source: Caselaw Access Project

author: RUFE J.,

license: Public Domain

text:
    Commonwealth v. Ortiz-Claudio

      C.P. of Bucks County,
    no. 1392-2008.

      Daniel Sweeney, chief deputy district attorney, for Commonwealth.

      Nicholas J. Williamson, chief deputy public defender, for defendant.
    December 16, 2008
   RUFE J.,

Defendant, Giovanni Ortiz-Claudio, has appealed our decision of August 8, 2008, wherein we found defendant guilty of Counts 1-5, of the seven charges brought before the court. We found both mandatory sentences appropriate, and as they rose out of a single transaction that they run concurrently, not consecutively. We imposed the four-year mandatory minimum based on the amount of the drugs and the five-year mandatory based on the possession of a firearm in conjunction with the narcotics. Defendant’s appeal is largely based from decisions of this court following the suppression hearing conducted on May 5, 2008. We offer this opinion in support of our decision.

The facts of this case are as follows. Sergeant Joseph Moors, in command of the midnight shift with the Bristol Borough Police Department, and an officer of 16 years of experience, received an anonymous call on the police radio advising of an armed subject intending to commit a robbery in the 900 block of Spring Street in the Borough of Bristol, Bucks County, Pennsylvania. Spring Street and the surrounding neighborhood is known to Sergeant Moors for its high activity in narcotics, domestic disputes, loud parties and fights. Upon receiving the information Sergeant Moors proceeded to the said block. Finding no activity on that street he proceeded to the rear of the apartment buildings which line that street to the dimly lit parking lot associated with those apartments. Sergeant Moors turned on a spotlight on his patrol vehicle to beam it on cars parked against the back wall of the buildings. He observed a black Dodge Durango occupied by three people. As he shined his light on the vehicle two of the people exited from the passenger side of the car and one from the driver’s side. All three attempted to walk away from the Sergeant. Defendant, who exited from the driver’s side, proceeded to the back of the vehicle, toward the building wall. At all times defendant kept his back to Sergeant Moors. Defendant was continuously making furtive movements, which appeared to the officer that he was putting into or removing from his belt an object. Sergeant Moors instructed the three individuals to stop and turn around and they did not respond to his command. Sergeant Moors drew his weapon and pointed it at the three, primarily at defendant because of his conduct. Defendant walked an additional seven to 10 feet, in a sideways pattern, always keeping his back to Sergeant Moors, while he was being commanded to stop and put his hands up.

Officer Palmer, also of Bristol Borough Police Department, testified that he had arrived at the scene before Sergeant Moors, and had driven past the parking lot. Therefore, he was in position to respond quickly, as backup, when he received Sergeant Moors’ radio transmission about observing the three individuals in the car and exiting his police vehicle. Officer Palmer observed defendant shielding his body and failing to comply with Sergeant Moors’ commands. He joined in shouting the commands for the individuals to stop moving and raise their hands. The individuals ultimately complied and placed their hands on the wall as ordered. Officer Palmer approached to pat down the individuals. During the pat down a hard object around defendant’s waist was found in his pants.

Given the earlier radio transmission, which Officer Palmer also received, he suspected the hard object to be a weapon. When removed from defendant’s pants, the hard object was a baggie with hard objects of other baggies containing a rocklike substance. Officer Palmer placed defendant under arrest and handcuffed him.

During a moment when the other persons under investigative detention distracted the police officers, defendant fled, at which time an object fell from his person. It was retrieved and found to be another glassine bag.

After the three individuals were taken into custody, Sergeant Moors examined the Dodge Durango. With the use of a flashlight he observed a large handgun on the floor of the vehicle, with the trigger cocked. Sergeant Moors obtained entry and recovered the “armed and ready-to-fire handgun.” A search warrant was received for the remaining search of the vehicle.

Both Officer Palmer and Sergeant Moors testified the situation was dangerous, tension filled, and they feared gunfire would ensue, jeopardizing their safety and that of persons in the apartment buildings. N.T. 5/5/2008, pp. 90-97.

The standard of review by the Pennsylvania Superior Court is whether the record supports the factual findings of a trial court and whether the legal conclusions drawn therefrom are free from error. Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super. 2000) citing Commonwealth v. Collazo, 692 A.2d 1116, 1118 (Pa. Super. 1997). In reviewing an order from a suppression court, the Superior Court considers the Commonwealth’s evidence, and only so much of the defendant’s evidence as remains uncontradicted. The suppression court’s factual findings will be accepted if they are supported by the evidence. Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa. Super. 2000) citing Commonwealth v. Hoopes, 722 A.2d 172, 175 (Pa. Super. 1998).

Pursuant to Pa.R. A.P. 1925(b) appellant filed a concise statement of matters complained of on appeal. Appellant’s assertions were lengthy and repetitive containing 23 matters complained of on appeal. There is a recent trend in case law in this Commonwealth to establish a balance between excessively, lengthy, repetitive and vague statements on appeal and what is expected of trial courts in responding to such, while not being too broad and sweeping in identifying appeal issues waived solely for those same reasons.

In the instant matter, we have consolidated the 23 matters complained of on appeal into four. We refer to the case of Jiricko v. Geico Insurance Co., 947 A.2d 206, 212 (Pa. Super. 2008) which provides a comprehensive discussion of the recent changes regarding Rule 1925(b). The discussion begins with Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), wherein the “trial court was troubled by the number of issues raised and felt that in addition to the Rules of Appellate Procedure, the duty of dealing in good faith with the court had been breached.”

Even more recently, in Eiser v. Brown & Williamson Tobacco Corp., 595 Pa. 366, 383, 938 A.2d 417, 427 (2007), the Pennsylvania Supreme Court, for the first time, undertook an analysis of Kanter, as well as the deviations in recent years, to the 1925(b) process. The Supreme Court cautioned the lower courts against a blanket application of Kanter, and instead “encourage[d] the lower courts to recognize that on rare occasions a party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal.”

Subsequently, in Jiricko, the Superior Court reasoned, in a complicated multi-count lawsuit with numerous defendants resulting in many trial court rulings, and, since it appeared that there was no intended bad faith in an effort to circumvent 1925(b), but rather an attempt to insure issues not raised were not waived, the court should not deny appellate review on the number of issues alone. (Citing Eiser.)

Given the status of the law, while we are surprised by the excessive number and redundant issues raised in the instant Rule 1925(b) statement, we have assumed it may have been the result of a poorly reasoned appellate strategy as we see no blatant bad faith beyond the 23 repetitive items raised. Therefore, we provide this opinion in support of our decisions. Having stated the above, we will address the appeal by categorizing the 23 items complained of on appeal into four sections as follows: anonymous tip, abandonment, warrantless search of vehicle, firearm without a license.

ANONYMOUS TIP

The first matter complained of is defendant’s assertion that the anonymous tip received, “[F]or an armed subject with a possible robbery about to occur in the area of the 900 block of Spring Street in Bristol Borough,” N.T. 5/5/2008, p. 7, was simply not enough information, lacking any additional police work or corroboration, for the officers to act as they did, subjecting defendant to an investigative detention.

An investigatory stop of an automobile is justified only when it is based upon objective facts creating a reasonable suspicion that the vehicle’s occupants are, at that time, involved in criminal activity. To meet that standard the officer must point to specific articulable facts which together with rational inferences would warrant the intrusion. To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon information of third parties, including tips from citizens. Reasonable suspicion is dependent on the content and degree of reliability when viewed in a totality of the circumstances. Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998).

Here, a totality of the circumstances evaluation supports the officers’ conduct.

“Those circumstances include the report, the anonymous tipster or caller who referred to an armed robbery about to occur. Those circumstances include the officer’s experience with the neighborhood, which was an area of high police contact.

“We take into consideration the hour of the day, the time of the day when humankind is largely asleep in that there were no other persons in the area for whom any police contact would be necessary.

“We take into consideration the fact that the report of the complaint was, while not specific as to person, was specific as to crime, and the report of the crime itself justified a heightened sense of suspicion of criminal activity, or if not activity, at least the police officer’s responsibility for their personal safety to take security measures.” N.T. 5/5/2008, pp. 99-100.

In Commonwealth v. Lawson, 454 Pa. 23, 28, 309 A.2d 391, 394 (1973), the Pennsylvania Supreme Court stated, “All of the detailed facts and circumstances must be considered. The time is important; the street location is important... the movements and manners of the parties are important.” We note that courts are to give due weight to the specific reasonable inferences a police officer is entitled to draw from the facts in light of his or her experience. Commonwealth v. Emeigh, 905 A.2d 995, 998 (Pa. Super. 2006); Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 676 (1999). Therefore, even given the source of information to the police was unknown, when we consider the tip along with the other surrounding circumstances; time of day, location, officer experience, we were not convinced by defendant’s sweeping assertions that the anonymous tip here was uncorroborated and did not justify an investigatory detention. In light of the facts reflected in the record we find that argument unpersuasive.

ABANDONMENT

Defendant’s next argument on appeal is that evidence seized due to abandonment should be suppressed. Specifically this is referring to the drugs that fell from defendant’s person as he was attempting to flee the officers while they tended to the other individuals.

Commonwealth v. Tillman, 423 Pa. Super. 343, 345, 621 A.2d 148, 149 (1993) provides, in applying the doctrine of forced abandonment, the reasoning utilized is that police “forced” an appellee to abandon the cocaine through their illegal seizure of him. We found the abandonment of these drugs was not due to any forced or coercive action on the part of the officers.

Sergeant Moors testified, “Officer Palmer left after handcuffing the defendant seated here today, moved over to her to get her to stop reaching in her pocket to give her a pat down for weapons. It was at that time that defendant turned to his right, as I was the cover officer still covering the situation, turned to his right and started to run. At that precise time is when I saw another large glassine bag fall to the ground and the defendant run to the right behind the cars.” The Sergeant stated the bag fell from “the defendant’s person/body.” N.T. 5/5/2008, p. 30. We found the specific facts of the instant matter revealed no forced abandonment, but rather the occurrence was the result of defendant’s attempt at escape. N.T. 5/5/2008, pp. 30, 102. When defendant attempted to flee he had already been handcuffed. Therefore, it was not possible for him to reach into his pockets and throw anything away. We consider this “an accidental loss from his person.” N.T. 5/5/2008, p. 100.

