author: WORTHINGTON, J.,

text:
    Baez v. Dept. of Transportation

      C.P. of Monroe County,
    no. 7076 CIVIL 2010.

      Robert A. Saurman, for petitioner.

      Robert J. Kopacz, for respondent.
    February 3, 2011
   WORTHINGTON, J.,

OPINION IN SUPPORT OF AN ORDER PURSUANT TO Pa.R.A.P. 1925(a)

The matter before this court is the Department of Transportation’s (hereinafter “department”) appeal pursuant to Pa.R.A.P. 1925(b).

The procedural history and facts of this case are summarized as follows: On February 22, 1995, Charles Baez (hereinafter “petitioner”) was convicted of violating the Controlled Substance, Drug, Device and Cosmetic Act. On March 8, 1995, the Monroe County Clerk of courts notified the department of petitioner’s conviction via a form entitled “report of the clerk of courts showing the conviction of certain violations of the controlled substance, drug, device, and cosmetic act.” (Department’s Ex. 1)

As a result of this conviction, on March 22, 1995, the department sent an official notice to petitioner’s address of record, informing him that his driving privilege would be suspended for six months, effective May 5,1995, pursuant to Section 1532(c) of the vehicle code. (Department’s Ex. 1) The department also notified petitioner that credit would not begin towards his suspension until the department received a completed DL-16LC form or a letter wherein petitioner acknowledged his suspension. See 75 Pa.C.S. § 1541. Additionally, the department informed petitioner thathehadarightto appeal this suspension within 30 days of the mail date of the notice. (Department’s Ex. 1) Petitioner neither submitted the necessary acknowledgement form nor appealed his suspension.

Meanwhile, petitioner appealed his underlying criminal conviction to the Superior Court. The Superior Court ultimately reversed and remanded the case; and thereafter, a petition for allowance of appeal was denied by our Supreme Court. Commonwealth v. Baez, 671 A.2d 765 (Pa. Super. 1995) (Table Decision), appeal denied, 674 A.2d 1065 (Pa. 1996). Upon remand, the Commonwealth nolle pressed the criminal charges against petitioner. Thus, at that time, petitioner no longer had an underlying conviction or any pending charges stemming from his alleged violation of the Controlled Substance, Drug, Device and Cosmetic Act.

Approximately 15 years later, the New York Department of Transportation notified petitioner that it was going to suspend petitioner’s New York driver’s license after discovering that petitioner had an outstanding license suspension in Pennsylvania. In an attempt to resolve this matter, petitioner contacted the department and was given a restoration requirements letter, dated July 1, 2010. This letter informed petitioner that, before his license could be restored, petitioner needed credit for his original six-month suspension. (Department’s Ex. 1) In order to start receiving credit towards the suspension, the department informed him that he needed to complete the DL-16LC Acknowledgement Form, which he never submitted when he was originally suspended.

On July 28, 2010, petitioner filed a notice of appeal of the department’s restoration requirements letter wherein petitioner asserts that the letter “suspend[ed] his driver’s license for a period of six (6) months, effective May 3, 1995.” Petitioner’s notice of appeal, at 1. On October 21, 2010, a hearing was held on this matter in which we sustained petitioner’s appeal.

On November 22, 2010, the department filed a notice of appeal to the Commonwealth Court. On December 1, 2010, we entered an order directing the department to file and serve its concise statement of matters complained of on appeal (hereinafter “concise statement”), which it filed on December 20, 2010. In its concise statement, the department argues that petitioner’s appeal was untimely and petitioner failed to meet its burden for nunc pro tunc appeal, the court erred in sustainingpetitioner’s appeal upon the statements of petitioner’s counsel made at the license suspension appeal hearing, and petitioner’s only recourse at this time is to request a review of his record pursuant to 75 Pa.C.S. § 1516(d) and to file an administrative appeal. Department’s concise statement, at ¶¶ 1-3.

Before addressing the department’s arguments we note that, after hearing petitioner’s license suspension appeal, we recognized that the facts of this case are extraordinary and unfortunate. It appears that petitioner essentially faces a license suspension due to an underlying conviction that no longer exists, approximately 15 years after he believed the entire ordeal was resolved. As an equitable matter, we sustained his appeal. Upon review of the transcript and relevant statutes and case law, however, we acknowledge for the reasons below that the department’s argument regarding our jurisdiction to hear petitioner’s appeal has merit.

First, petitioner’s license suspension was mandatory upon his drug conviction. See 75 Pa.C.S. § 1532(c) (quoted above); Commonwealth v. Wolf, 534 Pa. 283, 289, 632 A.2d 864, 866-67(Pa. 1993). In Wolf, our Supreme Court held that a trial court does not “possess the authority to extend the effective date of [a license] suspension beyond the date of conviction, i.e., the date sentence is imposed.” Wolf at 289, 632 A.2d at 866-67. Specifically, the petitioner in Wolf sought a supersedeas of his license suspension for the duration of his appeal of his underlying DUI conviction through the appellate courts. Id. at 865. In upholding the denial of his request, the court:

recognize [d] that a conviction, while generally finalized through imposition of a judgment of sentence, is also, as a practical matter, not final until appeals have been exhausted or the time for appeal has expired. However, given the procedural framework established by the Legislature, which requires the trial court and/ or District Attorney to compel surrender of the driver’s license, we conclude that the Legislature envisioned that the imposition of sentence constitutes a conviction for purposes of the mandatory suspension. Id. at 288 n.4.

In other words, the court concluded that the imposition of sentence constitutes the procedural event which triggers a license suspension, allowing the department to take action upon receiving a certified record of the driver’s conviction. See Id. at 288 n.3. The trial court, itself, has no authority to extend the date of this triggering event.

The Supreme Court also addressed, in dicta, the basic situation which occurred in this case, i.e. when a defendant serves the mandatory suspension upon conviction and then has that conviction reversed on appeal. The court stated:

Moreover, it is obvious that the Legislature was aware of the frustration in the situation where a defendant serves the mandatory suspension upon conviction and then has that conviction reversed on appeal, since it expressly provided for a limited delay of the commencement of suspension for up to six months upon a showing of hardship. 75 Pa.C.S. § 1541(a).[] The six-month delay available in cases of hardship, sufficiently exhibits to us that the Legislature was aware of the inconvenience or frustration associated with the loss of driving privileges and expressly ameliorated it to the extent it deemed to be appropriate. Id. at 289.

The court expressed that, by providing the department with the authority to delay the effective date of the suspension, the Legislature recognized the similar concern petitioner has in this case and subsequently provided him an opportunity to minimize the impact of his suspension upon his conviction at the trial court level. See Id.

In this case, upon receiving the certified record from the Monroe County Clerk of Courts, the department notified petitioner that his operating privileges were going to be suspended, effective March 3, 1995, and that he had 30 days to appeal his license suspension. (Department’s Ex. 1) At that time, despite appealing his underlying drug conviction, petitioner took no action in regard to his corresponding license suspension. Although his conviction was ultimately reversed on appeal, petitioner’s license suspension remained uncontested, and thus remained in effect and not credited, up to the present day. See Wolf at 289, 632 A.2d at 867 (“[T]he mandatory suspension is a not a direct criminal penalty, but rather, is a civil sanction wholly unrelated to petitioner’s appeal of the criminal conviction to the Superior Court.”).

