covered “occurrence” under Erie’s policy. In addition, we conclude that Heisey intended to kill Janie Ream and that Ms. Ream’s death should have been and was expected by Heisey once he discharged three bullets into her head. Thus, the intentional act exclusion in Erie’s policy also applies.

For either of the above reasons — no “occurrence” or “intentional act” — no coverage exists for Heisey under Erie’s homeowner’s insurance policy. Accordingly, we will grant Erie’s motion for summary judgment on its declaratory judgment complaint and will deny the cross-motion for summary judgment filed by defendants. An order consistent with the above will be entered this date.

ORDER

And now, February 12, 2007, upon consideration of the stipulation of facts submitted by the parties and upon consideration of the arguments presented, the order of this court is as follows:

(1) The motion for summary judgment of plaintiff Erie Insurance Exchange is granted.

(2) The cross-motion for summary judgment filed by defendants is denied.

(3) We enter a judgment in favor of plaintiff declaring that no coverage exists under Erie Insurance Exchange’s Broad Cover Home Protector Insurance Policy as a result of the shooting death of Janie Ream that occurred on February 19, 2002.

      . Erie has also argued that Heisey failed to give notice of the lawsuit, which is a violation of policy conditions. Because it is not necessary for us to address this argument in order to render our decision, we will leave an analysis of Erie’s notice argument for another day.

      . In order to avoid confusion, we will refer to the latter two cases as Grzeskiewicz and Weiner.

      . Under Pennsylvania criminal law, when an individual discharges a firearm at a vital part of another person’s body, that individual is presumed to have the specific intent to kill. See e.g., Commonwealth v. Packard, 767 A.2d 1068 (Pa Super 2001). (“Such [specific intent to kill] may reasonably be inferred from an accused’s use of a deadly weapon on a vital part of the victim’s body.” Id. at 1071.)

      . In addition to the intentional act exclusion, Martin also declared that coverage for an individual who committed murder would be contrary to public policy in Pennsylvania. Id. at 333, 595 A.2d at 1175. Although public policy was also raised within Erie’s brief we do not find it necessary to base our decision upon notions of public policy

      . We do note that Dr. Hostetter rendered an opinion on May 31, 2006 that Heisey’s actions against Ream were the result of a “severe psychiatric condition” which rendered him “unable to form the specific intent to commit the acts he carried out.” (See exhibit U to stipulation of facts.) It is certainly curious to us that Dr. Hostetter did not render these opinions in either of the reports he submitted to Heisey’s criminal defense counsel closer to the date of the homicide. (See exhibit S and exhibit Q to stipulation of facts.) We also find it curious that Dr. Hostetter reported in his initial opinions that Heisey could not remember any details surrounding the homicide (see exhibit S at p. 2), yet details such as Heisey’s belief that another man was in the house with Ream were contained in Dr. Hostetter’s 2006 report. (See exhibit Ü atp. 3.)


author: MINORA, J,

text:
    Minick v. MTD Products Inc.

      C.P. of Lackawanna County,
    no. 1993 CV 519.

      Nicholas Mattise, for plaintiffs.

      Mark F. McKenna, for defendant.
    February 8, 2007
   MINORA, J,

I. INTRODUCTION

Currently before the court is the defendant’s, MTD Products Inc., renewed motion for summary judgment on the issue of punitive damages only.

By way of background, this is a products liability claim against MTD for injuries that occurred on May 8,1991, when Melinda Minick, then age 13, lost her right foot and most of the toes on her left foot when she was run over by a lawn tractor manufactured by MTD and operated by her mother, Catherine Minick, while Mrs. Minick was backing up. The plaintiffs allege inter alia that the no cut in reverse (NCIR) feature of the MTD tractor was defectively designed so it could be easily disabled by the consumer.

On or about March 23,2005, defendant, MTD filed a motion for summary judgment and brief in support thereof seeking dismissal of numerous claims asserted by plaintiffs, Robert Minick Jr., individually and as parent and natural guardian of Melinda Minick, a minor (collectively referred to as “plaintiffs” and referred to individually as “plaintiff-Father” and “plaintiff-Minor”). Plaintiffs filed a brief in opposition to MTD’s motion for summary judgment on or about May 13, 2005.

Included within the claims that MTD sought to have dismissed was plaintiffs’ punitive damages claim. Plaintiffs, in opposition to the motion for summary judgment on the issue of punitive damages, argued that a 1986 customer survey conducted by MTD and a Consumer Product Safety Commission (CPSC) study for ride-on mowers covering years 1983 through 1986 provided sufficient evidence of the requisite state of mind to enable plaintiffs to survive summary judgment on said issue.