WARRANTLESS SEARCH OF VEHICLE

The third category of matters complained of on appeal relates to the warrantless search of the vehicle which defendant exited.

The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The issue is whether a reasonably prudent man would be warranted in the belief that his safety or that of others was in danger.” Id. at 27. In re O.J., 2008 WL 4415653, 2 (Pa. Super. 2008).

In Commonwealth v. Hernandez, 594 Pa. 319, 328-29, 935 A.2d 1275, 1280 (2007), the Pennsylvania Supreme Court set forth the law regarding warrantless automobile searches as follows:

“Under the federal Constitution, law enforcement personnel may conduct a warrantless search of an automobile as long as probable cause exists. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. Untied States, 267 U.S. 132, 147-56, 45 S.Ct. 280, 69 L.Ed. 543 [T.D. 3686] (1925). This rule, known as the automobile exception to the warrant requirement, is based on the inherent nature of vehicles— their mobility — and applies even if a vehicle is ‘seized and immobilized.’ Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621, 629 (2007) (plurality) (citing Chambers). In Pennsylvania, however, ‘we have not adopted the full federal automobile exception under Article I, Section 8.’ Id. Warrantless vehicle searches in this Commonwealth must be accompanied not only by probable cause, but also by exigent circumstances beyond mere mobility; ‘one without the other is insufficient.’ Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87, 93 (1999). This dual requirement of probable cause plus exigency is an established part of our state constitutional jurisprudence. McCree, 924 A.2d at 629-30. See also, Commonwealth v. Casanova, 748 A.2d 207, 211 (Pa. Super. 2000), appeal denied, 570 Pa. 682, 808 A.2d 569 (2002); Commonwealth v. Gelineau, 696 A.2d 188, 192 n.2 (Pa. Super. 1997), appeal denied, 550 Pa. 699, 705 A.2d 1305 (1998); Commonwealth v. Rosenfelt, 443 Pa. Super. 616, 662 A.2d 1131, 1146 (1995), appeal denied, 544 Pa. 605, 674 A.2d 1070 (1996).”

The Hernandez court held that potential danger to police or the public satisfies the exigency requirement for warrantless vehicle searches. Id., 594 Pa. at 329, 935 A.2d at 1281. In Hernandez, however, the Supreme Court concluded that the warrantless automobile search in that case was not justified. In so holding, the Supreme Court cautioned that “[t]he fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient. Rather, police must be able to articulate the danger posed under the specific circumstances of the case.” Id., 594 Pa. at 332, 935 A.2d at 1282. The Hernandez court held that the Commonwealth had failed to articulate the danger posed under the specific circumstances of that case.

In contrast to Hernandez, Sergeant Moors sufficiently articulated the danger here. The transcript from the suppression hearing reveals that Sergeant Moors provided valid evidence in supporting his reasons for the search of the truck. After the fourth individual was found, hiding in the front seat of another car, Sergeant Moors testified, the officers believed he could be involved in the activity with the other three individuals. N.T. 5/5/2008, p. 28. Then Sergeant Moors approached the Durango and illuminated the interior. It was at that time that he “observed a large handgun on the floor, on the driver’s side floor cocked in the ready position to be fired... the gun was actually facing out towards the front and I knew that we were going to be calling for the duty tow... Officer Lancieri advised me that just prior to him tackling the defendant on the west side of the parking lot, he threw a key into the parking lot. . . that key had opened the door to that vehicle, the Dodge Durango.” N.T. 5/5/2008, pp. 33-34. While a search warrant was ultimately obtained for the vehicle, Sergeant Moors testified the gun was seized prior to that point for safety reasons. “I didn’t want the duty tow gentleman to come and move the car with the gun being in the cocked position like that. I was afraid it could go off and there could be an accidental shooting.” N.T. 5/5/2008, pp. 35-36. Based on the facts elicited at the suppression hearing we concluded that the search of the vehicle was in preparation for an inventoiy search. Furthermore, the object was in plain view and could have been seized by the officers for that reason as well. N.T. 5/5/2008, p. 101. Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007).

FIREARMS WITHOUT A LICENSE

The final matter complained of on appeal asserts the Commonwealth failed to present sufficient evidence to allow this court to find defendant guilty of firearms not to be carried without a license. Unlike the suppression matters previously addressed, this issue was addressed at the waiver trial which began immediately upon conclusion of the suppression hearing. At the waiver trial it was stipulated that when the firearm was seized it contained five rounds of ammunition.

In order to prove possession, the evidence must show that appellant had the power to control such items with the intent to exercise control over them. Commonwealth v. Fassett, 260 Pa. Super. 323, 394 A.2d 573 (1978), however, possession may be shown by circumstantial evidence. Commonwealth v. Ferguson, 231 Pa. Super. 327, 331 A.2d 856 (1974). In the instant case, the totality of the circumstances shown by the Commonwealth’s evidence was sufficient to permit the court to infer possession by defendant. See Commonwealth, v. Bentley, 276 Pa. Super. 41, 44, 419 A.2d 85, 87 (1980).

In making our determination we considered the testimony that defendant, who was originally seated in the driver’s seat, and the weapon found on the driver’s seat floor, was closest to the weapon at all times. We took into consideration the testimony of Ms. Murray, one of the three individuals involved. She testified that she had borrowed the Durango from a friend, the gun was not hers, and she had not seen it at the scene, she had never driven the Durango and defendant was the only one to drive the Durango. She testified further that she always looks around a car before she borrows it for anything that might be in the car. N.T. 5/5/2008, pp. 112-19.

In finding defendant guilty of possessing a firearm without a license we considered the furtiveness of defendant as described by the officers. We acknowledge the inherent danger of violence where drug trafficking is the central activity. It was stipulated on the record that Detective Timothy Carroll of the Bucks County Detectives is an expert in the field of drugs and trafficking, and that he would testify that the drugs possessed by the defendant were possessed with the intent to deliver. N.T. 5/5/2008, p. 110. Defendant was found with over a quarter pound, over 120 grams of cocaine, on his person. N.T. 5/6/2008, p. 21. Therefore we took judicial notice, along with the growing number of courts who have taken judicial notice, of the fact drug dealers are likely to be armed and dangerous. Commonwealth v. Patterson, 405 Pa. Super. 17, 22, 591 A.2d. 1075, 1078 (1991).

Defendant’s lengthy statement of matters complained of can be concisely stated as believing the initial stop, originating from an anonymous tip, was unjustified, hence everything seized as a result therefrom also fails as the fruit of the poisonous tree. It is the prerogative of the fact-finder to believe all, part, or none, of the evidence presented. Commonwealth v. Lyons, 382 Pa. Super. 438, 555 A.2d 920 (1989). As discussed, we found the evidence presented credible and sufficient to establish probable cause and justify Sergeant Moors’ investigatory detention, subsequent arrest, and the vehicle search which originated from an anonymous tip. Defendant’s assertion that probable cause did not exist for the stop and arrest is without merit.

      . Count 1 — firearms not to be carried without a license 18 Pa.C.S. §6106(a)l; Count 2 — manufacture, delivery, or possession with intent to manufacture or deliver 35 P.S.780-113(a)30; Count 3 — intentionally possessing a controlled substance by a person not registered 35 P.S.780-113(a)16; Count 4 — use of, or possession with intent to use, drug paraphernalia 35 P.S. 780-113(a)32; Count 5 — resisting arrest or other law enforcement 18 Pa.C.S. §5104.

      . 18 Pa.C.S. §7508(a)(l)(iii); 42 Pa.C.S. §9712.

      . Paragraphs 21 and 22 refer to an individual not relevant to this matter. We assume that to be an error confined to those paragraphs and one that does not otherwise impact the integrity of this appeal.

      . In Jiricko, the court noted that while the five-page statement could certainly be considered lengthy, in that case the issue was the “incoherent, confusing, redundant, defamatory rant” resulting in there being no legitimate appellate issue presented.

      . Referring to “the subject to the left of Officer Palmer.” N.T. 5/5/2008, p. 30.

      . The record reflects the search of the vehicle was not a subject of the original suppression motion, however, defense counsel pursued a line of questioning which in turn permitted the Commonwealth to address the subject as well. N.T. 5/5/2008, p. 27.


author: HECKLER, J.,

text:
    Load Rite Trailers Inc. v. Sutherland
    C.P. of Bucks County,
    no. 07-08137-24-5.

      Joseph Caprara, for appellee.

      Robert C. Nagle, for appellant.
    January 7, 2009
   HECKLER, J.,

On February 13, 2008, a hearing was held before the undersigned upon plaintiff Load Rite Trailers Inc. ’s petition for preliminary injunction to restrain alleged ongoing competing business activities by appellant and former Load Rite employee Robert H. Sutherland. On April 25,2008, the undersigned entered an order granting a preliminary injunction precluding Sutherland from soliciting, communicating or engaging in business dealings with all customers or former customers of Load Rite Trailers Inc., located in the states of New Jersey and New York. Our order further barred Sutherland from engaging in any business competitive with that of Load Rite Trailers in New Jersey and New York. Our order directed that these prohibitions remain in effect until June 1, 2009, at which time they would terminate.

Appellant Sutherland filed a timely appeal from the said order. Thereafter appellant also filed a motion for clarification of our April 25, 2008 order and plaintiff Load Rite filed a motion for a contempt hearing. On June 26, 2008, the undersigned entered an order denying appellant’s motion for clarification. Plaintiff’s motion for contempt has not been praeciped forward and no hearing has been held thereon. We offer the following opinion in response to respondent Sutherland’s appeal.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Defendant has submitted the following statement of matters complained of on appeal:

(1) Sutherland has appealed this court’s April 25,2008 order enjoining Sutherland from soliciting, communicating with, or having business dealings with current or former customers of Load Rite Trailers Inc. in New York and New Jersey.