This leads us to the department’s argument that petitioner’s appeal of his 1995 license suspension is untimely. We note that our research failed to reveal a case directly on point with the extraordinary facts of this case. Nevertheless, in order to timely appeal petitioner’s suspension of his operating privileges, he was required to file an appeal within 30 days of the mailing of the department’s notice of suspension. See 42 Pa.C.S. § 5571(b); Schofield v. Department of Transportation, 828 A.2d 510, 511 (Pa. Cmwlth. 2003). Being approximately 15 years later, there is no question that petitioner’s appeal is untimely.

In this regard, our appellate courts have stated:

[Ajppeal periods are jurisdictional and may not be extended as a matter of grace or mere indulgence; otherwise there would be no finality to judicial action. Statutory1 appeal periods evidence a legislative determination that the finality of court adjudications must be promoted by limiting the time within which they can be questioned on appeal. Where jurisdiction of the court has been lost because of the staleness of the complaint, the attractiveness of an argument on the merits is of no moment because the tribunal is without the power to grant the requested relief. Therefore, an appeal filed one day after the expiration of the statutory appeal period must be dismissed as untimely.
Under extraordinary circumstances, however, a court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc or “now for then” appeal. Traditionally, extensions of time for filing an appeal were limited to matters involving fraud or a breakdown in the court’s operations. In Bass v. Commonwealth 485 Pa. 256, 401 A.2d 1133 (1979), our Supreme Court expanded the limited exceptions permitting this relief where non-negligent circumstances relating to either the appellant or the appellant’s counsel caused the briefly untimely appeal. City of Philadelphia v. Tirrill, 906 A.2d 663,665-66 (Pa. Cm with. 2006) (internal citations and quotations omitted).

For instance, in Department of Transportation v. Kruc, an appeal nunc pro tunc was denied when the petitioner filed an appeal 74 days after the department mailed her notice of suspension; in support of her right to have an appeal, petitioner asserted that she never saw the notice until the 30-day requirement had already expired. Kruc, 557 A.2d 443, 445 (Pa. Cmwlth. 1989). In Department of Transportation v. Gelormino, an appeal nunc pro tunc was denied when the petitioner filed an appeal approximately three and half months after the Department mailed her notice of suspension; in support of her right to have an appeal, petitioner asserted that (1) the receipt of the notice was delayed because she changed addresses, (2) her counsel was involved in two unrelated trials during that period, and (3) her counsel left the notice with office personnel to file an appeal but the appeal was not filed “due to the sudden departure of one secretary and an additional secretary recuperating from pregnancy complications.” Gelormino, 636 A.2d 224, 226-27 (Pa. Cmwlth 1993). In both Kruc and Gelormino, the court summarily rejected the petitioner’s arguments and held they were not entitled to appeal nunc pro tunc.

Applying these principles to the facts of this case, we are constrained to conclude that we do lack jurisdiction to hear petitioner’s appeal. We believe petitioner’s situation is extraordinary, and we empathize with his predicament. Unfortunately, he is facing a license suspension as a result of his 1995 drug conviction, which has since been reversed, nolle prossed, and expunged. See Commonwealth v. Baez, 611 A.2d 765 (Pa. Super. 1995) (Table Decision), appeal denied 674 A.2d 1065 (Pa. 1996). In other words, the conviction is no longer valid, and the conviction was the only reason the department initially became involved. Thus, petitioner now faces a collateral civil penalty for an underlying offense that no longer legally exists.

Nevertheless, our Supreme Court in Wolf clarified that imposition of sentence constitutes the procedural event which triggers a license suspension, allowing the department to take action upon receiving a certified record of the driver’s conviction, even if upon appeal a criminal defendant’s conviction is ultimately reversed. Wolf 632 A.2d at 866-67. The department notified petitioner of his license suspension and his right to appeal within 30 days of that notice, however, petitioner never appealed his license suspension or requested the department to delay the commencement of his suspension due to a particular hardship. Thus, his appeal is approximately 15 years late.

Furthermore, at the license suspension appeal hearing, petitioner’s counsel offered no evidence of fraud, a breakdown in the court’s operations, or non-negligent circumstances relating to either the petitioner or his counsel that caused a brief untimely appeal. See Tirrill, 906 A.2d at 665-66. Therefore, we are constrained to acknowledge that petitioner has fáiled to meet his burden, which prevented us from having the authority to grant equitable relief in the form of a nunc pro tunc appeal.

      . Petitioner’s specific conviction was pursuant to 35 P.S. § 780-113(a)(30).

      . This address was 2327 Walton Avenue, Bronx, New York 10468 (Department’s Ex. 1); see also 75 Pa.C.S. § 1540(b).

      . At the time of petitioner’s alleged offense, Section 1532(c) of the Vehicle Code provided:
      (c) Suspension. — The department shall suspend the operating privilege of any person upon receiving a certified record of the person’s conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled substance under the laws of the United States, this Commonwealth or any other state.
      (1) The period of suspension shall be as follows: (i) For a first offense, a period of six months from the date of the suspension.
      (ii) For a second offense, a period of one year from the date of the suspension.
      (iii) For a third and any subsequent offense thereafter, a period of two years from the date of the suspension.
      (2) For the purposes of this subsection, the term “conviction” shall include any conviction or adjudication of delinquency for any of the offenses listed in paragraph (1), whether in this Commonwealth or any other Federal or state court.
      Act 58 of 1993, Pub. L. No. 408, § 4 (emphasis added) (current version at 75 Pa.C.S. §1532(c)).

      . We note also that petitioner represented to this court that, on December 15, 2008, petitioner’s record regarding this incident was expunged.

      . Although not relevant to this appeal, we note that the department did afford petitioner an accommodation by temporarily restoring his Pennsylvania operating privileges so that petitioner’s New York operating privileges could be renewed. Once renewed, petitioner’s suspension was placed back on his Pennsylvania Driving History. (Notes of Testimony: License Suspension Appeal hearing before Judge Worthington, dated 10/21/2010, (hereinafter “N.T.”) at 7-8)

      . Wolf concerned a mandatory suspension pursuant to a driving under the influence (DUI) conviction pursuant to 75 Pa.C.S. 1532(b)(3) (since amended). Wolf at 288, 632 A.2d at 866. In this case, petitioner’s suspension was also mandatory, pursuant to 75 Pa.C.S. § 1532(c).

      . Section 1541 of the Vehicle Code, in relevant part, provides: “The department may, upon request of the person whose license is suspended..., delay the commencement of the period of suspension...for a period not exceeding six months whenever the department determines that failure to grant the extension will result in hardship to the person whose license has been suspended....” 75 Pa.C.S. § 1541.

