author:
GEORGE, J.,
     By: /s/Chairman Randall W. Fishel By: /s/Vice Chairman Daniel T. Worley By: /s/Supervisor Charles J. Dove /s/Secretary Joanna D. Zepp

text:
    Rickert v. Latimore Township Zoning Hearing Board

      C.P. of Adams County,
    no. 02-S-946.

      Charles M. Suhr and Guy P. Beneventano, for appellants.

      Ron Turo, for appellee.
    August 1, 2003
   GEORGE, J.,

This matter comes before the court on a procedural challenge to the legislative action taken by the Latimore Township Board of Supervisors on March 4, 2002. A number of property owners argue that the legislative action adopting the township’s zoning ordinance was procedurally defective and, therefore, invalid. Although the factual background in this matter is not in dispute, there is substantial argument concerning the meaning and significance of certain actions taken by the supervisors. Accordingly, resolution of the legal issues requires a detailed examination of the factual background.

On March 5, 1987, the supervisors enacted the Latimore Township Zoning Ordinance. The 1987 ordinance provided a comprehensive zoning scheme throughout Latimore Township and included zoning districts specifically identified on a zoning map. Included among the districts was a commercial-industrial zoning district (C-1) which affected the property bordering old U.S. Route 15 (Harrisburg Road). The appellants, Terry R. Rickert, Robert L. Junkins, M. Everett Weiser and Olive L. Weiser, own property along old U.S. Route 15 which was included within the C-l district.

On May 6, 1988, the supervisors amended the ordinance. The amendments, however, were relatively minor and are immaterial to the current litigation. Other than this legislative action in 1988, the ordinance remained in its original form until the supervisors’ recent actions, which are the subject of this dispute.

Although there is an indication that changes to the ordinance were discussed as early as 2000, see March 4, 2002 correspondence from the Adams County Office of Planning and Development to the supervisors, exhibit number one, zoning hearing board transcript (Tr.), the first evidence in the record of public consideration of the proposed changes to the ordinance is found in the February 12, 2001 minutes of the supervisors’ meeting. Tr. exhibit 1. At that time, the supervisors indicated that the ordinance would be considered at their March 2001 meeting. The March 2001 minutes reflect the approval of a supervisors’ motion to consider changes to the ordinance at a meeting to be scheduled for April 2, 2001. Inexplicably, the record fails to include any evidence of the April 2, 2001 meeting ever taking place. Moreover, minutes from the April 9,2001 regular meeting lack any indication of the supervisors’ consideration of the proposed ordinance. However, the May 14, 2001 minutes reflect that the supervisors considered the ordinance and that Supervisor Worley moved to approve the zoning map. That motion apparently died for lack of a second and the supervisors sent the ordinance back to the planning commission. At the June 11, 2001 regular meeting, Supervisor Worley renewed his motion to adopt the zoning map; however, this motion once again died for lack of a second. The supervisors, thereafter, approved a motion for a public hearing to consider the zoning ordinance on June 27, 2001. Once again, inexplicably, there is no indication in the record as to what occurred on June 27, 2001, nor whether the planned public hearing ever took place.

The Latimore Township Planning Commission minutes during this relevant period reflect that on August 28, 2001, the Latimore Township Planning Commission discussed potential changes to the ordinance. Additionally, the minutes of the September 25, 2001 planning commission meeting indicate the planning commission considered the ordinance and recommended changes within it to the supervisors.

The December 10, 2001 supervisors’ meeting minutes reflect their action in scheduling a hearing for consideration of the proposed ordinance and map on January 14,2002. At the January 7,2002 public meeting, the supervisors cancelled the January 14, 2002 public hearing. The supervisors also approved a motion sending the ordinance to the planning commission for comment. On January 22, 2002 the planning commission voted to approve the proposed ordinance, however, voted to disapprove the proposed zoning map.

On January 28, 2002 the supervisors held a special meeting for the “sole purpose of setting a date for the zoning hearing.” Supervisors’ meeting minutes, January 28, 2002. At that meeting, Supervisor Worley made a motion to set a zoning hearing meeting for March 4,2002 at the York Springs Fire Hall at 7 p.m. to allow the public to give comment on the proposed zoning map and ordinance. Id. The motion was seconded and the supervisors duly approved it. On February 15, 2002, the supervisors published an advertisement in the Gettysburg Times providing notice of the March 4, 2002 meeting. Thereafter, on February 22, 2002 the supervisors published three additional advertisements in the Gettysburg Times concerning the March 4,2002 public hearing. On February 25, 2002 the supervisors once again published an advertisement in the Gettysburg Times.

Signs advertising the March 4, 2002 hearing were posted at approximately 30 locations in Latimore Township on February 24, 2002. The exact locations of the postings are set forth on an exhibit which was made part of the record. All parties agree that at least one property of appellants, Everett and Olive Weiser, was not posted.

On February 26, 2002, the planning commission, at its regularly scheduled meeting, approved a motion stating: “that it is a sense of the planning commission that the zoning ordinance we adopted in January 2002 is consistent with the comprehensive plan for Latimore Township ....” Planning commission meeting minutes, February 26, 2002. On March 4, 2002 the Adams County Office of Planning and Development submitted correspondence to the supervisors indicating its comment on the ordinance. On March 4, 2002 the supervisors conducted the public hearing at the York Springs Fire Hall. That same date, they voted to adopt the legislation.

On April 1,2002 the appellants filed a procedural challenge to the enactment of the March 2002 ordinance pursuant to section 909.1(a)(2) of the Pennsylvania Municipalities Planning Code, P.S. title 53, §10101 (West 1997). The Latimore Township Zoning Hearing Board conducted an evidentiary hearing on May 23, 2002. After testimony at the hearing, the hearing was continued until June 27, 2002 for the purpose of the introduction of additional evidence. On August 9, 2002, the board issued its written decision denying the appeal.

The appellants have now filed a timely appeal to this court. In their appeal, they raise a number of procedural challenges to the adoption of the ordinance. They further argue that the board erred, as a matter of law, in treating the ordinance as an amendment to the 1987 ordinance rather than as an adoption of a new ordinance.

In analyzing the issues before the court, we must be mindful that when a trial court does not hear any additional evidence in deciding a land use appeal, the scope of review is whether the board committed an abuse of discretion or an error of law. Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 256, 721 A.2d 43, 46 (1998). An abuse of discretion will only be found where the board’s findings are not supported by substantial evidence. Larsen v. Zoning Board of Adjustment of City of Pittsburgh, 543 Pa. 415, 421, 672 A.2d 286, 288 (1996). Our appellate courts have defined “substantial evidence” to mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).

Before addressing the appellants’ procedural challenge, it is necessary to address the appellants’ second issue and make a determination as to which procedure the municipality was required to follow in adopting the ordinance. The landowners argue that the board committed an error of law in treating the ordinance as an amendment to the existing 1987 ordinance rather than as an adoption of a new ordinance. This determination is critical since the MPC distinguishes the procedures between adoption of a new ordinance and amendment of an existing ordinance. Compare P.S. title 53, §§10607,10608 (West 1997,2003) with P.S. title 53, § 10609 (West 2003). This issue appears to be one of first impression in this Commonwealth.

The board determined that the supervisors’ legislative action was an amendment to the existing ordinance. In this regard, the board found that “the evidence is simply overwhelming.” Bd. conclusion of law, ¶2, August 9, 2002. The board’s determination was largely based on the supervisors’ and the Adams County planning department’s description of the legislation as an amendment. See generally, id. The board also concluded, as a matter of fact, that the legislation “change[d] no more than five percent of the zoning ordinance.” Bd. finding of fact, ¶5, August 9, 2002.

Although the board concluded that the evidence was overwhelming that the legislation was an amendment to the current ordinance, my review of the record leads to the opposite conclusion. The record is unequivocally clear that the first indication that the legislation was being treated as an amendment is found at the January 28, 2002 supervisors’ meeting. Prior to that date, both the minutes of the planning commission and the supervisors consistently reference the legislation as a “Zoning ordinance.” However, on January 28,2002, just 35 days prior to the supervisors’ adoption of the legislation, the document begins to be described as an amendment. Language in the subsequent correspondence from the Adams County Office of Planning and Development reinforces the designation of the legislation as an amended ordinance. Based upon this mysterious semantical transformation of January 28, 2002, the board concluded that the legislation was an amendment.