(2) The order was entered after a hearing on Load Rite’s petition for preliminary injunction, which petition sought to enforce a restrictive covenant in Sutherland’s employment agreement with Load Rite.

(3) Sutherland’s employment agreement with Load Rite only prohibited him competing with Load Rite’s business of selling boat trailers.

(4) As written, the order prohibits Sutherland from engaging in “solicitation, -communication or business dealings with all customers or former customers of Load Rite Trailers Inc. located in the states of New Jersey and New York ....”

(5) The foregoing restraints are beyond the scope of the restrictive covenant in Sutherland’s employment agreement.

(6) Specifically, the order as written appears to prohibit Sutherland from selling boats to Load Rite’s current or former customers in New York and New Jersey.

(7) Sutherland has appealed the order because it exceeds the scope of the restrictive covenant in Sutherland’s employment agreement. Further, a restriction of Sutherland’s ability to sell boats to current or former Load Rite customers in New York and New Jersey will create a hardship on Sutherland’s ability to earn a living and provide for his family.

(8) Sutherland has also filed a motion for clarification of the order, which motion asks that the court clarify the scope of this order.

DISCUSSION

In essence, appellant complains that the language of our order has the effect of prohibiting him from selling boats to former Load Rite boat trailer customers within the states of New York and New Jersey. As to the factual underpinnings of this dispute, we incorporate herein our decision and order of April 25,2008. For the convenience of the court above it is attached hereto as appendix 1. [Order not attached — Ed.]

At the hearing held before the undersigned it was undisputed that appellant had for one selling season directly competed with appellee by acting as a sales representative for Venture Trailers Inc. Appellant worked as a sales representative for Venture, selling their boat trailers to the same marinas and boat dealers with whom he had previously dealt as a Load Rite employee. As we noted in our findings, appellant was not merely a former employee of appellee Load Rite. The employment relationship was formed after appellant sold his own boat trailer manufacturing and sales business (Five Star Trailer Company) to Load Rite in 1998 for in excess of $900,000. The contract governing that transaction, which was received as exhibit P-1, provided inter alia that one of the things appellant was selling to Load Rite was the “good will and going concern value” of Five Star.

The testimony heard by the undersigned underscored that appellant has vast knowledge in the field of boat trailers. Moreover, he is both personable and capable and has established a network of relationships with dealers who have sold his own and subsequently plaintiff’s products as a result of appellee’s efforts for more than a decade. It was undisputed that at least one New Jersey business — Cody Marine — had been doing business with both Venture and Load Rite before appellant left Load Rite. Thereafter, the owner advised Load Rite representatives that he would not be dealing with them further because “we’re doing business with Bob,” referring to appellant Robert Sutherland. N.T., 2/13/08, p. 103.

Another feature of the selling of boats and boat trailers not apparent to the uninitiated is that the transaction in which the consumer acquires a boat generally involves acquisition of a suitable trailer (one which will fit the boat) which has already been selected by the dealer. N.T., 2/13/08, p. 106. Moreover, appellant testified that, although he had begun representing certain boat and water scooter manufacturers, the entirety of his income after leaving Load Rite, as of the date of the hearing, had been derived from commissions for selling Venture trailers. N.T., 2/13/08, p. 148. Accordingly, we perceive that even if appellant were to establish business relationships enabling him to sell boats to former Load Rite customers, expecting that such interaction would not result in the sale of Venture or some other brand of boat trailer as a part of the transaction would be naive.

Finally, we note that the non-compete and non-disclosure agreement executed by appellant on April 26,2005, includes the following language: “in the event that his/ her employment terminates for any reason, for a two-year period, the employee will not, directly or indirectly,... call on, solicit, take away or cause the loss of clients of Load Rite ....” Exhibit P-4, paragraph 3.

We also note that the asset purchase agreement (exhibit P-1) also specifically precluded appellant from competing with appellee. In this regard we note that our order did not require that appellant terminate his relationship with Venture Trailers Inc. — only that he refrain from participating in their sale in New York and New Jersey until June of 2009.

Appellee is entitled, in the view of the undersigned, to prevent appellant from competing with it in the territory to which he had been assigned before his departure from employment — the states of New York and New Jersey. Moreover, appellee is entitled to the good will which it bought when it acquired Five Star from appellant and is entitled to preclude appellant from engaging in activities which would diminish the value of that good will. See Felt v. Hope, 416 Pa. 118, 206 A.2d 621 (1964). Accordingly, we perceive that our April 25, 2008 order was sufficiently narrow as to protect the legal rights of the appellee without unduly burdening appellant’s ability to provide for his family. Given appellant’s undisputed violation of his obligations not to compete with the coiporate entity to which he had sold his boat trailer manufacturing business and by whom he was employed until June of 2007, we perceive that the relief granted was the least which would vindicate appellee’s contractual rights.

“Normally, appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. A final decree in equity will not be disturbed on appeal unless it is unsupported by the evidence or (is) demonstrably capricious____Facts found by the chancellor, when supported by competent evidence in the record, are binding. Flowever, no such deference is mandated for conclusions of law, and [the court above is] at liberty to review such conclusions.” Barthelmes v. Keith, 732 A.2d 644, 646 (Pa. Super. 1999) (citing Kepple v. Fairman Drilling Co., 532 Pa. 304, 312, 615 A.2d 1298, 1302 (1992)). In the instant case, appellant does not appear to advance any authority for the proposition that this court misperceived or misapplied the law. The particular scope of the prohibition against competition would appear to fall within the discretion of the court and for the reasons stated above, we believe that the record amply supports our findings. For the foregoing reasons, we believe the appeal in this matter to be without merit.


author: BOCCABELLA, J,

text:
    Commonwealth v. Dickey
    C.P. of Berks County,
    no. 06-CR-0004145-2008.

      Russell E. Farbiarz, assistant district attorney, for Commonwealth at trial.

      Alisa R. Flobart, assistant district attorney, for Commonwealth on appeal.

      Michael D. Dautrich, for defendant.
    January 20, 2009
   BOCCABELLA, J,

On October 27, 2008, this court presided over an omnibus pretrial hearing concerning the defendant, Natasha L. Dickey, at the case captioned above. On November 17, 2008, this court suppressed all evidence flowing from the motor vehicle stop of the defendant, because that stop was conducted without the requisite “reasonable suspicion.”

On December 17, 2008, the Commonwealth, by and through counsel Alisa R. Hobart, Esquire, filed a notice of appeal to the Superior Court of Pennsylvania. On December 22, 2008, this court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On December 31,2008, the Commonwealth filed its concise statement. The following issue has been set forth for appellate review:

(1) The trial court erred in suppressing evidence obtained as a result of a lawful traffic stop conducted based upon reasonable suspicion of a Motor Vehicle Code violation, which was observed by the police officer.

FACTUAL SUMMARY

On July 20,2008, at approximately 2:45 a.m. Officer Matthew F. Harley Sr. of the Exeter Township Police Department was on patrol traveling eastbound on Perkiomen Avenue near the intersection with Shelboume Road in Exeter Township, Berks County, Pennsylvania. While approaching the intersection, Officer Harley observed a white Ford Escort make a right turn onto Shelbourne Road from a lane marked for eastbound straight travel.

Perkiomen Avenue at the intersection with Shelbourne Road is a four-lane roadway in the easterly direction. The far right lane is marked for right-hand turns only and separated by a triangular cement divider. The two middle lanes are marked for straight travel only and the far left lane is a “left-turn only” lane. In addition, the road itself is painted, designating each lane for a certain direction of travel and there is a light standard above the roadway with signs also marking the direction of travel for each lane.

As soon as he observed the vehicle turn right onto Shelbourne Road (the entrance to a shopping center) from the lane marked for straight travel only, Officer Harley activated his lights and siren and began pursuing the vehicle. The vehicle stopped shortly thereafter in the parking lot of the Home Depot store in the shopping center and the driver was subsequently identified as Natasha L. Dickey, the defendant.

Defendant’s vehicle did nothing to endanger or impede any other traffic and moved (turned) in an otherwise proper manner.

DISCUSSION

“ ‘The appellate standard of review of suppression rulings is well-settled. This court is bound by those of the suppression court’s factual findings which find support in the record, but we are not bound by the court’s conclusions of law.’ Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680, 685 (2005). See also, Commonwealth v. Booze, 953 A.2d 1263, 1268-69 (Pa. Super. 2008) (‘Where the record supports findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.’).” Commonwealth v. Bostick, 958 A.2d 543, 550 (Pa. Super. 2008).

Section 6308(b) of the Motor Vehicle Code provides:

“Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S. §6308(b). (emphasis added)

“To establish grounds for ‘reasonable suspicion’. . . the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) (citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558 Pa. 50, 56, 735 A.2d 673, 676 (1999)).

The Motor Vehicle Code provides in pertinent part:

“Unless otherwise directed by a uniformed police officer or any appropriately attired person authorized to direct, control or regulate traffic, the driver of any vehicle shall obey the instructions of any applicable official traffic-control device placed or held in accordance with the provisions of this title, subject to the privileges granted the driver of an emergency vehicle in this title.” 75 Pa.C.S. §3111(a).

The Fourth Amendment to the United States Constitution protects the people “from unreasonable searches and seizures.” In the Interest of D.M., 566 Pa. 445, 449, 781 A.2d 1161, 1163 (2001). “A vehicle stop constitutes a seizure under the Fourth Amendment.” Whren v. United States, 517 U.S. 806, 809-10 (1996). “The key question in determining if a seizure is constitutional under the Fourth Amendment is if it is reasonable.” Michigan Department of State Police v. Sitz, 496 U.S. 444, 450 (1990).