      . Petitioner argues that he did not have notice of his suspension and thus did not take appropriate action at that time. However, under the limited facts before us, we find that the department met its obligations to notify petitioner. Section 1540(b) of the Vehicle Code, at the time of defendant’s conviction, provided in relevant part that:
      Upon the suspension...of the operating privilege...of any person by the department, the department shall forthwith notify the person in writing at the address of record to surrender his driver’s license to the department for the term of suspension.... The suspension...shall be effective upon a date determined by the department or the date of surrender of the license to the department if that date is subsequent to the department’s notice to surrender the license, whichever occurs first. Act 42 of 1990, Pub. L. No. 173, § 4 (current version at 75 Pa.C.S. § 1540(b)).
      As such, the department’s only obligation was to notify petitioner in writing at his address of record, which the department did approximately one month after his conviction. Petitioner, however, contends (1) he had no obligation to notify the department of his current address because he moved to New York, even though he was still licensed in Pennsylvania, and (2) the actual notice requirements set forth by Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (Pa. 1975), should apply. As to his first argument, petitioner offered no sworn testimony that the department sent the notice to an incorrect address. Petitioner’s counsel stated that: “a letter was sentto an address inNew York notifying [petitioner] ofthe suspension in 1995. At that time[,petitioner] had a license in Pennsylvania then he went to New York.” (N.T. at 4) Petitioner’s counsel also suggested that “the notice that was sent to [petitioner’s] address in New York, unlike someone in Pennsylvania who has the obligation to maintain an ongoing communication with [the department] about their address, someone who has relocated to another state has no such obligation.” (N.T. at 4-5) Petitioner’s counsel later stated: “it’s different to say that I have an ongoing license in Pennsylvania and therefore, mail it to my last address that was given to [the department] which is valid because we have an ongoing relationship. But once I move to another state I am no longer primarily a licensed driver in Pennsylvania. I don’t have an obligation to notify Pennsylvania in case there’s a suspension I don’t know about until later.” (N.T. at 9) While we agree that a non-Pennsylvania resident need not notify the department of every address change, see McCrea v. Department of Transportation, 783 A .2d 380, 383-84 (Pa. Cmwlth. 2001), the department in this case sent the notice to petitioner’s last address of record, his address in New York. Petitioner’s counsel never claimed this address was incorrect at that time, and petitioner never took the stand to testify to that fact. As such, we find the department met its notice obligations. As to petitioner’s second argument, his reliance on Kane is misplaced. Our Supreme Court in Kane held that, for the purposes of proving one drove while his operating privileges were suspended, evidence showing that notice of a license suspension was mailed to a criminal defendant, by itself, was insufficient to establish beyond a reasonable doubt that the defendant had actual notice of his suspension. Kane, 333 A.2d at 926-27. Kane does not apply in this context because Kane was a criminal case in which actual notice was an element of the offense, which the Commonwealth had to prove beyond a reasonable doubt. Petitioner’s appeal, however, is a civil matter involving a different standard of proof, and pursuant to 75 Pa.C.S. § 1540, the department does not have to prove the same notice which the offense in Kane required.


source: Caselaw Access Project

author: MCGINLEY, P.J.,

license: Public Domain

text:
    Sayler v. Skutches

      C.P. of Lehigh County,
    no. 2006-C-2210V.

      Steven J. Margolis, for plaintiff.

      John J. Hare, for defendants.
    March 16, 2011
   MCGINLEY, P.J.,

Before this court is plaintiff’s amended petition for entry of judgment. The arduous procedural history is as follows.

A jury trial was held on this medical malpractice action from January 14, 2008, to January 18, 2008. The jury awarded a verdict on January 18, 2008 in favor of Barbara Glasow, in the gross amount of $3,973,000. The jury found 35 percent contributory negligence attributable to plaintiff. The molded verdict, taking plaintiff’s contributory negligence into account, resulted in damages totaling $2,582,450.

On January 24, 2008, plaintiff filed a motion for delay damages. On the same day, defendants filed a motion for post-trial relief. Plaintiff filed a timely response to defendants’ post-trial motion and filed a cross-motion for post-trial relief. The parties briefed their respective issues, and argument was heard on the post-trial motions. On May 27,2008, we entered an order granting, in part, defendants’ motion for post-trial relief, and entered judgment in favor of defendants. The following day, May 28, 2008, plaintiff filed a praecipe to withdraw the motion for delay damages. Later that same day, after the praecipe to withdraw was filed, but not having yet received notice of plaintiff’s praecipe, and in an effort to clear the docket in this case, we entered an order denying plaintiff’s motion for delay damages as moot as a result of our May 27, 2008 Order.

On June 2, 2008, plaintiff appealed our May 27, 2008 order defendants filed a notice of cross-appeal on June 16, 2008. On June 4,2009, the Superior Court of Pennsylvania entered an order reversing our decision and remanding the matter for entry of judgment in favor of plaintiff. On June 18, 2009, defendants filed an application for reargument with the Pennsylvania Superior Court; the application was denied on August 11, 2009.

On August 18, 2009, plaintiff filed a petition for entry of judgment. On September 1, 2009, defendants sought allocatur from the Pennsylvania Supreme Court. We denied plaintiff’s petition for entry of judgment without prejudice on December 17, 2009, because of the pending petition for allocatur before the Pennsylvania Supreme Court.

Sadly, Barbara Glasow died on May 23, 2009. Notice of death of plaintiff Barbara Glasow was filed on May 4, 2010, and by order dated May 18,2010, Patricia J. Sayler, Executrix of the Estate of Barbara Lorraine Glasow a/k/a Barbara L. Glasow, deceased, was substituted as plaintiff in this case.

On May 26, 2010, the Supreme Court of Pennsylvania denied defendants’ petition for allocatur. On May 28, 2010, plaintiff filed a petition for entry of judgment; on July 6, 2010, plaintiff filed an amended petition for entry of judgment. Plaintiff’s amended petition for entry of judgment was denied on July 16, 2010, without prejudice to refile upon receipt of the record in the Lehigh County Court of Common Pleas.

Defendants sought a writ of certiorari from the United States Supreme Court. On November 1, 2010, an order was issued by the United States Supreme Court denying the writ of certiorari. Thereafter, on November 12, 2010, the Pennsylvania Superior Court issued an order lifting the stay in this matter and remanding the record back to this court with instructions to enter judgment.

On November 23, 2010, plaintiff filed the amended petition for entry of judgment currently before us defendants filed an answer, the parties briefed the issues and argument was heard on January 21, 2011.

Plaintiff raises four issues in her amended petition for entry of judgment. First, plaintiff asserts she is entitled to proportionate counsel fees on the award of future medical damages; second, plaintiff asserts she is entitled to proportionate costs on the award of future medical damages; third, plaintiff asserts she is entitled to appellate costs; and, finally, plaintiff asserts she is entitled to delay damages. We address each issue seriatim.

Proportionate Counsel Fees on Future Damages

The proper calculation of the proportionate share of counsel fees on future medical damages that will not be fully paid to claimant as a result of the claimant’s death is an issue of first impression. Plaintiff argues that the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §1303.101 et seq., requires the payment of counsel fees on the entire award of future medical damages, reduced to present value, regardless of whether those future medical damages come to fruition. 40 P.S. § 1303.509(b)(1). Defendants interpret the same statute to mean that counsel fees are based only on the accrued future medical damages at the time of plaintiff’s death, and not on damages plaintiff has not lived to collect.