In support of its motion for summary judgment and in opposition to plaintiffs’ reliance upon the aforementioned studies, MTD directed this honorable court to Hutchinson v. Penske Truck Leasing Company, 876 A.2d 978, 983 (2005), appeal granted, 586 Pa. 771, 895 A.2d 1262 (2006), wherein the Superior Court held that in order for a party to rely upon prior accidents to establish the defendant’s state of mind, he/she must establish “substantial similarity of conditions between the other accidents and the accident that injured the plaintiff.” (internal quotation and citation omitted)

The undersigned, in our October 26, 2005 memorandum and order of court, held that “in the case at hand, plaintiffs are relying heavily on the 200 prior accidents as evidence of MTD’s state of mind and their punitive damages claim. At this point, the record is unclear as to the foundation necessary to send this evidence to a jury set forth above.” The court went on to direct that plaintiffs should “address the issues set forth by Hutchinson by conducting supplemental discovery to determine if the substantial similarity test set forth by Hutchinson is evident in case.” Plaintiffs were directed by this court to conduct additional discovery addressing the “substantial similarity factors set forth in Hutchinson v. Penske Truck Leasing Company, in order to sustain the state of mind evidence necessary to continue their claim for punitive damages” within 120 days from the date of the order of court. Accordingly, discovery was to be concluded by plaintiffs on February 22,2006. The plaintiffs chose not to conduct additional discovery nor ask the court for an extension of time to do so. They chose to rely on the record as it stands in opposition to this latest motion for summary judgment regarding punitive damages only.

The matter has been thoroughly briefed and argued before the undersigned and is now ripe for disposition.

II. ISSUE

Should defendant MTD’s motion for summary judgment as to punitive damages be granted or denied?

III. DISCUSSION

A. The General Standards for Summary Judgment

As we indicated many times, summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Most importantly, the record must be reviewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. See Pa.R.C.P. 1035.2; Swords v. Harleysville Insurance Companies, 584 Pa. 382, 883 A.2d 562 (2005); Continental Cas. Co. v. Pro Machine, 916 A.2d 1111 (Pa. Super. 2007); Barnish v. KWI Bldg. Co., 916 A.2d 642, (Pa. Super. 2007).

With these general principles in mind, we now examine the defendant’s specific contentions as to summary judgment as it pertains to the issue of punitive damages.

B. Summary Judgment Revisited in Regards to the Issue of Punitive Damages

As we indicated earlier, in product liability cases grounded in a theory of strict liability, plaintiff may seek punitive damages as well as compensatory damages and such punitive damages “are awarded in rare instances, to punish and deter outrageous, extreme and egregious behavior.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983, (Pa. Super. 2005), appeal granted, 586 Pa. 771, 895 A.2d 1262 (2006). (internal citations omitted)

Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages. Rather, to justify an award of punitive damages, the fact-finder must determine that the defendant acted with a culpable state of mind, i.e., with evil motive or reckless indifference to the rights of others. “Since a culpable state of mind is required for an award of punitive damages, evidence of the defendant’s knowledge or intention is highly relevant.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005).

In Hutchinson, supra, our Superior Court ruled that to offer evidence on the “state of mind” of the defendant based on prior accidents, the plaintiff must demonstrate that the prior accidents are “substantially similar.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983-88 (Pa. Super. 2005).

In the case at hand, looking at the evidence in the light most favorable to non-movant plaintiffs, a jury could find that MTD was aware of the substantial number of injuries to children from back over accidents; that its NCIR system was being disconnected with some frequency; and that its tractors had nothing to prevent the operation of the NCIR safety feature from being rendered non-operational, yet despite that knowledge, MTD never changed the design of the NCIR system.

As we previously indicated, we carefully considered defendant’s reliance on Hutchinson, realizing part of Hutchinson sets forth the rules for using the “substantial similarity test” to prove defectiveness, not state of mind, (emphasis added) (See Hutchinson, 876 A.2d at 983, for instance.)

We further noted that plaintiffs were relying heavily on the 200 prior accidents as evidence of MTD’s state of mind in their punitive damages claim. At that point, we felt the record was unclear as to the foundation necessary to send this evidence to a jury set forth above. (See footnote 2.)