Here, Officer Harley clearly observed the defendant make an improper turn, done with proper signals and without causing any traffic hazard. The roadway was marked with painted lines and arrows indicating the appropriate direction of travel for each lane and a light standard above the road also designated the same. There was no police officer or other authorized person directing traffic at the intersection. As such, Officer Harley’s observations with respect to the defendant’s improper turn amounted to his witnessing a driver turn right with a green light after failing to utilize the proper lane from which to do so.

The turn executed by the defendant was done using the proper turn signal and created no safety hazard whatsoever given the traffic conditions at the time. As such, the turn witnessed by Officer Harley did not create a sufficient “reasonable suspicion” to initiate a traffic stop of the defendant’s vehicle and any and all evidence flowing from that stop must be suppressed.

“Given the early morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of defendant’s vehicle crossing the fog line on two perhaps three occasions, the officer erred in believing he had justification to stop defendant’s vehicle. The observations of Office (sic) Rosato do not warrant a stop on any cognizable legal theory.” Commonwealth v. Gleason, 567 Pa. 111, 116, 785 A.2d 983, 985-86 (2001). Obviously the courts of this Commonwealth have determined that minor traffic violations (especially single instances) do not amount to reasonable suspicion that criminal activity are afoot.

For the foregoing reasons this court respectfully requests the Commonwealth’s appeal be denied.


author: FRITSCH JR., J,

text:
    In re Estate of Ziegler

      C.P. of Bucks County,
    no. 2005-584-29.

      C. George Milner, for Mellon Bank.

      William F. Schroeder, for estate.
    December 31, 2008
   FRITSCH JR., J,

This matter is before us as a result of exceptions filed by Mellon Bank to the adjudication and decree entered by this court on August 20, 2008. The exceptions allege that the adjudication, finding that Mildred S. Zeigler, deceased, revoked or destroyed her will, thereby causing her estate to pass intestate, is contrary to the evidence. For the reasons stated herein, we overrule the exceptions and affirm the initial findings of this court.

FACTUAL BACKGROUND

Mildred S. Ziegler (decedent) died on January 24, 2005, a resident of Southampton Estates, Upper Southampton Township, Bucks County, Pennsylvania. Decedent was a widow at the time of her death. She never had any children and her parents predeceased her. Decedent’s sole intestate heir at the time of her death was her sister, Florence Scheetz Fisher, who survived decedent but who herself died on July 21,2005, testate. Fisher was survived by her children, Lee F. Gittens and Thomas Fisher who are the co-executors of Fisher’s estate.

In 1967, decedent’s husband died and decedent moved from Pittsburgh back to the neighborhood in Philadelphia where she grew up, living one street over from her sister Fisher and Fisher’s family, including decedent’s niece and nephew, Lee and Thomas. Lee and Thomas were in frequent contact with decedent throughout her life.

On July 11, 1969, decedent executed a will at Girard Bank. In 1981, decedent executed a codicil to her 1969 will. In 1984, Mellon Bank acquired Girard Bank and the name of the bank changed soon thereafter. On November 12,1993, decedent executed another will, superseding the prior will and codicil, in the offices of Mellon Bank, at 1735 Market Street, Philadelphia, Pennsylvania. During her lifetime, decedent also established, funded, and amended from time to time certain trusts, ending with a “second amended trust” which, upon decedent’s death, left the bulk of her estate to All Saints Episcopal Church after providing for certain specific bequests. On November 12, 1993, decedent executed three original documents of the second amendment to trust but only one original will, as evidenced by the testimony and notary logs of Wendy Smith, a former Mellon Bank employee and a notary public. Wendy Smith testified that on November 12, 1993, she notarized three trust documents, i.e., three second amendment to trust documents, but only one original will. We recognize that it is customary to execute multiple originals of trust documents, but only one original will.

On February 4, 1994, Patrice T. Irwin, an administrative assistant in Mellon Bank’s trust department, wrote to decedent at decedent’s then-current address. The letter read in full as follows: “Enclosed is a completely signed original document of the second amendment to your trust and an original of your will. These are for your personal records.” The letter also indicated that it was accompanied by an enclosure.

Patrice T. Irwin customarily sent out trust documents, which normally consisted of multiple signed originals. Since she was a trust department employee, and not an estate department employee, she was not familiar with mailing wills.

In January 1998, decedent moved from Philadelphia to Southampton Estates, a retirement community in Bucks County. Decedent’s sister, Fisher, moved to another unit in the same retirement community in July 1998. In 2001, decedent moved from independent living to assisted living within the Southampton Estates facility.

In 2001 or 2002, Christine Embery Waltz, Esquire, an attorney since 1989, first came into contact with decedent. A social worker at Southampton Estates asked Ms. Waltz to meet decedent and discuss becoming her attorney-in-fact. On May 29, 2002, decedent executed a power of attorney appointing Ms. Waltz as her attorney-in-fact. During the time Ms. Waltz acted as decedent’s attorney, she helped decedent get her bank accounts in order, communicated with Mellon Bank regarding any bills that needed to be paid from decedent’s lifetime trust, paid small bills and prepared decedent’s income tax returns.

In 2002, decedent moved from assisted living to skilled nursing within the Southampton Estates facility. At this time, her apartment needed to be cleaned out because her new living space was much smaller. Ms. Waltz and Lee went through decedent’s paperwork and records, Lee taking personal and family items, and Ms. Waltz taking anything of a legal or financial nature. Lee found among the decedent’s records dealing with her 1998 move to Southampton Estates a note in decedent’s handwriting making reference to Mellon Bank and the “2 amendment to trust.” Ms. Waltz filled two tin cans with old financial records and other paperwork and took them to her house for safekeeping and to review at a later time as the need arose. Neither Ms. Waltz nor Lee found an original will among decedent’s records.

Decedent died on January 24, 2005. Following decedent’s death, Ms. Waltz went through the documents and paperwork contained in the tin cans she had taken from decedent’s residence for approximately two hours. Among the items Ms. Waltz found were: an original second amendment to trust, a conformed copy of the 1993 will, and the original February 4,1994 letter from Patrice T. Irwin to decedent referencing the enclosure of “an original of your will.” These documents were in a manila envelope inside one of the tin cans.

The conformed copy of the 1993 will was on high quality bond paper, had the word “copy” written on the cover page, and had original signatures of the decedent and witnesses preceded by the symbol /s/. In addition, it had handwritten notations such as question marks. The conformed copy was not notarized. The second amendment to the trust was on high quality bond paper, had the signature of the decedent and the witnesses, and was notarized. It also had handwritten notations such as question marks. Ms. Waltz also found various little notes among the paperwork in the tin cans. One of the little notes Ms. Waltz found provided, in decedent’s handwriting: “will and trust agreement.” “Who has originals?” and the abbreviation of the word, “answer, Girard Bank.” The note was undated. Ms. Waltz did not find the original 1993 will among the documents contained in the tin cans.

Soon after decedent’s death, on January 28, 2005, Mellon Bank caused a will file assignment sheet to be created. The will file assignment sheet indicated that Mellon Bank only had a copy of the 1993 will even though it had the original 1969 will and the original 1981 codicil. In the normal course of business, if Mellon Bank had been holding the original 1993 will, it would have been included along with the will file assignment sheet when the estate was assigned to the employee in charge of administering it.

In the case of decedent’s estate, its administration was first assigned to employee Michael O’Neill, a 23-plus year employee of Mellon Bank. Because Mellon Bank could not find the original 1993 will and was planning to probate a photocopy of the same, the administration of decedent’s estate was reassigned to Edwin Rouh, the employee in charge of the department, sometime in February of 2005.

We found that Mellon Bank did not lose the decedent’s 1993 will. Mellon Bank considers the protection of original wills entrusted to it by its clients to be an important responsibility. Mellon Bank keeps original wills in a vault room to which entrance is restricted to few employees by use of a card reader system. Several Mellon Bank employees testified that with respect to the files they have handled, they had never known of an original will to have been lost with the possible exception of decedent’s 1993 will. In particular, Mellon Bank employee Scott Small testified that out of approximately 44,000 wills entrusted to him, only very few have ever been lost. Scott Small is Mellon Bank’s national director of estate settlement and administration. In addition, another Mellon Bank employee, Michael O’Neill, testified that based upon his own personal knowledge of the estate files he has handled while working at Mellon Bank, he has never known of an original to be lost other than possibly in this case. Michael O’Neill has administered approximately 100 estates. No fire, flood or other catastrophe would have affected documents in Mellon Bank’s will vault for the relevant time period.

PROCEDURAL BACKGROUND

This case was initiated by the filing of a petition to admit to probate a photocopy of an instrument the decedent executed on November 12,1993, as her last will in the offices of Mellon Bank N.A. Mellon Bank N.A., named co-executor in said 1993 will, filed the petition. Petitioner asserted that following decedent’s death, petitioner searched for, but was unable to locate, the original 1993 will in its files. Petitioner further stated that petitioner contacted George J. Konesky Jr., Esquire, the scrivener of the 1993 will to inquire whether he had the original will in his office, and that Mr. Konesky searched but could not locate the original will in his files. Finally, petitioner contacted decedent’s attorney-in-fact at the time of her death, Christine Embery Waltz, Esquire, to inquire whether she had the original 1993 will in her file, and that she could not find the original will among decedent’s paperwork.

The estate of Fisher filed a timely answer and new matter in response to the petition, invoking the presumption that arises when a testatrix is known to have been in possession and control of her will and the will cannot be found. Said presumption is that the testatrix revoked or destroyed her original will. Mellon Bank filed a reply to new matter, denying that the 1993 will was ever in decedent’s possession and control. According to Mellon Bank, the 1993 will was in its possession and control but was lost.

