author: ALBRIGHT, J.,

text:
    In re Appeal of Ryan and Moyer
    C.P. of Montgomery County,
    no. 08-06653.
    Blaine Moyer, pro se.

      Gary P. Lewis and Edward A. Skypala, for defendant West Pottsgrove ZHB.

      Lee D. Mescolotto, for defendant West Pottsgrove Twp.

      November 16, 2009
   ALBRIGHT, J.,

Georgette Moyer, Ryan Moyer and Blaine Moyer appeal from this court’s order, dated January 14,2009, which denied their land use appeal and affirmed the February 13, 2008 decision of the West Pottsgrove Township Zoning Hearing Board. For the reasons that follow, the undersigned believes that the Moyers’ appeal is without merit and that the trial court’s decision of January 14, 2009 should he affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2007, Georgette and Ryan Moyer (applicants) purchased two parcels of ground located in West Pottsgrove Township and zoned R-2 Residential. These parcels are identified as units 30 and 31 in the Montgomery County Fax Map Block 42. On August 8, 2007, the Township conducted an inspection of the premises and discovered, among other things, a trailer in which the Moyers were living, a blue van, gas tanks, propane tanks, tires, a recreational vehicle with a camper, a separate camper top, trucks with gas pumps on them, a front end loader, a stake-body truck with junk on it, metal debris, a gas-powered generator, a blue storage trailer, and several red trucks. (N.T. 10/10/07, at 26-28.) Two days later, the township’s manager, Mr. Edward Whetstone, issued a notice of violation and cease and desist order, dated August 10, 2007, which asserted not only that the applicants were “storing junk vehicles, abandoned vehides, tires, propane, gas pumps and other junk and rubbish on the property,” but that they “were conducting an unlawful business and maintaining an unlawful structure by establishing a trailer/mobile home as their residence” in violation of “article V §§700, 701 and 701.1” of the West Pottsgrove Township Zoning Ordinance (Board’s decision, 2/13/08, at 3.) The notice of violation stated that the applicants had “10 days from the receipt” of the notice to appeal the township’s zoning decision to the board. (Notice of Violation, 8/10/07, at 4.)

On August 24, 2007, the applicants filed an appeal from the above-referenced notice and order to the board, as well as an application seeking an interpretation of and a variance from article VII sections 700, 701 and 701.1 and article IV, sections 405 and 421 of the ordinance to permit a recycling and salvage business on their newly purchased lots. On October 10,2007, at the first of three hearings before the board, the applicants amended their application by withdrawing their request for a variance and by amending their prior request for relief to include the operation of a “recycling and salvage yard business.” On February 13, 2008, following three public hearings on the applicants’ appeal and application held on October 10, 2007, November 8, 2007, December 6, 2007, the board issued its 10 page decision and the following order:

“The West Pottsgrove Township Zoning hearing board finds that the applicants have violated §§701 and 701.1 of the West Pottsgrove Township Zoning Ordinance continuously from August 8, 2007 and through the December 6, 2007 zoning hearing board hearing and upholds the West Pottsgrove Township Zoning Officer’s Notice of Violation as it relates to §§400, 700 and 701.1 and sustains the applicants’ appeal as to §§405 and 421.” (Board’s decision, 2/13/08, at 11.)

Responding to the board’s adverse ruling, the applicants, on March 14, 2008, filed their notice of land use appeal with the prothonotary of Montgomery County, the township and Mr. Blaine Moyer thereafter securing their status as intervenors in this case by stipulation filed on May 29,2008. The parties’ positions were eventually briefed and argued before the undersigned, whose order of January 14, 2009, denying the subject appeal and affirming the board’s decision, stated, in part, that:

“The board’s findings and conclusions that the appellants, in violation of the applicable provisions of the township zoning ordinance, were conducting a recycling, salvage, scrap and/or junkyard business upon the subject premises were amply supported by the substantial evidence produced during the course of the three hearings held in this case. That same evidence further demonstrated unequivocally that any such use of the property in question, claimed by the appellants to be a lawful nonconforming use thereof, had, in fact, been abandoned many years prior to the appellants ’ purchase of the premises on July 31,2007. Having reached that conclusion in rejecting the landowners’ application for relief, the zoning hearing board of West Pottsgrove Township neither abused its discretion nor committed an error of law.

