author: NEALON, J.,

text:
    Lilac Meadows, Inc. v. Rivello

      C.P. of Lackawanna County,
    No. 11 CV 4375.

      Steven M. Greenwald, for plaintiff,

      Matthew T. Comerford, for defendant Rivello.

      Francis G. Wenzel, for defendant Panko.
    April 5, 2012
   NEALON, J.,

A land development corporation has sued two Old Forge residents for slander based upon oral statements that they allegedly made regarding its land development project during a public meeting of Old Forge Borough Council. One resident has demurred to the slander claim on the ground that his remarks are not capable of a defamatory meaning. Since his alleged comments about the corporation’s property and its predecessor-in-interest’s approval process do not constitute slander under Pennsylvania law, that resident’s demurrer will be sustained and the slander action against him will be dismissed.

The other resident has also filed preliminary objections and seeks to strike the words “as well as diverse others” in paragraph 17 of the complaint in which the corporation alleges that certain quoted statements “as well as diverse others” were made falsely and with knowledge of their falsity. Since the objectionable language does not properly identify what defamatory statements were made and to whom they were made, the words “as well as diverse others” will be stricken on the ground of insufficient specificity. However, that resident’s demurrers based upon the defenses of truth and privilege and her challenge to the corporation’s claim for special damages will be overruled.

I. FACTUAL BACKGROUND

According to the well-pleaded allegations of the complaint which must be accepted as true for purposes of the defendants’ preliminary objections, see, Toney v. Chester County Hospital, 36 A.3d 83, 99-100 (Pa. 2011), on September 28, 2010, plaintiff Lilac Meadows, Inc. (“Lilac Meadows”) purchased land development plans for a proj ect on Edith Street in Old Forge which had been approved by the Pennsylvania Department of Environmental Protection (DEP), the Lower Lackawanna Valley Sanitary Authority, the Old Forge Zoning Board, the Old Forge Planning Commission, and the Old Forge Borough Council. (Docket entry No. 1, ¶¶5-6). At a subsequent public meeting of the Old Forge Borough Council on November 16, 2010, defendant Joseph Rivello (“Rivello”) “falsely stated that Lilac Meadows’ sewer system was illegal” and that its development project was “in violation of a set back variance granted to its predecessor in interest.” (Id., ¶¶7-8). Lilac Meadows alleges that “[a]t another Council Meetings (sic), Rivello stated that the variances granted” to Lilac Meadows’ predecessor in interest “were ‘rubber stamped’ and that the ‘slope up there is greater than what’s allowed up there in the book...,’ as a result of which he was going to ‘call DEP.’” (Id, ¶9). During the meeting on November 16, 2010, Rivello reportedly “revealed his intention to interfere with the completion of the project by indicating that he was ‘going to get a lawyer.. .I’m going to get a good lawyer that knows all the zones, all the pitch, all the runoff, if he had to hire an engineer or what.. .1 said I’m going to get the best guy. I said you better make sure every ‘t’ is crossed and every ‘i’ is dotted which I don’t believe you have done that now.’” (Id, ¶10). Rivello also claimed at this meeting that the project would create parking issues even though he knew “full well that each unit has its own garage and driveway” as required by Old Forge ordinances. (Id., ¶11).

Rivello’s sister, defendant Virginia Panko (“Panko”), allegedly made the following statements concerning Lilac Meadows during the Old Forge Borough Council meeting:

• “[Lilac Meadows] violated that plan, it voids the plan”
• “[S]o many things were not done properly here”
• On an icy night “someone was going to hit her car at 2:00 in the morning, that she is not going to know who did it, that she has no comprehensive or collision insurance coverage on her car, and that she doesn’t have the money”
• Arguing that the state and local agencies that “would have had to sign off on this meet with us or we’re going to the newspapers...we’re not shutting up”
• “Corruption is going on everywhere.”

(Id., ¶¶12-16). Lilac Meadows contends that Rivello and Panko made the foregoing statements “intentionally, willfully, maliciously, and.. .with knowledge oftheir falsity or with reckless disregard for their truth or falsity.” (Id., ¶17). Lilac Meadows submits that the public statements of Rivello and Panko “are actionable per se and slanderous per se.” (Id., ¶18).

Lilac Meadows avers that as a “result of the false, misleading, malicious, willful and reckless statements of’ Rivello and Panko, Lilac Meadows “has suffered and continues to suffer serious and irreparable injury to its name and reputation.” (Id., ¶19). Lilac Meadows further asserts that it “has been caused to incur additional expenses in an effort to meet Old Forge Borough Council’s additional conditions placed upon [Lilac Meadows], after the land development approval of 2006, and after the land development re-approval of April 19, 2011, all to its great harm and detriment.” (Id., ¶20). In its prayer for relief, Lilac Meadow seeks judgment “in an amount in excess of $75,000 together with punitive damages, costs, interest, and attorney’s fees.” (Id., p. 5).

Panko has filed preliminary objections in the nature of a demurrer in which she seeks to dismiss this action on four bases. First, Panko contends that Lilac Meadows has failed “to state a cognizable claim for defamation since [Lilac Meadows] has agreed to and admitted the correctness and truth ofthe defendants’November 16,2010 comments.. .when [Lilac Meadows] made changes to [its] development plans as ordered by the Borough Council after land development appro val... and re-appro val... without appealing the changes ordered by council.” (Docket entry no. 7, ¶4). Second, Panko demurs to this suit on the ground that she had “a privilege to make publication ofthe alleged defamatory statements at borough council’s meetings.” (Id., ¶5). Third, Panko seeks to strike the phrase “as well as diverse others” in paragraph 17 of the complaint in which Lilac Meadows avers that “[t]he statements and comments identified and quoted in previous paragraphs in this complaint, as well as diverse others, were made... intentionally, willfully, maliciously, and.. .with knowledge of their falsity or with reckless disregard for their truth or falsity.” (Id., ¶6). Fourth, Panko maintains that paragraph 20 of the complaint “fails to specifically plead special damages” by merely averring that Lilac Meadows “has been caused to incur additional expenses in an effort to meet Old Forge Borough Council’s additional conditions placed upon [Lilac Meadows]” after the 2006 approval and 2011 re-approval of the land development. (Id., ¶7).

Rivello has likewise filed preliminary objections in which he advances four arguments in support of his requested dismissal of this action. Rivello first asserts that the statements attributable to him are incapable of a defamatory meaning as required by 42 Pa. C.S. §8343(a). (Docket Entry No. 10, ¶¶16-23). Not unlike Panko, Rivello also maintains that Lilac Meadows has not averred “special harm” in compliance with section 8343(a). (Id., ¶¶24-31). Rivello further contends that his statements at the public meeting were conditionally privileged and the complaint “fails to plead facts which support a conclusion” that such a conditional privilege was abused by Rivello. (Id., ¶¶32-36). Finally, Rivello submits that Lilac Meadows “has failed to allege facts which suggest intentional, reckless or malicious conduct” so as to support a claim for punitive damages. (Id., ¶¶37-42).

Lilac Meadows has filed preliminary objections to Panko’s preliminary objections and asserts that Panko has improperly raised the defense of privilege by preliminary objections rather than via new matter under Pa. R.C.P. 1030(a). (Docket Entry No. 13, ¶¶2-6). Lilac Meadows also claims that objections which are “in actuality a motion for more specific pleading” have been improperly labeled “as a demurrer” by Panko. (Id., ¶¶7-8). Lilac Meadows alternatively requests that it be granted permission “to amend its complaint, if necessary, to show special damages” instead of Panko being granted “a dismissal, with prejudice.” (Id., ¶11).

Lilac Meadows has also filed preliminaiy objections to Rivello’s preliminaiy objections and argues that Rivello has similarly raised the defense of privilege in preliminary objections rather than by new matter. (Docket entry No. 16, ¶¶1-5). Lilac Meadows additionally avers that “a demurrer and a motion for a more specific pleading are legally inconsistent and may not be raised at the same time.” (Id., ¶7). Last, Lilac Meadows attacks Rivello’s challenge to his special damages claim and seeks “an. order requiring defendant Rivello to file a response (sic) pleading to plaintiff[‘]s complaint which does not contain a preliminary objection to the allegations of damages nor a preliminary objection raising the defense of privilege.’” (Id., ¶9).