Deputy Register, James McCullen, conducted a hearing on September 13, 2005, to consider Mellon Bank’s petition. On or about October 6,2005, the register issued an opinion permitting a photocopy of the November 12, 1993 instrument to be admitted to probate. The register found that the evidence was insufficient to determine that decedent ever had possession and control of the original 1993 will. On November 2, 2005, the Register of Wills issued a decree and grant of letters testamentary to Mellon Bank. The estate of Fisher appealed.

Lee and Thomas, executors of the estate of Fisher, deceased, filed a petition for a citation to be issued directed to Mellon Bank to show cause why their appeal from the Register of Wills should not be sustained, the opinion of the Register of Wills permitting the probate of a photocopy of the 1993 will should not be reversed, and, if a copy of the 1993 will had been probated, that such probate be set aside. A de novo hearing on Mellon Bank’s petition was held before the undersigned on May 6, 2008.

On August 20, 2008, we entered an adjudication and decree finding that the will was in decedent’s possession and therefore is presumed destroyed or revoked. Mellon Bank thereafter filed the present exceptions to the adjudication, alleging that specified findings of fact of this court were contrary to the evidence.

Mellon Bank’s exceptions are, verbatim, as follows:

“(1) Findings of fact nos. 20 and 46 are contrary to the evidence; that is the notary logs of Wendy Smith indicate that she originally recorded two will notarizations, then crossed one out and substituted the Arabic numeral ‘one’ therefore; finding no. 46 is contrary to the evidence;

“(2) Findings of fact nos. 20 and 46 are contrary to the weight of the evidence; that is the notary logs of Wendy Smith indicate that she originally recorded two will notarizations, then crossed one out and substituted the Arabic numeral ‘one’ therefore; finding no. 46 is contrary to the weight of the evidence;

“(3) Findings of fact nos. 36 and 37 reference a testamentary document signed at the end by decedent in her own hand, which provides the identical dispositive scheme and administrative appointments as the will probated by the register as a lost will. Orphans’ court procedure requires the court to substitute the document referenced in findings 36 and 37 as the will of decedent, and dismiss the appeal because the existence of a testamentary document signed at the end by the decedent among her post mortem papers is in fact a will representing the decedent’s testamentary wishes which the court is obligated to effect;....”

Oral argument on Mellon’s exceptions was held before the undersigned on November 25,2008. In its brief and oral argument, Mellon Bank strayed from the issues raised in its exceptions nos. 1 and 2, concerning how many will documents were executed and notarized. Instead, Mellon Bank focused its arguments on which documents were delivered to decedent with the letter dated February 4, 1994.

DISCUSSION

It is well-settled that “where a testator retains the custody and possession of his will and, after his death, the will cannot be found, a presumption arises, in the absence of proof to the contrary, that the will was revoked or destroyed by the testator.” In re Estate of Janosky, 827 A.2d 512, 519 (Pa. Super. 2003). (citations omitted) “To overcome that presumption, the evidence must be positive, clear and satisfactory.” Id. (citations omitted) “Moreover, to prevail over the presumption and establish the existence of a lost will, the proponent of the copy of the will must prove that: (1) the testator duly and properly executed the original will; (2) the contents of the will were substantially as appears on the copy of the will presented for probate; and (3) when the testator died, the will remained undestroyed or revoked [sic] by him.” Id. at 519-20. “Declarations of intent, condition, and circumstances of family are insufficient to establish these factors and thus rebut the existent legal presumption.” In re Estate of Keiser, 385 Pa. Super. 24, 29, 560 A.2d 148, 150 (1989). (citation omitted) “Accordingly, a court will not weigh the probability of the decedent’s wishes or otherwise speculate as to the motives which may or may not have influenced the testatrix in the direction of intestacy.” Id. (citation omitted)

It is undisputed that decedent executed a valid will on November 12, 1993. There is no disagreement that the original of said will could not be found upon her death. The focus of the dispute in this case is whether decedent had custody and possession of her 1993 will subsequent to its execution and prior to her death. If she did, then it may be presumed that she revoked or destroyed it. If she did not, then the presumption does not arise and we would be required to conclude that the 1993 will was lost.

As stated above, the pivotal question of this litigation has been whether the decedent had possession of her 1993 will. Mellon Bank failed to raise the issue of delivery of the will in its exceptions and therefore the issue is waived. However, assuming arguendo, that this issue is not waived, the evidence clearly supports our finding that decedent had possession and control of the 1993 will, which was mailed to her on February 4, 1994. On said date, Patrice T. Irwin, an administrative assistant in Mellon Bank’s trust department mailed the will to decedent at the latter’s then current address. The cover letter read in full as follows: “Enclosed is a completely signed original document of the second amendment to your trust and an original of your will. These are for your personal records.” (emphasis added) The letter also indicated that it was accompanied by an enclosure. (N.T. 5/6/08, pp. 64-66.)

Although Mellon Bank failed to raise the issue in its exceptions, Mellon spent substantial time in both its brief and at oral argument contending that without testimony from Patrice T. Irwin, there is no clear evidence that decedent ever had possession of the 1993 will. The fact that Patrice T. Irwin did not testify as to the wording of her February 4, 1994 letter does not shift the weight of the evidence in favor of Mellon Bank. We determined by a preponderance of the evidence that the original will was sent to decedent on February 4, 1994, under the cover of a letter describing the enclosure as “an original” will.

The fact that the February 4, 1994 letter stated that “an” original had been mailed to the decedent does not undermine a finding that the original and only the original of the 1993 will was mailed to decedent. Patrice T. Irwin mistakenly assumed that there existed more than one counterpart original of the will because she was in the practice of mailing trust documents, which normally consist of multiple signed originals. The decedent, however, only executed one original will on November 12, 1993.

The evidence further established that decedent received the February 4, 1994 letter with its enclosures. Ms. Waltz found the original letter from Patrice T. Irwin to decedent among decedent’s paperwork after the latter’s death. The only copy of the will found among decedent’s papers was the un-notarized, conformed copy, with the word “copy” written on the cover page. (N.T. 5/6/08, pp. 135-38.) The evidence does not support a finding that a document marked “copy” was mailed under the cover of the February 4, 1994 letter.

The note Ms. Waltz found among decedent’s documents upon her death, referencing Girard Bank, does not compel a different conclusion. The undated note states: “will and trust agreement.” “Who has originals?” and the abbreviation of the word, “answer, Girard Bank.” The reference to a will in this note is clearly to the decedent’s earlier will of 1969. This conclusion is consistent with the fact that Mellon Bank kept the original of the 1969 will. Moreover, Girard Bank became Mellon Bank in 1984. Decedent was fully aware of this change, as it is evidenced by another note Lee found among decedent’s records dealing with her 1998 move. This note, in decedent’s handwriting, references Mellon Bank and the “2 amendment to trust.” The second amendment to trust was executed on November 12,1993, the same date the decedent’s last will was executed. Thus, by this date, decedent knew that the name of the bank was Mellon Bank.

The evidence in this case also shows that Mellon Bank has no history of losing wills entrusted to it by its clients. Mellon Bank keeps original wills in a vault to which access is restricted to few employees. Several Mellon Bank employees testified that with respect to the files they have handled, they had never known of a will to have been lost with the possible exception of decedent’s 1993 will. (N.T. 5/6/08, pp. 63, 158.) This court finds that Mellon Bank did not lose decedent’s 1993 will but rather mailed it to decedent with the letter dated February 4, 1994.

In sum, the estate of Fisher has met its burden to prove that decedent had possession and control of her 1993 will subsequent to its execution and prior to her death. Only one original will was executed and notarized and that will was sent to decedent on February 4,1994. Because the 1993 will could not be found upon decedent’s death, we must presume that decedent revoked or destroyed it. Petitioner Mellon Bank has failed to rebut said presumption by positive, clear and satisfactory evidence. For these reasons, Mellon Bank’s argument regarding delivery of the 1993 will is without merit.

Mellon Bank’s exceptions nos. 1 and 2 challenge our finding that decedent only executed one original will. Although Mellon Bank seemed to abandon these exceptions we will address them. Mellon Bank’s former employee and notary public Wendy Smith testified that decedent executed one and only one original will on November 12,1993. Testimony by Ms. Smith that indicates she originally recorded two will notarizations and then changed that record to reflect that only one will was actually notarized, does not change the fact that only one will was executed and notarized. In fact, Ms. Smith’s testimony cleared up any confusion that more than one original was executed. (N.T. 5/6/08, pp. 91-97.) This testimony is clear and is consistent with our findings that Mellon Bank did not lose the 1993 will, but rather it was mailed to decedent by Patrice T. Irwin. Accordingly, Mellon Bank’s exceptions are without merit.

Furthermore, we reject the third exception raised by Mellon Bank, alleging that the dispositive scheme of the will copy must be followed. Although the copy is signed at the end, it is not the original notarized will, and will not be treated as one. Mellon Bank cites to Bright’s Estate, 54 D.&C.2d 397 (Montg. Cty. 1971), for the proposition that a will copy signed by the testator must be probated. Reliance on Bright’s Estate is misplaced, however, as it involves a situation where the only document signed by the testator was a Xerox copy of the typed original will. Additionally, the Montgomery County Orphans’ Court expressly stated that its ruling had nothing to do with the proof of a lost or destroyed will, or the application of the presumption of revocation to such situations. The Bright’s Estate decision thereby distinguishes itself from the type of case that is currently before this court. We have determined that decedent’s original will was in her possession, and therefore the presumption of revocation or destruction arises by operation of law. All copies of the revoked or destroyed will are void.

We also found that decedent did not revive her prior will of 1969. Neither party produced any writing declaring the intention of decedent to revive the 1969 will nor was there evidence that the 1969 will was re-executed. This finding was not challenged by Mellon Bank in its exceptions. Decedent therefore died intestate.

CONCLUSION

For the above-stated reasons, we find that the exceptions filed by Mellon Bank are without merit and enter the attached decree.

DECREE

And now, December 31,2008, upon consideration of exceptions to the August 20,2008 adjudication, filed by Mellon BankN.A., it is hereby ordered and decreed that the exceptions are overruled.