At that point, in the interest of justice, the court directed the plaintiffs to address the issues set forth in Hutchinson by conducting supplemental discovery to determine if the “substantial similarity” test set forth by Hutchinson is evident in this case.

Therefore, we denied defendant’s motion for summary judgment as to punitive damages per memorandum and order of October 26, 2005 without prejudice to its right to revisit this issue via a motion in limine or any other procedural vehicle. We also allowed the plaintiffs 120 days to conduct the discovery necessary to address the Hutchinson issue. If the plaintiffs needed more time, they were directed to request same from the court. See Minick v. MTD Products Inc., 75 D.&C.4th 225, 236 (2005).

As we noted, the plaintiffs chose not to conduct additional discovery nor request additional time to do so. They are relying on the record as it stands to support their claim for punitive damages.

We are also aware that the Supreme Court has taken Hutchinson v. Penske Truck Leasing Co., supra on appeal. (See 586 Pa. 771, 895 A.2d 1262 (2006); 10 and 11 EAP 2006.) The matter has been argued on October 16, 2006 and a decision is pending at this time.

A review of the docket reveals that one of the core issues raised on appeal is whether the Superior Court’s decision in Hutchinson, supra, violates Supreme Court precedent and the fundamental principles of relevance regarding the admissibility of evidence on the issue of punitive damages.

This is similar to our current plaintiffs’ argument in that a more general common-law approach to punitive damages is espoused rather than the stringent “similarity” standard put forth by the Superior Court in Hutchinson.

Until the Supreme Court gives us guidance on this issue, it would be inappropriate to grant summary judgment at this time since the law on the issue is in a state of flux and uncertain. Thus, we cannot say without doubt that defendant is entitled to summary judgment on the issue of punitive damages as a matter of law. See generally, Chepkevich v. Hidden Valley Resort L.P., 911 A.2d 946 (Pa. Super. 2006).

Therefore, we will deny defendant’s renewed motion for summary judgment on the issue of punitive damages at this time without prejudice to the right of the parties to revisit the issue once the Supreme Court issues its decision in Hutchinson v. Penske Truck Leasing Co., supra.

An appropriate order follows.

ORDER

And now to wit, February 8,2007, after due consideration of defendant’s renewed motion for summary judgment on the issue of punitive damages, the able written and verbal arguments of counsel and the court’s own independent research and in accordance with the foregoing memorandum, it is hereby ordered and decreed that defendant’s renewed motion for summary judgment as to punitive damages is denied without prejudice to the right of the parties to revisit the issue once the Pennsylvania Supreme Court issues its decision in Hutchinson v. Penske Truck Leasing Co., supra.

      . We note that the Supreme Court has granted allocatur in Hutchinson. Its decision is pending at the time of this writing.

      . Courts have engaged in several inquiries in determining whether the other accidents were sufficiently similar to the accident at issue: “Was the same instrumentality involved? Did the accidents occur under the same or similar conditions or circumstances? Did the accidents occur at substantially the same place? ... We stress that the proponent of the evidence bears the burden to establish the similarity between the other accidents and the accident at issue before the evidence is submitted.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983 (Pa. Super. 2005). (emphasis in original)


author: LESKINEN, J,

text:
    Boni v. Zoning Hearing Board of Fayette County

      C.P. of Fayette County,
    no. 1409 of 2005, G.D.

      Donald McCue, for appellant Perry Township.

      John M. Purcell, for appellant Frazier School District.

      Alan Benyak and Gretchen Mundorff, for appellees.
    January 31, 2007
   LESKINEN, J,

This matter comes before the court on the Township’s appeal from a decision of the zoning hearing board which granted a special exception for a “methadone treatment facility” under the theory that such a facility is a medical “clinic” under the terms of the zoning ordinance. The Frazier School Board, the landowners, and the prospective purchaser (and operator of the proposed methadone treatment facility) have all intervened.

For reasons set forth hereinafter, this matter will be remanded to the zoning hearing board for further proceedings in accordance with the new Fayette County Zoning Ordinance effective November 1, 2006.

BACKGROUND

Landowners/intervenors, Laurence A. Bujdos and Louis Waller filed a petition with the Fayette County Zoning Hearing Board requesting that the board grant a special exception for a “substance abuse treatment program for persons with opiate addictions” on property owned by Mr. Bujdos (currently listed as owned by LLS Realty LLC). The property consists of 5.37 acres in Perry opolis Township on the west side of State Route 51 just north of Perry opolis Borough. Route 51 is a major commuting route between Fayette County and Pittsburgh. The property is zoned “B-l.” The Fayette County Zoning Ordinance is in effect, as Perry Township does not have its own zoning. At the time the application was filed, the county zoning ordinance made no specific provision for a “methadone treatment facility,” but amendments providing for same were pending.