The statute provides, in part, as follows:

§ 1303.509. Payment of damages
(a) General rule. - In a medical professional liability action, the trier of fact shall make a determination with separate findings for each claimant specifying the amount of all of the following:
(2) Future damages for:
(i) medical and other related expenses by year;
(ii) loss of earnings or earning capacity in a lump sum; and
(iii) noneconomic loss in a lump sum.
(b) Future damages. -
(1) Except as set forth in paragraph (8), future damages for medical and other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection. The trier of fact may vary the amount of periodic payments for future damages as set forth in subsection (a)(2)(i) from year to year from the expected life of the claimant to account for different annual expenditure requirements, including the immediate needs of the claimant. The trier of fact shall also provide for purchase and replacement of medically necessary equipment in the years that expenditures will be required as may be necessary.
(3) Future damages as set forth in subsection (a)(2) (i) shall be paid in the years that the trier of fact finds they will accrue. Unless the court orders or approves a different schedule for payment, the annual amounts due must be paid in equal quarterly installments rounded to the nearest dollar. Each installment is due and payable on the first day of the month in which it accrues.
(4) Interest does not accrue on a periodic payment before payment is due. If the payment is not made on or before the due date, the legal rate of interest accrues as of that date.
(5) Liability to a claimant for periodic payments not yet due for medical expenses terminates upon the claimant’s death. 40 P.S. § 1303.509(a)(2), (b)(1),(3),(4), and (5).

In this case, the jury awarded $ 170,000 per year in future medical expenses payable over five years, for a total of $850,000. When that amount is reduced by the 35 percent comparative negligence attributed to Ms. Glasow, the jury award for future medical expenses over the five-year period is $110,500 yearly, or $27,625 quarterly. However, because Ms. Glasow died prior to the expiration of the five-year period, plaintiff is only entitled to six quarterly payments of future medical expenses, totaling $165,750, plus interest. Pursuant to 40 P.S. § 1303.509(b)(5), the remaining future medical expenses, an amount of almost $385,000, terminates.

The parties dispute whether the counsel fees attributed to the award of future medical expenses should be based on the accrued amount of $165,750, or the entire amount of the award, $552,500. In addition, the parties dispute who is responsible for payment of the counsel fees. We address who is responsible for the payment of counsel fees first.

In interpreting statutory provisions, we are guided by the provisions of the Statutory Construction Act (act), 1 Pa.C.S. § 1901 etseq.

Generally speaking, the best indication of legislative intent is the plain language of a statute. Furthermore, in construing statutory language, “[w]ords and phrases shall be construed according to the rules of grammar and according to their common and approved usage...” (quoting 1 Pa.C.S. § 1903). The act further provides that, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” [quoting 1 Pa. C.S. § 1921(b)]. Sternlicht v. Stemlicht, 583 Pa. 149, 876 A.2d 904 (2005) (citations omitted).

In addition, whenever possible, each word in a statutory provision is to be given meaning and not to be treated as surplusage. Matter of Employees of Student Services, Inc., 495 Pa. 42, 52, 432 A.2d 189, 195 (1981).

Plaintiff claims that the statutory language makes defendants responsible for the payment of counsel fees. Defendants contend that the statutory language does not provide for an additional payment of counsel fees in addition to the award entered by the jury.

The pertinent statutory language provides: “...future damages for medical and other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection.” 40 P.S. § 1303.509(b)(1).

Under Pennsylvania law, “there can be no recovery for counsel fees from the adverse party to a cause, in the absence of express statutory allowance of the same, or clear agreement by the parties, or some other established exception.” Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 344 A.2d 837 (1975) (citations omitted). The statutory provision must be explicit to allow for recovery of attorney fees. Merlino v. Delaware County, 556 Pa. 422, 728 A.2d 949 (1999).

Here, the statutory language provides for the calculation and remittance of counsel fees before the periodic payments of future medical expenses to plaintiff. 40 P.S. § 1303.509(b)(1). The statutory language does not provide that the adverse party is responsible for the payment of counsel fees as an additional recovery, but merely directs the manner in which the funds are to be distributed.

The General Assembly has employed the requisite specificity to authorize the recovery of counsel fees in the context of numerous other enactments, and if it had intended to permit that recovery in this instance, it would have done so with express statutory authorization. See Merlino, supra. Absent the explicit statutory language that the adverse party is to pay for counsel fees as an additional recovery, each party is responsible for their own counsel fees.

This leaves the question as to how 40 P.S. §1303.509 (b)(1) is to operate in the instant situation, where the plaintiff did not survive to receive the entire portion of the jury award for future medical bills. Because we have held that the statute does not create an additional fond of recovery in the form of attorney’s fees, the calculation and remittance of attorney’s fees does not affect the judgment, but could affect the net proceeds that the plaintiff will receive from her award.

That being the case, we decline to address this issue in this particular proceeding to enter judgment. The answer to the question of remittance does not affect the judgment itself.

Furthermore, competing interpretations affect the division of net proceeds between only counsel and the plaintiff, not the defendant. This issue creates the potential for a conflict of interest between plaintiff and her counsel, which might make the attorney a separate party in interest. This interesting issue needs to come to the court by way of a separate, appropriate proceeding.

After reviewing the statutory language at issue, and pursuant to the jury’s award, we find that plaintiff is entitled to $165,750 in future medical expenses, plus interest.

Costs

Plaintiff further relies on 40 P.S. § 1303.509(b)(1) for the proposition that she is entitled to proportionate costs of future medical damages. She argues that total trial costs were $40,514.14, and the proportionate share of costs for future medical expenses is $8,277.48.

Again, the statutory language provides in part, “future damages for medical and other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection.” 40 P.S. § 1303.509(b)(1) (emphasis added).

The term “costs” is not defined in 40 P.S. §1303.509 or in the definitions of MCARE. 40 P.S. § 1303.101 et seq. Research reveals no case law that defines costs as used in this provision of MCARE. In order to comply with statutory direction to construe words and phrases according to their common and approved usage, 1 Pa.C.S.A. § 1903(a), we need to turn to general case law governing award of costs. The case of Gregory v. Harleysville Mutual Ins., has made such an examination and found as follows:

The general rule in an action at law is that the costs inherent in a lawsuit are awarded to and should be recoverable by the prevailing party. These recoverable costs are the costs of proceeding in court, not those of preparation, consultation, and fees generally. Costs not incurred in the court action, including counsel fees, are recoverable only on the basis of statutory authority. Only in the rarest of circumstances is the unsuccessful party made to bear all of the expenses incurred in the litigation. Thus, case law indicates that the common and approved meaning of “costs” is “court costs” or “docket costs.” If recovery of other costs is to be awarded from the unsuccessful party, there must be statutory authority for doing so. Gregory v. Harley sville Mutual Ins. Co., 542 A.2d 133, 135-36 (Pa. Super. 1988).

We find that the statutory language does not provide for any costs beyond the common and approved meaning of “costs,” and, therefore, defendants are responsible for the total court costs or docket costs incurred in this lawsuit.