“Furthermore, the appellants’ assertion that the appellee-township’s issuance of an allegedly defective notice by someone unauthorized to attend to that responsibility in some manner violated the appellants’ constitutional right to due process and so undermined the board’s decision as to suggest that, on that basis alone, it be overturned and reversed, is without foundation or support in the law.” (Tr. ct. order, 1/14/09.)

Subsequent petitions filed by Georgette and Ryan Moyer and Blaine Moyer seeking the trial court’s reconsideration of its order of January 14, 2009 were denied on February 11,2009. On February 13,2009, Georgette, Ryan and Blaine Moyer filed a joint notice of appeal to the Commonwealth Court of Pennsylvania, and, shortly thereafter, Georgette and Ryan Moyer filed and served upon the undersigned their statement of matters complained of on appeal (1925(b) statement), which consists of the following:

“(a) The court failed to recognize that the notice of violation issued by the township manager is invalid and unenforceable. The court erred in law and/or abused its discretion in failing to reverse the zoning hearing board due to the defective notice of violation. Section 1800 of the West Pottsgrove Township Zoning Ordinance specifically states that the zoning officer ‘shall not hold any other office in the municipality.’ The court ignored such provision despite the fact that Edward Whetstone was the township manager, and signed the notice of violation as the township manager. He may not also hold the office of zoning officer, it violates the township’s zoning ordinance.

“(b) The court committed an error of law and/or abused its discretion in failing to recognize that the township violated section 1801 of the township’s zoning ordinance. Such section sets forth the power and duties of the zoning officer. Since Mr. Whetstone was not a legal zoning officer, he is without the power to enforce the township’s zoning ordinance. The court failed to recognize that Mr. Whetstone was without proper authority to attempt to enforce the township’s zoning ordinance.

“(c) The court committed an error or law and/or abused its discretion when it failed to recognize that appellants’ due process rights were violated to the degree the warrants the zoning hearing board’s decision to be reversed. The court failed to recognize that section 1806 of the township’s zoning ordinance allows 30 days within which to appeal a notice of violation and related issues. It is undisputed that the township only allowed 10 days within which to file an appeal. (See notice of violation.) Such violation of due process materially effected the claims and/or defenses appellants could have pursued. The zoning hearing board refused to grant appellants a continuance on the first day of the zoning hearing to amend their zoning appeal application. Such refusal is incredible given that it was the township who wrongfully shortened the appeal period from 30 days to 10 days. This refusal substantially effected appellants due process rights. Appellants could have pursued a validity challenge as the township prohibits junk yards in a de jure manner. (Ordinance 10-5 specifically and unlawfully prohibits junk yards within West Pottsgrove Township.) Such was a viable claim that was refused to be heard by the zoning hearing board in appellants’ zoning appeal. Additionally, the township did not adhere to the requirements of section 1801.4 setting forth the requirements of the notice of violation. The township did not adhere to such requirements, rendering their notice of violation invalid. Additionally, the township violated section 2001.3 d.) through f.) of their zoning ordinance. The court erred in failing to recognize that such violations by the township, materially violated appellants due process rights, to the point that the zoning hearing board’s decision should be reversed. Appellants could not pursue valid defenses/issues because the township did not afford appellants the full 30 days to prepare their appeal.