The parties filed their supporting and opposing memoranda of law between September 27, 2011 and December 28, 2011, and thereafter agreed to submit their preliminary objections on briefs and without the necessity of oral argument. The parties’ preliminary objections are now ripe for disposition and will be addressed in the manner in which they were filed.

II. DISCUSSION

(A) STANDARD OF REVIEW

When considering preliminary objections contesting the legal sufficiency of a pleading, all material facts set forth in that pleading and any exhibits attached to it are admitted as true, as well as all reasonable inferences which may be drawn from those facts. Soto v. Nabisco, Inc., 32 A.3d 787, 790 (Pa. Super. 2011). Preliminary objections seeking the dismissal of a claim may be sustained only in cases that are clear and free from doubt, In re Estate of Savers, 32 A.3d 1241, 1247-48 (Pa. 2011), and to be clear and free from doubt, it must appear with certainty that the law would not permit recovery based upon the facts averred. Rodgers v. Lorenz, 25 A.3d 1229, 1231 (Pa. Super. 2011). If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Butler v. Charles Powers Estate, 29 A.3d 35, 39 (Pa. Super. 2011).

Lilac Meadows has labeled its suit against Rivello and Panko as a slander action. (Docket entry No. 1, ¶18). Defamation, of which libel and slander are methods, “is the tort of detracting from a person’s reputation, or injuring a person’s character, fame or reputation, by false and malicious statements.” Cogley v. Duncan, 32 A.3d 1288, 1289 n. 1 (Pa. Super. 2011); Joseph v. The Scranton Times, 959 A.2d 322, 334 (Pa. Super. 2008), app. dismissed as moot, 603 Pa. 146, 982 A.2d 1223 (2009); Davis v. PPL Sustainable Energy Fund, 2011 WL 7272291, at * 6 (Lacka. Co. 2011). Libel is the malicious publication of printed or written material which tends to blacken a person’s reputation or expose the person to public hatred, contempt or ridicule. Tucker v. Philadelphia Daily News, 577 Pa. 598, 615, 848 A.2d 113, 124 (2004). A slanderous communication is a spoken or transitory form of defamation “intended to lower the view of the target of the communication in the community or.. .to deter third persons from associating with the target.” Reardon v. Allegheny College, 926 A.2d 477, 484 (Pa. Super. 2007), app. denied, 596 Pa. 755, 947 A.2d 738 (2008); Koldjeski v. Colombo, 2009 WL 5124027, at * 3 (Lacka. Co. 2009). Pennsylvania law permits a corporation such as Lilac Meadows to maintain a cause of action for defamation. See, Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa., 314, 319, 182 A.2d 751, 753 (1962) (adopting Restatement (Second) of Torts, §561)

(B) PANKO’S TRUTH DEFENSE

Panko’s first demurrer relates to Lilac Meadows’ allegation in paragraph 20 that “[a]s a direct and proximate result of the false, misleading, and malicious statements” made by Rivello and Panko, Lilac Meadows was “caused to incur additional expenses in an effort to meet Old Forge Borough Council’s additional conditions placed upon [Lilac Meadows] after the land development approval of 2006 and.. .re-approval of April 19, 2011.” (Docket entry No. 1, ¶20). Panko contends that “[b]y complying with the changes imposed by the borough council that were based upon [Panko’s] statements, [Lilac Meadows] admitted the truth of [Panko’s] statements in so complying without objection.” (Docket entry No. 18, p. 6). In light of Lilac Meadows’ apparent payment of the costs of those “additional conditions,” Panko asserts “that [Lilac Meadows’] complaint in its entirety should be stricken and dismissed for its failure to state a cognizable claim for defamation.” (Id.).

It is well settled that truth is an absolute defense to a defamation claim, see, American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 592 Pa. 66, 77-78, 923 A.2d 389, 396 (2007), and that the defendant bears the burden of proving the truth of the defamatory communication. See, 42 Pa. C.S. §8343(b) (1). In addition to claiming that Lilac Meadows violated the approved land development plans and otherwise acted improperly, Panko reportedly accused Lilac Meadows of engaging in “corruption” in pursuing and implementing the land development project. (Docket Entry No. 1, ¶16). As sole authority for the proposition that Lilac Meadows’ compliance with Borough Council’s additional conditions constitutes a binding admission of the truth of Panko’s public allegations, Panko cites McIntyre v. Unemployment Compensation Bd. of Review, 687 A.2d 416 (Pa. Cmwlth. 1997), app. denied, 548 Pa. 640, 694 A.2d 624 (1997). (Docket Entry No. 18, pp. 5-6).

In McIntyre, the Commonwealth Court held that a claimant’s failure to deny that he tested positive for drugs when confronted by his supervisor constituted an admission by silence and was evidence demonstrating his willful misconduct which disqualified him from receiving unemployment compensation benefits. Noting that “the failure of a party to reply to a statement made in his presence or hearing is significant only where the nature of the statement, and the circumstances under which it was made, are such as to render a reply natural and proper,” Id., at 418 (quoting L. Washington & Associates v. Unemployment Compensation Bd. of Review, 662 A.2d 1148, 1149 (Pa. Cmwlth. 1995), the McIntyre court reasoned:

Here, when Bowser told claimant of his positive drug test result, it was the first time claimant was hearing the information from his employer. Claimant ought to have responded if the assertion was untrue since he knew Bowser was in a position, as employer’s operation’s manager, to terminate him. As claimant failed to do so, his silence constituted an admission as concluded by the board.

McIntyre, 687 A.2d at 419. The Commonwealth Court later modified the McIntyre holding and held that a claimant’s failure to deny that drug tests were positive may not be deemed an implied admission where the employer does not ask the claimant whether his drug test results were positive during his administrative proceeding and the claimant does not fail to deny a positive drug test in the face of a direct assertion by the employer. Carson v. Unemployment Compensation Bd. of Review, 711 A.2d 582, 584-585 (Pa. Cmwlth. 1998).

Lilac Meadows’ compliance with Borough Council’s additional demands cannot be construed under McIntyre or Carson as an implied or tacit admission of the truth of Panko’s allegations of corruption and other wrongdoing by Lilac Meadows. The facts at issue in this case are clearly distinguishable from the circumstances presented in McIntyre. In contrast to the factual scenario in McIntyre, Lilac Meadows’ complaint does not suggest that Lilac Meadows was present when Panko allegedly made her slanderous remarks or that Panko was in a position to terminate the land development project if Lilac Meadows failed to deny her allegations. Lilac Meadows simply incurred, and presumably paid, the costs associated with the supplemental conditions imposed by Borough Council in order to move the development project forward to completion. Panko has not cited any defamation precedent recognizing such compliant conduct by a plaintiff as a binding admission of the truth of the defamatory remarks.

Panko bears the burden of proving truth as a defense, and in the context of a demurrer, she must establish that it is clear and free from doubt that based “on the facts averred, the law says with certainty that no recovery is possible.” Betts Industries, Inc. v. Heelan, 33 A.3d 1262, 1265 (Pa. Super. 2011). Panko has not demonstrated that Lilac Meadows’ payment of the costs related to the additional conditions should be declared, as a matter of law, as a binding admission of the truthfulness of the foregoing statements ascribed to Panko. Therefore, her first demurrer to Lilac Meadows’ entire complaint will be overruled.

(C) PANKO’S PRIVILEGE CLAIM

Panko next contends that Lilac Meadow’s defamation suit must be dismissed since her public statements were privileged under 42 Pa. C.S. §8343(b)(2). (Docket entry no. 24, pp. 11-16). Lilac Meadows has filed preliminary objections to Panko’s demurrer based upon privilege and argues that the defense of privilege may only be raised via new matter in a responsive pleading. (Docket entry no. 22, p. 2).