      . FOF no. 20 states: “On November 12, 1993, decedent executed three original documents of the second amended trust but only one original will, as evidenced by the testimony and notary logs of Wendy Smith. Wendy Smith is a former Mellon Bank employee and a notary public.”
      FOF no. 46 states: “Mellon Bank did not lose the decedent’s 1993 will.”

      . FOF no. 36 states: “Among the items Ms. Waltz found were: an original second amendment to trust, a conformed copy of the 1993 will, and the original February 4, 1994 letter from Patrice Irwin to decedent referencing the enclosure of ‘an original of your will.’ These documents were in a manila envelope inside one of the tin cans.”
      FOF no. 37 states: “The conformed copy of the 1993 will was on high quality bond paper, had the word ‘copy’ written on the cover page, and had original signatures of the decedent and witnesses preceded by the symbol /s/. In addition, it had handwritten notations such as question marks. It was not notarized.”


author: AMMERMAN, P.J.,

text:
    DuBois Dutch LLC v. Sandy Township Board of Supervisors

      C.P. of Clearfield County,
    no. 05-1983-CD.

      Anthony Guido, for appellant.

      Tony Cherry, for appellee.

      Gregory Kruk, for intervening appellee.
    February 23, 2007
   AMMERMAN, P.J.,

Intervening appellee, John A. Guido, purchased a 3.37 acre parcel of ground located along Route 219 North in Sandy Township, Clearfield County, Pennsylvania, from Phillip J. Dieringer and Sherry S. Dieringer by deed dated December 19, 1986, and recorded in the offices of the Register and Recorder of Deeds of Clearfield County, Pennsylvania, in deed book vol. 1130, page 150. (Appellant’s exhibit lb, p. 286a.) The transfer was subject to a certain ease between Phillip J. Dieringer, as lessor and Harley Hotels Inc., as lessee, dated July 7,1982, memorandum of which was recorded in the office of the Recorder of Deeds of Clearfield County, Pennsylvania, in deed book no. 843, page 79. (Appellant’s exhibit lb,pp. 287a, 297a-323a.)

At the time of Guido’s purchase, Harley Hotels Inc. was operating a Dutch Pantry restaurant on 2,605 acres of the 3.37 acre parcel while the Dieringers operated a gasoline service station on the remaining acreage. The 1982 lease also gave Harley Hotels Inc., an option to purchase the 2.605 acre restaurant parcel before the expiration of the 1982 lease scheduled for February 29, 1999. (Appellant’s exhibit lb, 305a, paragraph 9.)

A building permit for the restaurant had actually been issued to Hospitality Motor Inns Inc., predecessor in title to Harley Hotels Inc., on October 28, 1970, by Sandy Township. (Appellant’s exhibit lb, p. 327a.) Hospitality Motor Inns Inc. then had to construct its own sanitary sewer plant (appellant’s exhibit lb, p. 342a) before constructing the restaurant which it completed in 1971.

Harley Hotels Inc. sold the Dutch Pantry restaurant to appellant, DuBois Dutch LLC. By assignment and assumption of lease dated July 5,1998, and recorded in the offices of the Register and Recorder of Deeds of Clear-field County, Pennsylvania, in deed book vol. 1951, page 453, assigned all of its right, title and interest in the lease and option to DuBois Dutch LLC. (Appellant’s exhibit lb, pp. 329a-330a.)

By letter dated July 6,1998, addressed to both Harley Hotels Inc. and DuBois Dutch LLC, John A. Guido consented to the assignment of the lease to DuBois Dutch and specifically acknowledged that DuBois Dutch would have all of the rights and privileges under the lease. This included the right to exercise the purchase option for the property upon which the Dutch Pantry restaurant was located. (Appellant’s exhibit lb, p. 290a.)

On June 19,1996, before DuBois Dutch acquired the restaurant parcel and before the 1982 lease’s expiration, Sandy Township repealed its 1964 zoning ordinance which applied when the 1982 lease and option were executed and adopted a new zoning ordinance which required a minimum lot size of45,000 square feet in the C-H-Commercial-Highway District, the zoning district where the subject property is located. The DuBois Dutch parcel met the new lot size requirements but the piece remaining to Guido did not since it totaled only 32,910 square feet. (See survey map, appellant’s exhibit 2.) Both parcels met the minimum lot size requirement set forth in the 1964 zoning ordinance.

On November 16,1998, DuBois Dutch gave notice to Guido that it was exercising its option to purchase the subject premises pursuant to the terms of paragraph 9 of the June 16,1982 lease. (Appellant’s exhibit lb, p. 331a.) Immediately thereafter, Guido responded that he would not agree to a subdivision and refused to convey the restaurant parcel to DuBois Dutch on the basis that he would be left with an undersized lot that he felt would be commercially useless.

On November 28,1998, DuBois Dutch sought formal subdivision approval from the Sandy Township Planning Commission. Guido appeared and objected to the grant of such subdivision approval and, accordingly, the Planning Commission recommended rejection of the subdivision request. DuBois Dutch thereafter withdrew its request and on February 12,1999 filed a complaint in specific performance against Guido before the Court of Common Pleas of Clearfield County to no. 99-160 C.D. This action requested the court to order Guido to secure subdivision approval from Sandy Township; release the 2.605 acres from a lien of mortgage held by S&T Bank and direct that Guido be made to convey the premises that were the subject of the option. As a defense to the specific performance action, Guido asserted that he could not perform because subdivision of the property would violate the lot size requirements of the 1996 zoning ordinance.

Guido thereafter filed an ejectment action to no 99-263 C.D. on March 10, 1999, seeking possession of the restaurant parcel free of any claim by DuBois Dutch on the basis that the lease between the parties had expired on February 29,1999, and could not be renewed and DuBois Dutch was holding over illegally. The complaint filed in that case made no mention of the fact that DuBois Dutch had exercised its option to purchase the property on November 16, 1998, prior to the expiration of the lease and that John A. Guido had refused to cooperate with DuBois Dutch in securing a subdivision and was refusing to convey the premises. DuBois Dutch filed preliminary objections to that ejectment complaint, raising the pendency of the prior action for specific performance filed on February 12, 1999, to no. 99-160 C.D., and Guido’s answer, new matter and counterclaim thereto raising a claim for ejectment.

On May 17,1999, following argument, then Clearfield County President Judge John K. Reilly, Jr. stayed both actions pending a decision by the Sandy Township Board of Supervisors. The court directed DuBois Dutch to apply once again to the Township for subdivision approval on the basis that the lot of John A. Guido was a nonconforming lot that was divided prior to the enactment of the 1996 ordinance.

Pursuant to the trial court’s direction, DuBois Dutch filed for subdivision approval with Sandy Township on the basis of two arguments. First, that the 1982 lease and option effected a per se lawful subdivision at its inception; or secondly, that once DuBois Dutch exercised the option, its ownership interest reverted back to 1982, making the property held in separate ownership by the two entities at that time and since both lots would lave been lawful under the terms of the 1964 ordinance in effect in 1982, Guido’s lot should be allowed to continue as a nonconforming lot allowable under the 1996 ordinance. The Board of Supervisors of Sandy Township agreed that the Township had always recognized the property as two separate parcels and had always treated the property as two separate parcels (appellant’s exhibit la, p. 6) and did unanimously grant subdivision approval.

On August 3, 1999, Guido filed an appeal from the Township’s grant of subdivision approval to no. 99-867 C.D., and on June 13, 2000, the trial court held a de novo hearing. President Judge Reilly held that the creation of the 1982 lease and option and the exercise of the option by DuBois Dutch constituted a subdivision of the property under the Municipalities Planning Code (MPC) as of the date of the June 16, 1982 lease granting the option. The trial court found that when DuBois Dutch exercised its option to purchase the property, its equitable title related back to the date of the creation of the option. Consequently, the trial court found that the minimum lot size requirements contained in the 1964 subdivision ordinance governed and that DuBois Dutch’s request for subdivision approval was a tacit request for modification of the requirements of the 1996 zoning ordinance.

The trial court further found that the Guido lot was a nonconforming lot under the 1996 zoning ordinance and not subject to the minimum lot size requirements imposed by that ordinance. The court entered an order approving the subdivision application of DuBois Dutch and Guido timely appealed that decision to the Commonwealth Court.

By a two to one vote, the Commonwealth Court found that a leasehold interest coupled with an option to purchase does not create a legal subdivision of the property and, therefore, DuBois Dutch could not “lock-in” the gas station parcel as a pre-existing nonconforming lot by exercising its option to purchase a portion of the property after the 1996 zoning ordinance took effect. The majority found that no legal subdivision had taken place prior to the enactment of the 1996 ordinance because no formal request for subdivision approval had been made by either party prior to the effective date of the ordinance. Therefore, the only remedy available to DuBois Dutch was a request for modification of the provisions of the 1996 ordinance that could not be met by the Guido lot. Because section 512 of the MPC requires that modification requests be in writing and DuBois Dutch had failed to make the required written request for modification, the Commonwealth Court found that the trial court erred in approving the subdivision application and reversed the trial court.

DuBois Dutch filed a petition for reargument which the Commonwealth Court denied. On January 2, 2003, DuBois Dutch filed a timely petition for allowance of appeal to the Supreme Court of Pennsylvania and by order dated August 27,2003, the Supreme Court granted the appeal limited to the following issue:

“[WJhether a leasehold interest in a parcel of land coupled with an option to purchase such land creates a property interest in the lessee-optionee sufficient to support a legally recognized subdivision of the property either at the time the lease and option were simultaneously executed or when the purchase option was exercised.” Guido v. Township of Sandy, 584 Pa. 93, 100, 880 A.2d 1220, 1221 (2005).