Initially, I note that while the particular designation of a piece of legislation is a relevant consideration, I cannot find that such designation, standing alone, constitutes substantial evidence of the legal meaning of the legislation. This point is illustrated by the reality that no matter how many times we call an “apple” an “orange,” the fruit will forever remain an apple. To find otherwise would allow municipal agencies to easily avoid the mandates of our state legislature through semantic gamesmanship. Therefore, while a particular piece of legislation’s designation is a consideration, it is not the controlling consideration. Rather, the ordinance must be examined both as to its legislative history and as to its effect. Indeed, both parties recognize the importance of reviewing that actual language of the legislative action. For instance, the township urges that “the proper focus for this court is on the magnitude of similarities between the 1987 and 2002 ordinances.” Township Br., p. 5. While I concur with the township that a comparison of the two legislative acts is important, I do not concur with its conclusion that the differences between the two versions is “minimal.” Comparison of the 1987 ordinance and the new legislation reveals substantial indications that the legislation is, in fact, a new ordinance.

The 2002 ordinance is comprised of approximately 175 sections while its predecessor, the 1987 ordinance, consisted of approximately 160 sections. This difference is insignificant in and of itself. However, a detailed review of the two ordinances reveals that only 58 sections, or approximately 33 percent of the sections, are identical between the ordinances. An additional 26 sections are virtually identical, however, the section number has been changed. The remaining 91 sections, or 52 percent of the sections, reflect some change to the language of the related section in the 1987 ordinance. Although I recognize that a number of these changes appear insignificant, they constitute, nonetheless, distinctions between the two ordinances. In fact, variances with clear substantive ramifications are prevalent throughout a comparison of the two ordinances.

While a comparison of the less than obvious distinctions between the ordinances is instructive, the true nature of the 2002 legislative action becomes apparent when considering the obvious differences between the two documents. The 2002 ordinance consists of seven distinct zoning districts compared to just five districts in the 1987 ordinance. Specifically, the zoning districts in the 2002 ordinance for agricultural conservation-2 and Lake Meade district do not have a similar counterpart in the 1987 ordinance. Although four of the districts in either ordinance share common titles, an in-depth review of the basic use regulations for each of those districts indicates substantive variances in the respective ordinances. For instance, the residential-agricultural district in the 1987 ordinance allowed for 10 permitted uses and 10 supplemental uses. However, the residential-agricultural district under the 2002 ordinance allows for 12 permitted uses and seven supplemental uses. The same distinction is apparent in the agricultural conservation districts; the residential-suburban districts; the commercial-industrial district; and the flood plain district. Accordingly, in addition to the two districts in the 2002 ordinance which have no counterpart in the 1987 ordinance, the five other districts which share similar titles have different substantive provisions.

Similarly, there is substantial difference to the definition section included in the respective ordinances. See 1987 ordinance, §202; 2002 ordinance, §202. The number of words defined in the 2002 ordinance is more than double the number of definitions included in the 1987 ordinance. In addition to the increase in the number of defined terms, the 2002 ordinance contains a substantial number of provisions which do not have a mate in the 1987 ordinance. These provisions are most apparent in article six of the 2002 ordinance (relating to use regulations), however, exist in other sections scattered throughout the 2002 ordinance.

Finally, the zoning map attached to the 2002 ordinance provides for a commercial-industrial district significantly less than the commercial-industrial district provided in the 1987 ordinance. The 2002 map also differs from the 1987 map in the northeast comer of the township, the southeast corner of the township and the area near Latimore Village (located in the western portion of the township). Under these circumstances, the board’s finding that “[t]he amendments change no more than five percent of the zoning ordinance,” Bd. finding of fact, ¶5, is not supported by the record. Thus, if this decision was based on the magnitude of similarities or dissimilarities between the 1987 and the 2002 ordinances, as is suggested by the township, the appellants’ position has merit.

While I agree that the similarities and dissimilarities between the ordinances are a proper consideration in determining whether the legislation is an amendment or a new ordinance, I do not believe that determination alone to be controlling. Rather, I also look to the express language of the ordinance.

The introductory paragraph to the 2002 ordinance reads as follows:

“The Board of Supervisors of the Township of Latimore, County of Adams, Commonwealth of Pennsylvania, by authority of and pursuant to the provisions of the . .. MPC, and any amendments and supplements thereto, do hereby ordain as follows . . . .” 2002 ordinance, p. 1. (emphasis added)

Similarly, in the general provisions of the 2002 ordinance, the following language is found: “[t]his ordinance is enacted for the following purposes . . . 2002 ordinance, §102. (emphasis added) Other sections in the ordinance provide for its amendment, see section 1201, and its interpretation, see section 1203. Importantly, section 1202 of the 2002 ordinance repeals all inconsistent ordinances. Finally, there is no confusion in the meaning of section 1205 of the 2002 ordinance which provides: “[t]his ordinance shall become effective on the 4th day of March, 2002. Enactment. Ordained and enacted this 4[th] day of March, 2002.” Thereafter, the signature of two out of three supervisors follow and are attested by the township secretary.

Other than the word amended on the front cover of the ordinance, there is not a single reference in the 2002 ordinance that would indicate, or even imply, that the board’s March 4, 2002 action was an amendment to the 1987 ordinance. Moreover, the record is absolutely void of any indication in the legislative history prior to January 28, 2002 that the legislation was being treated as an amendment. Rather, it was consistently referred to as a self-supporting ordinance. It was not until less than two months prior to the adoption of the legislation that the word “amendment” appeared in public notices concerning the legislation.

Under these circumstances, I cannot agree with the township’s position. Other than what the appellants have described as the “self-serving statements” of the supervisors, see appellants’ br., p. 7, every other indication in the record is that the March 4,2002 actions of the supervisors constituted the enactment of a new ordinance. Thus, I find that the board erred in treating this legislation as an amendment.

This interpretation is consistent with the limited statutory authority in this area. For instance, 1 Pa.C.S. §1951 (West 1995) provides guidance on the interpretation of amendatory statutes. This section interprets the meaning of italics or underscored material which is commonly associated with amendatory legislation. The 2002 ordinance is absent of any indications commonly associated with amendments.

The supervisors argue that their failure to follow typical legislative format in drafting this legislation is immaterial. Standing alone, I agree. For this court to adopt a “bright-line” rule that legislation will always be construed as a new ordinance where “typical” legislative format is not followed would ignore the reality of the abundance of Pennsylvania municipality amendatory legislation which ignores such a format. However, despite my rejection of such a “bright-line” test, the township’s lack of conformity with the statutorily recognized practice is one of many factors indicating the true nature of this legislation. Interestingly, despite its noncompliance with general legislative format, the township has, in the recent past, enacted amendatory legislation which is quite distinct in form from the legislative actions taken on March 4, 2002. Latimore Township Ordinance Number 2000-01 (an ordinance amending the zoning ordinance) does not recite the entire ordinance which is being amended but rather references only the amendatory language. Notably, Ordinance Number 2000-01 specifies both in its title and its body that it is an amendment to a pending ordinance.

It is apparent that the supervisors’ legislative action of March 4, 2002 was the enactment of a new ordinance notwithstanding the township’s last-minute attempts to designate the same as an amendment. Thus, the board committed an error of law in considering procedural issues concerning the adoption of the ordinance under the procedures set forth in P.S. title 53, §10609 (West 2003) (relating to the enactment of zoning ordinance amendments).

While this matter might normally be remanded to the board for its consideration of the legislation under P.S. title 53, §10608 (West 2003) (enactment of zoning ordinances), the same is unnecessary since, as set forth below, I find the supervisors’ actions procedurally defective regardless of whether their actions are treated as an amendment or a new ordinance.