“(d) The court committed an error of law and/or abused its discretion in failing to grant appellants’ motion to present additional evidence in land use appeal. The court denied such motion as “untimely” despite the fact that the controlling statute does not set forth a specified time table to file such a motion. (See 1005-A of the PA Municipalities Planning Code.) The court should have considered the merits of the motion rather than rule that it was “untimely”. If the merits of the motion were considered, appellants would have prevailed on such motion. The zoning hearing board considered aerial photographs and related witness testimony from township’s witnesses trying to demonstrate that there was no junk yard from the mid 1990s until the Moyers purchased the relevant properties in 2007. However, after the zoning hearings concluded, the Moyers discovered that there was substantial junk found on the adjoining waste management’s property that had to be cleared with several dumpsters. Such junk existed from the mid 1990s through 2007. Such junk was not visible from the aerial photographs, and waste management’s witness admitted same. It only stands to reason that if you could not see waste management’s junk in the aerial photographs, then you could not see the junk on the Moyer’s property. Since this evidence was acquired after the zoning hearings concluded, and considering the zoning hearing board considered such evidence, and same was material, the court should have allowed appellants to present such additional evidence.

“(e) The court committed an error of law and/or abused its discretion in failing to recognize that appellants established the existence of a lawful non-conforming use. The zoning hearing board acknowledged in its finding of fact number 30 that from 1990 through 2007 there WAS activity on the property including the dismantling and removal of things on the property. In accordance with Heichel v. Springfield Township ZHB, 830 A.2d 1081 [(Pa. Commw. 2003)] such activity is enough activity to NOT consider the junkyard abandoned. The court has ignored the holding in Heichel as well as the other cited cases by appellants (which are incorporated herein by reference as though set forth at length). The township and/or zoning hearing board have not even attempted to distinguish the holding in Heichel. The court has failed to consider the testimony of both Rick and Goldia Patten, which clearly establishes the existence of a non-conforming use on the property. Such constitutes an error of law and/or an abuse of discretion.

“(f) The court committed an error of law and/or abused its discretion in failing to recognize the law in the Commonwealth of Pennsylvania that requires that in order for a use to be considered abandoned, it must be established that there was an intent to abandon the use and that the use had IN FACT been abandoned. (See cases cited in section C of appellants’ brief in support of their land use appeal.) “The mere showing of lack of use does not prove abandonment.” See Latrobe Heichel, and Simonitis cited in brief.

“(g) The court committed and error of law and/or abused its discretion in failing to recognize that the ZHB violated intervenor, Blaine Moyer’s due process rights, in failing to allow him to be heard at the zoning hearing. Mr. Moyer attempted to raise several legitimate legal issues at the zoning hearing and his legal positions were summarily dismissed. Similarly, at oral argument on this underlying zoning appeal, the court only allowed Mr. Moyer two minutes to present his legal arguments despite giving the respective attorneys over two hours to present their arguments. Mr. Moyer has every right to be heard just like the other parties and their respective attorneys. The court denied Mr. Moyer a meaningful right to be heard. Only granting two minutes in a complex case such a this is a denial of Mr. Moyer’s due process rights. Such denial has adversely impacted appellants’ appeal.”

Appellant and intervenor, Blaine Moyer, in a separate filing, submitted his own concise statement of errors complained of on appeal asserting that:

“(1) Blaine Moyer, intervenor/appellant in the above captioned matter.

“(2) The court committed an error of law and/or abused its discretion when it blatantly denied the Constitutional rights to due process of the appellants.

“(3) The court committed an error of law and/or abused its discretion in failing to recognize that section 1800 of the West Pottsgrove Zoning Ordinance specifically states that the zoning officer shall not hold any other office in the municipality.

“(4) The court committed an error of law and/or abused its discretion in failing to recognize that the township violated section 1801 of the West Pottsgrove Zoning Ordinance which sets forth powers and duties of the zoning officer. Since Mr. Whetstone was not a legal zoning officer, he lacks jurisdiction to enforce the townships’ zoning ordinance.

“(5) The court committed an error of law and/or abused its discretion in failing to recognize section 1801.4 of the zoning ordinance which requires that service shall be done personally or by registered mail. Mr. Whetstone nullified the duties and powers of the zoning officer.