The original petition was filed on March 29,2005. As noted, it sought a property use of “substance abuse treatment program for persons with opiate addictions.” As reasons for granting the petition, Bujdos and Waller wrote: “Property meet [sic] requirements of local zoning and state requirements as found at Act 10 of 1999.” Act 10 deals with “methadone treatment facilities.” Evidently when the petition was presented someone wrote “Clinic” next to the property use written in by the applicants, since, as noted above, the ordinance at that time made no express provision for methadone treatment facilities.

The zoning hearing board held a hearing on the petition on May 11, 2005. Only the three proponents of the petition testified. Petitions of various residents opposed to the petition were received, but in the absence of admissible testimony, the petitions were not considered. The board issued Resolution 05-43 approving the special exception with conditions on May 19, 2005. The within land use appeal was filed by the Township on June 13, 2005 and the other parties intervened thereafter.

Perry Township first obj ected on the basis that the resolution was signed only by a member of the board, Mark Morrison, who was not present for the hearing, and who had not had an opportunity to review the testimony. This would appear to be fair criticism in the sense that the testimony at the hearing was not transcribed until sometime in 2006, and consists of 163 pages. Clearly, Mr. Morrison could not have reviewed the testimony. However, because of the disposition reached on other grounds, the court need not reach this particular objection.

Perry Township next objected on the general basis that “Petitioners failed to meet the burden of proof in connection with their case.” Again, while this point is arguably correct, the instant disposition is made on other grounds and the court need not reach this particular objection.

Next, the Township claims: “There should have been a traffic study successfully completed to indicate the additional ingress and egress to the proposed location.” The request for a traffic study was in light of the testimony that there would be approximately 250 persons using the treatment facility every day to receive their methadone, almost all of whom would be making a left-hand turn into and/or out of the facility across two lanes of southbound traffic at a location where there is no dedicated turning lane between the northbound lanes and the southbound lanes. The business district of Perryopolis Borough, immediately south of the proposed site, has a dedicated left-hand turn lane that is obviously appreciably safer. Again, this is a factor worthy of consideration, but is not the immediate basis for the court’s current disposition.

At argument, counsel for the Township asserted that it is unlawful for persons taking methadone to drive a vehicle at all. (There appears to be no pedestrian access to the facility.) Common sense would seem to indicate that we, as a society, would not want persons under the influence of a synthetic opiate driving on public highways. See opinion of the attorney general no. 1, January 11, 1974, 64 D.&C .2d 43, 1974 WL 42930 (Pa.Dept.Just). However, it is clear that the Pennsylvania Legislature has specifically addressed this objection by allowing an exception from the DUI law for persons taking a Schedule II substance (which methadone is) that is “medically prescribed.” See 75 Pa.C.S. §3802 (d)(l)(ii).

In addition, in our current “through the looking glass” world, federal law requires that recovering heroin and morphine addicts be treated as persons with a “disability” under the Americans with Disabilities Act (ADA), and discrimination against such persons could subject the offending state, county or township to the payment of money damages. That may be one of the reasons for the legislature’s decision to allow legal methadone users to drive a vehicle; but counties and townships are bound by the same law, and cannot unfairly discriminate in the location of methadone treatment facilities. See Addiction Specialists Inc. v. Township of Hampton, 411 F.3d 399 (3d Cir. 2005); New Directions Treatment Services v. City of Reading, 2005 U.S. Dist. Lexis 17529 (E.D. Pa. 2005). In fairness, there was unrebutted testimony at the zoning hearing board’s hearing in this case that indicated that medically supervised methadone users are able to drive safely and normally.

The Township’s dispositive objection is noted in paragraph 13 of the appeal. Therein, it states that, “The special exception for a methadone clinic does not exist under B1 .... The zoning plan did not contemplate a special facility such as a methadone clinic to be compared to a hospital or a medical clinic as defined in the ordinance.”

The Fayette County Zoning Ordinance has been undergoing a comprehensive revision since at least 2003, which did finally culminate in a completely rewritten zoning ordinance becoming effective on November 1, 2006. Specific provisions governing “methadone treatment facilities” were contained in the proposed new ordinance from its inception in 2003, which changes remained pending throughout the proceedings on the instant petition.