Sections 607 and 608 of the MPC sets forth the procedures for the preparation and enactment of a zoning ordinance. Generally, this legislation requires that the text and map of a proposed zoning ordinance be prepared by the planning agency of each municipality during the course of which the planning agency shall hold at least one public meeting pursuant to public notice. Thereafter, the planning agency shall forward the proposed zoning ordinance to the governing body. Before voting on the enactment of the zoning ordinance, the governing body is required to hold a public hearing pursuant to public notice. The vote on enactment shall be within 90 days after the last public hearing. Section 607 specifically provides that satisfaction of the requirements on the planning agency are “a condition precedent to the validity of a zoning ordinance. . . .” P.S. title 53, § 10607(d) (West 1997).

The MPC includes a specific definition for public notice. It reads:

‘Public notice, ’ notice published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.” P.S. title 53, §10107 (West 2003).

The MPC places additional public notice requirements prior to the enactment of legislation affecting zoning. Specifically, section 610 provides:

“(a) Proposed zoning ordinances and amendments shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section, and shall include the time and place of the meeting at which passage will be considered, a reference to a place within the municipality where copies of the proposed ordinance or amendment may be examined without charge or obtained for a charge not greater than the cost thereof. The governing body shall publish the proposed ordinance or amendment once in one newspaper of general circulation in the municipality not more than 60 days nor less than seven days prior to passage. Publication of the proposed ordinance or amendment shall include either the full text thereof or the title and a brief summary, prepared by the municipal solicitor and setting forth all the provisions in reasonable detail. If the full text is not included:
“(1) a copy thereof shall be supplied to a newspaper of general circulation in the municipality at the time the public notice is published.
“(2) An attested copy of the proposed ordinance shall be filed in the county law library or the county office designated by the county commissioners, who may impose a fee no greater than that necessary to cover the actual cost of storing said ordinances.” P.S. title 53, §10610 (West 1997).

Perhaps most noteworthy about these notice requirements is the intent of these provisions to provide notice and the opportunity to be heard to the landowners whose property rights may be affected by the proposed legislation. Additionally, notice requirements have the purpose of protecting the interest of the public in the legislative process. Lower Gwynedd Township v. Gwynedd Properties Inc., 527 Pa. 324, 327, 591 A.2d 285, 287-88 (1991). The right of the public to participate in the enactment of municipal ordinances is so sacred that the courts have been consistent in holding that statutory publication requirements are mandatory and that ordinances adopted without strict compliance are void. Id. at 329, 591 A.2d at 288. Implicit in this maxim is the core concept that in order for public interests to be protected, the public must be fairly alerted as to the subject matter of the pending legislation. Applying this principle to the current circumstances, I find that the notice was inadequate.

Although the board properly found that public notice had been published in a newspaper of general circulation in compliance with the time period set forth in the MPC, they erred in finding this notice sufficient. More specifically stated, although notice was timely given, the public was misled in regard to the nature of the pending legislation. Each of the notices described the pending legislation as a proposed amendment when, in fact, as discussed above, the legislation was an entirely new ordinance. The notice at issue is, at least, ambiguous if not intentionally misleading. Our appellate courts have consistently interpreted ambiguous notices in favor of property owners. Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903 (Pa. Commw. 2001) (determining notice that the township would “consider proposed amendments” insufficient when purpose of hearing was to “enact” ordinance); Kurren Appeal, 417 Pa. 623, 208 A.2d 853 (1965); Tinicum Township v. Tinicum Township Zoning Hearing Board, 154 Pa. Commw. 476, 624 A.2d 232 (1993). I find, therefore, as a matter of law, that notice of a pending ordinance is insufficient when it incorrectly characterizes the nature of the pending legislation.

Equally fatal to the validity of the legislation when considered as a new ordinance is the board’s factual finding that the legislation was “prepared by the governing body of Latimore Township and not by the planning agency.” Bd. finding of fact, ¶33. The record supports the board’s finding in this regard in that references in the legislative history show the ordinance being referred to the planning commission for comment rather than the planning commission forwarding the draft ordinance to the supervisors. The significance of the supervisors’ preparing this legislation rather than the planning agency is apparent in light of the clear statutory requirements set forth in the MPC. The MPC plainly indicates that “[t]he text and map of the proposed zoning ordinance ... shall be prepared by the planning agency” rather than the “governing body.” P.S. title 53, § 10607(a) (West 1997). Moreover, compliance with this statute is mandatory since compliance is “a condition precedent to the validity of a zoning ordinance adopted pursuant to . . . [the MPC].” P.S. title 53, § 10607(d) (West 1997). An ordinance which fails to comply with the mandated requirements of the MPC is invalid. See Muhlenberg College v. Zoning Hearing Board of the City of Allentown, 760 A.2d 443, 445 (Pa. Commw. 2000). Since the supervisors enacted an ordinance without complying with the MPC’s mandated requirements, it is void.

Although I have found that the supervisors’ legislative action constituted an enactment of a new ordinance, that determination is not critical to the resolution in this matter since, even if the legislation is treated as an amendment, procedural defects in its enactment make it void.

If the legislation adopted by the supervisors is treated as an amendment, adoption of the ordinance must satisfy the requirements of section 609 of the MPC. Those requirements provide in relevant part that “[bjefore voting on the enactment of an amendment, the governing body shall hold a public hearing thereon, pursuant to public notice.” P.S. title 53, § 10609(b) (West 2003). The MPC further provides that if the proposed amendment involves a change to the zoning map, “notice of said public hearing shall be conspicuously posted by the municipality at points deemed sufficient by the municipality along the tract to notify potentially interested citizens.” Id. Posting of the affected tracts shall occur at least one week prior to the date of hearing. Id.

Appellants argue that the supervisors failed to comply with these requirements in that all tracts affected by the change to the zoning map were not properly posted. In this regard, they indirectly challenge board finding of fact 11 wherein the board indicated that “the real properties of the appellants were posted on February 24,2002.” For the reasons set forth below, I find that the appellants’ challenge has merit and that the board’s finding is not supported by substantial evidence.

Uncontroverted testimony at the zoning hearing indicated that one tract of appellant Weiser’s property was not posted. Tr. pp. 19-20. Additionally, Terry Rickert testified that although he was unsure as to whether his property was posted, he unequivocally expressed that there was only one tract posted in an area where two separate tracts of land were located. Id. at pp. 27-29. Apparently, the map which the parties were referencing at the zoning hearing, exhibit two, was a map which did not include the current subdivision of tracts of land as they existed at the time of the hearing. A complete reading of the hearing transcript, however, clearly indicates that land which had been designated as a single tract on the map the board referenced at the hearing had subsequently been divided into two parcels of land. Appellant Weiser owns one parcel. Appellants Junkins and Rickert own the second parcel. Although the parties are uncertain as to which of these two tracts was posted, the record is clear that only one of the two was posted. See generally, testimony of M. Everett Weiser and Terry Rickert. A fair reading of the testimony of the township zoning officer, John Shambaugh, not only fails to refute this testimony but, in fact, confirms the testimony. Tr. p. 119; Tr. exhibit 2.

Finally, in considering this issue, the appellants point out a number of other areas throughout the township where the zoning map changed classifications of the zoning district, however, did not post the affected tracts. A casual comparison of the zoning map adopted with the 1987 ordinance with the adopted zoning map, Tr. exhibit two, confirms the appellants’ representations. For instance, a large area in the southeast comer of Latimore Township had the zoning classification changed from residential-agricultural under the previous ordinance to residential-Lake Meade. Despite this change in zoning districts, however, testimony at the board hearing confirmed that this area was not posted at all. See Tr. exhibit 2. Similarly, areas in the northeast corner of the township, the southcentral portion of the township and the eastern portion of the township near Latimore Village appear to have undergone changes of the zoning district pursuant to the March 4, 2002 legislation with little, if any, posting of the affected tracts. The record not only reveals that the township failed to post all of the affected tracts throughout the township but, more specifically, failed to post each of the tracts the appellants owned. Any such implication by board finding of fact 11 is not supported by substantial evidence.