It is beyond dispute that a “privilege to defame is an affirmative defense which may not be decided on preliminary objections.” DeMary v. Latrobe Printing and Publishing Company, 762 A.2d 758, 761 (Pa. Super. 2000), app. denied, 567 Pa. 725, 786 A.2d 988 (2001); Wecht v. PG Publishing Company, 353 Pa. Super. 493, 496, 510 A.2d 769, 771 (1986), app. denied, 514 Pa. 632, 522 A.2d 559 (1987). Where a party erroneously asserts a substantive defense in preliminary objections rather than by new matter, the opposing party must file preliminary objections to the defective preliminary objections; the failure to do so results in a waiver of the procedural defect. Richmond v. McHale, 35 A.3d 779, 782 (Pa. Super. 2012); DeMary, 762 A.2d at 762; Preiser v. Rosenzweig, 418 Pa. Super. 34, 36-37, 614 A.2d 303, 305 (1992) (failure of plaintiff to file preliminary objection to defendant’s filing of preliminary objection asserting absolute privilege as a defense precluded, on basis of waiver, plaintiff from contending on appeal that defendant improperly raised the affirmative defense of privilege by preliminary objection instead of new matter), aff’d, 538 Pa. 139, 646 A.2d 1166 (1994). Instantly, Lilac Meadows has filed preliminary objections to Panko’s improper assertion of her privilege defense by way of preliminary objection rather than in her new matter. Consequently, based upon long-established precedent recognizing that the defense of privilege may only be asserted in new matter, Lilac Meadows ’ preliminary objections to that demurrer will be sustained and Panko’s demurrer based upon privilege will be overruled.

(D) PANKO’S CHALLENGE TO “UNIDENTIFIED STATEMENTS”

In her third preliminary objection, Panko contests Lilac Meadows’ use of the phrase “as well as diverse others” in paragraph 17 of the complaint, and characterizes that language as attempting to incorporate “unidentified statements” as grounds for its defamation claim. (Docket entry No. 7, ¶6). Panko’s original brief in support of her preliminary objections correctly notes that Lilac Meadows has set forth “no facts in its complaint about statements of [Panko] at Borough Council meetings aside from those made at the meeting of November 16, 2010.” (Docket Entry No. 18, p. 9). In her supplemental brief in response to Lilac Meadows’ preliminary objections, Panko clarifies that she simply seeks to strike Lilac Meadows’ “boiler plate” averment utilizing the words “as well as diverse others.” (Docket entry No. 24, pp. 16-17).

A complaint for defamation must, on its face, identify specifically what allegedly defamatory statements were made, and to whom those statements were made. Jaindl v. Mohr, 432 Pa. Super. 220, 229, 637 A.2d 1353, 1358 (1994), aff’d, 541 Pa. 163, 661 A.2d 1362 (1995); Moses v. McWilliams, 379 Pa. Super. 150, 170, 549 A.2d 950, 960 (1988), app. denied, 521 Pa. 631, 558 A.2d 532 (1989). Defamation allegations are subject to dismissal if the complaint fails to provide the requisite specificity. See, Moses, supra; Kryeski v. Schott Glass Technologies, Inc., 9 D. & C. 4th 399, 410 (Lacka. Co. 1991) (defamation averments which do not specifically identify “what was said” and “when it was said” lack sufficient specificity under Moses). Moreover, if the defendant fails to object to unspecific allegations of defamation, [s]he may be subject to amendments of the complaint beyond the one year statute of limitations. See e. g., Olszewski v. Sinclair Broadcast Group, Inc., 62 D. & C. 4th 236, 244 (Luz. Co. 2003) (plaintiff who alleged that defendants broadcasted defamatory statements about him on certain dates “and other occasions,” was permitted “to amend his complaint to more specifically identify the ‘other occasions’ on which the defendants allegedly defamed him.”).

In its complaint, Lilac Meadows identifies certain remarks allegedly made by Panko during the borough council meeting on November 16,2010. (Docket entry no. 1, ¶¶12-16). However, in paragraph 17 of the complaint, Lilac Meadows further avers that “[t]he statements and comments identified and quoted in previous paragraphs in this complaint, as well as diverse others, were made by... defendant Panko...intentionally, willfully, maliciously, and...with knowledge of their falsity or with reckless disregard for their truth or falsity.” (Id., ¶17) (emphasis added). The inclusion of an averment regarding “other” unidentified instances of slander clearly does not satisfy Moses and its progeny by specifically identifying what was said and to whom it was said. Panko will be prejudiced if that phrase is not stricken in that Lilac Meadows may arguably amend its complaint beyond the statute of limitations to include other instances in which Panko purportedly defamed Lilac Meadows. Hence, although Panko’s preliminary objections to the phrase “as well as diverse others” would be more accurately described as a motion to strike rather than a demurrer, see, Pa. R.C.P. 126 (the court may disregard any error or defect of procedure which does not affect the substantial rights of the parties), those preliminary objections will be sustained and the words “as well as diverse others” will be stricken from the complaint.

(E) PLEADING OF SPECIAL DAMAGES

Panko’s final preliminary objection challenges paragraph 20 of the complaint in which Lilac Meadows avers that as a result of Panko’s “false, misleading and malicious statements, [Lilac Meadows] has been caused to incur additional expenses in an effort to meet Old Forge Borough Council’s additional conditions placed upon [Lilac Meadows] after the land development approval of 2006 and.. .re-approval of April 19, 2011.” (Docket Entry No. 1, ¶20). Panko submits that Lilac Meadows’ “complaint of special damages at paragraph 20 should be stricken upon [Panko’s] demurrer.” (Docket Entry No. 18, p. 13; Docket Entry No. 24, p. 20). The crux of Panko’s argument is that paragraph 20 lacks sufficient specificity under Rule 1019(f) in that Lilac Meadows “generally pleads damages in excess of $75,000, but fails to plead the specifies of his (sic) financial harm at paragraph 20 of its complaint.” (Docket Entry No. 24, p. 20).

“Actual” damages in defamation litigation consist of “general” damages and “special” damages. Joseph, 959 A.2d at 344; Sprague v. American Bar Association, 276 F.Supp.2d 365, 368 (E.D. Pa. 2003). “General” damages are those which typically flow from defamation and include injury to reputation, impairment of standing in the community, personal humiliation and mental anguish. Pilchesky v. Gatelli, 12 A.3d 430, 444 (Pa. Super. 2011); Marconi v. Penthouse International Magazine, 754 F.2d 1072, 1079 (3rd Cir. 1985); Sprague, supra. “Special” damages refer to economic harm or pecuniary losses caused by the defamatory communication. Pilchesky, supra; Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. 2000), app. denied, 565 Pa. 634, 771 A.2d 1276 (2001); Beverly Enterprises, Inc. v. Trump, 182 F.3d 183, 188 (3rd Cir. 1999).

Defamatory words are either actionable per se or actionable per quod. “Words that on their face and without the aid of extrinsic evidence are recognized as injurious are actionable per se; words that are actionable per quod are those that the injurious nature appears only in consequence of extrinsic facts.” Joseph, 959 A.2d at 344 n. 23. With words that are actionable per se, only general damages must be established and it is not necessary for the plaintiff to prove special damages. Joseph, 959 A.2d at 344; Brinich, 757 A.2d at 397; Patton v. Pasqualini, 2011 WL 3803505, at * 12 (E.D. Pa. 2011). Words which impute the commission of a crime are deemed actionable per se or slander per se. Joseph, supra; Patton, supra; Moon v. Garibotto, 2010 WL 2812270, at *3 (Lacka. Co. 2010). Since Panko has asserted Lilac Meadows was implicated in “corruption” in connection with the governmental agencies’ approval of the land development plan, see, n. 2, supra, and such activity constitutes a criminal offense punishable by imprisonment, see, 18 Pa. C.S.A. §§4108 and 4701, her public comments are arguably actionable per se. As such, Lilac Meadows is not required to prove special damages.