GENERAL LEGAL BACKGROUND

Zoning law is relatively recent in origin, and was first introduced in crowded American cities because of the clear dangers of fire, contaminated water, inadequate sewage, stench and disease.

“Zoning at first was considered one of the most radical departures from the traditional concepts of private property because it was perceived as prohibiting a citizen from devoting his property to a purpose useful and entirely harmless, in the ordinary sense, in certain districts in a community.” The Law of Zoning and Planning, Rathkopf, 4th ed., vol. L, pp. 1-10.

The United States Supreme Court held zoning to be a valid exercise of a state’s constitutional “police power” in the landmark case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). That decision justified zoning, in part, on the basis of the existing “law of nuisances,” and the court stated:

“A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. . . . Thus, the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality, (citation omitted) A nuisance may be merely the right thing in the wrong place — like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” (emphasis supplied) 272 U.S. at 387-88 (cited in Rathkopf, supra, atpp. 1-10 — 1-11).

Subsequently, the use of zoning expanded throughout the nation, and the proper subjects of zoning regulation expanded as well. As noted by Rathkopf:

“This further expansion in the lawful scope of the police power, in the context of land use regulation, is marked by the statement of the Supreme Court in the frequently cited cas & Berman v. Parke (citation omitted) (1954) that: ‘The concept of the public welfare is broad and inconclusive. ... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.’ The statement of the court in Village of Belle Terre v. Borras (citation omitted) (1974), also reflects that: ‘The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values and the blessings of quiet, seclusion and clean air make the area a sanctuary for people,’ and to establish a ‘quiet place, where yards are wide, people few, and motor vehicles restricted.’ ” Rathkopf, supra, at pp. 1-12.

Zoning originally was intended to be inflexible (and therefore immune from improper political influence), with the permitted uses of a property finally determined by the zone in which it was situated. In most early ordinances, there were only three zones: residential, commercial and industrial. It soon became apparent that some flexibility was necessary. According to Rathkopf:

“The term ‘conditional uses’ [here ‘special exception uses’] was developed to permit the inclusion into the zoning pattern (either in all zones or in certain particular zones) of uses considered by the legislative body to be essentially desirable, necessary, or convenient to the community, its citizenry, or to substantial segments thereof, but which by their nature or in their operation have (1) a tendency to generate excessive traffic, (2) a potential for a large number of persons to be attracted to the area of the use, thus creating noise or other pollutants, (3) a detrimental effect upon the value or potential development of other properties in the neighborhood, or (4) an extraordinary potential for accidents or danger to public health or safety. Any one of these alone, or in combination with others, would militate against the establishment of the use at every location in the district or at any location therein without restrictions or conditions — tailored to fit the special problems which the use might present— being imposed thereon.

“The classes of uses which fall naturally into the category of fit subjects for special exception uses are:

“(1) Those which are of an essentially desirable character and which are traditionally located in residential districts but which, since they attract people and, consequently, vehicles in considerable numbers, cannot be located on any parcel of land therein without consideration of existing conditions at the proposed location and of properties neighboring upon the specific site considered, nor without adequate and sufficient safeguards to lessen the impact of adverse factors. In this category, among other uses, are private and parochial schools, religious institutions, hospitals, philanthropic institutions, multifamily housing (particularly for the elderly), fraternal organizations, and some types of clubs.

“(2) Those which are desirable for inclusion within the community for the well-being or convenience of its citizens or a substantial segment thereof, or which constitute a necessary but inconsistent use within a particular district but which similarly require special consideration of location and site plan because ofan inherent tendency to create traffic congestion, noise, density of persons assembling, or which may cause an excessive strain on water resources or sewage disposal facilities, or otherwise adversely affect the public safety or welfare. In this category are shopping centers, open air recreational uses — e.g., drive-in theatres, country clubs, beach clubs and community swimming pools, gasoline service stations, public utility installations of all kinds, and similar uses....

“Each of these uses presents special problems which cannot be solved by restrictions of general application to all permitted uses within the area; each of these uses might be suitable for location ih an area where certain conditions exist, i. e., on a site of Í 0 acres, or where other conditions do not exist, for example, within a specified distance from a church or school. These are illustrative of the many planning standards relating to such uses which would permit a finding that a particular use, not to be permitted as a matter of right, would be in reasonable and essential harmony with surrounding uses under certain specified conditions. If the administrative body finds compliance with the standards or requisites set forth in the ordinance, the right to the exception exists, subject to such specific safeguarding conditions which the agency may impose by reason óf the nature, location, and incidents of the particular use." (citation omitted) (emphasis supplied) Rathkopf at-pp. 41-2 — 41-3.