The township, perhaps in recognition of the testimony before the board, essentially concedes in its brief that each and every tract of property affected by the change in the zoning map was not posted. It argues, however, that the MPC does not contain such a requirement. Rather, the township claims that notice is sufficient if it is posted at points deemed sufficient by the municipality to notify potentially interested citizens. In formulating its argument, the township correctly cites section 609 of the MPC which contains such language. P.S. title 53, §10609 (West 2003). Unfortunately for the township, the Commonwealth Court, in interpreting the language of this section, placed a much greater duty upon the township. See Johnson v. Zoning Hearing Board of Stroud Township, 144 Pa. Commw. 479, 601 A.2d 927 (1992).

In Johnson, the Commonwealth Court considered the legality of posting notices to a change in a zoning map under former section 609 of the MPC. The appellants in that case owned residential property affected by a change in a Stroud Township zoning map. Although at least 200 notices were posted throughout Stroud Township, and in fact, the appellants’ property was posted, the municipality failed to post on the perimeter of the entire tract the appellants owned. The Commonwealth Court, recognizing the importance of providing notice, held that the procedures for notice in the enactment of ordinances “must be strictly followed in order for an ordinance to be valid.” Id. at 484, 601 A.2d at 929. Just as importantly, the Johnson court found it immaterial that the property owners had received actual notice. “If a published notice fails to satisfy the statutory requirements, the fact that members of the public, or even the appellants themselves, appeared at the hearing does not breathe life into an otherwise void ordinance.” Id. (quoting Gwynedd Properties Inc., 527 Pa. at 329, 591 A.2d at 287).

Admittedly, the Johnson court was interpreting language in section 609(b) of the MPC which has subsequently been deleted by legislative act. However, implicit in Johnson are a number of principles which provide guidance. Primary among them is the recognition that section 609(b) of the MPC requires each separate tract to be posted. Secondly, actual notice to a property owner by the township is of little significance if the procedures set forth in the MPC are not strictly followed. Applying this instruction leads me to conclude that the township’s legislative act of March 4, 2002 is void.

As mentioned above, the record is unequivocal that all affected tracts in Latimore Township were not posted. Although the appellants claimed to have actual notice of the hearing, the testimony of Terry Rickert is revealing. At hearing, the following exchange occurred:

“Solicitor Turo: Question: Mr. Rickert, you did not come to the public hearing on March 4, 2002 at the fire house?...
“Mr. Rickert: I was there. I was notified about it two days beforehand.
“Question: You did show up?
“Answer: Yes, with little or no preparation.
“Question: You did testify?
“Answer: With little or no preparation, yes, I did.
“Mr. Turo: That’s fine.
“The witness: I would have very much liked to have had more preparation time.” Tr. pp. 29-30.

Notice provisions concerning the enactment of municipal ordinances are of such critical importance that compliance must be absolute. “The public’s interest in the legislative process demands no less,” Gwynedd Properties, 527 Pa. at 329, 591 A.2d at 288, and the township has presented no valid reason to abandon this general rale. The board, in construing this rule to the contrary, has committed an error of law.

I find the appellants’ second argument equally persuasive. The appellants argue that although the township advertised the March 4, 2002 hearing, the public notice was insufficient in that it did not specify the particular nature of the matter to be considered at the hearing. In support thereof, the appellants direct the court’s attention to section 107(a) of the MPC which contains such a requirement in the definition of public notice. Additionally, section 610 of the MPC requires that when the full ordinance is not published, any summary of the ordinance must set forth “all the provisions in reasonable detail.” PS. title 53, § 10610(a) (West 1997). I find the township’s efforts in this regard to be insufficient.

An analysis of this issue necessarily leads into discussion of whether or not the March 4, 2002 legislative act was a new ordinance or an amendment. Since that issue has been exhaustively discussed hereinabove, I will not repeat it with the exception that the February 22, 2002 legal advertisement and the February 25, 2002 legal advertisements speak in language consistent with the adoption of a new ordinance. Regardless, a thorough review of those publications fails to provide any insight as to the major thrust of the March 4, 2002 legislation. Specifically, the legal advertisements neglect to mention that the location of zoning districts in the Township were proposed to be changed. Thus, the prime objective to be accomplished by the legislation is simply ignored when notifying the public as to the subject matter of the pending legislation.

Appellate guidance is sparse in dealing with the issue of how accurate and specific public notice must be. However, the Commonwealth Court recently struck down the enactment of an ordinance where the public notice indicated the hearing would be held to “consider” the proposed legislation rather than “enact” the legislation as was ultimately accomplished at the respective hearing. Valianatos, 766 A.2d at 906. In doing so, the Commonwealth Court reaffirmed the consistent approach of our appellate courts in interpreting ambiguous notices in favor of property owners.

Instantly, the board found as a matter of fact that the legislation at issue “created the agricultural conservation II (AC-II) district, a new zoning district, and reconfigured the township’s zoning map by reducing the size of the commercial-industrial (Cl) district along the so-called Route 15 corridor.” Bd. finding of fact, ¶7. Additionally, the board quoted the testimony of the supervisors’ chairman that as a result of the legislation “changes would be made to the township’s zoning map as well as the township’s current . . . ordinance.” Id. at ¶24. Although the board had no difficulty in summarizing the highlights of the proposed legislation, for some inexplicable reason, the public notice advertising the township hearing fails to even imply a change in the zoning districts or map. While I am sensitive to the argument that my interpretation is “splitting hairs,” where the township drafts the public notices and significant property rights are affected, substantial compliance with the notice requirements is insufficient. Any ambiguity in the notice must be construed against the township. See generally, Valianatos, 166 A.2d at 906-907. Since the notice requirements followed by the township are fatally defective, the township legislative action is void ab initio.

For the foregoing reasons, the attached order is entered.

ORDER

And now, August 1, 2003, the Latimore Township Zoning Hearing Board’s decision is vacated. The Latimore Township Zoning Ordinance enacted on March 4, 2002, is void ab initio.

ORDINANCE NO. 2000-01

An Ordinance of the Township of Latimore, Adams County, Pennsylvania, Amending the Zoning Ordinance (Ordinance of February 5, 1987, no. 1987-15) by Changing the Minimum Lot Areas Required for Dwelling Units Located in the Agricultural-Conservation District, the Residential-Agricultural District and the Residential-Suburban District, Which Minimum Lot Areas Are Dependent on the Type of Sewage Disposal System Used and Repealing Ordinance 1998-5

The Township of Latimore, Adams County, Pennsylvania, hereby enacts and ordains as follows:

Section 1. Section 403 (Basic spatial regulations) of the Latimore Township Zoning Ordinance, subsections A.l.a. and b. (Lot requirements, area), are amended to read in their entirety as follows:

“a. The lot area shall not be less than one acre for a lot for which an individual sewage system utilizing a gravity distribution system has been approved by the township’s sewage enforcement officer and which meets all the requirements of the Pennsylvania Department of Environmental Protection.
“b. The lot area shall not be less than 2.99 acres gross area for a lot for which any type of sewage system other than an individual sewage system utilizing a gravity distribution system has been approved by the township’s sewage enforcement officer and which meets all the requirements of the Pennsylvania Department of Environmental Protection.”

Section 2. Section 413 (Basic spatial regulations) of the Latimore Township Zoning Ordinance, subsections A.l.a. and b. (Lot requirements, area), are amended to read in their entirety as follows:

“a. The lot area and lot area per dwelling unit shall not be less than one acre for a lot for which an individual sewage system utilizing a gravity distribution system has been approved by the township’s sewage enforcement officer and which meets all the requirements of the Pennsylvania Department of Environmental Protection.
“b. The lot area and lot area per dwelling unit shall not be less than 2.99 acres gross area for a lot for which any type of sewage system other than an individual sewage system utilizing a gravity distribution system has been approved by the township’s sewage enforcement officer and which meets all the requirements of the Pennsylvania Department of Environmental Protection.”

