author: RUEST, J,

text:
    Bostwick v. Thomas

      Richard L. Vanderslice, for plaintiff.

      David D. Engle, for defendant Thomas.

      Fredrick Farber, for defendant Ripka.

      Geoffrey S. Shuff for defendant PNC Bank.
    November 12, 2009
   RUEST, J,

Presently before the court is a complaint filed by plaintiff James S. Bostwick P.C. on February 4,2008. Upon consideration of evidence presented at a non-jury trial and of proposed findings of fact and conclusions of law, the court finds in favor of defendants.

PROCEDURAL HISTORY

Plaintiff filed a complaint against defendants on February 4, 2008, simultaneous with an application for registration of foreign judgment. Defendant Connie J. Ripka filed an answer and new matter on February 25, 2008. Plaintiff filed an answer to defendant Ripka’s new matter on April 16, 2008. Defendant PNC Bank N.A. subsequently filed an answer to plaintiff’s complaint, new matter, and cross-claims on July 17,2008. Defendant PNC’s new matter and cross-claims were resolved by stipulation of the parties. Plaintiff filed a motion for summary judgment on March 17, 2009. Defendant Richard Todd Thomas filed an answer and new matter to plaintiff’s complaint on June 4,2009. The court denied plaintiff’s motion for summary judgment in an opinion and order filed August 13,2009. Anon-jury trial washeldon September 14, 2009.

Defendant Thomas and defendant Ripka filed post-trial briefs on the issue of damages.

FINDINGS OF FACT

(1) Defendant Thomas was employed as a bookkeeper for plaintiff’s law practice from 1995 through 2005.

(2) During the time he was employed by plaintiff, defendant Thomas embezzled funds from plaintiff’s accounts for his own personal use.

(3) Plaintiff obtained a judgment against defendant Thomas in the Superior Court of Marin County, California, awarding $19,837,866.14 to plaintiff.

(4) On or about September 15, 2000, defendant Thomas purchased a home located at 125 Harvest Run Road in State College, Centre County, Pennsylvania.

(5)Defendant Thomas’ mother, defendant Ripka, moved into the home shortly thereafter, where she continues to reside.

(6) Defendant Ripka did not pay rent for living in the home, but she maintained the property and added improvements to the house at her own expense.

(7) The home was conveyed by deed from defendant Thomas to defendant Ripka on or about February 15, 2006 for stated consideration of $1.

(8) Defendant Ripka encumbered the property with a mortgage from PNC Bank N.A., in the amount of $80,300.50 on February 27, 2006.

(9) Defendant Ripka placed a second mortgage on the property, also from PNC Bank N.A., in the amount of $5,000 on November 1, 2006.

(10) Defendant Ripka sent some of the proceeds of these mortgages, as cash via FedEx, to defendant Thomas in California.

(11) Defendant Ripka also used some of the proceeds to pay off an automobile loan and some other personal expenses.

(12) Defendant Ripka did not know about defendant Thomas’ embezzlement before the home was conveyed to her.

(13)Defendant Ripka took out the first mortgage before she knew about defendant Thomas’ embezzlement. Defendant Ripka knew about the embezzlement before she took out the second mortgage.

CONCLUSIONS OF LAW

(1) Actual fraud requires proof by clear and convincing evidence. 12 Pa.C.S. §5104(a)( 1); Moser v DeSetta, 527 Pa. 157, 589 A.2d 679 (1991); Laughlin v. McConnel, 201 Pa. Super. 180, 190 A.2d 921 (1963).

(2) Clear and convincing evidence is evidence that is so clear, direct, weighty, and convincing that it enables the trier of fact to come to a clear conviction without hesitance of the truth of the precise facts at issue. Matter of Sylvester, 521 Pa. 300, 555 A.2d 1202 (1989).

(3) “A transfer made ... by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made... if the debtor made the transfer... with actual intent to hinder, delay, or defraud any creditor of the debtor[.]” 12 Pa.C.S. §5104(a)(1).

(4) The court must consider, among other factors, 11 factors in determining whether there was actual intent to hinder, delay, or defraud a creditor. 12 Pa.C.S. §5104(b). Those factors are whether:

(1) the transfer was to an insider;

(2) the debtor retained possession or control of the property transferred after the transfer;

(3) the transfer or obligation was disclosed or concealed;

(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;

(5) the transfer was of substantially all the debtor’s assets;

(6) the debtor absconded;

(7) the debtor removed or concealed assets;

(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;

(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and

(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

DISCUSSION

Plaintiff contends defendant Thomas fraudulently conveyed the Harvest Run Road property to defendant Ripka, under both actual fraud and constructive fraud theories as defined by the Pennsylvania Uniform Fraudulent Transfer Act (PUFTA), 12 Pa.C.S. §5101 et seq. To succeed under a claim of fraud, plaintiff must prove, by clear and convincing evidence, that defendant Thomas acted “with actual intent to hinder, delay or defraud.” 12 Pa.C.S. §5104(a)(1). The court will consider, among other factors, 11 factors in determining whether defendant Thomas had actual intent to defraud plaintiff.

The court previously addressed these 11 badges of fraud in its opinion and order dated August 13, 2009, denying plaintiff’s motion for summary judgment. These factors must be revisited in light of testimony and evidence presented at the non-jury trial on September 14, 2009.

The first factor considers whether the transfer was to an insider. Defendant Thomas concedes that the transfer at issue was made to an insider as it was between a parent and a child. The court does not need to address this factor further.

The second factor considers whether the debtor retained possession or control of the property transferred after the transfer of the legal title. Plaintiff alleges defendant Thomas maintained control over the property, instructing his mother, defendant Ripka, to encumber it with a mortgage and to give the proceeds of that mortgage to him. Defendant Thomas maintains he did not retain possession of the property and that defendant Ripka encumbered the property with two mortgages to pay off her vehicle loan and to pay him for the value of the property through monthly amounts that went towards his support. Plaintiff did not present sufficient evidence to prove clearly and convincingly that defendant Thomas maintained control over the property. Defendant Ripka testified that she obtained the mortgages of her own free will, and was not instructed to do so by defendant Thomas.

The third factor considers whether the transfer was disclosed and not concealed. Plaintiff alleges the transfer was done covertly between defendant Thomas and defendant Ripka. Defendants Thomas and Ripka maintain the deed was promptly recorded and publicly available. The evidence shows no effort was made to conceal the transfer. Plaintiff’s president, James S. Bostwick, testified that he was never told about the existence of the Harvest Run Road property and that his lawyers found it through an internet search. This failure by defendant Thomas to inform plaintiff of the existence of the property does not amount to concealment.

The fourth factor considers whether plaintiff had sued or threatened to sue defendant Thomas before the transfer was made. Defendants do not dispute that plaintiff had filed suit against defendant Thomas in California prior to the transfer. Defendant Ripka testified that she did not know about the suit against defendant Thomas prior to the transfer.

The fifth factor considers whether the transfer was of substantially all of the debtor’s assets. Plaintiff alleges it was. Defendants maintain defendant Thomas had other assets, including real property located in Novato, California. Evidence presented at the trial showed that defendant Thomas did have significant other assets in California, and that the Harvest Run Road property was a minority of his assets.

The sixth factor considers whether the debtor absconded. Defendants maintain defendant Thomas remained in the Betty Ford Clinic, where he continued to undergo treatment. Defendant Thomas argued being in a treatment facility is not absconding. The court agrees that defendant Thomas did not abscond.

The seventh factor considers whether the debtor removed or concealed any assets. Plaintiff alleges the transfer of the property from defendant Thomas to defendant Ripka was intended to conceal the property from plaintiff and to remove it beyond plaintiff’s reach in seeking to enforce its judgment. Defendants maintain the property was deeded to defendant Thomas’ mother and that plaintiff was already aware of the existence of the property. The court determines plaintiff was not aware of the property at the time of the conveyance. The court further determines defendant Thomas did not convey the property to defendant Ripka to conceal the asset, but because he intended for his mother to have the property from his initial purchase.

The eighth factor considers whether the value of the consideration received by the debtor was reasonably equivalent to the value of the property. Plaintiff alleges the property is valued at between $200,000 and $300,000 and that defendant Ripka only promised to pay $1 and consideration of natural love and affection. Defendants maintain the property is properly valued at $185,000. Defendant Ripka took out two mortgages totaling $85,300.50 and paid approximately $80,000 of the mortgage proceeds to defendant Thomas. Defendant Thomas argues that $80,000 is reasonably equivalent to $185,000, especially when considered in the context of an intrafamilial transfer of property. Defendants furthermore maintain that defendant Ripka will repay to the mortgagor, PNC, $158,525.80 over the life of the loans.

The court determines it does not need to set a precise value for the property. Plaintiff obtained his value from PNC’s assessment of the property as having a market value of $270,000 at the time of the first loan in 2006. The court finds this figure to be unreliable in light of the current economic crisis. In 2006, banks and lending institutions were in the midst of a lending frenzy, with property values in many cases overstated to facilitate large loans that could be packaged and sold to investors. The court considers any market value information from a banking or lending institution — absent other corroborating evidence — to be inherently suspect. The court determines defendant Ripka’s estimate that the property is worth $185,000 to be closer to the actual value.

Defendants concede that the ninth and tenth factors have been met as defendant Thomas was insolvent at the time of the transfer and as the transfer occurred shortly after plaintiff had filed suit against defendant Thomas in California.

The eleventh factor is inapplicable to the facts of the case.