In its decision in Guido v. Township of Sandy, the Supreme Court noted “that Dubois [sic] Dutch’s status as optionee in the Restaurant Parcel conferred upon it a ‘substantial interest in the land’ that, upon exercise of the option, made it owner ab initio of the Restaurant Parcel.” 584 Pa. at 101, 880 A.2d at 1225. “Accordingly, Dubois [sic] Dutch’s equitable title reverted, upon exercise of the option, back to the date of formation of the 1982 lease and option conferring title upon Dubois [sic] Dutch effective June 16,1982.” 584 Pa. at 102, 880 A.2d at 1225. Thus, the Supreme Court concluded that the property was divided-in-fact as of 1982 (584 Pa. at 103, 880 A.2d at 1226) but declared that this division-in-fact does not impel governmentally sanctioned subdivision. Because no formal request had been made prior to the time that the 1996 ordinance took effect, the requirements of that ordinance had to be met or else a written request for modification had to be made. 584 Pa. at 108, 880 A.2d at 1229. The Supreme Court then “[left] the parties with the opportunity to seek further relief pursuant to the modification procedure established by the MPC and Sandy Township and/or to complete the underlying litigation seeking specific performance, consistently with [the Supreme Court’s] decision.” 584 Pa. at 108, 880 A.2d at 1229.

Pursuant to the Pennsylvania Supreme Court’s suggestion, DuBois Dutch filed a written request for modification of the “minimum lot requirements” of the Sandy Township ordinance and requested the Township’s formal subdivision approval of the restaurant parcel and the gas station parcel that had already been divided-in-fact by the parties as of 1982 through the exercise of the option. Guido filed an objection to those requests and also filed his own subdivision request based on a re-drawing of the boundary lines between the restaurant parcel and the gas station parcel. This re-drawing was accomplished by taking some of the land belonging to DuBois Dutch and grafting it onto the Guido parcel in an attempt to have the Guido parcel meet the minimum lot size requirement. The Township denied the request for modification and subdivision approval presented by DuBois Dutch and approved the Guido request for subdivision on November 21, 2005. DuBois Dutch timely filed a notice of appeal from those decisions to the above-captioned term and number requesting the court of common pleas to overturn both, take testimony in the case, approve the request for modification and grant subdivision approval to DuBois Dutch.

Guido, as titled landowner, filed a notice to intervene as allowed by section 004-AoftheMPC (53 P.S. §11004-A). Thereafter, Guido filed a (second) motion to dismiss claiming that the court lacked jurisdiction to hear an appeal from the Township supervisors’ refusal to grant DuBois Dutch’s modification request on the grounds that the request for modification was actually a request for a variance. Guido claimed that because variances can only be granted by the Zoning Hearing Board, the Board of Supervisors had no right to entertain the request and as such the court cannot hear an appeal from their decision. Argument was heard on the motion on May 3,2006, and an opinion and order was issued on June 21,2006 denying the motion to dismiss.

A hearing de novo on request of DuBois Dutch for modification and subdivision approval as well as its objections to the grant of the Guido subdivision was held on October 3, 2006. DuBois Dutch presented evidence and exhibits. Guido presented no evidence, and the record was closed after the court incorporated as part of the record the reproduced record sent to the Supreme Court and the record made at no. 99-867 C.D.

Whether to allow the presentation of additional evidence in a land use appeal is a matter within the discretion of the trial court. Crystal Forest Associate, LP v. Buckingham Township Supervisors, 872 A.2d 206 (Pa. Commw. 2005), reargument denied. Where, as in the instant case, the trial court takes additional evidence because no record was made before the Township supervisors, the trial court must determine the case de novo, making its own findings of fact based on the record. (Mitchell v. Zoning Hearing Board of the Borough of Mount Penn, 838 A.2d 819 (Pa. Commw. 2003), reargument denied.) “In a land use appeal, the court shall have power to declare any ordinance or map invalid and set aside or modify any action, decision or order of the governing body, agency or officer of the municipality brought up on appeal.” Section 006-A(a) of the MPC, 53 P.S. §11006-A(a).

The issues in the case are as follows:

(I) Whether appellant is entitled to the grant of its request for modification and approval of a subdivision based on the division-in-fact of the parcels as a result of its exercise of the option.

(II) Whether appellant is entitled to have the subdivision request of Guido denied.

Section 512.1 of the Pennsylvania Municipalities Planning Code authorizes the governing body of a municipality to grant a modification of the requirements of one or more of the provisions of its Subdivision and Land Development Ordinance if the “literal enforcement will exact undue hardship because of the peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of the ordinance is observed.” 53 P.S.§10512.1. That same section of the MPC requires that the request for modification be in writing and accompany and be part of the application for subdivision and that the request set forth “the grounds and facts of unreasonableness or hardship on which the request is based, the provision or provisions of the ordinance involved and the minimum modification necessary ....” 53 P.S. §10512.1(b).

Section 1004 of Sandy Township’s Subdivision and Land Development Ordinance adopts the language of section 512.1 of the MPC to authorize the Board of Township Supervisors to grant a modification of the requirements of one or more subdivisions of the Subdivision and Land Development Ordinance if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question. (Appellant’s exhibit 4, section 1004, p. 57.)

In the case at hand, appellant duly requested in writing that the requirement of section 611 of the Sandy Township Subdivision and Land Development Ordinance requiring that lots comply with the minimum requirements of the Sandy Township Zoning Ordinance be waived and the minimum lot size and setbacks be modified to comport with the lot sizes and side yard setbacks currently in existence for both lots. That request was denied by the Township Board of Supervisors. The board, through its attorney, admitted on the record that the request for modification would have been granted had Guido, as the record owner of the land, consented to the same. However, because he would not agree to the grant of the modification request, the request was denied and subdivision approval in accordance with the modification was also denied. This court does not believe that Guido’s objections to the modification request are controlling as to whether modification should be granted.

Guido is a vendor who does not wish to honor his obligations under the terms of a contract of sale. However, our appellate courts have held that a vendor cannot avoid an otherwise legal transaction where the illegality of performance is caused by the vendor’s failure to obtain approval of a proposed subdivision. Holden v. Kay, 144 Pa. Commw. 254, 601 A.2d 453 (1991); Messina v. Silberstein, 364 Pa. Super. 586, 528 A.2d 959 (1987),petition for allowance of appeal denied, 518 Pa. 619, 541 A.2d 746 (1988).

The Supreme Court of Pennsylvania has previously declared “that Dubois [sic] Dutch’s status as optionee in the Restaurant Parcel conferred upon it a ‘substantial interest in the land’ that, upon exercise of the option, made it owner ab initio of the Restaurant Parcel.” Guido v. Township of Sandy, 584 Pa. 93, 101, 880 A.2d 1220, 1225 (2005). “Accordingly, Dubois [sic] Dutch’s equitable title reverted, upon exercise of the option, back to the date of formation of the 1982 lease and option conferring title upon Dubois [sic] Dutch effective June 16, 1982,” 584 Pa. at 102, 880 A.2d at 1225.

The Supreme Court concluded that:

“[W]hen Dubois [sic] Dutch attempted to exercise the option in 1998, Pennsylvania law related the transaction back to 1982 and recognized it as a conveyance, as of 1982, of the Restaurant Parcel. Thus, logic dictates that the property must have been divided-in-fact as of the effective date of that sale.” 584 Pa. at 104, 880 A.2d at 1226.

“However, just as the exercise of the option passed equitable title to the optionee effective as of the date of the inception of the option, so must it have effectuated division-in-fact of the property without which the idea that equitable title was then conveyed would be incoherent.” 584 Pa. at 104-105, 880 A.2d at 1227. (emphasis in original)

Thus, the “peculiar conditions” of the land in question that make it unreasonable and a hardship for the requirements of the 1997 Subdivision Ordinance to be literally enforced have been at least recognized by the Supreme Court of Pennsylvania. This property has already been divided-in-fact by the parties themselves and that division dates back to 1982 by finding of the Supreme Court. DuBois Dutch is the equitable owner of the 2.605 acre restaurant parcel and John Guido holds that property in trust for DuBois Dutch. 584 Pa. at 103, 880 A.2d at 1226.

The Pennsylvania Municipalities Planning Code defines a “landowner” as:

“The legal or beneficial owner or owners of land including the holder of an option or contract to purchase (whether or not such option or contract is subject to any condition), a lessee if he is authorized under the lease to exercise the rights of the landowner, or other person having a proprietary interest in land.”

DuBois Dutch as the beneficial owner or optionee became a landowner under the Municipalities Planning Code and acquired its proprietary interest in the land as a result a contract with the optionor, John Guido.

Guido contends in his brief that In re Michener Appeal, 382 Pa. 401, 115 A.2d 367 (1955) warrants the disregarding of the option agreement and the property rights created in DuBois Dutch as a result of that option agreement by contending that the private contract between DuBois Dutch and Guido should not enter into the enforcement by a municipality of its zoning regulations. However, this court believes that the decision in Michener cannot be read to hold that the substantial interest in land held by DuBois Dutch as the equitable owner may be taken away by zoning regulations. Zoning principles regulate the use of one’s land. Zoning regulations do not regulate the ownership of that land. “The use and ownership of property are distinct and separate.” Wanamaker v. Philadelphia School District, 441 Pa. 567, 572, 274 A.2d 524, 526 (1971). “Zoning ordinances regulate usage and not method of ownership. If a use is permitted, a municipality may not regulate the manner of ownership of the legal estate.” (citations omitted) Dublin Properties v. Board of Commissioners of Upper Dublin Township, 21 Pa. Commw. 54, 57 n.3, 342 A.2d 821, 822 n.3 (1975).

The Supreme Court rejected Guido’s argument that land subdivision ordinances and zoning ordinances could be used to deprive DuBois Dutch of its ownership rights in the 2.605 acres:

“These cases say nothing about the antecedent proposition that, upon exercise, the option vested title to the parcel in Dubois [sic] Dutch as of June 16, 1982, notwithstanding the consequences of any subsequent zoning regulation on either party’s use or enjoyment of that property. Although this result undeniably complicates zoning issues — this case being one example — Spencer; Detwiler, and Powell leave no room for doubt as to the legal status, or the legally effective date of inception, of Dubois [sic] Dutch’s title to the property once it exercised the option.” Guido v. Township of Sandy, 584 Pa. at 103, 880 A.2d at 1226.