Lilac Meadows has averred that Panko’s statements “are actionable per se and slanderous per se” and have caused Lilac Meadows “to suffer serious and irreparable injury to its name and reputation.” (Docket entry No. 1, ¶¶18-19). In addition to that claim of “general” damages, Lilac Meadows further asserts that it suffered “special” damages in the nature of the “additional expenses” it incurred and paid to satisfy “Old Forge Borough Council’s additional conditions.” (Id., ¶20). Contrary to Panko’s objection, Lilac Meadows has sufficiently pleaded the special damages that she suffered as a result of Panko’s alleged slander. Lilac Meadows’ complaint “need not cite evidence but only those facts necessary for the defendant to prepare a defense.” Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008); Dempsey Uniform & Linen Supply, Inc. v. Grade Baseball, L.P., 2011 WL 7272292, at * 6-7 (Lacka. Co. 2011). On the contrary, “...the details of items of special damages, pleaded generally, are readily obtainable by discovery.” Com. ex rel Milk Marketing Board v. Sunnybrook Dairies, Inc., 29 Pa. Cmwlth. 210, 214, 370 A.2d 765, 768 (1977); J. Goldstein & Company v. Goldstein, 52 D. & C. 4th 211, 221 (Phila. Co. 2001). Hence, Panko’s final preliminary objection will also be overruled.

(F) DEFAMATORY CHARACTER OF RIVELLO’S COMMENTS

In his first preliminary objection, Rivello demurs to Lilac Meadows’ slander claim on the ground that Lilac Meadows “has failed to plead sufficient facts to establish the defamatory character of [Rivello’s] communications.” (Docket Entry No. 19, p. 3). Rivello submits that he “merely said that the building project did not conform to certain laws and ordinances.” {Id., p. 5). Rivello notes that his comments were made “in the course of debate over the legality of a land development project under Borough ordinances and a debate over whether additional conditions should be placed on the approval of the project.” (Id., p. 4). Rivello argues that his “statements were not of the kind that would grievously fracture [Lilac Meadows’] standing in the community,” as a result of which they do not contain the requisite defamatory character. (Id., at p. 5). Although Lilac Meadows filed a brief in opposition to Panko’s preliminary objections and a “combined brief’ in support of its preliminary objections to the defendants’ preliminary objections, (Docket entry Nos. 20, 22), it has not filed a brief in response to Rivello’s preliminary objections.

In an action for defamation, the plaintiff has the statutory burden to prove: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. Richmond, 35 A.3d at 783 (quoting 42 Pa. C.S. §8343(a)); Catania v. Corestates Bank, 1999 WL 34786594, at *3, 101 Lacka. Jur. 63, 66-67 (1999). It is the function of the trial court to determine, in the first instance, whether the communication at issue is capable of a defamatory meaning. Kurowski v. Burroughs, 994 A.2d 611, 616 (Pa. Super. 2010), app. denied, 608 Pa. 655, 12 A.3d 752 (2010); Davis, supra, at *7. The initial determination of whether a communication is defamatory presents a question of law. MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 124, 674 A.2d 1050, 1053 (1996); Reardon v. Allegheny College, 926 A.2d 477, 484 (Pa. Super. 2007), app. denied, 596 Pa. 755, 947 A.2d 738 (2008).

A communication is defamatory if it (a) tends to lower a person in the estimation of the community, (b) deters third persons from associating with him or her, or (c) adversely affects his or her fitness or the proper conduct of his or her business or profession. Joseph, 959 A.2d at 334; Pellegrino Food Products Company. Inc. v. The Valley Voice, 875 A.2d 1161, 1163-64 (Pa. Super. 2005); Dice v. Johnson, 711 F.Supp.2d 340, 359 (M.D. Pa. 2010). “Pennsylvania courts have held that certain types of communications, although undoubtedly offensive to the subject, do not rise to the level of defamation.” Kryeski v. Schott Glass Technologies, Inc., 426 Pa. Super. 105, 116, 626 A.2d 595, 600-601 (1993), app. denied, 536 Pa. 643, 639 A.2d 29, (1994). Furthermore, a statement that is merely an expression of an opinion cannot constitute slander. Reardon, 926 A.2d at 484; Koldjeski, supra at *4. Additionally, statements which are merely annoying or embarrassing, or nothing more than rhetorical hyperbole or vigorous epithet, are not defamatory. Tucker, 577 Pa. at 615, 848 A.2d at 124; Blackwell v. Eskin, 916 A.2d 1123, 1125 (Pa. Super. 2007).

The only statements set forth in the complaint which are attributable to Rivello relate to his criticism of the land development project and the governmental review process involving Lilac Meadows’ predecessor in interest which reportedly secured land development approval in 2006 and 2011. Specifically, Rivello claimed that the “sewer system was illegal,” the “slope...is greater than what’s allowed,” the “setback variance granted to its predecessor in interest” had been breached, and parking problems would be created by people visiting the Edith Street project residents. (Docket entry No. 1, ¶7-8, 11). Rivello further charged that the zoning variances granted to Lilac Meadows’ predecessor in interest were “rubber stamped” by the local zoning authority. (/&., ¶9). Rivello is also accused of voicing his intent to hire “a good lawyer” to determine whether the project was in compliance with the applicable laws and ordinances and that the developer had crossed “every ‘t’” and dotted “every ‘i.’” (Id., ¶10). Unlike Panko, Rivello did not suggest that Lilac Meadows was involved in some form of corruption in conjunction with the land development project.

Rivello’s statements concern Lilac Meadows’ property rather than the character, condition or fitness of Lilac Meadows itself. It is important to note that Lilac Meadows has not asserted a claim against Rivello for commercial disparagement or trade libel based upon any false and malicious representation regarding the title or quality of Lilac Meadows’ interest in property or goods. Compare, Pro Gold Manufacturing, Inc. v. Tribune Review Newspaper Company, 570 Pa. 242, 247, 809 A.2d 243, 246 (2002); Brennan v. Durso, 2011 WL 2262484, at *3 (Lacka. Co. 2011). Rather, its sole claim in this suit is for slander vis-a-vis Lilac Meadows, Even after affording Lilac Meadows the benefit of all reasonable inferences which may be drawn from its factual allegations relative to Rivello, Lilac Meadows has failed to aver statements that were made by Rivello about Lilac Meadows which are capable of a defamatory meaning. Consequently, Lilac Meadows has failed to state a cause of action against Rivello for the slander of Lilac Meadows. As a result, Rivello’s preliminary objection in the nature of a demurrer will be sustained.

ORDER

And now, this day of April 5,2012, upon consideration of the preliminary objections of defendant Virginia Panko, the preliminary objections of defendant Joseph Rivello, the preliminary objections of plaintiff Lilac Meadows, Inc. to defendants’ preliminary objections, and the memoranda of law submitted by the parties, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. The preliminary objections of defendant Virginia Panko and defendant Joseph Rivello are sustained in part and overruled in part;

2. The second preliminary objection of defendant Virginia Panko in the nature of a motion to strike the words “as well as diverse others” in paragraph 17 of the complaint is sustained and the phrase “as well as diverse others” is stricken from the complaint;

3. The first, second and fourth preliminary objections of defendant Virginia Panko are overruled;

4. The first preliminary obj ection of defendant Joseph Rivello in the nature of a demurrer pursuant to 42 Pa. C.S. §8343(a)(l) is sustained and the slander claim asserted by plaintiff Lilac Meadows, Inc. against defendant Joseph Rivello is dismissed;

5. The second, third and fourth preliminary obj ections of defendant Joseph Rivello are dismissed as moot;

6. The preliminary objections of plaintiff Lilac Meadows, Inc. to the defendants’ preliminary objections based upon privilege are sustained, but in all other respects, the preliminary objections of plaintiff Lilac Meadows, Inc. are overruled; and

7. Within the nexttwenty (20) days, defendant Virginia Panko shall file a responsive pleading to the complaint.

      . Pursuant to Lacka. Co. R.C.P. 1301(a), as amended on January 19, 2007, the compulsory arbitration limits in Lackawanna County are $50,000,00.

      . When referencing Lilac Meadows’ project and the approval of its land development plans by state and local agencies, Panko stated “corruption is going on everywhere.” (Docket entry No. 1, ¶¶12-16). Since Panko’s comments could fairly and reasonably be construed as implying that Lilac Meadows was involved with corruption, her public remarks may be actionable as defamation by innuendo. See, Today's Housing v. Times Shamrock Communications, Inc., 21 A.3d 1209, 1215 (Pa. Super. 2011).