The Commonwealth Court óf Pennsylvania has held “that an applicant for a special exception need merely show that his proposed use falls within the ordinance provisions for special exceptions, (citations omitted) Where there are specific critena set forth in the ordinance, the applicant has the duty of presenting evidence relative to those criteria (citation omitted), but need not affirmatively prove that the proposed use would not adversely affect the health, safety, and morals of the community. (citation omitted) This ist because the ‘legislature [here the Fayette County commissioners] in providing for special exceptions in zoning ordinances has determined that the impact of such use of property does not, of itself, adversely affect the public interest to any material extent in normal circumstances, so that a special exception should not be denied unless it is proved that the impact upon the public interest is greater than that which might be expected in normal circumstances. ’ (citation omitted) Those who oppose the application have the burden of proving that the impact of the proposed use will be greater than that which might normally occur (citation omitted), and this burden is, in Pennsylvania, ‘indeed a heavy one. ’ (citation omitted)” (emphasis supplied) Rathkopf, supra, pp. 41-58 — 41-60.

SPECIFIC LAWS APPLICABLE

This court cannot reject a decision of the zoning hearing board without a thorough review of the law and the evidence in the particular case. This court’s “scope of review is limited to determining whether the zoning hearing board committed an abuse of discretion or an error of law.”

As noted above, this case was argued to the court on March 13, 2006. No one requested an opportunity to present additional evidence before this court pursuant to section 1005-A of the MPC, 53 P.S. §11005-A. Parties can request an opportunity to present additional evidence where they can show they were prevented from fairly presenting their evidence before the zoning hearing board. Where no new evidence is presented, this court is bound by the factual findings of the ZHB, but only if those factual findings are supported by substantial evidence. Section 1005-A of the MPC, 53 P.S. §11005-A. Manor Healthcare Corp. v. Lower Moreland Township, 139 Pa. Commw. 206, 590 A.2d 65 (1991). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate,to support a conclusion.” Id. at 217, 590A.2dat70.

Section 602.4 of the zoning, ordinance of Fayette County that was in effect on the date of the petition provides: . '•

“602.4 Special exceptions The board shall have the power to hear and decide applications for special exceptions listed under section 400 of this ordinance. In considering such applications, the board shall give due regard to the nature and condition of all adjacent uses and structures, and may impose such requirements and conditions as the board may deem necessary for the protection of adjacent properties and the public interest, including specific limitations as to future expansion....

“(b) The board shall allow a special exception in any “B” business or “M” industrial district provided that the proposed use meets all of the following standards:

“(1) The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, its site lay but,and its relation to streets giving access to it shall be such that vehicular traffic to and from the use will not be more hazardous than the normal traffic of the district, .both at the time and as the same may be expected to increase with increasing development of the municipality, taking into account vehicular turning movements in relation to routes of traffic flow, relating to street intersections, sight intersections, sight distances, and relation to pedestrian traffic.

“(2) The nature, location, size and site layout of the use shall be such that it will be a harmonious part of the business or industrial district in which it is situated, taking into account prevailing shopping habits, convenience of access by prospective patrons, the physical and economic relationships of one type or use to another, and characteristics [sic] groupings of uses in a commercial or industrial district.” (emphasis supplied)

Section 106 of the zoning ordinance in effect at the time of the petition provides as follows:

“The Comprehensive Development Plan for Fayette County, including the chapters entitled Fayette County’s Changing Population, The Economy of Fayette County, Land Use and Zoning, Transportation Planning, Park and Recreation Planning and Housing, is hereby referenced as Fayette County’s State[ment] of Community Development Objectives. These objectives include but are not limited to the following.

“(a) Promote the proper distribution of population so as to make the most efficient use of existing community facilities and utility services and to preclude the necessity of extending utility services and installing community facilities in areas where the cost of such extensions and installations is prohibitive.

“(b) Create living areas and business and industrial districts which are free of incompatible uses.

“(c) Clearly define the urban and rural sections of the county recognizing different types of land uses and intensities of development which are appropriate depending upon existing land use patterns, topography, accessibility and the existence of, or potential for, utilities and community facilities.