The court determines defendant Ripka did not know about defendant Thomas’ embezzlement or plaintiff’s lawsuit at the time of the transfer and the first mortgage. Defendant Ripka paid $80,000 to defendant Thomas out of the proceeds of the mortgage, amounting to nearly half of the $ 185,000 at which defendant Ripka estimated the property to be valued. This amount would be suspicious but for the nature of the sale as an intrafamilial transfer, which will often occur for far less than market value. Defendant Ripka has lived in, maintained, and improved the property at her sole expense since its purchase in 2000. The court therefore determines there was no fraud, actual or constructive, in the conveyance of the property to defendant Ripka.

Accordingly, the following is entered:

VERDICT AND ORDER

And now, November 12, 2009, following a non-jury trial held in the above captioned case, upon consideration of the evidence submitted at that trial, plaintiff James S. Bostwick P.C.’s complaint is denied. Verdict is entered in favor of defendant Richard Todd Thomas; defendant Connie J. Ripka; PNC Bank, National Association; and unknown residents 1-10, inclusive.


source: Caselaw Access Project

author: CULLEN, J.,

license: Public Domain

text:
    Schultz v. Solar Connection Inc.

      Kevin J. Dempsey, for plaintiffs.

      J. Bruce McKissock, for defendants.
    January 20, 2009
   CULLEN, J.,

Pending before the court are the amended motion for summary judgment filed by defendant, Solar Connection Inc., and plaintiffs’ cross-motion for partial summary judgment. Both filings focus on the same question — the validity of a release executed by plaintiffs prior to embarking on a hot air balloon ride. Based on the record before it, the court concludes that the answer to this question requires the resolution of factual issues beyond the scope of summary judgment. Accordingly, both defendant’s amended motion and plaintiffs’ cross-motion will be denied.

PROCEDURAL AND FACTUAL HISTORY

Vinessa Schultz and Chester Shultz, plaintiffs, initiated this action by filing a complaint on August 3,2007. Defendant, Solar Connection Inc., t/a Balloon Flights Daily a/k/a The United States Hot Air Balloon Team, filed an answer and new matter and counterclaim on September 7,2007. After the pleadings closed, the parties engaged in discovery. Defendant filed a motion for summary judgment on October 15, 2008, and subsequently filed an amended motion for summary judgment on October 29, 2008. On October 31, 2008, plaintiffs filed a cross-motion for partial summary judgment.

Plaintiffs seek compensation for injuries to Mrs. Schultz allegedly sustained as a result of defendant’s operation of a hot air balloon in which plaintiffs and others were riding as paying passengers. At the conclusion of the ride, the hot air balloon’s pilot selected a landing site. However, upon descent, the pilot realized that the hot air balloon was closer to electrical wires than anticipated. On landing, the pilot instructed all of the passengers to evacuate the basket of the hot air balloon for safety purposes. Mrs. Schultz claims that she suffered injuries to her right knee and foot while jumping from the basket. Her husband is asserting a derivative claim for loss of consortium based on his wife’s injuries.

Plaintiffs contend that defendant is liable for the harm they suffered which, they argue, was the direct result of defendant’s negligent conduct in operating the balloon. Defendant argues that plaintiffs signed a binding release agreeing, inter alia, not to sue or make a claim against defendant for injuries or damages sustained as a result of plaintiffs’ participation in hot air ballooning activities. Plaintiffs counter that the document they signed is not a valid release as a matter of law. The parties have submitted arguments in support of their respective positions regarding the validity of the release.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 provides in pertinent part: “[ajfter the relevant pleadings are closed ... 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 discoveiy 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.

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material facts exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubt as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only where the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Wright v. Allied Signal Inc., 963 A.2d 511, 514 (Pa. Super. 2008) (citing Gutteridge v. A.P. Green Services Inc., 804 A.2d 643, 651 (Pa. Super. 2002)).

The purpose of the summary judgment procedure is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Phaff v. Gerner, 451 Pa. 146, 151, 303 A.2d 826, 829 (1973). The court “must ignore controverted facts appearing only in the pleadings” and restrict its consideration to material “filed in support of and in opposition to the motion for summary judgment” and the “uncontroverted” allegations of the pleadings. Id. at 151, 303 A.2d at 830; Washington Federal Savings & Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986).

In opposing a motion for summary judgment and putting forth his or her evidence, the non-moving party cannot rest on the allegations or denials in the pleadings. Rapagnani v. Judas Co., 136 A.2d 666, 668 (Pa. Super. 1999). “Rather, the adverse party must identify evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id. at 668-69.

The facts underlying the parties’ positions may be summarized as follows.

Plaintiffs paid defendant $318 for a recreational hot air balloon ride to take place on September 10, 2005. (Compl. a^5; compl. exhibit A; ans. ¶5; V. Schultz dep. at 10-11.) On the date of the flight and prior to the ride, defendant’s pilot, Stan Hess, approached each of the seven passengers individually and presented a clipboard with a release for each of the passengers to sign. (V. Schultz dep. at 25.) The release was a two-sided document. (Exhibits to def. mot. s.j., exhibit C, “Balloon passenger assumption of risk and release of liability.”) The operative terms were on one side and the signature page was on the other. (Id.) Plaintiffs were presented the clipboard with the signature page side facing up. (V. Schultz dep. at 26-27.) Plaintiffs printed and signed their names on that signature page. (Id. at 28.) Plaintiffs made no inquiry as to what they were being asked to sign. (Id. at 25-28; C. Schultz dep. at 7-11.) Plaintiffs do not recall defendant informing them that they were signing a release of liability. (V. Schultz dep. at 27.) Mr. Hess stated that he had no recollection of presenting the release to plaintiffs. (Hess dep. at 39.)

Plaintiffs entered the basket of the hot air balloon which was piloted and controlled by Mr. Hess. (Id. at 43.) At the conclusion of the flight, Mr. Hess selected the landing site for the hot air balloon and initiated the descent. (Id. at 52.) When Mr. Hess became aware that the landing site he had selected was traversed by electrical wires he informed the passengers, including plaintiffs, that their safety was in danger. (Id. at 52-63.) As the hot air balloon neared the ground, Mr. Hess instructed the passengers to get out of the basket. (Id. at 62-63.) Once the balloon was on the ground, Mrs. Schultz jumped from the basket and suffered injuries as a result. (V. Schultz dep. at 41, 44-45.)

Mrs. Schultz claims that defendant’s negligent operation of the hot air balloon was the cause of her injuries. (Compl. at ¶¶18-21.) Her husband’s claim is for loss of consortium based upon the injuries sustained by his wife. (Id. at ¶¶22-23.)

In its motion, defendant argues that plaintiffs’ claims should be dismissed because they signed a release prior to the hot air balloon ride. Defendant provides three grounds why plaintiffs should have known they were signing a release and not merely providing their names as part of a passenger list. First, defendant argues that even if the side which contained all of the operative language was not presented face up, the signature page which plaintiffs signed contained language sufficient to place plaintiffs on inquiry notice that they were signing something with legal significance. (Def. am. mot. s.j. at ¶14.) Specifically, the top of the signature page contained the following language: “ *parent/guardian of passengers must sign if under 18 years of age.* ” (Exhibits to def. mot. s.j., exhibit C, release.) Second, defendant contends that it explained the release to the passengers prior to signature and has obtained affidavits from three passengers on the same hot air balloon ride as plaintiffs attesting that the document was explained to them in full prior to signing on the day of the flight. Therefore, defendant argues that plaintiffs’ contention that the release was not explained to them is false. (Def. am. mot. s.j. at ¶13; exhibits to def. mot s.j., exhibits F-H.) Third, defendant asserts that plaintiffs should have known that a company which takes patrons on a hot air balloon ride would not do so without obtaining signed releases in advance, especially “in this day and age of widespread tort litigation[.]” (Def. am. mot. s.j. at ¶14.)

In response, plaintiffs admit to signing the release, but argue that they were not informed of what they were signing and actually believed the signature page to be a passenger list for the hot air balloon ride. (PL br. in opp. to def. am. mot. s.j. at 9-11.) Further, plaintiffs maintain that the release fails as a matter of law because defendants provided no consideration for plaintiffs’ execution of the release. (Id. at 4, 7-9.) Plaintiffs state that they paid for the September 10, 2005 hot air balloon ride on July 12, 2005, and attached a copy of a receipt. (Id. at 7-8; compl. at ¶5; ans. at ¶5.) Therefore, plaintiffs posit that they received no consideration for the release they signed on September 10, 2005. (PL br. in opp. to def. am. mot. s.j. at 8.)

Plaintiffs’ cross-motion for partial summary judgment sets forth these same arguments why the release is invalid or should be set aside. (PL mot. partial s.j. at ¶¶8-14.)

Plaintiffs’ contention that the release fails as a matter of law for lack of consideration is without merit. A written release or promise, made and signed by the person releasing or promising, is not invalid or unenforceable for lack of consideration if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound. Wahsner v. American Motors Sales Corp., 597 F. Supp. 991, 998 (E.D. Pa. 1984) (applying Pennsylvania law). Fiere, the language of the release expressly states in pertinent part:

“For good and valuable consideration, the receipt and sufficiency of which the passenger heirs and assigns, hereby forever releases, waives and discharges owner/ operator/pilot in command, its officers, employees, directors, and shareholders from all liability to passenger, his/ her spouse, legal representative, heirs, and assigns, for any and all loss or damage, and any person or property, even injury resulting in death of passenger, whether caused by the active or passive negligence of owner/ operator/pilot in command or otherwise, while passenger is participating in the hot air balloon flight, including launch and landing....

“Passenger expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the state of which the flight originated, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. . . (Exhibits to def. mot. s.j., exhibit C, release.) (emphasis added)

By virtue of the italicized language above, plaintiffs acknowledged that they received consideration and intended to be legally bound in signing the release. Accordingly, plaintiffs’ argument that the release fails as a matter of law for lack of consideration cannot be sustained.