      . Panko predicates her attack on paragraph 20 of the complaint based upon Pa. R.C.P. 1019(f). Since Panko seeks to strike paragraph 20 for that reason, her preliminary objection would be more appropriately designated as a preliminary objection in the nature of a motion to strike pursuant to Pa. R.C.P. 1028(a)(2) governing the “failure of a pleading to conform to law or rule of court...” rather than Pa. R.C.P. 1028(a)(4) addressing “legal insufficiency of a pleading (demurrer).” Inasmuch as Lilac Meadows has not articulated how it has been prejudiced by that misdesignation, Panko’s procedural defect will be disregarded under Rule 126.

      . In light of our disposition of Rivello’s first preliminary objection, it is not necessary to address his remaining objections.


source: Caselaw Access Project

author: TERESHKO, J,

license: Public Domain

text:
    Burley v. University City Science Center

      Leonard Keith Hill, for appellant Burley.

      Allen Richard Bunker, for appellee University City Science Center.

      Joseph P. Guzzardo, for appellee Parkway Corp.

      John T. Donovan, for appellee SpectaGuard Acquisition.
    March 23, 2012
   TERESHKO, J,

PROCEDURAL HISTORY

Plaintiff appeals this court’s orders dated August 12, 2011, granting the motions for summary judgment submitted by defendants University City Science Center and Parkway Corporation.

FACTUAL BACKGROUND

Plaintiff commenced this action by filing her complaint on April 24, 2009. (Complaint, ¶4). OnDecember 21, 2008, plaintiff was employed as a security guard by Spectra Guard Acquisitions d/b/a Allied Barton (hereinafter “Spectra Guard”) at 3665 Market Street. (Complaint, ¶5). The building and garage at 3665 Market Street were owned by University City Science Center. (Complaint, ¶ 5). University City Science Center (hereinafter “UCSC”) contracted with plaintiff’s employer, Spectra Guard for security services at 3665 Market Street. (UCSC’s motion for summary judgment, ¶ 2). The property manager of the parking garage at 3665 Market Street was defendant Parkway Corporation (hereinafter “Parkway.”)

Upon beginning her shift on December 21, 2008, plaintiff was informed by the previous shift supervisor that there was an accumulation of ice in the garage. (Answer to Parkway Corporation’s motion for summary judgment, ¶¶ 20-22). As a shift supervisor, plaintiff was trained to look for safety hazards in the parking garage, including ice and snow. (Deposition of Sheena Epps attached as Exhibit “C” to Parkway’s motion for summary judgment, pg. 33, 5-15, pg. 72 lines 1-10).

If a shift supervisor observed a safety hazard in the parking garage, company procedure required notification of the site supervisor and account manager. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 72, lines 11-15). Once the shift supervisor notified the account manager that the tour could not be conducted completely due to the hazards presented by the ice, the account manager would instruct the shift supervisor how to proceed. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 29, lines 20-22; pg. 72, lines 19-24).

While plaintiff was making her rounds on the night of the accident, she observed the ice her coworker warned her about, and rather than notify the site supervisor or account manager as dictated by company procedure, she proceeded to traverse the ice. (Plaintiff’s deposition attached as exhibit “A” to answer to Parkway’s motion for summaiy judgment, pg. 49, lines 13-24; pg. 29, lines 17-22; pg. 33, lines 1-13). Plaintiff then slipped on the ice, sustaining injury. (Complaint, ¶5).

Plaintiff commenced this action by filing her complaint on April 24, 2009. (See Docket). On June 5, 2009, UCSC filed a joinder complaint against Spectra Guard. Id. UCSC filed an answer to the complaint on July 24, 2009, and Spectra Guard filed an answer to the complaint on July 29, 2009. Id.

Spectra Guard filed a motion for summary judgment on February 24, 2010. Id. UCSC filed an answer to the motion for summary judgment on March 28, 2011 and subsequently filed a motion for partial summary judgment against Spectra Guard on March 29,2011. Id. On April 14, 2011, UCSC filed a joinder complaint against Intermodal Container Corporation and Parkway. Id. On April 29,2011, this court denied Spectra Guard’s motion for summary judgment and granted UCSC’s motion for partial summary judgment. Id.

On May 4, 2011, Parkway filed preliminary objections to the second joinder complaint of UCSC, and this court granted the preliminary objections, dismissing the joinder complaint. Id. Parkway filed a motion for summary judgment on May 19, 2011. Id. UCSC filed a motion for summary judgment on June 1, 2011. Id. Spectra Guard filed a motion for summary judgment on June 7,2011. Id. Plaintiff filed answers to UCSC and Parkway’s motions for summary judgment on July 1, 2011 and July 7, 2011 respectively. Id. On August 9, 2011, this court granted motions for summary judgment submitted by Parkway, Allied Barton and UCSC. Id.

On September 6, 2011, plaintiff appealed this court’s orders of August 9, 2011, granting the motions for summary judgment submitted by Parkway and UCSC. Id. On September 12, 2011, plaintiff filed a praecipe to withdraw the notice to appeal in the lower court and filed two more appeals to Superior Court on the same date challenging the August 9, 2011 orders. Id.

On December 6,2011, the court directed plaintiff to file a concise statement of errors complained of on appeal, and plaintiff complied on December 22, 2011. Id. The issues to be addressed on appeal are:

1) Whether this court erred by granting UCSC’s motion for summary judgment.
2) Whether this court erred by granting Parkway’s motion for summary judgment.

LEGAL ANALYSIS

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2, which states,

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2

In determining whether summary judgment is proper, the record is viewed in the light most favorable to the non-moving party, and all doubts as to whether a genuine issue of material fact exists are resolved against the moving party. Pennsylvania State Univ. v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (Pa. 1992). The appellate court’s scope of review is plenary. O’Donoghue v. Laurel Savings Ass’n, 556 Pa. 349, 354, 728 A.2d 914, 916 (Pa. 1999). A trial court’s decision to grant or deny a motion for summary judgment will only be reversed where the lower court committed an error of law or abused its discretion. Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995). Additionally, “[although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion.” Carrender v. Fitterer, 503 Pa. 178, 185-6, 469 A.2d 120, 124 (1983).

Plaintiff makes the same arguments in her answers to UCSC and Parkway’s motions for summary judgment and therefore the merits of these arguments can be addressed jointly. First, plaintiff asserts that this court erred by granting Parkway and UCSC’s (collectively “defendants”) motions for summary judgment because defendants failed to warn plaintiff of the dangerous condition. However, plaintiff was placed on notice of the icy conditions by the previous shift supervisor, and plaintiff admitted that she observed the ice before she proceeded to walk across it. Additionally, there were no Parkway personnel on the premises on the weekends per the parties’ agreement. (Deposition of Sheena Epps attached as Exhibit “C” to Parkway’s motion for summary judgment, pg. 72, lines 2-10). Thus, unless a Parkway employee was contacted by someone on the premises, Parkway would not have any knowledge of the condition of the property.

The facts in the instant matter are similar to those set forth in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In Carrender, the appellee parked her car next to a patch of ice in appellants’ parking garage despite the availability of other parking spots that were free of ice and despite the knowledge that slippery conditions posed a significant risk to a person with a prosthesis. Appellee then proceeded to walk across the ice to appellants’ chiropractic clinic for her appointment. Upon returning to her car, the appellee slipped and sustained a fracture of her left hip.

The court observed, “appellee’s own testimony showed not only that the existence of the ice was obvious to a reasonably attentive invitee, but also that appellee herself was aware of the ice and appreciated the risk of traversing itC Id. at 186, 124. “By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself.” Id. at 188, 125. Thus, the court concluded that the appellants did not have a duty to warn appellee about the patch of ice in the parking lot as the danger presented would have been apparent, and appellee recognized the inherent risk. Id. at 184, 123.