Section 3. Section 423 (Basic spatial regulations) of the Latimore Township Zoning Ordinance, subsections A.l.c. (1) and (2). (Lot requirements, area), are amended to read in their entirety as follows:

“(1) The lot area and lot area per dwelling unit shall not be less than one acre for a lot for which an individual sewage system utilizing a gravity distribution system has been approved by the township’s sewage enforcement office and which meets all the requirements of the Pennsylvania Department of Environmental Protection.
“(2) The lot area and lot area per dwelling unit shall not be less than 2.99 acres gross area for a lot for which any type of sewage system other than individual sewage system utilizing a gravity distribution system has been approved by the township’s sewage enforcement officer and which meets all the requirements of the Pennsylvania Department of Environmental Protection.”

All ordinances or parts of ordinances inconsistent with this amending ordinance are repealed including specifically Ordinance Number 1998-5.

All other parts of the ordinance not inconsistent with this amending ordinance are ratified and confirmed.

Enacted and ordained this 8 day of May, 2000.

Township of Latimore

By: /s/Chairman Randall W. Fishel

By: /s/Vice Chairman Daniel T. Worley

By: /s/Supervisor Charles J. Dove

Attest:

/s/Secretary Joanna D. Zepp

      . Minutes for the supervisors’ meetings held in July through November 2001 lack any reference to significant consideration of the ordinance by the supervisors. For instance, the August 13, 2001 and September 10, 2001 minutes reflect a citizen’s question to the supervisors as to the status of the ordinance. Unfortunately, the minutes fail to reflect whether the supervisors ever answered that citizen’s inquiry. Additionally, during the September 10, 2001 meeting, the planning commission asked, “what they were to review on the zoning ordinance, the whole ordinance or just county comments.” Once again, the minutes do not reflect an answer to the question.

      . The February 15, 2002 advertisement in the Gettysburg Times read as follows:
      “Notice
      “Notice Is Hereby Given that the Board of Supervisors of Latimore Township, Adams County, Pennsylvania will hold a public hearing to consider a proposed amendment, and the adoption thereof, to the Latimore Township Zoning Ordinance on Monday, March 4, 2002 at 7 p.m. The public hearing will be held at the York Springs Fire Company located at 312 Main Street, York Springs, PA. A copy of the proposed zoning ordinance amendment may be examined at the Latimore Township Municipal Building located at 559 old U.S. Route 15, York Springs, PA. The proposed amendment may be examined without charge at said municipal building or obtained for the cost thereof from the municipality.
      “Board of Supervisors, Latimore Township, Adams County, Pennsylvania
      “By: Ron Turo, Esquire, Township Solicitor”

      . The February 22, 2002 Gettysburg Times contained three advertisements. The first one read as follows:
      “Notice
      “Notice is hereby given that the Board of Supervisors of Latimore Township, Adams County, Pennsylvania will hold a special meeting for the purpose of considering and/or adopting a zoning ordinance amendment on Monday, March 4, 2002 at 7 p.m. at the York Springs Fire Company, 312 Main Street, York Springs, Pennsylvania.
      “Board of Supervisors, Latimore Township, Adams County, Pennsylvania
      “By: Ron Turo, Esquire, Township Solicitor, 28 South Pitt Street, Carlisle, PA 17013, (717) 245-9688”
      The second advertisement read as follows:
      “Notice
      “Notice Is Hereby Given that the Board of Supervisors of Latimore Township, Adams County, Pennsylvania will consider a proposed amendment, and the adoption thereof, to the Latimore Township Zoning Ordinance on Monday, March 4,2002, at 7 p.m., at the York Springs Fire Company located at 312 Main Street, York Springs, PA. A copy of the proposed zoning ordinance amendment may be examined at the Latimore Township Municipal Building located at 559 old U.S. Route 15, York Springs, PA. The proposed amendment may be examined without charge at said municipal building or obtained for the cost thereof from the municipality.
      “A summary of the proposed amendment and its provisions are as follows:
      “An ordinance permitting, prohibiting, regulating, restricting and determining the uses of land and water courses; the size, height, bulk, location erection, construction, repair, maintenance, alteration, raising, removal and use of structures; the areas and dimensions of land to be occupied by uses and structures; the density of population and intensity of uses; and providing for the administration and enforcement thereof within the Township of Latimore.
      “Article I provides for the purpose of the ordinance, a zoning officer, and a zoning hearing board.

        “Article II provides the definitions of terms used throughout the ordinance.
      “Article III lists the seven zoning districts and boundaries thereof throughout the township.
      “Article IV contains the district regulations for all districts to include the basic use regulations and basic spatial regulations for each district.
      “Article V includes general regulations applicable to all districts, to include among other regulations, buffering, parking, noise and signs.
      “Article VI contains use regulations applicable to the entire township and for each of the specific uses set forth in the various zoning districts.
      “Article VII contains specific regulations for mobile home parks to include use, spatial requirements and site improvements.
      “Article VIII contains regulations for planned residential development to include review and approval procedures, use and spatial requirements.
      “Article IX provides for the creation of a zoning hearing board, appointment of board members, procedures and other relevant information.
      “Article X provides for the administration of the ordinance by appointment of a zoning officer setting forth the powers and duties thereof.
      “Article XI provides for the enforcement of the zoning ordinance to include the requirement for zoning permits, application procedures, penalties for violation, and enforcement remedies.
      “Article XII provides procedures for amendments to this ordinance and the validity and severability thereof.
      “Board of Supervisors, Latimore Township, Adams County, PA
      “By: Ron Turo, Esquire, Township Solicitor”
      The third advertisement read as follows:
      “Notice
      “Notice Is Hereby Given that the Board of Supervisors of Latimore Township, Adams County, Pennsylvania will hold a public hearing to consider a proposed amendment, and the adoption thereof, to the Latimore Township Zoning Ordinance on Monday, March 4, 2002 at 7 p.m. The public hearing will be held at the York Springs Fire Company located at 312 Main Street, York Springs, PA. A copy of the proposed zoning ordinance amendment may be examined at the Latimore Township Municipal Building located at 559 old U.S. Route 15, York Springs, PA. The proposed amendment may be examined without charge at said municipal building or obtained for the cost thereof from the municipality.
      “Board of Supervisors, Latimore Township, Adams County, PA
      “By: Ron Turo, Esquire, Township Solicitor”

      . This February 25,2002 advertisement contains identical language to the second advertisement set forth in footnote 3, supra.

      . Interestingly, although all public notices indicated the hearing was scheduled for 7 p.m., the transcript from the meeting reflects that it commenced at 9:50 p.m. That transcript is noticeably absent of any public comment. The transcript reflects that the chairman convened the “special meeting that we had advertised to consider the adoption of the proposed zoning amendment and amendment map.” Tr., p. 2, March 4, 2002. The transcript then immediately reflects a motion by Supervisor Dost “that we adopt the proposed amended zoning ordinance as submitted by the Latimore Township Planning Committee [sic] and the proposed amended zoning map as submitted by the Latimore Township Supervisors . . . .” Id. After brief comment by Supervisor Dost and Chairman Worley, the motion passed 2-0. The third supervisor, Randall Fishel, was absent from the meeting. The record is completely absent of any indication that public comment occurred at the March 4, 2002 public hearing.

      . Following argument in this matter, the appellants filed a motion requesting the court to consider additional evidence. The appellants requested the court to open the record and consider the Latimore Township zoning map which the supervisors filed with the Adams County Law Library. The zoning map filed with the law library appears to be significantly different from the zoning map Latimore Township adopted. The appellants argued the significance of this evidence in light of section 610 of the MPC which provides that where the full text of an ordinance or amendment is not set forth in the public notice (as is currently the case) then an attested copy of the proposed ordinance shall be filed in the county law library. See P.S. title 53 §10610 (West 1997). Essentially, the appellants argue that the zoning map available for public inspection at the Adams County Law Library was different than the zoning map the supervisors adopted. Both the board and the supervisors objected to the presentation of additional evidence arguing that section 610 requires only a copy of the ordinance and not a copy of the zoning map. Thus, they allege to have been in compliance with the ordinance. They further argue that the appellants’ argument raises a new ground for appeal which has not previously been raised and, therefore, waived. See generally, Perin v. Board of Supervisors of Washington Township, 128 Pa. Commw. 313, 563 A.2d 576 (1989).
      I find the initial argument to be frivolous in light of the clear language of the Latimore Township Zoning Ordinance which makes the zoning map a part of that ordinance. See 2002 ordinance §302. Additionally, although it is somewhat distressing that public officials would disseminate for public consumption a zoning map containing designations different than that which was adopted, in light of my opinion in this matter it is unnecessary to consider the appellants’ proposed additional evidence nor address the appellee’s issue of waiver. Since the current record is sufficient to determine that both errors of law and an abuse of discretion has occurred, it is unnecessary to consider the appellants’ additional evidence. Therefore, the appellants’ motion to supplement the record is denied.