“(d) Protect the environment of the county by giving special attention to preserving and promoting the county’s natural assets — woodlands, streams, and rivers and steep slopes.

“(e) Protect the traffic carrying capacity of principal and minor arterial highways by controlling the type and intensity of use ofprivate land along such highways.

“(f) Promote the rehabilitation and proper reuse of scarred and misused land and rehabilitation or demolition of deteriorating or dilapidated structures.”

Neither party asked the court to take judicial notice of, or provided the court with a copy of, the “Comprehensive Development Plan for Fayette County”; but the board did not cite to it, and neither party cited any portion of it as a reason to accept or to reject the decision of the zoning hearing board.

All parties directed the court’s attention to Act 10 of 1999, 53 P.S. §10621, which was passed by the legislature and immediately effective on June 18, 1999. That statute specifically prohibits locating a “methadone treatment facility” within 500 feet of “an existing school, public playground, residential housing area, child-care facility, church, meetinghouse o.r other actual place of regularly stated religious worship ....”

Finding of fact 11 in Resolution 05-43 states that: “The petitioner testified that the proposed facility will be approximately one mile from Frazier School and that the location meets the distance provisions of Act 10 of the Pennsylvania Municipalities Planning Code.” However, this does not constitute a factual finding, merely an observation that particular testimony was presented, without determining whether or not it was competent or credible testimony.

Moreover, the new Fayette County Zoning Ordinance, which was pending passage at the time, specifically provides for a “methadone treatment facility” as a special exception use subject to the further limitations that:

“Section 1000-846 (A). ‘The facility shall not be established or operated within 1,000 feet of an existing school, public playground, public park, residence, childcare facility, hospital, nursing home, place of worship or place or assembly established prior to the proposed methadone treatment facility unless, by majority vote, the zoning hearing board votes in favor of the issuance of an occupancy permit or certificate of use. One or more public hearings regarding the proposed facility location shall be held within the county following public notice. All property owners located within 500 feet of the proposed location shall be provided written notice of said public hearings at least 30 days prior to said public hearings occurring. The petitioner shall be responsible for obtaining adjacent property owner list at time of application.

“(B) The facility shall not be established or operated within 300 feet of an existing bar, nightclub, private club or liquor store.

“(C) Side and rear bufferyards shall be a minimum of 25 feet in width and should be planted with a combination of deciduous and evergreen trees, shrubs, ornamental grasses and groundcovers.

“(D) Grass, sod, lawn or turf shall not be considered an acceptable plant for use within landscaped buffeiyards.

“(E) Facilities, equipment and professional staff to support overnight boarding shall be permitted.

“(F) The zoning hearing board may attach additional conditions pursuant to this section, in order to protect the public’s health, safety, and welfare. These conditions may include, but are not limited to, increased setbacks.”

The new ordinance also generally allows the zoning hearing board to “attach such reasonable conditions and safeguards in addition to those expressed in this chapter as it may deem necessary to properly implement this chapter and to protect the public’s health, safety, and welfare.” Section 1000-1103A!

This court has no way of knowing whether the instant petition was filed in order to precede the pending ordinance, colloquially speaking, to “beat it to the punch,” or whether the sequence of events was purely coincidental. However, under such circumstances the courts have developed the “pending ordinance doctrine,” which requires new development to meet the standards of the ordinance pending at the time the petition for development is filed, providing that the pending standards are ultimately passed. See Levin v. St. Peters School, 134 Pa. Commw. 342, 578 A.2d 1349 (1990); Board of Supervisors of Greene Township v. Kuhl, 112 Pa. Commw. 624, 536 A.2d 836 (1988); Boron Oil Co. v. Borough of Beaver, 1 Pa. Commw. 55, 275 A.2d 406 (1970). In all fairness, the zoning hearing board and the parties could not have known for certain that the pending ordinance would ultimately be passed, but it was obvious that the existing ordinance was completely obsolete and that corrections were imminently necessary. In any event, it would have been preferable if the parties had presented evidence with respect to the new requirements then pending.

What the pending ordinance makes crystal clear, however, is that the definition of “clinic” contained in the previous ordinance absolutely did not include a “methadone treatment facility.” Methadone treatment facilities were essentially unknown when the previous ordinance was written. If the previous ordinance was understood to include a “methadone treatment facility” as an ordinary medical “clinic,” there would have been no need for the specific definition and specific provisions regarding a “methadone treatment facility” in the new ordinance.