“(6) The court committed an error of law and/or abused its discretion in failing to recognize that section 1806 of the townships’ zoning ordinance allows 30 days, wherein, Mr. Whetstone acting as zoning officer, deliberately only allowed 10 days in which to file an appeal. The township nullified the time allotted for appeal, thereby denying themselves jurisdiction.

“(7) The court committed an error of law and/or abused its discretion in failing to recognize the appellants being denied a validity challenge as the township prohibits junkyards in a de jure manner.

“(8) The court committed an error of law and/or abused its discretion in failing to recognize that article XIX titled zoning hearing board (ZHB) of the township zoning ordinance, under powers and duties section 1901.1, that decisions and determinations be made and by an administrative official in the enforcement of this ordinance.

“(9) The court committed an error of law and/or abused its discretion in failing to recognize section 2001.3 of zoning ordinance, where it says it ‘shall state at least the following requirements.’ The notice is defective in that the requirements were not met, thereby denying jurisdiction over the person and property of the appellants.

“(10) The court committed an error of law and/or abused its discretion in failing to grant appellants additional evidence in their land use appeal.

“(11) The court committed an error of law and/or abused its discretion in failing to recognize that the appellants established the existence of a lawful non conforming use in spite of the ZHB ’ findings of fact number 30, where the findings of fact did not substantuate [sic] the conclusions of the ZHB.

“(12) The court committed an error of law and/or abused its discretion in failing to recognize the law in the Commonwealth of Pennsylvania concerning abandonment of land and intent of abandonment.

“(13) The court committed an error of law and/or abused its discretion in failing to recognize that the ZHB violated intervenor Blaine Moyers’ due process rights in failing to allow him to he heard at the zoning hearings.

“(14) The court committed an error of law and/or abused its discretion in failing to allow Mr. Moyer more than two minutes to present his legal arguments, despite giving the representing attorneys over two hours to present their arguments.

“(15) The court committed an error of law and/or abused its discretion in failing to recognize that an original registered copy of the zoning ordinance was not put into evidence as was provided by law.

“(16) The court committed an error of law and/or abused its discretion in failing to recognize the unlawful, defiant trespass of the agents, namely Mr. Whetstone, township policeman; Officer Stoudt and township road-master, which occurred August 8, 2007.”

DISCUSSION

Initially, the court is compelled to address the somewhat vague, often lengthy and occasionally rambling 1925(b) statements filed by both Georgette and Ryan Moyer and the intervenor, Blaine Moyer. The oft-stated and primary purpose of Pa.R.A.R 1925(b) is to require the appellant to identify with certainty each of the issues to be addressed on appeal. Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002). Indeed, the failure to adequately “identify in a concise manner the issues sought to be pursued on appeal” hinders the trial court in its “preparation of a legal analysis,” and “a concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all.” Id. at 37 (citing Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001)).

It is critical to the proper functioning of the appellate process that meaningful, thorough review of the issues he assured by providing the appellant with the “opportunity to frame his/her on issues which will guide the trial court’s subsequent opinion.” Id. at 38. It is not the trial court’s responsibility to frame the issues for an appellant, either by “guessing or anticipating.” Id. Should, in fact, the trial court have no other recourse but to resort to such guesswork or anticipation in its attempt to address those issues which it believes the appellant may have intended or sought to raise by a vaguely framed concise statement, then those issues, lacking any specific identification, should be deemed waived and the appeal dismissed or denied. Id. at 37-39. Based upon its vagueness and lack of specificity in framing some of the issues complained of on appeal in this case, the 1925(b) statements of both Georgette and Ryan Moyer and Blaine Moyer were, at times, of little help to the trial court as it attempted to identify and address the Moyers’ specific contentions of error. Thus, the undersigned will address only those issues which it has cleady discerned and believes are pertinent to a resolution of this appeal.