      . Although the board’s decision references support in the zoning hearing transcript for this proposition, a review of the transcript at the locations cited by the board reflect argument of counsel and not sworn testimony. Both ordinances, however, have been made part of the record and will serve as the basis for my analysis.

      . The January 28, 2002 minutes reflect that in response to a question as to whether the ordinance was a new ordinance, Supervisor Worley stated that it was not a new ordinance but rather an amendment.

      . For instance, section 602 of the 1987 ordinance reads as follows:

        “Section 602. Antique sales.

      “(A) Any outdoor display of articles for sale shall be at least 50 feet from any property or street line.
      “(B) Adequate off-street parking must be provided.
      “(C) A sign no larger than 50 square feet may be permitted; and shall be set back at least 40 feet from any street line.”

        The comparable section in the 2002 ordinance, section 604, reads as follows:

        “Section 604. Antique sales.

      “(A) Any outdoor display of articles for sale shall be at least 50 feet from any property or street line.
      “(B) Adequate off-street parking must be provided as required in section 513 of this ordinance.

      “(C) A sign no larger than 50 square feet may be permitted and shall be set back at least 40 feet from any street line.” 2002 ordinance, §604. (emphasis added)
      While these sections are arguably substantially similar, it is equally clear that these sections contain different language. In light of the pronouncements from our appellate courts that every word in an ordinance has meaning, see generally, Borough of Pleasant Hills v. Zoning Board of Adjustment of Borough of Pleasant Hills, 669 A.2d 428, 430 (Pa. Commw. 1995), one might argue that the distinction between the two ordinances, while semantically insignificant, has meaningful legal repercussions. For similar distinctions in form between the two ordinances review and compare, among others, the following sections: 1987 ordinance, §§605, 606 and 612 with 2002 ordinance, §§607, 608 and 616. In addition, there is a significant amount of clearly substantive variances between the ordinances. Examples of this may be found in sections 802 and 803 of the 2002 ordinance (relating to applicable time periods for review and approval of planned residential development submissions). The 1987 ordinance, §802(A) provides: “The board of supervisors, within 30 days following the conclusion of the public hearing, shall, by official written communication, to the developed, [sic] either: . . . .” 1987 ordinance, §802(A). (emphasis added) The comparable section in the 2002 ordinance reads as follows: “The board of supervisors, within 60 days following the conclusion of the public hearing, shall, by official written communication to the developer:____” 2002 ordinance, §802(A). (emphasis added) Both sections contain a number of other time periods which are different between the two ordinances.

      . Compare section 514(A)(2) of the 1987 ordinance (no off-street parking, loading or unloading facilities shall be located less than three
        feet from any property line) with section 513(A)(2) of the 2002 ordinance, (no off-street parking, loading or unloading facility shall be located less than 10 feet from any property line); section 508 of the 1987 ordinance with section 507 of the 2002 ordinance (substantial differences in the organization of the content of these sections); section 433(B)(3) of the 1987 ordinance (providing for rear yard in a commercial-industrial district of at least 10 feet) with section 453(B)(3) of the 2002 ordinance (providing rear yard requirements in a commercial-industrial district of at least 50 feet). A side-by-side comparison of the ordinances reflects a number of similar distinctions which are too abundant to list in this opinion.

      . The 2002 zoning ordinance omits, inter alia, public museums, cemeteries and planned residential developments as supplemental uses compared to the 1987 ordinance which permitted such supplemental uses.

      . The 1987 ordinance allows seven permitted uses and eight supplemental uses in the agricultural-conservation district compared to the 2002 ordinance which allows 10 permitted uses and six supplemental uses.

      . The 1987 ordinance allows six permitted uses and nine supplemental uses in the residential-suburban districts compared to the 2002 ordinance which allows seven permitted uses and seven supplemental uses in the similar district.

      . The 1987 ordinance provides for 24 permitted uses and 13 supplemental uses in a commercial-industrial district compared to the 2002 ordinance which provides for 27 permitted uses and 18 supplemental uses in a similar district.

      . Section 442(A)(5)(d) of the 1987 ordinance allows accessory industrial and commercial uses as a permitted use in the flood plain district compared to section 462 of the 2002 ordinance which does not include such a permitted use.

      . The appellants’ brief indicates that 126 out of 230 definitions in the 2002 ordinance either do not exist or contain different definitions from the 1987 ordinance. My own count reflects that approximately 113 of the 215 definitions included in the 2002 ordinance were not included in the 1987 ordinance.

      . The 2002 ordinance contains 44 separate sections under article six (use regulations) compared to the 35 sections contained in article six of the 1987 ordinance (relating to use regulations).

      . See generally, 2002 ordinance, §§513(C)(3); 513(F) through (Q); 518(C) (relating to commercial advertising signs) and 518(D)(2) (placing 100 square foot limit on all signs in Latimore Township).

      . The supervisors’ brief contains an attachment consisting of a transcript of proceedings from an October 16, 2000 proposed zoning map and proposed zoning ordinance public hearing. In doing so, the supervisors urge the court to recognize the transcript by judicial notice since they claim it is a matter of public record. Indeed, in considering the intent of legislation, the legislative history is an appropriate consideration when the words of legislation are not explicit. 1 Pa.C.S. §1921(c)(7) (West 1995). Interestingly, at that public hearing, the township solicitor made the following representation to the citizens: “The planning commission I’m sure is open to your suggestions. When they prepare a final document and forward it to us with a final map, then we will advertise an ordinance which would be this new ordinance and we would have another not a public hearing [sic] but there would be a regular meeting in order to decide if they wanted to pass the new zoning ordinance.” Tr. p. 16, 11. 9-15, October 16, 2000. (emphasis added)

      . Incidentally, the make-up of the supervisors changed effective January 7, 2002.

      . The rules of statutory construction are applicable to municipal ordinances. Wilkes-Barre Appeal, 208 Pa. Super. 424, 429 n.2, 222 A.2d 499, 502 n.2 (1966).

      . On May 8, 2000, the supervisors enacted Ordinance Number 2000-01. Two of the three supervisors in office at that time were in office at the time of the March 4, 2002 legislation. The court takes judicial notice of this ordinance. 42 Pa.C.S. §6107 (West 2000); Dream Mile Club Inc. v. Tobyhanna Township Board of Supervisors, 150 Pa. Commw. 309, 314-15, 615 A.2d 931, 933-34 (1992). A copy of Ordinance Number 2000-01 is attached to this opinion.

      . P.S. title 53, §§10607, 10608 (West 1997, 2003).

      . P.S. title 53, §10610 (West 1997).

      . The Adams County Law Library contains a document entitled, “Latimore Township, Adams County, Pennsylvania, Proposed Zoning Ordinance, December, 2001.” Enclosed within the ordinance is a zoning map. The zoning map included with the December 2001 ordinance is different than the zoning map included with the ordinance the supervisors adopted on March 4, 2002.

      . Although the board characterizes this legislation as an amendment to the ordinance, the board’s erroneous designation does not negate its factual conclusion that the subject legislation, by whatever name it may be called, originated in Latimore Township’s governing body.

      . As previously mentioned in footnote 18, the township solicitor referred to the legislation as a new ordinance which the planning commission prepared. While this representation is contrary to the board’s finding, the board is not required to accept it nor has committed an abuse of discretion if its factual reference in paragraph 33 is supported by substantial evidence in the record.