Plaintiff provided an affidavit itemizing the litigation expenses, which included: expert invoices, shipping expenses, copying costs, stenographic costs, video invoices, witness fees, parking fees, expert transportation and hotel costs, and almost $2,000 of “carry over costs” that are not itemized, in addition to a filing fee of $121 and service fee of $63 from the Lehigh County Sheriff’s Office! The only costs that defendants are responsible to pay are the filing fee and service fee, for total trial costs of $184. Based on the general rule relating to costs, this amount is to be paid by defendants.

Appellate Costs

The third issue raised by plaintiff in her petition for entry of judgment is her claim that defendants are responsible for the payment of appellate costs. Plaintiff states that the costs associated with the appeal from this court should be taxed against defendants inasmuch as our order was reversed without direction for a new trial. Plaintiff claims she incurred costs in the amount of $7,201.63. Defendants appear to contest only that plaintiff did not provide enough support for the requested costs, especially since the amount changed several times.

Plaintiff contends that she is entitled to appellate costs pursuant to Pa.R.A.P. 2741(4), which provides:

If an order is reversed, without a direction for a new trial, costs shall be taxed against the appellee unless otherwise ordered, or unless the lower court shall determine that the matter is not finally closed between the parties, and the appellee shall bring a new action against the appellant within 30 days after such determination, in which event the ability for costs shall follow the final judgment in such second or other matter relating to the same cause of action. Pa.R.A.P. 2741(4).

Taxable costs on appeal shall include fees in the appellate court, the cost of the original transcript, and the cost of printing or otherwise producing necessary copies of briefs and reproduced records, including copies of the original record. Pa.R.A.P. 2743 and 2742.

Plaintiff initially requested $4,541.46 in appellate costs (plaintiff’s amended petition for entry of judgment, November 23, 2010). The number increased to $6,647.09 in her brief dated December 1, 2010, and increased again to $7,201.63 in her reply brief dated December 20, 2010. Attached to the December 20, 2010, reply brief is the affidavit of Nancy Assise, in-house accountant for plaintiff counsel’s law firm. The affidavit provides itemization of the appellate costs, and provides: $1,137 for transcript costs, $ 115 in appeal filing fees, $4,852.14 in printing costs for appellate briefs, $1,028.97 for shipping costs, $19 for “appeal argument,” and $49.52 for appeal supplies.

The acceptable appellate costs to be paid by defendant are the transcription costs, the appellate filing fees, and the printing costs for appellate briefs, for a total of $6,104.14. Shipping costs are not part of appellate costs. We are unclear what the “appeal argument” cost is and what the appeal supplies cost means, and find that plaintiff failed to establish that such costs are included in the taxable costs to be paid by defendant.

Delay Damages

The final issue raised by plaintiff is whether delay damages are appropriate in the calculation of this judgment. Plaintiff contends that her praecipe to withdraw the motion for delay damages is moot because of our order granting defendant’s motion for post-trial relief. Defendant argues that plaintiff is prohibited from claiming delay damages because there is no timely filed motion for delay damages before this court.

The jury awarded a verdict on January 18,2008, in favor of plaintiff. On January 24, 2008, plaintiff filed a timely motion for delay damages. Both parties filed post-trial motions. On May 27, 2008, we entered an order granting, in part, defendants’ motion for post-trial relief, and entered judgment in favor of defendants. The next day, on May 28,2008, plaintiff filed a praecipe to withdraw the motion for delay damages, stating, “plaintiff will not be seeking delay damages in the above entitled matter.” Thereafter, plaintiff appealed and defendants filed a cross-appeal.

The Superior Court ultimately reversed our order entering judgment in favor of defendants and remanded this matter in order for judgment to be entered in favor of the plaintiff.

Pa.R.C.P. 238(c) provides that “not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation.” Plaintiff filed a timely motion for delay damages. Thereafter, plaintiff made a strategic decision to withdraw the request for delay damages. We note that our order dated May 28, 2008, denying plaintiff’s motion for delay damages as moot was filed after plaintiff withdrew his motion for delay damages, making our order moot.

Whether because the motion for delay damages was moot or because it was withdrawn by counsel, the bottom line is the same: there is no timely filed motion for delay damages pending before this court. Plaintiff’s request for delay damages is, therefore, denied.

CONCLUSION

Judgment in this matter shall be entered as follows:

Adjusted verdict $2,029,950.00

Post-judgment interest on the adjusted verdict: $380,407.05

$165,750.00 Future medical expenses:

Post-judgment interest on the future medical expenses: $25,269.90

Costs: $184.00

TOTAL JUDGMENT: $2,607,665.09

Appellate costs: $6,104.14

The interest due on each payment is calculated as follows:
January 18, 2008 payment:
1/18/08- 1/17/09 = $1,657.50
1/18/09- 1/17/10 = $1,657.50
1/18/10- 1/17/11 =$1,657.50
1/18/11 -3/4/11 =$204.30
April 1, 2008 payment:
4/1/08-3/31/09 = $1,657.50
4/1/09-3/31/10 = $1,657.50
4/1/10-3/4/11 =$1,534.52
July 1, 2008 payment:
7/1/08-6/30/09 = $1,657.50
7/1/09-6/30/10 = $1,657.50
7/1/10-3/4/11 =$1,121.38
October 1,2008 payment:
10/1/08-9/30/09 = $1,657.50
10/1/09-9/30/10 = $1,657.50
10/1/10-3/4/11 -$699.16
January 1,2009 payment:
1/1/09- 12/31/09 = $1,657.50
1/1/10- 12/31/10 = $1,657.50
1/1/11 -3/4/11 =$286.02
April 1, 2009 payment:
4/1/09-3/31/10 = $1,657.50
4/1/10-3/4/11 =$1,534.52

ORDER

And now, March 4, 2011, upon consideration of plaintiff’s amended petition for entry of judgment filed with the clerk of judicial records - Civil Division on November 23, 2010, defendants’ response thereto, argument thereon, and for the reasons set forth in the accompanying opinion, it is ordered that judgment is entered in favor of plaintiff Patricial J. Sayler, Executrix of the estate of Barbara Lorraine Glasow a/k/a Barbara L. Glasow, deceased, and against defendants Joseph M. Skutches, M.D. and St. Luke’s Hospital and Health Network d/b/a St. Luke’s Obstetric and Gynecology, in the amount of $2,607,665.09.

CORRECTED ORDER

And now, March 16, 2011, it is ordered that our order dated March 4, 2011, is corrected to read as follows:

Upon consideration of plaintiff’s amended petition for entry of judgment filed with the Clerk of Judicial Records - Civil Division on November 23, 2010, defendants’ response thereto, argument thereon, and for the reasons set forth in the accompanying opinion, it is ordered that judgment is entered in favor of plaintiff Patricia J. Sayler, Executrix of the estate of Barbara Lorraine Glasow a/k/a Barbara L. Glasow, deceased, and against defendants Joseph M. Skutches, M.D. and St. Luke’s Physician’s Group in the amount of $2,607,665.09.

      . The facts of this medical malpractice action are detailed in our opinion dated June 3, 2008.

      . Ms. Glasow did not receive any of the future medical expenses because this matter remained on appeal until after her death. The six quarterly payments were due on January 18,2008, April 1,2008, July 1, 2008, October 1, 2008, January 1, 2009, and April 1, 2009. Because the periodic payments were not made on the due date, plaintiff is entitled to the legal rate of interest as of the due dates. 40 P.S. § 1303.509(b)(4).