In addition, based upon the record, it appears the parties contemplated an overall transaction, even though it may not have been completed immediately, and not a series of separate transactions. Plaintiffs certainly did not obtain the hot air balloon ride immediately upon payment of the $318 fee. It is obvious that further steps would be required to complete the parties’ contract. Which services defendant would provide and under what conditions is not entirely clear. From the information presented, one may reasonably conclude that plaintiffs purchased a “package” from defendant, the particulars of which are as yet undefined. It can be said, however, that the parties did not enter into a series of separate transactions and plaintiffs have cited no authority which would allow the court to treat the proffered release as a separate transaction as plaintiffs argue.

The court will now address the issue raised in both the amended motion for summary judgment and the cross-motion for partial summary judgment, i.e., whether the release is enforceable against plaintiffs under the circumstances presented.

Under Pennsylvania law, in the absence of fraud or mutual mistake, a release is enforceable according to its terms. Roth v. Old Guard Insurance Co., 850 A.2d 651, 653 (Pa. Super. 2004). Mutual mistake may be sufficient to set aside a release. Leyda v. Norelli, 387 Pa. Super. 411, 413, 564 A.2d 244, 245 (1989). For example, an otherwise enforceable release may be avoided where there was a mutual mistake between the parties as to a past or present fact material to the release, or a misidentification of the parties released. Price v. Ross, 339 Pa. Super. 461, 489 A.2d 252 (1985); Blanchfield v. PennDOT, 100 Pa. Commw. 62, 513 A.2d 1156 (1986). If the mistake is unilateral instead of mutual, and is not due to the fault of the party not mistaken but rather resulted from the negligence of the one who acted under the mistake, it affords no basis for setting aside a release. Ford Motor Co. v. Buseman, 954 A.2d 580, 586 (Pa. Super. 2008).

In the present case, it is clear that there was no mutual mistake. Defendant was aware that the document it presented on the clipboard for plaintiffs and the other passengers to sign was, in fact, a release. However, plaintiffs believed the signature page of the release was a passenger list on which they put their names and signatures upon request by defendant. Viewing the record in the light most favorable to plaintiffs, a genuine issue of material fact exists with respect to whether the sentence at the top of the signature page which states “ *parent/guardian of passengers must sign if under 18 years of age* ” and the attendant circumstances imposed a duty upon plaintiffs to inquire into the nature of the document which they signed. A jury may find that these circumstances did not trigger a duty to inquire and that the failure to do so did not amount to negligence on plaintiffs’ part. Further, a jury may view the recreational activity of riding in a hot air balloon as one which does not necessarily imply a release be executed prior to participation and decide that this additional fact created no duty on the part of plaintiffs to examine both sides of the document presented to them for signature. The court notes that although defendant has obtained affidavits from three of the passengers from the same hot air balloon ride as plaintiffs, each attesting that defendant fully explained the significance of the release prior to the ride, such affidavits may not be dispositive on the issue of whether defendant explained the same to plaintiffs. An explanation of the document as a release of liability to one passenger may not necessarily mean an explanation of the document was given to another. In short, the record is insufficient to warrant the court in finding as a matter of law that plaintiffs should have known that what they were signing was a release of liability. A jury may conclude, based on all the evidence, that plaintiffs had no duty to inquire into the purpose of the document they signed. Accordingly, defendant’s amended motion for summary judgment will be denied.

Viewing the record in the light most favorable to defendant, with respect to plaintiffs’ cross-motion, a genuine issue of material fact exists for the same reasons. Whether the sentence at the top of the signature page which states “ *parent/guardian of passengers must sign if under 18 years of age* ” and the attendant circumstances imposed a duty upon plaintiffs to inquire into the nature of the document which they signed is a matter for the fact-finder. A jury could reasonably find that these circumstances triggered a duty to inquire and that the failure to do so amounted to negligence on plaintiffs’ part and, therefore, the release may be valid and binding. Further, a jury could view the recreational activity of riding in a hot air balloon as one which necessarily implies a release be executed prior to participation and determine that this additional fact created a duty on the part of plaintiffs to examine both sides of the document presented to them for signature. The jury may also draw reasonable inferences from the testimony of other passengers concerning the execution of the release.

As with defendant’s amended motion, the existence of factual issues precludes a definitive conclusion by the court at this juncture that plaintiffs are entitled to prevail as a matter of law. Accordingly, plaintiffs’ cross-motion for partial summary judgment will also be denied.

ORDER

And now, January 20, 2009, upon consideration of defendant’s amended motion for summary judgment and plaintiffs’ cross-motion for partial summary judgment, it is ordered that both the amended motion for summary judgment and the cross-motion for partial summary judgment are denied.

      . “Inquiry notice” is defined as “[n]otice attributed to a person when the information would lead an ordinarily prudent person to investigate the matter further.” Cope v. Insurance Commissioner of the Commonwealth, 955 A.2d 1043, 1055-56 (Pa. Commw. 2008) (citing Blacks Law Dictionary 1091 (8th ed. 2004)).

      . Although defendant argues that the quoted language was in a bold typeface, the court notes that the signature page is entirely in a bold typeface. Thus, the fact that the quoted language was in a bold typeface does not have the salient effect which defendant claims. The quoted language does not stand out relative to the other language on the page.

      . For example, was the flight scheduled for September 10, 2005, irrespective of weather conditions on that date and, if so, what did the agreement provide in the event of adverse weather conditions.


author: CULLEN, J,

text:
    Gregorzek v. Garden Spot Middle School

      Christopher M. Reeser, for plaintiff.

      Charles W Marsar, Jr., for defendants.
    February 25, 2009
   CULLEN, J,

Pending before the court is the motion for summary judgment filed by defendants, Garden Spot Middle School and Eastern Lancaster County School District. Defendants seek dismissal of plaintiff’s complaint on the ground that her claim against defendants is barred by the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§8541 et seq. Based on the record before it, the court concludes that the area where plaintiff fell is not a “sidewalk” and, therefore, the Act does not bar this action. Accordingly, defendants’ motion for summary judgment will be denied.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff, Jean Gregorzek, was employed by Lancaster-Lebanon Intermediate Unit 13 as a paraeducator/interpreter assigned to Garden Spot Middle School in the Eastern Lancaster County School District.

On March 8, 2005, at approximately 3 p.m., plaintiff was escorting one of her students out of Garden Spot Middle School after the 2:45 p.m. school day dismissal. The student whom plaintiff was escorting slipped and fell on ice on a cement walk located under a canopy directly outside the school doors, pulling plaintiff down in the process. As she fell, plaintiff struck her head on a brick pillar and sustained injuries for which she received medical treatment and physical therapy. Plaintiff claims that the cause of her fall was the sheet of ice on the area under the canopy in front of the school.

On March 2, 2007, plaintiff initiated this action by filing a complaint against defendants, Garden Spot Middle School and Eastern Lancaster County School District. In the complaint, plaintiff alleges that defendants were negligent by allowing ice to form and accumulate in the area in which plaintiff fell and for failing to remove the ice and snow from that area. She seeks to recover monetary damages for the injuries and losses she sustained as a result of defendants’ alleged negligence. (Compl. at ¶¶37-44.)

Defendants filed an answer and new matter on April 18,2007. After the pleadings closed, the parties engaged in discovery. The motion for summary judgment was filed on July 9,2008. Plaintiff filed her response on August 6,2008, and defendants submitted a reply on August 14, 2008. The court heard oral argument on December 23,2008, and allowed the parties an opportunity to submit further argument in support of their respective positions.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 provides in pertinent part:

“[a]fter the relevant pleadings are closed . . . 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.

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontraverted [sic] allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only where the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Wright v. Allied Signal Inc., 963 A.2d 511, 514 (Pa. Super. 2008) (citing Gutteridge v. A.P. Green Services Inc., 804 A.2d 643, 651 (Pa. Super. 2002)).

The purpose of the summary judgment procedure is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Phaff v. Gerner, 451 Pa. 146, 151, 303 A.2d 826, 829 (1973). The court “must ignore controverted facts appearing only in the pleadings” and restrict its consideration to material “filed in support of and in opposition to the motion for summary judgment” and the “uncontroverted” allegations of the pleadings. Id. at 151, 303 A.2d at 830; Washington Federal Savings & Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986).

In opposing a motion for summary judgment and putting forth his or her evidence, the non-moving party cannot rest on the allegations or denials in the pleadings. Rapagnani v. Judas Co., 736 A.2d 666, 668 (Pa. Super. 1999). “Rather, the adverse party must identify evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id. at 668-69.

Plaintiff’s claims arise from a slip and fall incident that occurred on March 8, 2005, while she was leaving the building at Garden Spot Middle School. Because each defendant is a “local agency,” they contend that plaintiff’s claims are barred by the Political Subdivision Tort Claims Act.

The parties stipulated for purposes of defendants’ motion for summary judgment that icy conditions existed on the paved walk under the canopy at Garden Spot Middle School at or about the time plaintiff slipped and fell. Defendants argue that plaintiff’s claims, which sound only in negligence, must be dismissed with prejudice because they are barred by the Act.

Under the Act, local government agencies are immune from liability for their negligent acts unless those actions fall within an enumerated exception and would otherwise subject them to liability at common law. 42 Pa.C.S. §§8541-8542. Defendants maintain that because plaintiff’s injuries arose out of a slip and fall on a “sidewalk” her claims are barred because they do not come within the “sidewalks” exception, 42 Pa.C.S. §8542(b)(7), which is quoted below.

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:...

“(7) Sidewalks. — A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.” 42 Pa.C.S. §8542(b)(7).

Defendants posit that plaintiff has neither alleged nor submitted any evidence that her injuries were the result of a defect or dangerous condition which originated from the paved walk itself. Therefore, according to defendants, section 8542(b)(7) is inapplicable and they are immune from suit for injuries arising from their alleged negligence in failing to remove a foreign substance (i.e., snow and ice) from the paved walk.