Plaintiff cites Fierman v. SEPTA, 277 Pa. Super. 252, 419 A.2d 757 (1980), for the premise that an accumulation of ice is relevant to comparative negligence but is not a basis to deny recovery. However, Fierman involved a compromise verdict as a result of inconsistent evidence and contradictory testimony presented by plaintiff at trial. The court held that a compromise verdict was permissible because it was within the province of the jury to weigh the evidence and resolve the inconsistencies presented at trial in order to reach an amount of damages that would adequately compensate the plaintiff. Id. at 255, 759. The facts presented by the parties in the instant matter are not contested. Rather, plaintiff disputes whether or not, on the basis of the facts alleged, defendants owed plaintiff a duty that was breached by defendants’ failure to warn.

Plaintiff also cites Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923 (1960), finding that familiarity with the property did not defeat a plaintiff’s ability to recover. Here, however, defendants are not alleging that plaintiff’s familiarity with the property precludes recovery. Recovery is unwarranted because plaintiff proceeded in the face of a known risk. Plaintiff was informed about the existence of ice in the parking garage, observed the ice, and proceeded to walk across it. Therefore, plaintiff’s actions relieved defendants of any duty that may have been owed.

Second, plaintiff asserts that this court erred by granting defendants’ motion for summary judgment because defendants owed a duty to the plaintiff. However, plaintiff knowingly encountered an open and obvious risk after being warned of the potential danger by her coworker and despite the availability of alternate routes.

Plaintiff observed the risk she had been advised of and chose to encounter it. The risk was obvious because as the court in Long v. Norriton Hydraulics stated, “Ice is always slippery and a person walking on ice always runs the risk of slipping and falling.” In addition to the fact that plaintiff was warned about the ice, and ice is a known and obvious risk, plaintiff had a choice in encountering the risk. Plaintiff testified in her deposition that there was ice everywhere and thus no alternate route; however, per company procedure, plaintiff should have called the site supervisor to say she couldn’t complete her rounds and turned back. By admitting that she observed the ice and recognized the risk and chose not to take an alternate path, plaintiff assumed the risk of injury. Seewagen v. Vanderkluet, 338 Pa. Super. 534, 543 (1985).

Furthermore, plaintiff’s status as an independent contractor relieved defendants of a duty to warn. Despite the fact that defendants had no duty to warn plaintiff of the obvious danger presented by the ice, plaintiff was in fact warned of the ice by her coworker at the start of her shift. The court in Fortune v. Hamilton described the duties owed to an independent contractor as follows:

[A] possessor has no obligation to warn an independent contractor of dangers that would be at least as obvious to the contractor as the owner. Gutteridge v. A.P Green Services, 2002 Pa. Super. 198, 804 A.2d 643, 657 (2002), citing Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 292, 481 A.2d 616, 620 (1984). Pennsylvania courts have synthesized these principles to explain, “The question of whether a landowner owes a duty to warn an independent contractor of dangerous conditions on the premises turns on whether the owner possesses ‘superior knowledge’ or information which places him in a better position to appreciate the risk posed to the contractor or his employees by the dangerous conditions.” Gutteridge, 804 A.2d at 657-658, citing Colloi, 481 A.2d at 620.

Fortune v. Hamilton, 81 Pa. D.&.C 4th 401, 406-407 (2007).

As the risk posed by ice is obvious, neither defendant possessed superior knowledge placing them in a better position to appreciate the risk posed by the ice.

Therefore, because defendants had no duty to warn plaintiff of a risk which was both known and obvious, plaintiff had alternate routes available to her, and company procedure required her to avoid the ice, plaintiff has no right to recover from defendants for her injuries.

CONCLUSION

For the foregoing reasons, this court respectfully requests that its decision to grant defendants Parkway Corporation and University City Science Center’s motions for summary judgment be affirmed.

      . This procedure was recorded in the read-file memo. (Deposition of Sheena Epps attached as Exhibit “C” to Parkway’s motion for summary judgment, pg. 33 lines 14-22).

      . Spectra Guard’s motion for summary judgment was unopposed.

      . The claim against Intermodal Container Corporation remains.

      . 443 Pa. Super. 532, 537, 662 A.2d 1089, 1091 (1995).

      . The court in Seewagen concluded that assumption of the risk remains a viable defense in Pennsylvania.


author: COX, J.,

text:
    Promises for Pets, Inc. v. Council of the City of New Castle

      C.P. of Lawrence County,
    No. 70136 of 2011.

      Susan M. Papa, for appellant.

      Jason A. Medure, for appellee.
    April 4, 2012
   COX, J.,

Before the court for disposition is the notice of land use appeal filed on behalf of the appellant Promises For Pets, Inc., which argues that the Council of the City of New Castle’s decision to deny the appellant’s application for a conditional use to build a no-kill animal shelter was arbitrary and capricious as evidenced by the findings of fact and conclusions of law that indicates the no-kill animal shelter was a permissible conditional use.

The appellant is an Internal Revenue Code 501(c) (3) non-profit organization with its business address at 439 Court Street, New Castle, Lawrence County, Pennsylvania.

In addition, the appellant owns 12.73 acres of real property located at Harbor Street, New Castle, Lawrence County, Pennsylvania. That property is located in an area zoned R-2 Medium Density Residential District pursuant to the City of New Castle Zoning Ordinance. On July 8, 2011, the appellant submitted to the Council of the City of New Castle (hereinafter “City Council”) an application for a conditional use pursuant to § 1329.07 of the City of New Castle’s Zoning Ordinance requesting permission to construct a no-kill animal shelter on the property in question. The application was previously denied by the City of New Castle Planning Commission by a vote of 3-0. City Council then conducted a hearing regarding the appellant’s application on October 18, 2011, which provided the appellant an opportunity to support its application. Members of the community were also allowed to make comments on the issue. It must be noted that the application for the conditional use included a request to construct an approximately 6,000 square foot building and an animal park, in which the appellant intends to preserve the natural environment and permit people to walk their dogs.

At the hearing, Susan M. Papa, Esquire, the President for Promises For Pets, Inc., presented the application on behalf of the appellant. During her presentation, Attorney Papa stated that the appellant’s intent was to build a no-kill animal shelter and still preserve the local habitat and its natural beauty as well. The appellant’s goal is to control the stray animal problem in the local community by creating an open, full-service facility dedicated to protecting the welfare of animals. Moreover, the shelter would be used to educate school students about animal welfare. Attorney Papa stated that the facility would contain state-of-the-art cages made of tempered glass to reduce or eliminate noise and be equipped with double locking mechanisms to prevent human error or mistakes that would lead to animals escaping from the premises. The property would also contain a fence to prevent animals from leaving the premises as well. The plans for the facility included a water and cleaning system to reduce odors that are typically emitted by other animal shelters. Moreover, attorney Papa emphasized that the R-2 Medium Density Residential District permits hospitals, nursing homes, professional offices, schools, churches and apartment buildings. John Altman, the President of the Lawrence County Animal Relief Fund, announced his support of the no-kill animal shelter by referencing Animal Friends located at 562 Camp Home Road, Pittsburgh, Pennsylvania, which, as he explained, maintains a no-kill animal shelter where there are no excessive noise or odor emissions due to the tempered glass cages and the automatic cleaning system.

Conversely, 15 local residents voiced their concerns regarding the proposed conditional use. It must be noted that a large majority of those objections were raised to the location of the shelter as many residents of the West Side of New Castle oppose the building of the animal shelter in their neighborhood. Further, the local residents stated their concerns regarding noise, odors, traffic congestion and an increased amount of stray animals in the Harbor Street area. In addition, it was mentioned that the appellant did not have specific architectural plans set forth for the building at the time of the meeting with City Council. Attorney Papa indicated that the plans would be finalized after approval as it was cost prohibitive to do so before being granted permission for the conditional use because the preliminary engineering costs are approximately $20,000.

On November 16, 2011, findings of fact and conclusions of law were drafted by the Solicitor for the City of New Castle, Jason A. Medure, Esquire. That document stated the criteria for determining whether to grant a conditional use takes into account the effect such a use would have on the immediate surroundings, such as potential noise, traffic congestion, hours of operation, safety and environmental degradation. The document further explained:

Many members of the west side community spoke in opposition to applicant’s request citing many potential problems related to a no-kill animal shelter. However, all concerns related to City Council by the community can be remedied through contingencies placed upon the conditional use. Furthermore, some concerns, although taken into consideration, do not appear to be a true hindrance on the operation of such facility.