      . The court in Merlino cited several statutes in which the requisite specificity was used to authorize counsel fees. They include:
      35 P.S. § 691.307 (appeals to the Environmental Hearing Board involving industrial waste discharge); 35 P.S. §4013.6(f) (suits to abate nuisances and restrain violations under the Air Pollution Control Act); 35 P.S. § 7130.508(d) (citizens’ suits under the Radioactive Waste Disposal Act); 35 P.S. § 7201.315 (enforcement provisions of the Building Energy Conservation Act); 41 P.S. § 503 (remedial provisions related to maximum interest rates chargeable); 43 P.S. § 260.9a (civil remedies and penalties provision of the Wage Payment and Collection Law); 52 P.S. § 30.63 (citizens’ suits under the Coal Refuse Disposal Control Act); 52 P.S. § 1406.13(f) (enforcement proceedings under the Bituminous Mine Subsidence and Land Conservation Act); 73 P.S. § 1958 (civil cause of action under the Automobile Lemon Law); Act of June 18, 1982, P.L. 537, No. 154, § 2 (civil remedies related to ethnic intimidation). Merlino at 426, 728 A.2d at 951, n.l.

      . This represents the total of six quarterly payments of $27,625.

      . The court in Gregory was interpreting “the costs of such proceeding” as it appears in the No-fault Act, 40 P.S. § 1009.103.

      . The adjusted verdict is the gross verdict reduced by the future medical expenses award and further reduced by plaintiff’s 35 percent comparative negligence.

      . Post-judgment interest on all items is calculated at 6 percent per year from the date of the verdict until March 4, 2011. Interest continues to accrue until the actual receipt of funds by counsel.

      . Plaintiff is entitled to interest at 6 percent per year on the six quarterly payments for future damages from when each payment was due.


author: DIVITO, J.,

text:
    Greer v. Elwyn Industries

      Jeffrey R. Lessin, for appellant.

      Kevin R. McNulty and Thomas L. Bryan, for appellee.
    March 4, 2011
   DIVITO, J.,

This is an appeal by Catherine E. Greer (“Greer”) contending that the court erred when it entered an order on August 27,2010 granting the motion for summary judgment presented by Elwyn Industries (“Elwyn”) and dismissing the appellant’s claim with prejudice as being barred by the statute of limitations. For the reasons that follow, the order of this court should be affirmed,

Catherine E. Greer alleges that on February 12, 2006 she was injured on the sidewalk at 900 Market Street, Philadelphia, Pennsylvania 19107 (the N.C. Nix Federal Building), when she slipped and fell on ice and snow that had not been properly removed from the sidewalk. There is no dispute that Greer knew of her injuries at the the time of the fall or shortly thereafter. After the fall, Greer retained the counsel of Jefferey R. Lessin & Associates to represent her in a negligence suit relating to the upkeep of the sidewalk. As the building was owned by the United States of America the claim was subject to the remedies of the Federal Tort Claims Act (“FTCA”) which required Greer to file a “claim for damage, injury, or death” prior to any suit against a federal agency.

On September 5, 2006 Greer’s counsel sent a letter to the U.S. Post Office, one of the federal agencies that occupied space in the building, requesting information regarding whether any snow and ice removal contractors were responsible for the sidewalks at the time of the fall. The U.S. Post Office either did not respond or answered negatively. No inquiries were made to any of the other many federal agencies residing in the building, nor were any more inquires sent to the U.S. Post Office requesting the information.

Seventeen months passed before Greer’s FTCA claim was filed against the Post Office, United States, and United States General Service Administration on February 8, 2008 — approximately four days before the statute of limitations was set to expire. When the FTCA claim failed, Greer then attempted to bring suit December 31, 2008 against the Post Office, United States, and United States General Service Administration, all of which were dismissed by summary judgment. Greer claims that the first time she was notified that Elwyn was responsible for snow and ice removal was January 8, 2009 and that, thus, the statute of limitations only began running on that date.

Under 42 Pa.C.S.A. § 5524(2) proceedings in an action to recover damages for injuries caused by the wrongful or negligent act of another must be commenced within two years, and, failing that, the complainant is barred from bringing suit. As plainly held by the Pennsylvania Supreme Court, the “statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding does not toll the statute of limitations.” Baumgart v. Keene Bldg. Prods. Corp., 542 Pa. 194, 200, 666 A.2d 238, 240 (Pa. 1995). The court has long recognized that, “As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (Pa. 1983). One of the few exceptions to the statute of limitations is the “discovery rule” which, “arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.” Id. at 85 (emphasis in original).

Applied to the current case, Greer has clearly failed to meet the requirements of the statute of limitations based upon all evidence presented. On February 12, 2006 Greer was injured in front of a building owned by the federal government, and knew both whom the owner of the building was and that she had been injured. Accordingly she had enough information to begin instituting her suit and, per Baumgart v. Keene Bldg. Prods. Corp, the statute of limitations began to run.

Counsel for Greer makes much ado of the “investigation” that was attempted to find out whether or not a contractor was responsible for snow and ice removal at the Nix building. Based on all the evidence submitted by Greer during discovery, this investigation amounted to the sending of a single letter which may or may not ever have been answered. There was a complete lack of any other action to find out who was actually responsible for maintaining the sidewalk. The “reasonable diligence” requirement elucidated by the court in Pocono International Raceway, Inc. v. Pocono Produce, Inc. to determine whether a complainant has truly attempted to make themselves aware of the facts can be a nebulous standard; not so here. Under no interpretation of the facts could the sending of a single letter be considered either reasonable or diligent.

Had counsel for Greer believed that there was a possibility that a contractor was responsible for snow and ice removal — which they clearly seem to have had — a reasonably diligent party would have done more than sending a single letter, especially when they received no clear answer. Secondly, counsel states that it knew the initial FTCA “claim for damage, injury, or death” might take upwards of six months to receive a response. Instead of filing promptly, however, 17 months of inaction passed with the claim being filed a mere four days before the statute of limitations expired. Given the length of time that it was known that it might take the federal government to respond to the FTCA claim and that a contractor might have been responsible for ice and snow removable, the actions taken by Greer cannot be said to have been reasonably diligent. As the actions were not appropriately diligent, the statute of limitations will not be tolled due to the lack of knowledge resulting from the complacency of the “investigation.”

Greer’s reliance on the discovery rule is completely misplaced. The heart of the discovery rule is that an individual who does not know that she has suffered an injury does not begin running the statute of limitations until her injury has been discovered. Greer never presented any evidence that she did not immediately or soon after the fall know that she was injured, hence, the statute of limitations began running on February 12, 2006 or close enough thereto that the claim against Elwyn was barred long before it was ever brought.

Greer’s reliance on Wilson v. El-Daief 600 Pa. 161, 189, 964 A.2d 354, 371 (Pa. 2009) for the proposition that the discovery rule applies when a plaintiff does not know who occasioned an injury is disingenuous. The Pennsylvania Supreme Court was not holding that lack of knowledge regarding who caused an injury allowed a reliance on the discovery rule, rather the court was merely paraphrasing the court of common pleas’ decision earlier in the case — a decision it was presently overturning. Even were we to accept Greer’s understanding of the discovery rule, it would still be inapplicable since the discovery rule requires reasonable diligence, which was already found to be demonstrably lacking here.