Where no additional evidence is presented after the decision of a zoning hearing board, the trial court’s scope of review is limited to a determination of whether the board abused its discretion or committed an error of law. See Puleo v. Zoning Hearing Board of Schuylkill Township, 722 A.2d 789, 790-91 n.2 (Pa. Commw. 1999); Mazur v. Washington County Redevelopment Authority, 900 A.2d 1024, 1027 n.5 (Pa. Commw. 2006). Moreover, when no additional evidence is permitted, the court may not consider any issues or arguments that were not raised before the zoning hearing board. In re Appeal of McGynn, 974 A.2d 525, 534 (Pa. Commw. 2009); In re Appeal of Kreider, 808 A.2d 340, 342 n.4 (Pa. Commw. 2002). An abuse of discretion will be found where the board’s findings are not supported by substantial evidence, which is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 256, 721 A.2d 43, 46 (1998) (citing Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983)). It is with this standard of review in mind that the undersigned concluded that the board did not abuse its discretion, nor did it commit an error of law in refusing to grant the relief requested by the appellants.

The Appellants Waived Their Right To Assert That the Notice of Violation Issued By the Township Manager Was Invalid and Unenforceable

Initially, the appellants claim that the trial court erred in determining that the notice of violation issued by the township manager, Edward Whetstone, was valid. Citing section 1800 of the ordinance, the Moyers contend that Mr. Whetstone, as the township’s manager, was not authorized to issue any such notice, thereby rendering the notice given in this case, in essence, a nullity. Though having been made fully aware of Mr. Whetstone’s many responsibilities at the hearings held before the board, the applicants did not at any time, either prior to or during the aforementioned hearings, raise the issue of a defective notice of violation issued by the township manager nor challenge its validity. Having failed to do so, the issue was waived, the appellants having failed in the first instance to preserve it before the board. See e.g, In re Appeal of McGynn, 974 A.2d at 534: In re Appeal of Kreider, 808 A.2d 340, 342 n.4 (“[ A]ny issues or arguments not raised before the ZHB cannot be raised for the first time to common pleas and are waived”), (internal citation omitted)

Nonetheless, in an abundance of caution, the undersigned will address the claim advanced by the appellants. Section 1800 provides, in relevant part, the following:

Zoning Officer. The provisions of this ordinance shall be enforced by an agent, to be appointed by the board of township commissioners, who shall be known as the zoning officer and building inspector. He shall serve at the pleasure of the board of township commissioners and shall receive such fees or compensation as the board of township commissioners may, by resolution, provide. He shall not hold any other office in the municipality.” (West Pottsgrove Township Zoning Ordinance, revised 6/30/97, at §1800.)

While section 1800 does, indeed, provide for the appointment of an “agent” to “serve at the pleasure of the ... township commissioners” in the capacity of the “zoning officer,” no such appointment had been made at or immediately prior to the events giving rise to the dispute in this case. Rather, in the absence of any such specific appointment, the evidence in this case clearly indicates that the responsibilities for enforcement of the municipality’s “ordinances” had been long since delegated by the township to its manager. Mr. Whetstone readily confirmed that fact and more when asked to describe his duties as township manager, explaining that they involved for the most part “the day-to-day operations of the township;” that he did “code enforcement. . . zoning;” and, that he was “the building code official for the township.” (N.T. 10/10/07, at 20.)

Having failed to set forth a statutorily based reference within either the township’s ordinances or the Municipalities Planning Code which prohibits the performance of such ministerial tasks by the township manager, undertaken to administer and enforce the land use regulations of the township, the appellants have not demonstrated any support for their proposition that the issuance of the complained-of notice of violation was either unauthorized, invalid or unenforceable. The notice issued fulfilled its purpose, which simply was to place the Moyers on notice of their perceived violations of various municipal duties and regulations and what was required of them to address those violations. The appellants neglected to challenge the township manager’s authority before the zoning hearing board, therefore, the issue was waived. However, even had they raised the challenge at that time, the end result would remain the same.