Plaintiff asserts that she is not pursuing her claim under the sidewalks exception because the area where she slipped and fell is not a “sidewalk.” Instead, she argues that she is not barred from pursuing her negligence claims by virtue of the “real property exception” of the Act which states:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: ...
“(3) Real property. — The care, custody, or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, ‘real property’ shall not include:...
“(iv) sidewalks.” 42 Pa.C.S. §8542(b)(3).

Section 8542(b)(3)(iv) expressly excludes sidewalks from the real property exception under the Act. Defendants assert that the area where plaintiff slipped and fell is, in fact, a “sidewalk” and that plaintiff cannot bring her claim within the real property exception nor invoke the applicability of the sidewalks exception. See Finn v. Philadelphia, 165 Pa. Commw. 255, 264, 645 A.2d 320, 325 (1994) (stating that sidewalks exception only applies when plaintiff’s injuries are alleged to be the result of a defect or dangerous condition which originates from the sidewalk itself and is not applicable when injuries allegedly occurred only because of substances on the sidewalk (e.g., snow, ice, oil, grease)). Essentially, defendants ask that the court find as a matter of law that the area where plaintiff fell is a “sidewalk”.

In support of her position that the area in which she fell was not a “sidewalk,” plaintiff relies on Snyder v. North Allegheny School District, 722 A.2d 239 (Pa. Commw. 1998). In Snyder, the Commonwealth Court considered whether a concrete slab that represented the top landing to a set of stairs leading to a parking lot can be considered a “sidewalk.” Id. at 243. The landing was adjacent to a school driveway and had grass on either side. Id. Citing to the Vehicle Code, the Commonwealth Court concluded that the concrete landing was not adjacent to a public right-of-way, but to a driveway owned by the school district. Id. The court found that a condition precedent to the applicability of the sidewalks exception is that the area in question be the dedicated portion of a public right-of-way used for pedestrian traffic. Id.

Accordingly, the Snyder court concluded that the concrete landing was “in no way” a sidewalk. Id. The court stated:

“In this case, the concrete landing was not adjacent to a public right-of-way (footnote omitted), but to a driveway owned by the school district and used by parties

with express or implied permission from the school district. See e.g., section 102 of the Vehicle Code, 75 Pa.C.S. § 102 (relating to definition of ‘driveway’). For the concrete landing to fall within the sidewalk exception contained in section 8542(b)(7) of the [Act], a condition precedent for that exception to apply is that it is the dedicated portion of a public right-of-way used for pedestrian traffic. In this case, the concrete landing was not in a public right-of-way but adjacent to the school driveway, and where [the plaintiff] fell was the top landing to a set of stairs leading to the parking lot of the [public school], with grass on either side, and only served as the landing when ascending or descending the parking lot stairs. Because [the plaintiff] fell on a concrete slab representing the top landing to a set of stairs leading from the [public school] parking lot, the trial court properly found that it was not part of a sidewalk and that the sidewalk exception did not apply.[]” Id. (emphasis added)

Plaintiff urges that since the area where she fell is not a dedicated portion of “a public right-of-way used for pedestrian traffic,” the area is not a “sidewalk”. (PI. br. in opp. to def. mot. s.j., at 5.) She maintains that, “because the area on which [plaintiff] slipped at Garden Spot Middle School is not located adjacent to a public right-of-way, but rather to a privately owned driveway, the area under the canopy . . . does not constitute a ‘sidewalk’ ” and she should be able to pursue her claims under the real property exception to the Act. (PI. br. in opp. to def. mot. s.j., at 7.)

Based on the record before it, the court concludes that plaintiff is correct and that the area where she fell is not a “sidewalk” under the Act.

Preliminarily, it should be noted that the term “sidewalks” appears in both section 8542(b)(7), the sidewalks exception to the Act, and section 8542(b)(3), the real property exception, where the term is used to exclude such an area from the real property exception. Absent a specific intent to the contraiy by the General Assembly, the term has the same definition in both sections of the statute.

The sidewalks exception defines sidewalks with reference to “the rights-of-way of streets owned by the local agency....” This definition, together with that adopted by the Commonwealth Court in Snyder, makes clear that for a pedestrian walkway to be a “sidewalk” within the meaning of the Act, it must be the portion of the public right-of-way open to pedestrian traffic. A driveway, even if owned by a local agency, open for vehicular travel only to those with the owner’s express or implied permission and not to the general public would not be a public right-of-way or rights-of-way of a street.

With respect to the facts of this case, the record indicates that there is a horseshoe shaped driveway in front of Garden Spot Middle School in which buses were parked to pick up students at the end of the school day. (Gregorzek dep. at 91-96.) Photographs of the area of plaintiff’s fall show a concrete walkway parallel to the driveway. (PI. reply to def. mot. s.j., exhibit D-1.) There is nothing to indicate that this driveway is a public right-of-way open to all. On the contrary, it appears that the driveway is on property owned by the school district and used by buses and perhaps others to pick up and drop off children at the school. The horseshoe shape suggests that a vehicle enters the driveway from the public road, approaches the front of the school to pick up or drop off students and then exits onto the public road.

Under these circumstances, the court must conclude, consistent with Snyder, that the area where plaintiff fell is not a “sidewalk” within the meaning of the Political Subdivision Tort Claims Act. Accordingly, defendants are not entitled to judgment in their favor as a matter of law and their motion for summary judgment must be denied.

ORDER

And now, February 25, 2009, upon consideration of defendants’ motion for summary judgment and the response of plaintiff, it is ordered that defendants’ motion for summary judgment is denied.

      .42 Pa.C.S. §8501.

      .42 Pa.C.S. §8541 etseq.

      . As noted by the Supreme Court in Reid v. City of Philadelphia, 598 Pa. 389, 957 A.2d 232 (2008), the sidewalks exception of the Act imposes a heavier burden on a plaintiff than does the real property exception. “The real property exception clause imposes liability if an agency causes injury due to negligence in the care, custody, or control of its real property... . The sidewalks exception clause, however, requires proof that, in addition to being negligent, the agency had notice of the dangerous condition and opportunity to remedy the condition, and failed to do so.” Id. at 392 n.1, 957 A.2d at 234 n.1. (internal citations omitted)

      . The Vehicle Code defines the term “sidewalk” as, “That portion of a street between curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use by pedestrians.” 75 Pa.C.S. §102.

      . The same section of the Vehicle Code defines “private road or driveway” as, “A way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.” 75 Pa.C.S. §102.

      . The trial court submitted the issue of whether the plaintiff had fallen on a sidewalk to the jury. “Denying the school district’s post-trial motion for judgment n.o.v., the trial court concluded that the sidewalk exception of section 8542(b)(7) (footnote omitted) was not applicable to the case because ‘a sufficient amount of evidence existed on the record for the jury to classify the [concrete landing] as other than a sidewalk,’...” Snyder v. North Allegheny School District, 722 A.2d 239, 242 (Pa. Commw. 1998).

      . Although there are photographs of the immediate area where plaintiff fell, there is little in the record to show the layout of the driveway, who is entitled to make use of it and for what purposes.


author: LASH, J,

text:
    Von Dohren v. Berks County Board of Assessment Appeals

      Larry W Miller Jr., for appellants.

      Edwin L. Stock, for appellee.

      October 2, 2009
   LASH, J,

The appellants, Craig P. Von Dohren and Barry L. Von Dohren (landowners), have appealed the decision of the Berks County Board of Assessment Appeals (board) directing a rollback from the preferential use assessment to full market value assessment of real estate owned by landowners, pursuant to the Pennsylvania Farm Land and Forest Land Assessment Act of 1974 (Act 319), commonly known as the Clean and Green Act, 72 P.S. §5490.1 et seq. The board found that more than two acres of property owned by landowners was being used commercially as a self-storage business. As such, the business was a “nonconforming rural enterprise” which constituted a breach by landowners of the covenant under the Clean and Green Act. Accordingly, the board assessed rollback taxes totaling $29,886.71. Landowners argue that the acreage involved in the business does not exceed two acres. A non-jury trial was held on September 28, 2009.

This court enters the following findings of fact:

I. FINDINGS OF FACT

(1) The appellants, Craig P. Von Dohren and Barry L. Von Dohren (landowners), are the owners of property located at 443 Oley Furnace Road, Oley Township, Oley Valley School District, Berks County, Pennsylvania 19547, consisting of approximately 32.40 acres of land, improved with a dwelling, and 15 buildings (property), eight of which are utilized in a self-storage business.

(2) The appellee, Berks County Board of Assessment Appeals (board), is an agency of the County of Berks with a principal place of business in the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

(3) The property has been enrolled in the Clean and Green program since 1994, when the property was still owned by William and Peggy Ann Reifsnyder.

(4) By deed dated November 12, 1998, the property was transferred from Peggy A. Reifsnyder to Peter E. Von Dohren, Betty Jane Von Dohren, husband and wife, and Barry L. Von Dohren and Craig P. Von Dohren.

(5) In January 1999, a Clean and Green application was made by all four Von Dohrens for the property. On this application, the Von Dohrens did not indicate the presence of a storage unit business. Instead, the application indicated that the property consisted of a one-acre homesite, 29 acres tillable, and two acres forest.

(6) In August 2005, Barry Von Dohren completed a Clean and Green questionnaire. On this questionnaire, in answer to a question regarding whether or not there is a business on the property, Barry Van Dohren indicated that there was a business and that one-half acre is used for the business. The type of business was listed as “garage rentals.”