For these reasons, the order of August 27,2010 granting the motion for summary judgment brought by Elwyn should be affirmed.


author: PANEPINTO, J.,

text:
    Abington Bank v. Broadway Penn Mutual Office Fee

      Matthew A. White and Marc B. Kaplan, for plaintiff.

      Benjamin M. Schmidt, for defendant.
    March 8,2011
   PANEPINTO, J.,

Appellant, Abington Bank (hereinafter referred to as appellant), represented by counsel, appeal this court’s order entered November 24, 2010 and docketed December 2,2010, which reversed the decision of the Philadelphia Zoning Board of Adjustment in this matter concerning hardship.

PROCEDURAL AND FACTUAL BACKGROUND

This matter stems from the filing of a statutory appeal on December 23, 2009 by the appellee from the zoning board of adjustment (“ZBA”) supplemental findings issued on November 24, 2009. The appellee appealed the supplemental findings on the issue of unnecessary hardship from the underlying ZBA decision that granted relief to permit the development of a high-rise residential condo building at 500-506 Walnut Street, Philadelphia, PA to the original owners, 500-506 Walnut Street Associates LP and Gagan Lakhmna “Walnut Associates” and now appellant, Abington Bank.

This case was originally from a February 23, 2006 decision of the ZBA which granted the requested variances for the building. On October 19, 2006, Judge Glazer of the court of common pleas affirmed the ZBA decision to grant the requested relief. The decision of the court of common pleas was appealed to the Commonwealth Court by then appellants, and now appellees, on November 15, 2006 and November 17, 2006. After the July 26, 2007 decision and order of the Commonwealth Court, the court of common pleas issued an order of remand on August 31, 2007 for the sole purpose of the ZBA to issue supplemental findings, based on the existing record, to support the ZBA’s conclusion that the applicant would suffer unnecessary hardship if the requested relief was not granted. The supplemental findings of fact and conclusions of law were filed by the ZBA on November 24, 2009 and appealed to this court on December 22, 2009 under the case December Term, 02406, and December 23, 2009 under the case December Term 2009, 02803, which were later consolidated.

Oral arguments were held in this case on August 26, 2010, with appearances by both parties. After the oral argument, this court reversed the decision of the ZBA and granted the appeal by order dated November 27, 2010 and docketed December 2, 2010. On December 22, 2010, appellant filed this appeal to the Commonwealth Court of the order reversing the decision of the ZBA.

ALLEGATIONS OF ERROR

On December 23, 2010, this court entered an order directing appellant to file a Rule 1925(b) statement no later than 21 days after the entry of the order. The docket indicates that notice under Rule 236 was given on December 23, 2010-. Appellant listed their concise statement of matters complained of on appeal as follows:

1.The lower court committed an error of law and/ or abused its discretion in granting the appeals of Broadway Penn Mutual Office, L.P. and the American Board of Internal Medicine, and reversing the decision of the Philadelphia Zoning Board of Adjustment (“ZBA”).
2. The lower court committed an error of law and/or abused its discretion in determining that the evidence as presented during the hearing before the ZBA (“ZBA Hearings”) was insufficient to support the ZBA’s finding of undue hardship.
3. The lower court committed an error of law and/or abused its discretion in finding that the applicant failed to sustain its burden of proof before the ZBA.
4. The lower court applied the incorrect standard of review to the Findings of Fact and Conclusions of Law of the ZBA.
5. Appellant reserves the right to amend the foregoing upon receipt of the lower court’s opinion, which has yet to be issued.

ANALYSIS

Appellant’s statutory appeal from the ZBA has been properly decided by reversing the decision of the ZBA. The decision of the ZBA to grant the requested variances for this project was not supported by substantial evidence in the record concerning undue/unnecessary hardship.

In statutory appeals from a local agency, when no additional evidence is taken, this court’s standard of review is limited to determining whether the ZBA committed an error of law or a manifest abuse of discretion. Valley View Civic Ass’n v. Zoning Bd. Of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (Pa. 1983). Under this standard, the findings of fact made by the ZBA should only be overturned if the findings were not supported by substantial evidence, which is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

In Philadelphia Civil Service Comm. v. Ross, 595 A.2d 200, 202 (Pa. Cmwlth. 1989), this court’s limited scope of review was further outlined, requiring the court to “view the evidence in the light most favorable to the party that prevailed before the agency, giving that party the benefit of all reasonable inferences.” The court’s limited review is necessary due to the ZBA being the sole finder of fact on all questions of credibility and weighing of the evidence. See Broussard v. Zoning Bd. Of Adjustment, 831 A.2d 764, 772-73 (Pa. Cmwlth. 2003).

In reviewing the grant of the dimensional variance, multiple factors may be considered, “including the economic detriment to the applicant if the variance is denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.” Hertzberg v. Zoning Bd. Of Adjustment, 554 Pa. 249, 264, 721 A.2d 43, 50 (Pa. 1998). The applicant does not need to show that the property in question cannot be used for any other purpose. Id. The hardship complained of must be “unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district.” Valley View Civic Ass’n at 556, 462 A.2d at 640 (1983). The code itself mandates that the hardship must stem from “the particular physical surrounding, shape, or topographical conditions of the specific structure or land involved.” Philadelphia Zoning Code §14-1802(l)(a).

In the present case, the Commonwealth Court vacated the common pleas court decision and ordered that the matter be remanded to the zoning board after it concluded:

[T]he ZBA did not make any findings to support their conclusion that Applicant would suffer hardship if his variance request was not granted. This was an error of law, precludes our ability to perform complete appellate review, and a remand is now required to allow the ZBA to address this issue on the existing record... consistent with this opinion. July 26, 2007 opinion of the Commonwealth Court at p.26.

From the review of the record by the Commonwealth Court, the only issue that remains on appeal before this court is whether or not the supplemental findings created by the ZBA supported the conclusion that appellant would suffer hardship if their request was not granted.

After the case was remanded, the ZBA made eight supplemental findings of fact and four supplemental conclusions of law concerning hardship. The first supplemental finding states “[t]he property is subject to many limiting conditions.” Supplemental findings of fact ¶1. In reviewing the evidence cited by the ZBA to support this finding, the record reflects the statement by witness Craig Schelter that the “site has lots of limiting conditions on it.” N.T. 11/16/05, p. 26 at 20-21. Mr. Schelter then went on to only list one such limiting condition, that of the site being “extremely narrow.” Id. at 22. In order to support a finding that “lots of limiting conditions” were present, this court would expect more than one condition to be present in the cited record, especially when the same finding is again set forth in a later findings as well. A mere conclusion without support within the record set forth by the ZBA can not be found to be based on substantial evidence.