      . The appellants additionally argue that the ordinance is void since:
      “(1) the planning commission failed to hold a public meeting pursuant to public notice as required by section 607(b) of the MPC; and
      “(2) the planning commission did not present the draft zoning ordinance to the supervisors as required by section 607 of the MPC.” Appellants’ notice of appeal, p. 4.
      In regard to the first of these issues, the record is barren of any indication that public notice of the planning commission meetings was provided. In light of the board’s erroneous finding that the subject legislation was an “amendment” rather than the “enactment” of a new ordinance, the supervisors apparently did not address the issue. Accordingly, remand of the issue for an evidentiary finding in that regard would be appropriate if that was the sole issue presented. However, that was not the sole issue the appellants raised and, in light of the disposition set forth hereinabove, remand is unnecessary.
      The second issue raised by the appellants in regard to procedural deficiencies in the enactment of the ordinance need not be addressed any further in light of the board’s finding that the supervisors, rather than the planning commission, prepared the ordinance. It rationally follows that since, as a matter of fact, the supervisors prepared the ordinance, then there would be no need, or opportunity, for the planning commission to present the ordinance to the supervisors as required by section 607(c) of the MPC.

      . The appellants also question the timing of the township’s public notices. After a thorough review of the record, I find this issue meritless and affirm the board’s decision in this regard.

      . Although the record does not identify Mr. Shambaugh, the court is aware of Mr. Shambaugh’s status as the zoning officer of Latimore Township due to other proceedings before this court.

      . The board claims that “Mr. Shambaugh posted notice of the March 4, 2002 public hearing along the affected tracts.” Bd. conclusion of law, ¶4. In support thereof, the board references page 93 of the zoning hearing transcript. My reading of the transcript at that page fails to reveal any testimony supporting such a broad statement.

      . The March 4, 2002 legislation maintained the designation of zoning districts classified as residential-agricultural. The residential-Lake Meade district is an entirely new zoning district rather than simply having its designation changed.

      . Prior to 1994, section 609(b) of the MPC provided in relevant part: “notice of said public hearing shall be conspicuously posted by the municipality at points deemed sufficient by the municipality along the perimeter o/the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.” P.S. title 53, § 10609(b) (West 2003). A 1994 amendment to the section deleted the language “the perimeter of.” Interestingly, section 609(b) of the MPC, which was effective at the time of the township’s legislative action in this matter, has subsequently been amended. On January 11, 2002, the section was amended to require a municipality to provide notice prior to the adoption of a zoning map change to all real properties listed on the tax rolls which are affected by the change. Notice is to be given by first class mail to each such property owner. This subsequent legislative action confirms the high priority which Pennsylvania courts place upon notice requirements.

      . Although the township has argued that the 30 notices placed throughout the township were conspicuously posted at points deemed sufficient by the municipality in an effort to provide sufficient notice, I find this argument curious. Interestingly, the Weiser properties which were posted appear to have been farmland, Tr. pp. 19-21, while the Weiser tract which was not posted housed a retail establishment, the location of which is described by Mr. Weiser as follows: “I think most people know where our retail market is.” Tr. p. 107.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Equimed Inc. v. Steadfast Insurance Co.

      C.P. of Centre County,
    no. 1999-0585.

      Jeffrey W. Stover, Peter Konolige, Jamie Lenzi and Marcy L. Colkitt, for plaintiffs.

      Lee C. Nollau, David M. Gische, Jodi L. Cleesattle, Benjamin C. Eggert, Joseph P. Green and Daniel J. Stanish, for defendants.
    July 18, 2003
   GRINE, J.,

Before the court is defendant Steadfast’s motion for reconsideration of the court’s April 8,2003 order, which rescinds a previously amended order and takes the parties back to an order signed March 12, 2003. The court denies the reconsideration and sets forth below its reasoning and a more detailed order directing production of discovery.

There are two discovery principles at issue here. Defendant is asserting the attorney-client privilege and the attorney work product exclusion to withhold from plaintiffs documents in defendant’s possession pertaining to the main issues in this case. Attorney-client communications and attorney work product are not “plainly and indisputably protected from discovery” as defendant states in its motion for reconsideration. (Para. 4.) The attorney-client privilege has been codified in Pennsylvania at 42 Pa.C.S. §5928. The statute reads: “In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa.C.S. §5928. However, communications from an attorney to his client are not privileged except where they would contain reiterations or prior statements by the client to his attorney. Eisenman v. Homberger, 44 D.&C.2d 128 (Lycoming Cty. 1967). The criteria to be met for the attorney-client privilege to apply are set forth in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950), and have been adopted by Pennsylvania courts, as in Hopewell v. Adebimpe, 18 D.&C.3d 659, 660-61 (1981):

“The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the lawyer was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”

In this matter, the court finds that no attorney-client privilege exists between defendant and its employee claims analysts and claims managers who also happen to be attorneys. These employees were not acting as lawyers for defendant in analyzing plaintiffs’ claim, and have so stated in depositions. Furthermore, “where ... counsel is integrally involved in claims handling, the facts of the insurance company’s dealing with its insured cannot be insulated from discovery.” General Refractories Co. v. Fireman’s Fund Insurance Co., 45 D.&C.4th 159, 170 (Phila. Cty. 2000). The documents that plaintiffs seek from the claims analysts and managers go to the heart of plaintiffs’ case and cannot be excluded from discovery.

The work product doctrine is codified in Rule 4003.3 of the Pennsylvania Rules of Civil Procedure. This rule states in pertinent part:

“Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his attorney ... insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” Pa.R.C.P. 4003.3.

The protection of either an attorney’s or representative’s work product, however, is not absolute. The explanatory note to Rule 4003.3 states that work product may be discoverable in “situations under the rule where the legal opinion of an attorney becomes a relevant issue in an action;....” The note goes on to state that the legal opinion becomes a relevant piece of evidence, and is not protected against discovery. Pa.R.C.R 4003.3 explanatory comment 1978.

Under McAndrew v. Donegal Mutual Insurance Co., 56 D.&C.4th 1 (Lacka. Cty. 2002), the only documents that are protected under the work product doctrine are counsel’s mental impressions regarding the merits of the bad faith claim — but not the mental impressions, opinions or conclusions relating to the insurers’ processing of the claim, its investigation of benefits and its justification for denial of benefits.

Defendant claims discovery of work product documents is not automatic simply because plaintiffs have asserted a bad faith claim. Defendants are correct; however, plaintiffs have done more than merely asserted an “unfounded” claim of bad faith. Plaintiffs have laid out detailed allegations in their pleadings, supported with documentation and relevant law that suggest there is merit to their claim. The court finds that all documents directly pertaining to the processing and decision on denial of benefits to plaintiffs are discoverable.

ORDER

And now, July 18, 2003, it is ordered that defendant Steadfast’s motion for reconsideration of the court’s April 8, 2003 order is hereby denied.

It is further ordered that defendants Steadfast have 20 days from the date of this order to disclose to plaintiffs all documents that pertain to the above captioned matter, including those documents listed on Steadfast’s privilege log, of claims adjusters, claims analysts, claims managers and the like, whether or not these employees have a law degree or carry the designation “esquire” after their names. This specifically includes, but is not limited to, documents on the privilege log of Claire Cullen, Mary Anne Mullin and David Siesko.

It is further ordered that defendants Steadfast have 20 days from the date of this order to disclose to plaintiffs all documents in Steadfast’s possession from outside counsel, including those documents listed on Steadfast’s privilege log, that pertain specifically to Steadfast’s decisions on its denial or extent of coverage to Equimed in this matter.


author: BLACK, J.,

text:
    Salomoni v. Phillips
    C.P. of Lehigh County,
    no. 2001-C-1669.

      Michael P. Gough, for plaintiff.

      Paul G. Lees, for defendants.
    June 9, 2003
   BLACK, J.,

This case comes before the court on the defendants’ motion for summary judgment, alleging that the plaintiff’s cause of action is time-barred. Because the plaintiff did not make any effort to serve the initial writ of summons in a timely manner, the writ expired and the praecipe for issuance of the writ did not toll the statute of limitations. Hence, the plaintiff’s claim is time-barred as a matter of law, and the defendants’ motion for summary judgment must be granted.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff’s complaint seeks monetary damages for personal injuries sustained on June 21, 1999, allegedly as a result of the defendants’ negligence. The plaintiff initiated this action by filing a praecipe for writ of summons on June 20, 2001. However, although the Lehigh County Clerk of Courts, Civil Division, issued a writ of summons the same day, the plaintiff’s counsel never arranged for this writ to be delivered to the Lehigh County Sheriff’s Office for service on the defendants. As a result, the writ expired on July 20, 2001, without having been served.