(7) As a result of this answer on the questionnaire, the assessment office performed a site inspection at the property. At this point, the assessment office determined that two acres would be rolled out of the Clean and Green program because a self-storage business was being conducted on approximately two acres. Rollback taxes were assessed and paid on the two acres.

(8) By deed dated May 21, 2008, the property was transferred from Peter E. Von Dohren, Betty Jane Von Dohren, husband and wife, and Barry L. Von Dohren and Craig P. Von Dohren to landowners.

(9) On or about September 12,2008, landowners filed an application to the Zoning Hearing Board of Oley Township, then later filed an amended application.

(10) This application arose after the zoning officer of Oley Township initiated proceedings and made a determination that the self storage use was not a permitted use under the applicable zoning ordinance.

(11) The application was an appeal of the enforcement notice issued by the township zoning officer, and in the alternative, a request for a variance from the applicable provision of the zoning ordinance.

(12) On January 12,2009, the Oley Township Zoning Hearing Board filed and entered a decision on the application, finding the self-storage business to be a permitted use under the zoning ordinance, and dismissing the request for a variance as moot.

(13) After learning of the zoning proceedings, the assessment office performed a site check on February 5, 2009 and determined that more than two acres was being used for the landowners’ self-storage business.

(14) As a result of this site inspection, onFebruary 12, 2009, the Berks County Assessment Office issued a Clean and Green breach notice to landowners. The letter stated that “due to anon-conforming rural enterprise, the agreement covering this tract has been breached.” Rollback taxes totaling $29,886.71 were assessed against landowners.

(15) On March 4,2009, landowners filed an appeal to the board.

(16) Following a hearing on March 30,2009, the board sent landowners a letter dated April 2, 2009, notifying them that the breach was upheld.

(17) On May 1, 2009, landowners filed a notice of appeal with the Berks County Court of Common Pleas.

II. DISCUSSION

Under section 5490.8(d)(1) (section 8), a landowner is permitted to apply a maximum of two acres of land toward a rural enterprise incidental to the operational unit without breaching the Clean and Green Act. That section provides:

“(d)(1) A landowner may apply a maximum of two acres of a tract of land subject to preferential assessment toward direct commercial sales of agriculturally related products and activities or for a rural enterprise incidental to the operational unit without subjecting the entire tract to rollback taxes, provided that:
“(i) The commercial activity is owned and operated by the landowner or his beneficiaries who are designated as class A for inheritance tax purposes.
“(ii) An assessment of the inventory of the goods involved verifies that it is owned by the landowner or his beneficiaries.
“(iii) The rural enterprise does not permanently render the land incapable of producing an agricultural commodity.”

In support of their position that the storage business area is less than two acres, landowners presented the testimony of Barry L. Von Dohren and a surveyor, Larry W. Miller Sr. Mr. Von Dohren testified that landowners utilize eight buildings in the self-storage business, and have done so for several years. He expressly stated that there have been no changes from 2005, when the assessment office conducted its first inspection, until 2009, when the assessment office performed its site check, prompted by the zoning proceedings. Landowners believe that the 2005 and 2009 determinations of the assessment office should have been the same and that the 2009 determination is in error.

In addition to the buildings, Mr. Von Dohren identified driving and parking areas surrounding the buildings, labeled as “access areas.” These areas service the storage units and are considered to be part of the business.

Mr. Von Dohren also identified several other areas of the property in the immediate vicinity of the self-storage business. These include several buildings being used for horse boarding, a grassy area being used for the storage of horse trailers, a barn bridge, an area where walnut trees are present which are harvested, and a grazing area for the horses. Landowners argue that these areas should not be included as acreage of the self-storage business.

Landowners’ surveyor conducted an inspection of the property and measured the pertinent acreage using the walking wheel technique. He found the eight buildings to total 40,874 square feet or 0.94 acres. He found the access areas to total 39,939 square feet or 0.92 acres. He concluded that the total acreage being utilized by the self-storage business is 1.86 acres.

The board presented the chief assessor of the Berks County Assessment office, Brenda Shaw, and its director of tax mapping, William Cochan. Ms. Shaw testified that the assessment office’s commercial assessor had conducted two site inspections of the property in 2005 and 2009. According to the commercial assessor, more buildings were being utilized for the self-storage business in 2009 than in 2005. Accordingly, the assessment office had to revise the initial position it reached in 2005 that the business was limited to two acres.

To obtain a measurement of the business, the assessment office relied on an aerial photograph of the property and a computer software program. The computer, analyzing the photograph, was able to reach calculations for the size of the buildings, the access area, and some of the other areas near the buildings, which the board categorizes as “supporting areas,” and believes should be included as acreage of the business. According to the computer, the eight buildings and the access areas totalled 2.20 acres. Adding the supporting acres, the total measurement is 2.75 acres.

There are several issues in dispute. The first question concerns which method of measurement is more reliable, the walking wheel approach conducted by a licensed surveyor, or the mathematical calculations conducted by a computer of a digitalized aerial photograph of the area. Ms. Shaw admitted that a certified survey is preferable to the computer program. However, here, there is no certified survey, only the informal calculations and testimony of the surveyor. The second issue relates to whether additional buildings are now being used for self-storage, as believed by the commercial assessor, an issue of credibility. Third, is the accuracy of the measurements. Landowners’ surveyor believes that the computer conclusions are faulty, as the aerial photograph is a photograph of the top of the buildings, which measures the roofs. As several of the roofs overhang as much as three feet from the walls of the buildings, the buildings’ measurements were inflated. The final issue is whether the acreage designated “supporting acres” should be included in the calculation of the size of the business.

Upon review, we sustain landowners’ appeal. Based on the evidence presented, landowners have met their burden in establishing that the self-storage business is conducted on less than two acres of the property.

Initially, we are satisfied that there has been no expansion of the business from the time the assessment office conducted its first site inspection in 2005. Mr. Von Dohren testified credibly, and we accept his testimony as true. It appears that the challenge from the assessment office stems in part from the assessment office’s mistaken belief that there was an expansion of the facility, a belief apparently initiated from comments of the commercial assessment or from the existence of zoning proceedings, which did not involve an expansion at all but rather was a challenge to the existing business.

We also accept the surveyor’s opinion as more reliable than the computer program. As stated, the chief assessor admits a preference for a certified survey, implying that she believes it to be superior to the program. While landowners did not produce a certified survey, they did produce testimony from the surveyor. Testimony of a licensed surveyor, taken under oath and subject to cross examination, possesses a higher degree of indubitability than either a certified survey or a computerized projection from an aerial photograph. Here, we find the surveyor to be credible, and we accept his figures.

We also find the “supporting acres” should not be included in the calculation of this self-storage business acreage. The board’s argument is based on a decision by this court in Moore v. Berks County Board of Assessment Appeals, 72 D.&C.4th 47 (2005), affirmed in part, reversed in part on other grounds, 888 A.2d 40 (Pa. Commw. 2005). In Moore, the buildings used for commercial purposes and a driveway network accessing the buildings totaled 1.924 acres. However, among the driveway network were several grassy areas which, if in-eluded in the total acreage, increases that acreage to 4.28 acres. The Moores argued, among other things, that the grassy areas could be used for pasture lands and should not be considered part of the commercial operation. However, this court ruled otherwise, finding that there was no agricultural use being conducted on the grassy areas and that the grassy areas appeared to support the commercial use.

The Moore case is distinguishable on the facts. The board’s evidence identified five areas immediately adjacent to several of the buildings which were considered “supporting areas.” However, landowners’ evidence established that four of these áreas are currently used for agriculture. One area stores the horse trailers for the horse boarding operation. A second area was used for grazing. Within the third area were the walnut trees, which continue to be harvested. The fourth area consisted of a barn bridge which accessed the second story of one of the storage buildings, an area not used for the self-storage business but used by landowners for storage of their personal farm equipment. Accordingly, these four areas are not part of the self-storage business. Finally, the fifth area, which is immediately adjacent to building “A”, as designated on the parties’ exhibits, is a grassy area not being subjected to any use. Landowners’ surveyor testified that he included this area in his calculation of the self-storage business area, being part of the 1.86 acres.

Based on these rulings, this court finds that the self-storage business utilizes 1.86 acres of the property, and that landowners’ business is permitted by section 8 of the Clean and Green Act. Accordingly, landowners did not breach the Clean and Green Act.

We enter the following order:

ORDER

And now, October 2,2009, upon consideration of the appeal of Craig P. Von Dohren and Barry L. Von Dohren from the decision of the Berks County Board of Assessment Appeals entered April 2,2009, and after trial held, the decision of the board is reversed. Appellants’ property shall continue to be enrolled in the Clean and Green program and no rollback taxes shall be directed.

      . The zoning proceedings did not involve any expansion, rather, as stated, it was a response to the zoning officer’s determination that the existing storage business constituted an impermissible use under the zoning ordinance.

      . His original determination was 1.89 acres, which included an additional 1,575 square feet. However, he later subtracted this, finding that 900 square feet was being used as a supporting area for the horse boarding and a separate section of 675 square feet was a grassy area, not part of the self-storage business.

      . In his testimony, the surveyor admitted that he did this accidently and only discovered this when he rechecked his figures immediately prior to the hearing.


author: KISTLER, J.,

text:
    Gulf Industries/Signtronix v. Lopez

      Anthony R. Burgess, for plaintiff.

      R. Bruce Manchester, for defendant.
    November 16, 2009
   KISTLER, J.,

Presently before the court is Susan Lopez’ motion to strike which was filed with this court on September 9, 2009. On October 30, 2009, Gulf Industries filed a reply to Ms. Lopez’ motion to strike asserting that it is not required to register as a foreign corporation with the Pennsylvania Department of State because they fall within an exception to this requirement. A hearing was held on November 2, 2009, with both parties appearing by telephone.