The Appellants ’ Agreement to an Extension of Time Within Which to File Their Appeal From the Complained-Of “Notice of Violation” And Their Failure To Pursue a Validity Challenge Constitute Waivers of Those Issues on Appeal.

The appellants assert that the 10 day appeal period set forth in the township’s notice of violation, violated their right to due process insofar as section 1806 of the municipality’s zoning ordinance provides for the following: “Appeals. An appeal from the decision of the zoning officer shall be taken within 30 days, according to the procedures described herein.” (West Pottsgrove Twp. Zon. Ord., Revised 6/30/97, at §1806.)

Admittedly, the township’s notice of violation, contrary to section 1806, provided the appellants with only 10 days within which to appeal the decision of the zoning officer, informing them of their perceived violations of the township’s ordinances and directing that they comply with those ordinances and immediately “cease and desist the operation of a junkyard” on their property. (See notice of violation, 8/10/07.) What the appellants seem reluctant to acknowledge, however, is the fact that when the ‘shortened’ notice was brought to the township’s attention by the Moyers’ attorney, an agreement was reached to extend the appeal period, and the appeal and accompanying application for relief were filed within the time frame agreed upon. (N.T. 10/10/07, at 12.) Accordingly, since the appellants had requested and secured the “few days” additional time within which to file their appeal, the case can certainly be made that the Moyers waived any right to thereafter assert a violation of due process where, in fact, they were given a full and fair opportunity to be present their appeal and accompanying application during the course of the three public hearings conducted before the board in October, November and December of 2007.

The applicants further contend that the township and the board denied them the opportunity to amend their application to assert a challenge to the validity of the township zoning ordinance which they claim, unlawfully prohibited or excluded junk yards from the municipality. The fact of the matter remains, however, that in order to comply with the mandates of the MPC and the ordinance, the board properly determined that it could not entertain a validity challenge requesting a proposed amendment to the Township’s zoning ordinance without first advertising such a request in advance of any hearings to be held regarding the matter.

The record reflects that, at the first public hearing held on October 10, 2007, when the board was initially confronted with the appellants’ request to amend their application to include the validity challenge, the solicitor for the board, Mr. Edward Skypala Esquire, advised the appellants that any such challenge which could involve a potential “substantial change” in the zoning regulations of the township would, by law, require that it be advertised and denied the Moyers’ request to amend their application to include a validity challenge. (N.T. 10/10/07, at 16-17.) Mr. Skypala, however, further advised the appellants, after they renewed their request at the conclusion of the October 10 hearing, that they would he permitted to file another application raising their challenge which would then be advertised — upon payment of the requisite fee to cover the costs of publication in time to enable the Moyers to present the application at the next hearing, scheduled on November 7,2007. (N.T. 10/10/07, at 16-17,126-31.) The attorney for the Moyers agreed, stating “[f]air enough.” (N.T. 10/10/07, at 128.) Despite their understanding and apparent agreement to the board’s proposal, the appellants failed to submit their application and avail themselves of the opportunity given them to present their validity challenge. As such, the opportunity was lost, and any claim to the contrary notwithstanding that they were somehow denied their rights to due process was waived.

Finally, the undersigned is unable to address the appellants’ vague and indiscernible complaint that the trial court erred in failing to “recognize” certain undefined “violations” by the township of section 1801.4 and 2001.3(d)-(f) of the ordinance. Left with no other alternative or recourse than to resort to guesswork in order to determine what those alleged “violations” might be and/or how they “materially violated” the due process rights of the appellants effectively forecloses any possible meaningful analysis of that complaint which appears not to have been raised before the zoning hearing board and was neither briefed nor argued before the undersigned.