As a result, attorney Medure drafted findings of fact and conclusions of law that a conditional use should be granted to the appellant with the following conditions applied:

A. The building shall be no greater than 8,000 square feet;
B. The building shall be fenced with vinyl siding or like material with landscape screening surrounding said fence;
C. The subject property owners shall not place or allow to be placed any natural gas wells directly on the subject property;
D. All animals must be kept indoors between the hours of 8:00 p.m. and 8:00 a.m.;
E. The cages inside the facility will be constructed of tempered glass or a similar material;
F. All gates and cages shall have double locking applications;
G. The no-kill animal shelter building shall be placed on property located on the west side of Harbor Street;
H. The no-kill animal shelter facility shall provide a parking lot and boundary line set-back in accordance with the New Castle zoning ordinance and under the approval of the New Castle zoning officer.

However, the resolution adopted by City Council, in a 3-2 vote, and contrary to the findings of fact and conclusions of law, explained that the appellant’s application for conditional use “is hereby denied in accordance with the attached findings of fact, conclusions of law and decision of New Castle City Council.” The appellant then filed this Notice Of Land Use Appeal on November 23, 2011.

The appellant now contends that the council of the City of New Castle’s decision to deny its application for a conditional use to build a no-kill animal shelter was arbitrary and capricious as evidenced by the findings of fact and conclusions of law that indicates the no-kill animal shelter was a permissible conditional use.

A conditional use is merely a special exception that falls within the jurisdiction of the municipal legislative body instead of the zoning hearing board. Bailey v. Upper Southampton Twp., 690 A.2d 1324, 1326 (Pa. Cmwlth. 1997). “A conditional use is one specifically recognized by the legislature as consistent with the zoning plan.” Northampton Area School Dist. v. East Allen Twp. Bd. of Supervisors, 824 A.2d 372, 376 (Pa. Cmwlth. 2003) (citations omitted). Hence, it is presumed that the particular type of use does not adversely affect the public interest. Id. In reviewing a municipality’s decision to deny an application for a conditional use, the court can only overturn the ruling of a hearing board if there is an error of law or abuse of discretion. City of Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1144 (Pa. Cmwlth. 2006) (citing Great Valley School Dist. v. Zoning Hearing Bd. of East Whiteland Twp., 863 A.2d 74, 78 n. 1 (Pa. Cmwlth. 2004)). In a conditional use case, the applicant first bears the burden of establishing that the application falls within the conditional use provision of the zoning ordinance. Id., 890 A.2d at 1147 (citations omitted). Then, the burden of persuasion shifts to objectors to establish that a detrimental impact will result to the surrounding community. Id., 890 A.2d at 1147-1148. Once the applicant establishes its burden, the presumption arises that the use is consistent with the general welfare and the objectors must establish to a high degree of probability that the proposed use will adversely affect the public welfare. Northampton Area School Dist, 824 A.2d at 377. “Mere speculation as to possible harm is insufficient.” Id.

This issue was addressed in In Re: Thompson, 896 A2d 659 (Pa. Cm with. 2006), where the appellants challenged the decision of the trial court, who reversed the city council’s decision to grant the appellants’ conditional use application. The appellants owned 39.5 acres of real property located in an R-2 zoning district, which means a low density residential district. On the property there is a watercourse, which curves along the southeast boundary of the property and a Riparian Corridor Conservation District (hereinafter “RCCD”) runs on either side of the watercourse. The appellants applied for a conditional use permit to allow a roadway, utility crossings, stormwater discharge and portions of detention basins. The township planning commission reviewed the application and recommended that the city council approve the same. A series of public hearings occurred where nearby property owners, the Thompsons, appeared and presented evidence in opposition to the application. The council approved the appellants’ application for the conditional use and the Thompsons appealed. Without the presentation of additional evidence, the trial court made its own findings of fact and conclusions of law. The trial court sustained the Thompsons’ appeal and reversed the decision of the city council. The appellants then appealed to the Commonwealth Court of Pennsylvania.

The In Re: Thompson court initially noted that the appellants met their burden by presenting evidence that met the requirements of the local zoning ordinance, so the Thompsons assumed the burden of demonstrating that the proposed use would substantially affect the health, safety and welfare of the community. Id., 896 A.2d at 679 (citations omitted). The court further explained, “The burden that is placed upon the objectors requires more than mere speculation of possible harm.” Id. Thus, the objectors must show a high degree of probability that the use would substantially affect the health and safety of the community. Id. In addition, objectors must show that the proposed use would create an adverse impact not normally generated by the type of use proposed. Id. (citing Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 139 Pa. Cmwlth. 206, 590 A.2d 65 (1991)). The Thompsons presented evidence that the construction of a road crossing in the RCCD would require increased impervious surfaces creating more surface water flow and could lead to flooding. Conversely, the council decided that the construction of the proposed roadway would not require more impervious surfaces than would normally be expected with road utilities. The Thompsons also presented testimony critical of the stormwater management system. The council did not find any evidence presented by the Thompsons that convinced it that the stormwater design would be more detrimental than another development on the property. As a result, the In Re: Thompson court ruled, “council’s findings are supported by substantial evidence and supported a conclusion that the Thompsons have failed to put forth sufficient evidence that the proposed use has a detrimental effect on the public health, safety, and welfare not normally generated by the type of use proposed.” Id., 896 A.2d at 680. Hence, the court reversed the trial court’s decision to overturn the council’s approval of the appellants’ application for the conditional use. Id.

In the case sub judice, the appellant is a non-profit organization, which owns 12.73 acres of real property located on Harbor Street, New Castle, Lawrence County, Pennsylvania in an R-2 Medium Density Residential District pursuant to the City of New Castle Zoning Ordinance. The appellant applied for a conditional use to construct a no-kill animal shelter and an animal park. That application was denied by the City of New Castle Planning Commission by a 3-0 vote and the application was then presented to City Council. A hearing was held before City Council on October 18, 2011, at which the appellant presented evidence and testimony in support of the application for a conditional use. Attorney Susan M. Papa spoke on behalf of the appellant and explained the appellant’s desire to construct a no-kill animal shelter and animal park, but still preserve the local habitat. The goal of the animal shelter was to control the increasing stray animal problem by creating an open, full-service facility dedicated to protecting the welfare of animals. Attorney Papa also indicated that the facility would contain state-of-the-art cages for the animals, which included tempered glass to reduce or eliminate noise, double locking mechanisms to alleviate human error giving rise to animal escapes and a cleaning system to reduce odors typically emitted by other animal shelters.

Fifteen residents of the Harbor Street area testified to voice their opposition to the no-kill animal shelter. Most of the objectors noted that they were opposed to the construction of the animal shelter in their neighborhood, which is not a consideration under the applicable zoning ordinance. As such, the court cannot consider those objections. However, several objectors raised other concerns, such as increased noise, odors, traffic congestion and an increase in the amount of stray animals in the Harbor Street area.

On November 16,2011, findings of fact and conclusions of law were drafted by the New Castle City Solicitor Jason A. Medure, Esquire, in which he recognized the aforementioned concerns of the objectors, but determined that the no-kill animal shelter was a permissible conditional use and any of the potential issues regarding that use could be alleviated by placing several conditions upon the use. In spite of the conclusions reached and presented by Attorney Medure, the City Council decided to deny the appellant’s application for a conditional use in a 3-2 vote. The majority of City Council did not make any findings of fact that there would be an increase in noise, odors, traffic congestion or stray animals due to the construction of the no-kill animal shelter to a degree that would adversely impact the community under City of New Castle Zoning Ordinance 1329.06. There was also no finding by City Council that the adverse impact of the no-kill animal shelter would be greater than the enumerated conditional uses as is required by New Castle Zoning Ordinance 1329.07(1).