A day before the hearing this court received an email from Mr. Manchester’s AOL account entitled, “Gulf Industries v. Lopez, Defendant’s Motion To Strike, Supporting Documentation & Legal Authority. ” This email was sent to this court’s Centre County email address. There is no indication whether Gulf Industries also received this email. A hard copy of the email was not filed with the Centre County Prothonotary. Attached to this email were five word documents with legal authority from various sources as well as a “screen capture” of the results of Mr. Manchester’s search of the Pennsylvania Department of State’s database. At the hearing on this motion, in light of Mr. Manchester’s decision to email this court legal authority, this court invited Gulf Industries to also submit any legal authority by email to this court within the next five days. On November 4, 2009, this court received an email from Gulf Industries which included a PDF of 15 Pa.C.S. §4121 and §4122. This email was also sent to Mr. Manchester.

On November 6, 2009, this court received another unsolicited email from Mr. Manchester’s AOL account entitled, “Gulf Industries v. Lopez, no. 2008-5543, plaintiff’s supporting documentation. ” A copy of this email was sent to Gulf Industries and is reproduced exactly as this court received it with the exclusion of the various fonts and colors used in the email:

“Your honor:
“In my previous transmission I supplied to you proof of Gulf Industries non registration, via the Department of State web site, as required by 15 Pa.C.S. §4121. I move this document into the record as evidence of Gulf’s failure to register thereby mandating that their default judgement against defendant be stricken.
“Gulf argues that they are exempt from registration as the ‘transactions’ were those of a Pennsylvania subcontractor and transacting business in interstate commerce and therefore exempt from registration pursuant to 15 Pa.C.S. §4122(a)(5) and §4122(a)(9).
“Defendant has sustained its factual burden of proof as referenced above.
“Plaintiff has made ‘bald allegations’ by not submitting any documentation or facts that would allow this court to make the necessary findings of fact supporting their allegations. Further their argument as to independent contractor is irrelevant as Gulf Industries is the plaintiff not the alleged independent contractor. No factual nexus between Gulf Industries and the independent contractor is put forth by plaintiff. Nor are their any facts put forth that would permit non registration because of the Interstate Commerce Clause of the US Constitution Gulf’s service contract for the sale and installation of signage at defendant’s place of business in Pleasant Gap, PA does not come within the orbit of the Commerce Clause.
“If the entire business operations of a corporation within the state are within the protection of the Commerce Clause of the federal Constitution, a certificate of authority is not required; entering trade contracts in Pennsylvania is a mere incident and not the performance of a corporate function. [2] This type of contract is to be distinguishedfrom a contract calling for the performance of services in Pennsylvania. [3]
“13 Summ. Pa. Jur. 2d Business Relationships s 9:83 [Cites for FN 2 & 3 are contained in the first transmission]
“For the reasons stated in both transmissions, defendant respectfully requests that its motion to strike plaintiff’s judgement be granted.
“R. Bruce Manchester, Esquire.”

Let this court make this clear in no uncertain terms, unsolicited emails to this court of legal documents, motions, briefs or legal argument is unacceptable behavior by a licensed attorney of this Commonwealth. No court can operate in a casual “chat” environment, as it is properly constrained by rules of procedure, and constitutional mandates. More formalities and notice is required when corresponding with the courts. Mr. Burgess is not the subject of this “lecture” since this court, befuddled by Mr. Manchester’s initial email, sought to level the playing field by permitting Mr. Burgess to also email the court any legal authority he might have. There is however no excuse for either of Mr. Manchester’s unsolicited emails to this court. In addition to violating a host of Pennsylvania Rules of Civil Procedure and of Evidence; Mr. Manchester attempts to move into evidence, by email, a document which was never even properly before this court to begin with. This court refuses to consider Mr. Manchester’s email and motion contained within as it would not only violate basic principles of due process and fairness; it is also inconsistent with the very basic principles of the adversarial process. Therefore the court will decide this motion on the arguments and pleadings properly before this court.

DISCUSSION

Ms. Lopez’ preliminary objection in the form of a motion to strike is predicated on the averment that Gulf Industries is a foreign corporation, not registered with the Pennsylvania Department of State, and therefore is not permitted to institute a suit or obtain judgment for an alleged breach of contract. Gulf Industries has pleaded in its reply to defendant’s motion to strike that, although it is a foreign corporation, it nevertheless falls within the independent contractor exception and interstate or foreign commerce exception contained in 15 Pa.C.S. §4122(a)(5) and (9) respectively. These exceptions eliminate the requirement that a foreign business register with the Pennsylvania Department of State if met. See 15 Pa.C.S. §4122(a) (“a foreign corporation shall not be considered to be doing business in this Commonwealth for the purposes of this subchapter.”).

“It is well-established that in the review of preliminary objections, the facts that are well-pleaded, material, and relevant will be considered as true, together with such reasonable inferences as may be drawn from such facts.” Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 567, 650 A.2d 895, 899 (1994) (citing Santiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa. Super. 178, 183, 613 A.2d 1235, 1238 (1992)). Pennsylvania Rule of Civil Procedure 1017(a)(4) provides that the pleadings include any “preliminary objection and response thereto.” Therefore, for the purpose of deciding this preliminary objection, the court must accept as true Gulf Industries factual pleading that it qualifies under exceptions (a)(5) and (a)(9) of 15 Pa.C.S. §4122 and is not precluded from proceeding with this action as Ms. Lopez contends. As a result, Ms. Lopez’ preliminary objection in the form of a motion to strike is overruled.

ORDER

And now, November 16,2009, Ms. Lopez’ preliminary objection in the form of a motion to strike is overruled.


author: CEPPARULO, J,

text:
    In re Appeal of McGrath

      Russell R Sacco, for plaintiff.

      John A. VanLuvanee and Kellie A. McGowan, for defendant.
    September 29, 2009
   CEPPARULO, J,

I. PROCEDURAL HISTORY

Appellant J.W. McGrath Organization owns an equitable interest in a 2.046 acre parcel of land situated along the western side of Oxford Valley Road and Queen Anne Drive in Bristol Township, Bucks County, Pennsylvania. This land is located in a C-Commercial zoning district under the Bristol Township Zoning Ordinance. McGrath planned to demolish an existing medical office on the subject property to construct a new CVS Pharmacy in its place. McGrath now appeals from appellee Bristol Township Council’s denial of this plan.

In March 2008, in accordance with the Pennsylvania Municipalities Code (MPC) and the Bristol Township Subdivision and Land Development Ordinance (SAL-DO), McGrath submitted its application for preliminary/ final land development approval to construct a new CVS Pharmacy. On April 11,2008, the Bucks County Planning Commission issued a report on the development plans raising several concerns regarding the size and location of the loading zones, as well as concerns with the proposed storm water management facilities.

On May 11, 2008, the proposed land development plans were presented to the Bristol Township Planning Commission, which identified the same issues regarding the loading zone and storm water management problems, as well as concerns regarding the traffic impact of the proposed land development. As a result, the Bristol Township Planning Commission did not recommend approval of McGrath’s land development plans.

From the submission of the land development plan to the Bucks County Planning Commission, through the review by the Bristol Township Planning Commission, and ultimately up to the hearing before appellee Bristol Township Council, McGrath continued to work with the township and the township engineer to revise the land development plans. Each time McGrath revised its land development plans, the township engineer issued a review letter identifying SALDO violations and highlighting the presented plan’s need for waivers from the SALDO requirements and variances from the Bristol Township Zoning Ordinance in order to obtain approval for the plans as submitted.

On August 27, 2008, McGrath submitted its final revised plans and request for waivers to appellee Bristol Township Council. On October 16, 2008, the final revised plans were reviewed by appellee council at a public hearing. After hearing testimony regarding the development plans and the requested waivers for the loading zones, storm water management system, and open space requirements, council voted unanimously to deny McGrath’s waiver requests and reject its land development plan. On October 22, 2008, council delivered to McGrath a written decision outlining the reasons for council’s denial. McGrath did not seek to revise or amend its land development plans, but instead, McGrath filed the present appeal to this court. No additional evidence was received in this case.

II. QUESTIONS PRESENTED

Appellant J.W. McGrath has identified two issues for this court’s review:

(1) Whether the actions of appellee Bristol Township Council violated McGrath’s equal protection rights under the United States Constitution?

(2) Whether council abused its discretion in denying McGrath’s waiver request and rejecting its land development plans?

III. EQUAL PROTECTION

No additional evidence was received in this matter, limiting this court’s scope of review to a determination of whether the township council abused its discretion or committed an error of law. Rouse/Chamberlain v. Board of Supervisors of Charlestown Township, 94 Pa. Commw. 413, 504 A.2d 375 (1986). The conclusion that the township council abused its discretion may only be reached if its findings are not supported by substantial competent evidence. Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732 (Pa. Commw. 2000).

McGrath argues that council’s denial of the requested waivers amounted to an equal protection violation. McGrath cites to the approval of zoning variances by the Bristol Township Zoning Hearing Board in 2004 and 2005 for two Walgreen’s Pharmacies, competitors to McGrath’s proposed CVS Pharmacy, as evidence that the Bristol Township Council consciously discriminated against McGrath.

Land use matters may raise equal protection concerns, even in situations where there is no protected class involved, such as the present case. Knipple v. Geistown Borough Zoning Hearing Board, 155 Pa. Commw. 120, 124, 624 A.2d 766, 768 (1993). Ordinarily, a grant of a variance or waiver to one property does not obligate the grant to another property, as each request must be decided on its own merit. Vito v. Zoning Hearing Board of the Borough of Whitehall, 73 Pa. Commw. 270, 272, 458 A.2d 620, 621 (1983). Where, however, a board acts in an “arbitrary and irrational manner in subjecting a variance applicant to much more stringent requirements than . .. other similarly situated applicants,” the board’s actions may violate the applicant’s equal protection rights. Korsunsky v. Housing Code Board of Appeals, 660 A.2d 180, 183 (Pa. Commw. 1995). Nevertheless, it still remains the applicant’s burden to demonstrate “conscious discrimination, unrelated to any legitimate objective” in order to succeed in its equal protection claim. Id.