Under the previous ordinance, a “clinic” was defined as: “An establishment where patients who are not lodged overnight are admitted for examination and treatment by a group of physicians practicing medicine together.” As noted above, the word “clinic” was not part of the original petition for a “substance abuse treatment facility” until some helpful person evidently suggested that it would have to be a “clinic” in order to qualify for approval under the existing ordinance. In that light, it is clear that the testimony presented to the zoning hearing board about there being more than one medical doctor that would ultimately work at the “methadone treatment clinic” was deliberately shaped and presented solely to make the facility sound just like any other medical “clinic” (group medical practice) eligible for special exception treatment. The zoning hearing board made no factual finding that there would actually be a “group of physicians practicing medicine together.” This court believes such a finding would have been inherently incredible and unworthy of belief.

A trial court has discretion to interpret an ordinance based on its accepted meaning. See Diversified Health Associates Inc. v. Zoning Hearing Board of Norristown, 781 A.2d 244 (Pa. Commw. 2001). This court does not believe the term “clinic” in the previous ordinance was ever intended to include a methadone treatment facility.

This court cannot condone creative interpretations of the plain and well-understood-meaning of the previous ordinance. If a lawful use was not provided for under that zoning ordinance, the ordinance may have been invalid. A “curative amendment” is provided for under the MPC as a method of correcting such a deficiency. 53 P.S. §10916.1. Thus, there is an orderly procedure for accommodating newly developed lawful uses not previously provided for in a zoning ordinance. There is no valid authority for re-interpreting the ordinance to save the time and trouble of amending the ordinance.

In addition, the board failed to refer to or cite the relevant portions of the ordinance or statutes relied on, with only one exception. That is a major problem in the board’s decision in this case, since the zoning hearing board is required to make appropriate references to the ordinance or the MPC pursuant to section 908 of the MPC, 53 P.S. §10908. That section provides that:

“Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light ofthe facts found.” (emphasis supplied)

This application was “contested.” There is only one reference to a specific provision. (Section 414, which really was not part of the contest.) As a result, Resolution 05-43 fails to comply with the minimum standards of the MPC.

CONCLUSION

Because the zoning hearing board made an error of law by considering a “methadone treatment facility” as a “clinic” under the terms of the previous ordinance, and erred by failing to include appropriate references to the ordinance and the MPC, Resolution 05-43 cannot be permitted to stand. However, since the zoning ordinance has been amended to specifically provide for “methadone treatment facilities,” this petition must be remanded for further proceedings.

ORDER

And now, January 31, 2007, for the reasons set forth in the preceding opinion, Fayette County ZHB Resolution 05-43 is hereby vacated, and remanded to the zoning hearing board for a further hearing in accordance with the following requirements:

(1) It shall be the burden of the petitioners to establish that the notice and 500-foot buffer requirements of Act 10 of 1999, 53 P.S. §10621, are met; and if they are not, the hearing is to be suspended in accordance with said Act until the commissioners of Fayette County (the “governing authority”) hold the hearing required by that statute.

(2) It shall be the burden of the petitioners to establish that the notice and 1,000-foot and 300-foot buffer requirements of the current Fayette County Zoning Ordinance, section 1000-846, effective November 1, 2006, are met, and if the buffer requirements are not met, to determine whether a waiver of those buffer requirements is appropriate.

(3) All other provisions of the current zoning ordinance are be applied to the hearing and decision, and any resolution is to contain appropriate references to the ordinance or other governing law.

(4) The zoning hearing board is specifically to consider whether or not the use of the facility by 250 patients per day between 5:30 a.m. and 11 a.m. on a four-lane highway without a center turn lane is consistent with the health, safety and welfare of the general public, and whether or not it adversely impacts the carrying capacity of State Route 51 at such times. Either a traffic study or approval of PennDOT representatives would appear to be appropriate as conditions of any approval, whether or not in conjunction with a revision to the driveway permit of the facility.

(5) In the event that the special exception is granted, specific conditions are to be imposed to secure the objectives of the zoning ordinance as well as the specific provisions thereof.

(6) In the event that the special exception is granted, the resolution should set forth that the specific conditions thereof may be modified by the zoning hearing board at any time in order to insure that the conditions are effective to secure compliance with the provisions of the zoning ordinance and other governing law. (The power to impose conditions carries with it the power to modify those conditions when justified. Bonner v. Upper Makefield Township, 142 Pa. Commw. 205, 213, 597 A.2d 196, 200 (1991).)