The decision by City Council is arbitrary as it is in direct conflict with the findings of fact and conclusions of law drafted by Attorney Medure and acknowledged by the City Council in its resolution. Moreover, an examination of the testimony at the hearing before City Council affirms the conditional use requested by the appellant does not create any additional adverse impact on the local community than any of the other conditional uses permitted in an R-2 Medium Density Residential District. The enumerated conditional uses in an R-2 Medium Density Residential District in accordance with New Castle Zoning Ordinance 1329.04(A) are an apartment house, church, cultural service, emergency services station, funeral home, home occupation, hospital, nursing/convalescent home, professional office, public and private school, and three- and four-family dwelling. There is no evidence or finding by city council that demonstrates the no-kill animal shelter would create an additional adverse impact on the community than the construction of an emergency services station, hospital, nursing or convalescent home, funeral home or a school. In fact, any potential noise and odors would be drastically reduced by the proposed safeguards established by the appellant. The tempered glass will greatly reduce any noises or odors produced by the animals housed in the no-kill animal shelter. In addition, odors will be reduced or eliminated by the cleaning system that is to be utilized. The housing units would contain double locking mechanisms to avoid animals escaping due to human error. The appellant also indicated that there would be a procedure for people to bring animals to the shelter that would eliminate the possibility of animals escaping and roaming the local area. There is no indication on the record that the no-kill animal shelter would create more noise than a public or private school or create more traffic congestion than a hospital, which are permitted conditional uses according to the City ofNew Castle Zoning Ordinance. The conditions placed upon the conditional use as stated in the findings of fact and conclusions of law further eliminate or reduce potential issues and ensure that the appellant takes measures to reduce noise, odors and number of stray animals. Examples of those conditions are as follows: the appellant is required to construct a fence on the property made with vinyl siding or a similar material, landscaping is to surround the fence, all animals must be kept indoors between the hours of 8:00 p.m. and 8:00 a.m., the cages must be constructed of tempered glass and all gates must have double locking mechanisms. These measures would reduce the possibility of adverse impacts upon the local community.

The In Re: Thompson case provides guidance on this issue as the court ruled that the proposed conditional use of constructing a roadway did not create any further adverse impact upon the community than any other roadway already constructed. Similarly, there is no evidence presented in this case demonstrating a high degree of probability that the construction of the no-kill animal shelter and animal park would adversely affect the public welfare. The only testimony provided by the objectors is speculation and conjecture that the animal shelter would create noise, odors, traffic congestion and an increase in stray animals. The appellant has presented testimony and a detailed plan that would drastically reduce the amount of noise and odors that are emitted by other animal shelters. Moreover, those measures included in the appellant’s plan are also contained in the conditions placed upon the conditional use as set forth in the findings of fact and conclusions of law drafted by Attorney Medure and included with the adjudication of City Council. The objectors also fail to present evidence that the conditional use requested by the appellant would adversely impact the community in any different manner than several of the other conditional uses permitted by ordinance would generate. Therefore, the court rules that the denial of the appellant’s conditional use by City Council was arbitrary and constituted an abuse of discretion. Hence, the decision of City Council is reversed.

The appellee argued that, in the event its decision is overturned, the conditions stated in the findings of fact and conclusions of law should be imposed upon the conditional use. The appellant accepted the majority of the conditions but, argues that conditions A, C and D placed upon the proposed conditional use were unreasonable. Those conditions are as follows: A. The building shall be no greater than 8,000 square feet. C. The subject property owners shall not place or allow to be placed any natural gas wells directly on the subject property. D. All animals must be kept indoors between the hours of 8:00 p.m. and 8:00 a.m. At oral argument, it appeared that the parties agreed that condition C is moot as it has been preempted by legislative amendments to Section 602 of the Oil and Gas Act, which states, “The Commonwealth, by this enactment, hereby preempts and supersedes the regulation of oil and gas wells as herein defined.” Thus, City Council does not have the authority to regulate oil and gas production.

The court must now determine whether conditions A and D are reasonable. “In granting a conditional use, the governing body may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act in the zoning ordinance.” 53 P.S. § 10913.2(a). The local agency may impose conditions on the conditional use of the property to mitigate any potential adverse impacts from the proposed use to lower the negative impacts to an acceptable level, if that is possible. In re: Maibach, LLC, 26 A.3d 1213, 1216 (Pa. Cmwlth. 2011) (citing Edgment Twp. v. Springton Lake Montessori Sch., Inc., 154 Pa. Cmwlth. 76, 622 A.2d 418 (1993)). “Reasonable conditions are those that advance a valid zoning interest, are supported by the record, and relate to the specific zoning ordinance at issue.” Id. (citing HHI Trucking & Supply, Inc. v. Borough Council of Borough of Oakmont, 990 A.2d 152 (Pa. Cmwlth. 2010)).

In the current matter, the appellant acknowledged that it proposed the construction of a facility of approximately 6,000 square feet, which is less than the size restriction contained in condition A imposed by City Council. However, the appellant expressed that it does not want to be limited in the size of the structure it can build on the property as it owns 12.73 acres and 6,000 square feet would be a small portion of that property. City Council contends that 8,000 square feet was more area than the appellant proposed and it believes that a building that size would be sufficient for the appellant’s needs. City Council further argues that limiting the size of the facility serves to restrict the amount of animals that could be kept on the property, which would alleviate some of the concerns raised by the local residents such as the odor and noise. However, the zoning ordinance does not specifically limit the size of a building regarding the creation of a kennel or animal shelter in R-3 High Density Residential Districts where those are enumerated conditional uses. Moreover, New Castle Zoning Ordinance 1329.06 does not place any limitations upon the size of an apartment house, funeral home, emergency services station, hospital, nursing home, professional office or school, which are conditional uses in an R-2 Medium Density Residential District. City Council has failed to present a valid reason for and evidence in support of the limitation upon the size of the facility. By imposing a limitation on the size of the facility, City Council has placed an unreasonable restraint on the appellant’s ability to use the property for the purpose of creating a no-kill animal shelter and there is no reasonable basis for that restraint. Thus, the court will strike condition A, which limits the size of the appellant’s facility to 8,000 square feet.

The appellant also avers that condition D, which mandates that all animals must be kept indoors between the hours of 8:00 p.m. and 8:00 a.m., is unreasonable. However, a review of the local zoning ordinance also imposes this condition upon kennels, which are similar uses as the one proposed by the appellant. This condition clearly addresses a specific issue raised by the local residents, who feared an increase in noise would affect their daily lives. By imposing this condition, City Council attempted to ensure that any noise emitted by animals outside of the facility would be restricted to the day time in order to avoid interrupting the sleep patterns of the majority of the local residents. Moreover, any fears of the animals escaping at night would be alleviated by this condition. As a result, the court finds that this condition is a reasonable restriction on the conditional use proposed by the appellant as it advances valid zoning interests and mitigates several possible adverse impacts of the no-kill animal shelter.

For the reasons set forth in this opinion, the appellant’s notice of land use appeal is granted in part and denied in part. The court agrees that City Council abused its discretion in denying the appellant’s application for a conditional use and by placing a condition limiting the size of the building. However, the court affirms City Council imposing the restriction that all animals must be kept indoors between the hours of 8:00 p.m. and 8:00 a.m.

ORDER OF COURT

Now this April 4,2012, this case being before the court on February 27, 2012, for oral argument on the notice of land use appeal filed by the appellant, with both parties appearing through their counsel, the appellant Promises For Pets, Inc., represented through counsel, Susan M. Papa, Esquire and the appellee, Council of the City of New Castle, PA., represented through counsel, Jason A. Medure, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the adjudication dated November 16, 2011, by the Council of the City of New Castle denying the conditional use of a no-kill animal shelter requested by Promises For Pets, Inc. is hereby reversed.

2. A conditional use for the operation of a no-kill animal shelter is granted to Promises For Pets, Inc., to operate such a facility and animal park at its land situate on Harbor Street, New Castle, Lawrence County, Pennsylvania, located in an R-2 Medium Density Residential District.

3. The operation of such a facility shall be subject to the conditions contained in paragraph 9.b, d, e, f, g and h contained in the findings of fact and conclusions of law dated November 16, 2011, and such conditions are incorporated herein as if more fully set forth in full.

4. The Prothonotary is directed to serve a copy of this order of court upon counsel of record, Susan M. Papa, Esquire and Jason A. Medure, Esquire.

      . This language is taken from 2011 PAH.B. 13 (NS), which amends the language currently in 58 P.S. § 601.602.