In Knipple, the court found that 10 properties in close proximity to the applicant’s property received the same variance relief that applicant was requesting. Knipple, at 123-24, 624 A.2d at 768. The court also found that the applicant was initially granted a required building permit, only to have it rescinded by the board after the applicant began construction. Id. Finally, the zoning hearing board encouraged applicant to appeal the decision and accepted money from the applicant for the “privilege of appealing,” even though the board already decided to deny the variance request and already completed writing a six-page decision denying the appeal. Id.

In the present matter, appellant offers the grant of variances by the Bristol Township Zoning Hearing Board in 2004 and 2005 to two Walgreen’s Pharmacies as the sole evidence that the Bristol Township Council consciously discriminated against McGrath in denying its requested waivers. McGrath argues in error that all that is necessary “for a successful equal protection case is: similarly situated applicants; similarly situated properties; and similar land development plans.” Brief for McGrath J. W. McGrath Organization in support of appeal p. 10.

More, however, must be demonstrated by McGrath than just similarly situated applicants; similarly situated properties; and similar land development plans. To prevail in its equal protection claim, McGrath must demonstrate conscious discrimination by the township, unrelated to any legitimate objective. Korsunsky at 183. While an extensive pattern of disparate treatment of similarly situated applicants may in some situations demonstrate a valid equal protection claim, the denial of waivers to the Bristol Township SALDO by the township council compared to a decision four years earlier by the Bristol Township Zoning Hearing Board granting variances to the Bristol Township Zoning Ordinance, does not by itself demonstrate conscious discrimination. Aside from these variance grants by a different government entity, under a different standard of review, McGrath offers no further evidence that the council acted arbitrarily, irrationally, or in any way consciously discriminated against McGrath. Quite the opposite, the record demonstrates that the township and its engineer operated in good faith, continually working with McGrath as McGrath revised and resubmitted its land use plans. McGrath was afforded an open and fair hearing in front of the township council. There is no suggestion that the hearing was a mere formality in a pre-determined denial, as was the case in Knipple. Furthermore, McGrath never attempted to correct its deficiencies or to resubmit its development plans, but instead filed the present appeal immediately after receiving its denial.

Upon request of McGrath, both parties were given leave to file supplemental briefs on the application of the Commonwealth Court’s recent decision in Highway Materials Inc. v. Board of Supervisors of Whitemarsh Township, 974 A.2d 539 (Pa. Commw. 2009). In Highway Materials, the Commonwealth Court found that the board of supervisors engaged in bad faith throughout the landowner’s land development application, including rezoning the landowner’s property multiple times without notice, ignoring the landowner’s requests for information, refusing to discuss the actual proposed land development plans during meetings with the landowner, and ultimately refusing to grant any extension of time to the landowner.

Highway Materials addresses a municipality’s legal obligation to proceed in good faith while reviewing land development plans. It does not address equal protection in zoning matters, nor does it address the granting of prior variance relief as a basis for demonstrating a township’s conscious discrimination against a landowner. Nonetheless, McGrath intertwines the bad faith claim from Highway Materials into its own claim of conscious discrimination, arguing that the court’s finding of bad faith in Highway Materials warrants this court’s finding that a grant of variances by a separate municipal body several years earlier amounts to conscious discrimination. The factual and legal claims in Highway Materials do not support McGrath’s action against council for conscious discrimination.

McGrath has not carried its burden of demonstrating that council consciously discriminated against it. There is no indication of bad faith by council, let alone conscious discrimination. McGrath’s entire equal protection claim lies on the assertion that two competing pharmacies were given variance relief several years earlier, but as has long been recognized in the Commonwealth, “[j]ust as grants of variances to one’s neighbors do not, as a matter of law, furnish a property owner with any legal justification for a variance, previous variances do not oblige the board to grant yet another.” Vito at 272, 458 A.2d at 621. As there is no indication of conscious discrimination on the council’s behalf, the grant of variance relief to Walgreen’s has no legal bearing on McGrath’s development plans and council did not violate McGrath’s equal protection rights.

IV. ABUSE OF DISCRETION

McGrath claims that the council abused its discretion and committed errors of law in denying three waiver requests and denying McGrath’s plans because of concerns regarding the size and location of the pharmacy’s loading zone, the proposed pervious pavement system and the council’s rejection of McGrath’s traffic study. Again, council abuses its discretion when its findings are not supported by substantial competent evidence. Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732 (Pa. Commw. 2000). A single legitimate reason set forth by the council for its denial of a plan will support an entire denial. Kassouf v. Township of Scott, 584 Pa. 219, 234, 883 A.2d 463, 473 (2005). Each of council’s decisions now challenged by McGrath must lack substantial credible evidence to be an abuse of discretion.

A. Denial Based on Proposed Loading Space

McGrath first claims that the council abused its discretion by rejecting a waiver from the loading space requirements under SALDO section 523(I)(l)(b) and by denying the submitted plans based on the size and location of the proposed loading space. In arguing that the waiver was unlawfully denied by council, McGrath asserts that it need only demonstrate unreasonableness or unique and undue hardships under SALDO section 900(c). Section 900(c), however, is the requirement that all requests for waivers be fully written and contain the full factual grounds supporting the claim of unreasonableness or undue hardship. The SALDO provision actually governing the grant of waivers clearly states:

“If any mandatory provisions of this ordinance are shown by the applicant to be unreasonable and cause unique and undue hardships as they apply to the proposed subdivision and land development, council may grant a modification in writing to such applicant from such mandatory provisions so that substantial justice may be done and the public interest secured, provided such modifications will not have the effect of nullifying the intent and purpose of this ordinance.” SALDO section 900(b). (emphasis added)

Under section 900(b), it was McGrath’s burden to demonstrate not only that the SALDO requirement was unreasonable, but that McGrath would also experience unique and undue hardships as a result of the requirement.

The first requested waiver was from SALDO section 523(I)(l)(b), which requires loading spaces to be at least 12 feet wide and 55 feet long. McGrath’s plan proposed a loading space of 12.5 feet wide and 20 feet in length. The council rejected the waiver request finding that McGrath did not demonstrate that the SALDO requirement is unreasonable and that it presented a unique and undue hardship to McGrath. Reviewing the council’s written decision rejecting the waiver and the hearing testimony, McGrath did not offer any evidence of a unique and undue hardship, but instead only complained that complying with the requirements would require a smaller store than McGrath desired and more loading space than McGrath felt it needed. N.T. 25-27. Neither of these assertions demonstrates that the loading space requirement was unreasonable and caused unique and undue hardships to the land development.

Moreover, there was ample competent evidence introduced at the hearing challenging McGrath’s and CVS Pharmacies representations about the adequacy of the loading zone and the frequency of deliveries needed by the proposed pharmacy. McGrath testified that a 56-foot long tractor-trailer would make deliveries twice a week to the proposed new pharmacy, in addition to another seven or eight deliveries a week by a 20- to 30-foot long panel truck. N.T. 23-24. When questioned how the proposed loading area would accommodate a delivery from both a tractor-trailer and a panel truck at the same time, McGrath responded that it was unlikely to ever occur, but that if it happened the proposed loading area could not accommodate both. N.T. 25. When the council asked if it was feasible to adjust that size of the store to allow for a large loading area, McGrath responded that it was obviously feasible, but that it would not fit any of CVS’ prototype stores, that CVS would not want to move to a smaller location, and that it would not be beneficial to the community. N.T. 26-27. The council also noted the Bucks County Planning Commission’s concerns that the location of the loading zone is parallel to the pharmacy’s drive-thru exit, potentially causing problems for vehicles exiting the pharmacy while deliveries are received. N.T. 32. McGrath stated that it did not agree with the Planning Commission’s concerns and that the general location of the loading zone and the drive-thru exit remained the same as it was in the land development plan submitted to the Planning Commission. N.T. 33. Council’s decision that McGrath did not demonstrate an undue burden or hardship was based on substantial competent evidence. Council neither abused its discretion, nor committed an error of law in denying the loading zone waiver.

B. Denial of Waiver of Curbline Requirement

The second waiver request denied by the council was from the requirement that no less than 15 feet of open space be provided between the curbline of any uncovered parking area and the outside wall of the nearest building. SALDO section 509(f). McGrath’s development plan called for a separation of nine feet in one area and only four and a half feet in two other areas. McGrath argued at its hearing that the proposed six-inch curb and concrete wheel stops for the parking spaces were sufficient to alleviate concerns about the separation of parking spaces from walkways. Neither the proposed curb height nor wheel stops address how the curbline requirement was unreasonable and caused unique and undue hardships. No other evidence relating to the curbline requirement was presented to the council at the hearing. As the proposed curb and wheel stop installation do not evidence any hardship suffered by McGrath in complying with the SALDO requirement, council did not abuse its discretion in denying the requested waiver.