At the trial of the subdivision appeal in this case filed to no. 99-867 C.D., John A. Guido admitted that throughout the time of his ownership of the larger parcel, the property that was the subject of the leasehold/optioned interest and his remaining land were maintained as separate properties. (Appellant’s exhibit lb, p. 415a.) Likewise, his predecessor in title, Phillip James Dieringer, admitted on cross-examination that when he bought the land in 1982, he was aware that he was taking it subject to the rights of the Dutch Pantry restaurant in the land that had existed since the early 1970s. (Appellant’s exhibit lb, p. 421a.) Mr. Dieringer confirmed that at no time after he purchased the property in 1982 did he ever consider that he had a right to enter upon the leasehold premises occupied by the Dutch Pantry restaurant and to use it as his own despite the fact that he was the legal title owner. (Appellant’s exhibit lb, p. 430a.)

When Sandy Township approved the initial request for subdivision on July 7,1999, it admitted that the parties have always treated these properties as two separate parcels and “the Township always recognized it as two separate parcels.” (Appellant’s exhibit la, p. 6a.) Indeed, both parcels are fully developed and separate businesses have been conducted thereon for well over 35 years. There are separate gas lines, sewer lines, water lines and electric and telephone lines to both parcels. The size and dimensions of the land remaining to each party upon the grant of modification and subdivision approval is exactly what each party bargained for when each purchased his interest in the property. John Guido bought his gas station business and the land on it was located subject to a lease with option to purchase that fully described the 2.605 acres that he would have to transfer to the owner of the restaurant upon its exercise of the option. The amount and dimension of the land remaining to him after the exercise of the option was described at length in metes and bounds in the memorandum of lease that was recorded in the courthouse prior to the time of his purchase. The exercise of the option by DuBois Dutch gives him no more nor less than the exact benefit of his bargain. Nothing that DuBois Dutch did deprives Guido of any interest he had in his land.

While it is true that Sandy Township modified its zoning ordinance in the meantime to enlarge the lot size requirement in a Commercial-Highway District from 10,000 square feet to 45,000 square feet, Guido’s use of the parcel predated the amendment of the ordinance and by law, his use must be allowed to continue based on the reality that a division-in-fact has already occurred. His use of the property as a service station is allowed under the new zoning ordinance and he continues to enjoy the opportunity of changing that use to any use allowed under the zoning ordinance if he does not want to continue to operate a service station.

The Supreme Court saw no impediment to either party in this case filing a modification request and declared that arguments could be made by both parties in favor of modification. (584 Pa. at 107-108 n.17, 880 A.2d at 1228-29, n.17.) DuBois Dutch has a hardship if modification is not granted because it cannot compel Guido to transfer title without a valid subdivision. Guido suffers a hardship if modification is not granted because he cannot comply with his legal obligations to convey the premises to DuBois Dutch until and unless subdivision approval is granted.

The Supreme Court recognized that Sandy Township really has no reason not to grant the modification request because the properties are fully developed and have been in operation for years in conformance with the municipality’s comprehensive development plan; street, curb and walkway provisions; water and sewer requirements; and flooding abatement measures. 584 Pa. at 106, 880 A.2d at 1227-28.

Guido argues that if the modification request is granted, the only legal defense he has to his refusal to convey the premises to DuBois Dutch will be removed and he will be left with a substandard lot. That is not the law. The size of his lot will be no different now than if a subdivision request had been made and granted prior to 1997. Once the modification is granted and the requirement that the subdivision conform to the lot size and setback requirements of the zoning ordinance waived, Guido’s lot becomes a nonconforming lot and he can use it for any lawful purpose despite its size.

There are buildings on both lots and no structural changes are contemplated. No building permit is required for either site because the buildings already exist. The streets are already paved and the Township has been providing separate water and sewer services to these two parcels from the beginning. There is no change in the services demanded from the Township as a result of granting formal approval to the modification and the subdivision request. There will be no added burden to public utilities or roadways nor any adverse effect upon the health, welfare or safety of the community.

Here the granting of subdivision approval simply confirms a development plan that was in existence prior to the promulgation of the pertinent zoning regulations in Sandy Township. The granting of the approval to DuBois Dutch does not aggravate any pollution problem nor impose any additional burden upon the services of the community. Consequently, it cannot be argued that the granting of subdivision approval for a division of land that already is in existence is prohibited by either the MPC or the Sandy Township Subdivision and Land Development Ordinance.

Sandy Township’s own ordinance allows the modification of the standards set forth in article 6 to permit the reasonable utilization of the property while securing substantial compliance with the intent and purpose of the Township’s regulations where strict compliance with the standards is clearly impractical due to site conditions. In the case at bar, the conditions of this site do not allow strict compliance with the lot size and setback standards because the parties have already divided the land into two different parcels owned by two different people. The sovereignty of the MPC and the Township’s ordinances are preserved because a formal modification request has been made. The granting of that request is not only allowed but anticipated under the language of the MPC and the Township’s own ordinances. The granting of the request merely formalizes and legalizes the division that has already occurred in this case as a result of actions of both parties.

This court believes that DuBois Dutch is entitled to have the court grant the modification request, waive the requirements of section 611A and grant subdivision approval as shown in the survey map entered into evidence as appellant’s exhibit 2 which was drawn based on the descriptions of the property set forth in the lease/option agreement.

Consistent with the court’s ruling that DuBois Dutch is entitled to modification, the subdivision request of Guido which was approved by Sandy Township must be denied. The right to own property is a right so fundamental that it is protected by the United States Constitution as well as the Pennsylvania Constitution. DuBois Dutch has been declared by the Supreme Court of Pennsylvania to be the equitable owner of the entire 2.605 acre parcel. Those rights cannot be ignored nor can they be taken away without compensation.

The request by Guido to subdivide the parcel in a manner that takes from DuBois Dutch some of its land and conveys it to Guido without the agreement of DuBois Dutch constitutes a prohibited unconstitutional taking of appellant’s property.

Guido holds the 2.605 acres in trust for DuBois Dutch and is obligated by law to convey the same to DuBois Dutch upon its request. Guido cannot control any portion of the 2.605 acres because it is not his property despite the fact that he is record title holder. Guido cannot come before a municipality or this court to request a subdivision that takes land owned by someone else without the owner’s permission. By the same token, this court cannot approve a subdivision request that divides the subject parcel into any other configuration than the one described in the lease/option agreement.

ORDER

Now, February 23, 2007, under the power granted to this court at section 1006-A of the Pennsylvania Municipalities Planning Code at 53 P.S. §11006-A and in accordance with the authority of section 512.1 of the Pennsylvania Municipalities Planning Code at 53 P.S. §10512.1 and sections 601 and 1004 ofthe Sandy Township Subdivision and Land Development Ordinance enacted May 21,1997, it is hereby ordered and decreed that:

(1) The 3.379 acre parcel of ground presently titled in the name of John A. Guido and subject to an option for conveyance of a 2.605 acre portion thereof was divided in fact into the Restaurant Parcel and the Gas Station Parcel effective June 16, 1982, at the time that DuBois Dutch LLC exercised its option to purchase the Restaurant Parcel on November 16, 1998;

(2) The division-in-fact ofthe subject premises in accordance with the descriptions ofthe subject properties contained in the lease/option agreement of June 16,1982, resulted in the Gas Station Parcel being unable to comply with the minimum requirements of the Sandy Township Zoning Ordinance preventing subdivision approval under the Sandy Township Subdivision and Land Development Ordinance enacted May 21,1997, without modification of the standards imposed by the Sandy Township Subdivision and Land Development Ordinance;

(3) Strict compliance with the standards of the Sandy Township Subdivision and Land Development Ordinance are clearly impractical due to site conditions resulting from the prior division-in-fact of the parcels into a Restaurant Parcel and a Gas Station Parcel and thus modification of the minimum lot size and width requirements as well as side setback building lines to permit the continued reasonable utilization of the Gas Station Parcel as it has been used since the effective date of the division-in-fact of the properties;

(4) A waiver of the requirement that both parcels meet the minimum lot requirements of the Sandy Township Zoning Ordinance will still secure substantial compliance with the intent and purpose of the Sandy Township Subdivision and Land Development Ordinance and will not adversely affect the public health, safety and general welfare because both parcels are fully developed and a modification of the lot size and building setback line requirements will place no further burden upon the services of Sandy Township since all streets, curbs, parking lots and walkways are already constructed and all water, sewer and utility lines are in place;

(5) The provisions of section 611A of the Sandy Township Subdivision and Land Development Ordinance requiring that lots shall comply with the minimum requirements of the Sandy Township Zoning Ordinance are hereby waived;

(6) The request of DuBois Dutch LLC to grant formal subdivision approval of the division-in-fact of the Restaurant Parcel and the Gas Station Parcel in accordance with the descriptions contained in the lease/option agreement dated June 16, 1982, is hereby approved and DuBois Dutch LLC is directed to record the subdivision plan prepared by Alexander & Associates Inc., from the descriptions contained in the lease/option agreement of June 16, 1982, and entered of record in this case as appellant’s exhibit 2 in the offices of the Register and Recorder of Deeds of Clearfield County, Pennsylvania, forthwith; and

(7) The subdivision request of John A. Guido is denied and the subdivision plan recorded by him on December 7, 2005, in the offices of the Register and Recorder of Deeds of Clearfield County, Pennsylvania, as Instrument no. 200521182, is hereby voided and the Register and Recorder of Deeds of Clearfield County is instructed to mark the plan, index and any other docketing or record system where such instrument is referenced accordingly*

      . Judge Reilly assumed senior status in January 2004.

      . Guido had voluntarily withdrawn his first motion to dismiss.