On October 17, 2001, almost four months later, the plaintiff filed a praecipe to reissue the writ of summons. This time the plaintiff’s counsel promptly delivered the reissued writ to the sheriff’s office for service. However, the check from plaintiff’s counsel to the sheriff for the service fee was for too high an amount, causing the sheriff to return both the check and writ to plaintiff’s counsel. The reissued writ then also expired without service having been made.

On November 20, 2001, the plaintiff again filed a praecipe to reissue the writ of summons and delivered the reissued writ, this time with the correct service fee, to the sheriff’s office for service. The sheriff served the defendants with this reissued writ on December 3,2001, more than five months after the plaintiff had filed his original praecipe for writ of summons.

The plaintiff’s complaint was filed on February 22, 2002. Following a status conference the case was stricken for arbitration by our order of July 11, 2002. After several extensions, the defendants answered the complaint on January 13, 2003, raising as new matter the affirmative defense of the statute of limitations.

On April 7, 2003, the defendants filed the motion for summary judgment currently at issue. Before this motion could be acted on, the case proceeded to arbitration on April 16, 2003. The arbitrators found in favor of the defendants, and plaintiff has appealed their decision. Hence, the case now comes before the court for disposition of the defendants’ motion for summary judgment.

DISCUSSION

The standard for reviewing a summary judgment motion is well established.

“Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. . . . The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party.” Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000). (citations omitted)

In responding to a motion for summary judgment the non-moving party cannot rest on the allegations of his or her pleading, but must produce sufficient evidence by way of affidavits, answers to interrogatories, depositions, or admissions in pleadings or discovery to create a genuine issue of fact on those issues on which the non-moving party has the burden of proof at trial. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed. 2d 401 (1996).

In this case, suit was commenced by the filing of a praecipe for writ of summons on June 20, 2001, one day before the applicable two-year statute of limitations for personal injury claims was to expire. The clerk issued the writ of summons the same day, but plaintiff’s counsel did not make any effort to deliver this writ to the sheriff for service on the defendants. Thirty days after issuance of the writ, it expired for lack of service. Since the plaintiff did not make a good faith effort to serve the writ within the required 30-day period, the praecipe for issuance of the writ did not toll the statute of limitations. Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Consequently, the limitations period expired on June 21, 2001, and the plaintiff’s complaint is time-barred.

The Pennsylvania Rules of Civil Procedure are clear that a writ of summons must be served on a Pennsylvania defendant within 30 days after its issuance or the writ will expire. Thus, Pa.R.C.P. 401(a) provides: “Original process shall be served within the Commonwealth within 30 days after the issuance of the writ or the filing of the complaint.” Furthermore, unless the plaintiff has made a good faith effort to serve the writ before it expires, the praecipe for the writ will not be effective to toll the statute of limitations. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986); Lamp v. Heyman, supra.

In the instant case the plaintiff admits that he took no action whatsoever to serve the original writ of summons prior to its expiration. He made no effort to serve the defendants until the writ of summons was reissued on October 17, 2001; and he allowed this reissued writ to expire 30 days later for his failure to deposit the correct service fee with the sheriff. It was not until November 20,2001, when the writ was reissued a second time, that the plaintiff finally delivered the reissued writ to the sheriff’s office with the correct deposit.

The plaintiff argues that this delay was justified because he was awaiting the receipt of medical records so that he could pursue an amicable settlement of the claim with the defendants’ insurance carrier, AIG Insurance Co., thus obviating the need for litigation. This argument is without merit. Although we certainly encourage the settlement of disputes, a plaintiff cannot ignore the statute of limitations, without the defendant’s consent, on the theory that he wants more time to pursue an amicable settlement.

If the plaintiff had made a good faith effort to serve the original writ before it expired, then the original praecipe filed on June 20, 2001, would have sufficed to toll the statute of limitations. According to the Superior Court, it is not necessary that a plaintiff continually reissue the writ before each expiration. Parr v. Roman, 822 A.2d 78 (Pa. Super. 2003). However, a plaintiff must make a good faith effort to serve the defendant. Whether the actions of a plaintiff constitute a good faith effort is to be determined by the trial court on a case-by-case basis. Farinacci, supra at 594, 511 A.2d at 759.

In Parr, supra, the plaintiff alleged that service had not been made more promptly because the defendant had moved, and he had difficulty ascertaining the defendant’s new address. The court denied the defendant’s motion for judgment on the pleadings and directed the lower court to hold an evidentiary hearing on the factual issue of whether the plaintiff had made a good faith attempt to locate and serve the defendant.

In the present case, no evidentiary hearing is required. We are presented with a motion for summary judgment, rather than a motion for judgment on the pleadings. Accordingly, we have the benefit of a factual record from which we can ascertain whether the plaintiff made a good faith effort to serve the defendants. We find that he did not. It is clear from the record that the plaintiff was well aware of the defendants’ address because he included it on his initial praecipe for issuance of a writ of summons filed on June 20, 2001. Additionally, the plaintiff conceded at oral argument that neither the defendants nor their insurance carrier made any statements to him that caused him to delay service of the writ. In response to the summary judgment motion, the plaintiff has advanced no satisfactory justification for failing to serve the defendants within the 30-day period set forth in Pa.R.C.P. 401(a). Therefore, the praecipe for writ of summons filed on June 20, 2001, did not toll the statute of limitations.

The plaintiff contends that the defendants were not prejudiced by the late service because he informed their insurance carrier by letter dated June 20, 2001, that a praecipe for writ of summons had been filed that day. The defendants have provided the affidavit of Mark D. Smith, the adjuster at AIG Insurance Co. assigned to the plaintiff’s claim, who states that neither he nor any employee of AIG Insurance Co. received any such letter from the plaintiff’s counsel. Whether or not a representative of the defendants’ insurance carrier received notice of the lawsuit is irrelevant, because notice to a defendant’s insurance carrier does not toll the statute of limitations. The named defendants, not their insurance carrier, are the parties to this lawsuit. As the Pennsylvania Superior Court recently held in a similar case:

“Appellant argues, though, that the appellees’ insurance carrier had notice of an ‘impending lawsuit’ two weeks prior to the running of the statute of limitations.... Accepting the truth of this allegation for the purposes of our review, it nonetheless does not excuse appellant’s failure even to attempt to effectuate actual service of the actual writ on the appellees. It was the appellees who were being sued not their insurance company.” Moses v. T.N.T. Red Star Express, 725 A.2d 792, 798 (Pa. Super. 1999).

Therefore, even assuming that the letter from the plaintiff’s counsel reached the defendants’ insurance carrier, this act alone would not have tolled the statute of limitations in this case. Notice of a claim or suit is not a substitute for the timely filing and service of original process.

CONCLUSION

For all of the foregoing reasons, the defendants’ motion for summary judgment is granted.

ORDER

Now, June 9, 2003, upon consideration of the motion of defendants, Christopher Carl Phillips and Susan D. Phillips, for summary judgment and plaintiff’s response thereto, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered that said defendants’ motion is granted. Judgment is hereby entered in favor of said defendants against plaintiff.

      . 42 Pa.C.S. §5524.

      . Pa.R.C.P. 401(a).

      . The Superior Court has rejected the statement in the lead opinion in the Supreme Court decision in Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001), that original process must be “immediately and continually” reissued or reinstated until service is made in order to toll the statute of limitations. The Superior Court noted in Parr that this was only a plurality opinion without support from a majority of the justices. Hence the statement is non-binding dicta.

      . Defendants’ motion for summary judgment, exhibit “A” at 1.

      . Brief in support of answer by defendant to motion for summary judgment, Letter dated June 20,2001, from Michael P. Gough, Esq. to Kim Hardy, Claim Representative for AIG Claim Services Inc., exhibit “B.”