C. Denial of Named Features Waiver

The third denied waiver request was from the requirement that the plan state location, names, and widths of streets, railroads, sanitary sewers, storm drains, water mains, culverts, petroleum product lines, gas lines, electric lines, telephone lines, fire hydrants, and all other utilities or significant manmade features on or within 200 feet of the tract, as required under SALDO section 803(c) (3). McGrath argues that council abused its discretion because this waiver is routinely granted and because McGrath had “no notice and no opportunity to make minor corrections to the plan” before the waiver and development plan were denied. McGrath’s brief p. 19. McGrath’s position that it had no notice and no opportunity to make corrections to the plan is a peculiar one, when it knew of the requirement prior to the hearing, it knew of the deficiency from the township engineer’s review letters, and when McGrath decided to file this appeal, rather than submit a corrected plan to council. McGrath’s choice to pursue an appeal over revising its plans does not equate to McGrath having no notice or opportunity to make corrections to the plan. Likewise, McGrath’s belief that the denial of a waiver that previously has been granted to other applicants does not on its own demonstrate abuse of discretion. As discussed above, a prior grant of a waiver does not automatically require future grants of similar waivers. Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160, 163 (Pa. Commw. 1997). Council did not abuse its discretion and did not commit an error of law in denying the waiver.

D. Denial of Proposed Pervious Pavement

In addition to denying the requested waivers, the township also rejected McGrath’s proposed pervious paving materials in the parking areas, stating that the proposed pervious paving material had not previously been used in land development projects in Bristol Township and because of council’s concerns about the required maintenance of the surface. N.T. 34, 38. The township engineer specifically testified that if the system was not properly maintained, the pervious pavement would become impervious and the land development would then exceed the maximum allowed impervious surface ratio. N.T. 35. Aesthetic concerns regarding the replacement of grass surfaces with pervious pavement, thereby giving the lot the appearance of being entirely paved, were also presented to council. N.T. 38. McGrath argued that it did not view this issue as an ordinance issue at all, but rather as a maintenance issue. N.T. 37. McGrath further acknowledged that if the system was not maintained, it would malfunction and that a maintenance agreement between McGrath and Bristol Township for the upkeep of the pervious pavement would be required. N.T. 37-38. Based on the evidence provided to council, council’s decision to reject McGrath’s proposed pervious pavement system was justified with substantial competent evidence and was not an abuse of council’s discretion.

E. Rejection of McGrath’s Traffic Impact Study

Finally the council rejected the submitted traffic impact study because the development site is located near two large schools, yet the traffic study was conducted in July when the schools were not in session and therefore did not accurately reflect the impact the development would have on traffic patterns from September through June. McGrath complains that it was not required to submit a traffic impact study and therefore the council could not base its denial of McGrath’s plans on the traffic study. McGrath further argues that there was no evidence of deficiency within the traffic study. Council, however, legitimately questioned the accuracy of the traffic study because it was conducted in July, when two large nearby schools were not in session. It is true that a traffic impact study was not required under the SALDO or zoning ordinance; however, once it was submitted, council had every right to question its trustworthiness and reliability. Council did not abuse its discretion in rejecting the accuracy of McGrath’s traffic impact study. N.T. 43-45.

V. CONCLUSION

The foregoing represents this court’s reasons for the denial of McGrath’s land use appeal.

      . The township engineer review letters were issued on Miarch 17, 2008, April 11, 2008, June 16, 2008, July 16, 2008 and September 5, 2008.

      . McGrath never presented any plans to the Bristol Township Zoning Hearing Board.

      . From the testimony presented before council it was determined that CVS already operated a nearby pharmacy in Bristol Township and that CVS simply felt it needed a larger store in the same area. N.T. 5.


author: BUCCI, J,

text:
    Commonwealth v. Rodriguez

      David R. Goldberg, assistant district attorney, for Commonwealth.

      Douglas J. Waltman, for defendant.

      November 13, 2009
   BUCCI, J,

PROCEDURAL HISTORY

On July 10, 2009, following a bench trial, the court found Jack Daniel Rodriguez (appellant or defendant) guilty of possession with intent to deliver a controlled substance and possession of a controlled substance.

Appellant was sentenced on the same date, to five to 15 years imprisonment for possession with intent to deliver a controlled substance.

On August 3, 2009, appellant filed his timely notice of appeal. On August 14,2009, the court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure §1925(b). Appellant filed his timely concise statement with this court on August 31, 2009.

FACTUAL BACKGROUND

On July 26, 2008, at approximately 6:30 p.m., the Wyomissing Police Department dispatcher received a telephone call from Amelia Rodriguez who claimed to be the wife of Jack Rodriguez. N.T., pretrial hearing, 12/16/09, at 6, 11. Amelia Rodriguez informed the Wyomissing Police Department dispatcher that her husband, Jack Rodriguez, was on parole and had an outstanding domestic relations warrant for his arrest. She also told the dispatcher that Jack Rodriguez was presently located in the parking lot of the Berkshire Mall and that he was wearing a black tank top, white sneakers and he was operating a red Dodge Caravan. N.T., pretrial hearing, 12/16/09, at 6-7, 10.

The dispatcher relayed this information to Sergeant Leon Grim of the Wyomissing Police Department. Prior to leaving the Wyomissing Police Department office, Sergeant Grim and the dispatcher confirmed that there was an outstanding domestic relations warrant for a person named Jack Rodriguez by checking the county computerized warrant database known as the “C.O.B.R. A. system”. N.T., pretrial hearing, 12/16/09, at 15-16.

In reliance on the information received from Amelia Rodriguez, as well as the warrant information on the county “C.O.B.R.A. system”, Sergeant Grim proceeded to the Berkshire Mall. Upon his arrival at the Berkshire Mall parking lot, Sergeant Grim observed a man wearing a black tank top entering the driver’s seat side of a red Dodge minivan. Sergeant Grim operating a marked patrol car, and in full uniform, then parked his patrol car in a manner which partially blocked the red minivan’s path of travel. N.T., pretrial hearing, 12/16/09, at 17.

Then, Sergeant Grim exited his patrol car, approached the red minivan and then asked the defendant who was the driver of the car if his name was Jack and the defendant responded in the affirmative. N.T., pretrial hearing, 12/16/09, at 18. He then saw the defendant reach around the back of the driver’s seat. N.T., pretrial hearing, 12/16/09, at 26. Sergeant Grim instructed the defendant to step out of the van and he informed the defendant that there was a warrant for his arrest. N.T., pretrial hearing, 12/16/09, at 18-19. Sergeant Grim verified defendant’s identity as Jack Rodriguez by checking his driver’s license. N.T., pretrial hearing, 12/16/09, at 18-19.

During Sergeant Grim’s encounter with the defendant, Criminal Investigator Garipoli arrived on the scene to assist Sergeant Grim. As Sergeant Grim was speaking to the front seat passenger, he was informed by Criminal Investigator Garipoli that Criminal Investigator Garipoli noticed the defendant shove something down the front of his pants. As the officers attempted to place defendant in handcuffs, the defendant attempted to resist. N.T., pretrial hearing, 12/16/09, at 19. The defendant was eventually handcuffed at which time the police then immediately conducted a search of his person. N.T., pretrial hearing, 12/16/09, at 19-20. During the course of the search of defendant’s person, the police found and seized six small bags of crack cocaine and $964 cash on the defendant’s person. N.T., pretrial hearing, 12/16/09, at 24-25. The defendant was then placed in custody in the patrol car.

Sergeant Grim spoke to the front seat passenger of the vehicle, Janaira Rodriguez. He determined that she was the owner of the minivan. Sergeant Grim obtained permission from Janaira Rodriguez to search the minivan. N.T., pretrial hearing, 12/16/09, at 26-27. During the course of the search of the minivan, Sergeant Grim found and seized an additional seven small bags of cocaine behind the seat in the area where he had observed the defendant reaching when he first encountered the defendant. N.T., pretrial hearing, 12/16/09, at 27.

ISSUES COMPLAINED OF ON APPEAL

In his concise statement, appellant alleges the following errors:

“(1) Whether the court erred in failing to suppress the evidence located in defendant’s van by determining that the passenger/owner of the vehicle legally consented to a search of that vehicle where the record indicates nothing more that an officer’s conclusion that the passenger/ owner ‘granted permission to search the van?’
“(2) Whether the court erred in failing to suppress evidence by determining that defendant was lawfully subjected to an investigative detention where officers did not observe any criminal activity?
“(3) Whether the court erred in failing to suppress evidence by de facto equating the possible existence of a domestic relations warrant for a citizen with criminal activity on the part of the citizen?
“(4) Whether the court erred in failing to suppress evidence where defendant was ordered to empty his pockets, was handcuffed, and was then fur[th]er searched where there is no basis in the record for even a Terry frisk much less an actual search of defendant?
“(5) Whether the court erred in failing to suppress evidence by determining that officers verified an outstanding domestic relations warrant and arrested defendant for that reason when the investigating officer himself informed dispatch not to bother verifying a suspected warrant because defendant was under arrest for a narcotics violation and here the investigating officer did not consider any warrant to be verified?
“(6) Whether the court erred in failing to suppress evidence by determining that there was a valid domestic relations warrant outstanding for defendant where the Commonwealth never bothered to verify such?
“(7) Whether the court erred in determining that it is the burden of defendant to show that there was not an outstanding warrant for his arrest, where it is, in fact, the Commonwealth’s burden to demonstrate that there was an actual warrant for defendant’s arrest?”

DISCUSSION

I. Admissibility of Evidence

All of defendant’s assigned errors pertain to his claims that the court erred by denying his motion for suppression of the physical evidence. On December 16, 2008, the court conducted an evidentiary hearing on the appellant’s motion to suppress the evidence. Following the hearing, the court issued findings of fact and conclusions of law in disposition of appellant’s motion to suppress the evidence. We hereby adopt our findings of fact and conclusions of law as our opinion. (See attached [not published herein].)

CONCLUSION

For the foregoing reasons, it is respectfully requested that defendant’s appeal be denied.

      .35 P.S. §780-113(a)(30).

      . 35 P.S. §780-113(a)(16).

      . The simple possession charge merged with the delivery charge for sentencing purposes.

      . See appellant’s concise statement dated August 31, 2009.