The Court Appropriately Denied the Applicants’ Motion To Present Additional Evidence in Land Use Appeal

On the morning of and just prior to the argument scheduled for the trial court’s consideration of the appellants’ appeal. The Moyers filed a ‘motion to present additional evidence in land use appeal.’ Neither the appellee board nor the intervenor township had been given the opportunity to respond to the motion until its filing was revealed and the request advanced therein was made to the undersigned at argument. When, during the course of that zoning argument, the motion was raised, the trial court briefly suspended the argument in order to conduct a hearing for the purpose of determining whether the appellants’ request should be granted and additional evidence received and entered as part of the record in this case. (N.T. 11/20/08, at 2.) Following the hearing, the trial court denied the Moyers’ motion, further clarifying that decision in its order of November 24, 2008, which states that:

“[T]he court finds the motion to be untimely since it was filed the morning of the scheduled argument in appellants’ zoning appeal and without ample opportunity provided either the appellee zoning hearing board or intervenor township to submit a formal response thereto. Furthermore, since the “additional evidence” which is the object of the appellants’ motion consists of certain photographs taken in January 2008, of property adjacent to the premises which is the subject of this appeal and intended to he offered primarily for the record purpose of impeaching the credibility of a witness or witnesses who testified on behalf of West Pottsgrove Township in opposition to the appellants’ application heard in 2007 by the township zoning hearing board, it is unlikely that the appellants would have otherwise prevailed had their motion been timely.” (Tr. ct. order, 11/24/08.)

With respect to the requests made to present additional evidence in a land use appeal, section 1005-A of the MPC provides:

“If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or office whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence .... If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence . . . the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence.” 53 P.C.S. §11005-A (West 1997).

The decision to admit additional evidence is solely within the trial court’s discretion. McGrath Construction Inc. v. Upper Saucon Township Board of Supervisors, 952 A.2d 718, 729 (Pa. Commw. 2008): Morris v. South Coventry Township Board of Supervisors, 898 A.2d 1213, 1217 (Pa. Commw. 2006). Only “where the party seeking the hearing demonstrates that the record is incomplete because the party was denied an opportunity to be heard fully, or because relevant testimony was offered and excluded,” must a trial court hear additional evidence. Morris, 898 A.2d. at 1217 (quoting In re Appeal of Little Britain Township, 651 A.2d 606, 613 (Pa. Commw. 1994)).

The “additional evidence” which was the main focus of the appellants’ motion consisted of a number of photographs taken, not of the property which is the subject of this appeal, but rather of certain abutting property, severed by conveyance from the appellants’ premises approximately seven years prior to the Moyers’ purchase of thereof. Aside from the doubtful relevance of these photographs to any substantive issues resolved by the board, these so-called “newly emerged photographs,” were apparently taken in January 2008, a month or more after the hearings before the board had been concluded and the record closed. (N.T. 11/20/08, at 2.) The photographic evidence which the appellants sought to introduce apparently depicted conditions of a neighboring premises only, evidence of which was, admittedly, readily available and could have been gathered and presented before the board at the time the Moyers’ application and appeal was heard. (N.T. 11/20/08, at 9-13.) Even though the evidence was there for the taking at that time, however, it was, apparently, either ignored or overlooked by the appellants. Nevertheless, once the photographs were taken in January 2008, and thereafter placed in the possession of Ryan and Georgette Moyer’s attorney in February 2008, it was not until the “eleventh hour,” some nine months later, on the morning of the scheduled zoning appeal argument held on November 20, 2008, that the appellants filed their motion to present their “evidence,” much to the surprise and consternation of the appellee and the intervenor township. (N.T. 11/20/08, at 15.)

When the motion was presented, the trial court provided the appellees with a full opportunity to be heard and argue the merits of their belated request to secure the admission of evidence which could quite easily have been produced at the hearings held before the board in October, November and December of2007. Without any plausible or credible explanation given for their failure in that regard, together with the unexplained nine month delay in presenting their request for admission of the disputed evidence, the motion must and should be judged to be untimely and its denial, on that basis alone, was proper. Furthermore, the appellants, in support of their motion, failed to demonstrate that the additional evidence which they sought to introduce, albeit for impeachment purposes only, was either necessary or pertinent to the board’s consideration of their land use appeal, the denial of which was clearly supported by the evidence produced in this case.