The second supplemental finding states “[t]he property is subject to an easement that precludes construction of a building within 25 ’ above the sixth floor of the neighboring Penn Mutual Building.” Supplemental findings of fact ¶2. This finding as to a 25-foot set-off easement cannot satisfy the hardship requirement to grant the variance because it was self-created. See Young v. Pistorio, 715 A.2d 1230 (Pa. Commw. 1998). In the record, board member Judith Eden specifically asks whether the 25-foot easement was created in a real estate transaction between the parties or a requirement in the code. The witness answers that “it was created before in the real estate transaction.” N.T. 11/16/05, p. 38 at 21-24, p. 39 at 1-2.

The third supplemental finding states “[t]he 25’ setback embodied in the easement is also required by the Zoning Code.” Supplemental findings of fac^3. Similarly to the second supplemental finding, this involves the 25-foot set-off/set-back which was stated on the record to be established by a real estate transaction and not by the zoning code at the time. N.T. 11/16/05, p. 38 at 21-24, p. 39 at 1-2. As stated in the previous paragraph, this would make the hardship, if any, self-created by the appellant. Nothing is cited in the record regarding the 25-foot set-off/set-back stating it is a requirement in the zoning code. N.T. 11/16/05, p. 28. Further, no explanation is given in the record to establish why or how zoning code §14-305(4)(g)(.l)(b) applies to this specific finding in order to establish that the finding is supported by sufficient evidence concerning hardship.

The fourth supplemental finding states “[t]he property is small and narrow, with a developable width less than 50 feet, and with less than one-half acre in total area.” Supplemental findings of fact ¶4. The evidence in the record does confirm the fact that the lot size is “less than 50 feet in width to develop.” N.T. 11/16/05, p. 27 at 8-13. But in looking at the very next statement in the record by David L. Auspitz, Chairman of the Board, he contradicts any finding of hardship, which is agreed to by the witness on this point by stating on the record:

Your client is buying into this “hardship” all right. There’s no shortage of sites in Philadelphia. If you can’t put the building that you want on this given site, but you could put a building on this site and still meet code. N.T. 11/16/05, p. 27 at 16-21.

This comment specifically points out the purely economic hardship of the appellant’s argument. In doing so it also shows the lack of evidence in the record as to the small development size being peculiar to the property itself, and an issue that cannot be “distinguished from a hardship arising from the impact of zoning regulations on an entire district.” Valley View Civic Ass’n at 556, 462 A.2d at 640.

The fifth supplemental finding states “ [t]he urban design requirements for a building adjacent to Independence National Park, and within the view corridor from the Liberty Bell to Independence Hall, are a special condition that makes the property unique.” Supplemental findings of fact ¶5. The evidence concerning this finding fully explains the aesthetic and conceptual restrictions put on the appellant in developing the property, but the record is devoid of any mention of the zoning code’s application on the information provided to support this finding. While the “urban design requirements” might be something similar to the “characteristics of the surrounding neighborhood” as found in Hertzberg at 264, 721 A.2d at 50, the evidence in the record cited by the ZBA is not sufficiently substantial to support this finding as to hardship.

The sixth supplemental finding states “[a]Iso making the property unique is the underground stream 22’ below grade, which severely limits the amount of underground parking that can be provided.” Supplemental findings of fact ¶6. In the record from the ZBA hearing, David L. Auspitz, Chairman of the Board, stated on the record “that’s not a hardship [] [t]hat’s economics,” in response to a witness’s statement on parking at grade and going below grade as creating a hardship for the as-of-right plan for the property. N.T. 2/8/06, p. 75 at 14-24. Further testimony from the hearing sets forth the only reason why the parking cannot be built in compliance with the zoning code is because it is “cost prohibitive.” N.T. 2/8/06, p. 109 at 6-15. Even if the underground stream were a problem with adding additional parking, testimony indicates that the building plan was already at, or, very close to one-to-one for parking to residential units in the building as said to be required by the code. N.T. 2/8/06, p. 114. The record shows a lack of evidence that going below-grade would even be necessary in order to meet the requirement of one-to-one parking in order to justify this finding as a hardship.

The seventh supplemental finding states, “ [t] he difficulty of developing the property contributed to its lying vacant for nine years before the date of the first hearing before the zoning board despite its highly desirable location.” Supplemental findings of fact ¶7. In the hearing before the ZBA, this finding is specifically contradicted as sufficient evidence by David L. Auspitz, Chairman of the Board, stating on the record in response to the statement that the property was vacant for nine years, “Was it for sale for nine years? The bottom line is, I don’t think this has been physically for sale for nine years.” N.T. 11/16/05, p. 40 at 15-18. Even accepting the fact that the property was vacant for those years, no other evidence is cited by the ZBA that would allow a reasonable person to make the causal inference that because the property was vacant it was due to an unnecessary hardship put on the property by the zoning code for this particular piece of property and no other property during that time period in that district.

The eighth and final supplemental finding states, “[t] he property cannot feasibly be developed in a manner that complies with the zoning code height and FAR limitations and also meets the design requirements for this unique location.” Supplemental findings of fact ¶8. This finding is a summation of the previous supplemental findings of fact and similar to that of supplemental conclusions of law three and four. The record does reflect a similar conclusion as being stated by a witness at the hearing. N.T. 11/16/05, p. 45 at 18-24. The witness did continue in explanation concerning non-conforming buildings pre-dating the zoning code that were grandfathered in as meeting the code, but no other evidence is cited in the record to support this finding that would be seen as substantial evidence that would support this conclusion. N.T. 11/16/05, p.46.

In looking at the evidence concerning the hardship of the appellant, it is difficult to categorize the record as anything besides hardship of a purely economic nature. The Commonwealth Court has repeatedly rejected such claims of hardship after Hertzberg saying the case “did not make dimensional requirements ‘free-fire zones’ for which variances could be granted when the party seeking the variance merely articulated a reason that it would be financially ‘hurt’ if it could not do what it wanted to do with the property...” Society Created to Reduce Urban Blight v. Zoning Board of Adjustment, 771 A.2d 874, 877-78 (Pa. Commw. 2001). Even more recently in Lamar Advantage GPCo. v. Zoning Hearing Board of Adjustment, the court has reaffirmed their position to “reject requests for dimensional variances where proof of hardship is lacking...or where the asserted hardship amounted to a landowner’s mere desire to increase profitability, the unnecessary hardship criterion required to obtain a variance was not satisfied even under” the Hertzberg standard. Lamar, 997 A.2d 423, 445 (Pa. Commw. 2010).

Given the deficiencies found in the evidence supporting the above findings of fact, this court cannot find that the supplemental findings of fact are supported by substantial evidence in the record, and thus, the same can be said for the supplemental conclusions of law which were derived from the findings as to the appellant’s alleged hardship. It is the landowner/petitioner for the requested variance that “bears the heavy burden of proving that [they] sufferQ from an unnecessary hardship” and the appellant did not carry that burden from the evidence presented in the record at the ZBA hearing. Doris Terry Revocable Living Trust v. Zoning Bd. Of Adjustment Pittsburgh, 873 A.2d 57, 61 (Pa. Commw. 2005).

CONCLUSION

Overall, in looking at the record, this court cannot affirm the decision of the ZBA in granting the requested variances. This court found that the ZBA decided the matter without substantial evidence found in the record to support the findings of fact and conclusions of law concerning undue hardship.

Accordingly, for the reasons stated above, this appeal should be denied.