The Appellants Failed To Establish Their Right To Conduct a Recycling, Salvage, Scrap and/or Junkyard Business upon the Subject Premises Since That Particular Use and Business Is One Which Is Nonconforming and Not Permitted Within the Zoning District In Which the Property Is Located

The appellants claim that the court erred in failing to recognize the existence of a lawful nonconforming salvage yard use on their property. At the three public hearings before the board, the appellants put forth evidence, including the testimony of several witnesses, in an attempt to establish that a salvage/junkyard/recycling business existed on the premises at the time they purchased the property in July 2007. While no real dispute exists that the appellants’ property once contained a nonconforming salvage yard use, the Moyers take issue with the board’s conclusion that the township, through its own evidence and witnesses, met its burden of establishing that such a nonconforming use had long since been abandoned, and that any attempted resurrection of activity in the nature of a recycling, salvage and junkyard business was not permitted and clearly in violation of the applicable zoning regulations of the municipality.

“A lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed unless it is a nuisance, it is abandoned or it is extinguished by eminent domain.” Keystone Outdoor Advertising v. PennDOT, 687 A.2d 47, 51 (Pa. Commw. 1996); see 53 Pa.C.S. §10107(a). Initially, the party asserting abandonment has the burden of establishing that the landowner “(1) intended to abandon the non-conforming use, and (2) actually abandoned the use.” Zitelli v. Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, 771 (Pa. Commw. 2004). A presumption of abandonment, however, may arise where a zoning ordinance includes a discontinuance provision, stating that the lapse of a designated period is sufficient to establish the intent to abandon the nonconforming use. Id. at 771 (citing Latrobe Speedway Inc. v. Zoning Hearing Board of Unity Township, 553 Pa. 583, 592, 720 A.2d 127, 132 (1998). Section 1700.6 of the West Pottsgrove Ordinance provides the following:

“Abandonment. If a lawful nonconforming use of a building or other structure is abandoned or discontinued for a continuous period of one year or more, or if a lawful nonconforming use of land is abandoned or discontinued for a continuous period of six months or more, subsequent use of such building or structure or land shall be in conformity with the provisions of this ordinance.” (West Pottsgrove Township Zoning Ordinance, revised 6/30/97, at §1700.6 (emphasis added.)

Once the intent to abandon is established pursuant to a discontinuance provision, the burden of persuasion shifts to the party challenging the claim of abandonment. Zitelli, 850 A.2d at 771, n.3 (citing Latrobe Speedway Inc., 553 Pa. 583, 592, 720 A.2d 127, 132 (1998)). If the challenger is able to introduce evidence of an intent contrary to abandonment, then the presumption of abandonment is rebutted and the burden of persuasion shifts back to the party claiming abandonment. Id. (citing Latrobe Speedway Inc., 553 Pa. 583, 592, 720 A.2d 127, 132).

The appellants disagree with the board’s conclusion that the nonconforming use was abandoned and assert, instead, that salvage yard activity continued on the premises up and until the time they purchased the property. However, not only did the township present the board with clear and convincing evidence sufficient to support the conclusion that any former nonconforming use of the property as a salvage or junk yard had been abandoned years before the Moyers’ purchase of the premises, but the appellants’ own witnesses provided similar testimony which only served to bolster and confirm the “township’s claim of abandonment. For instance, Mr. Ricky Patten, the son of the property’s former owner and who appeared on behalf of the Moyers, testified that “from 1975 to the present,” no one had actively worked at the scrap yard on a daily basis” stating that, during that same period, his own activity on the property was “limited” and that he would only “go up there ... twice a year.” (N.T. 10/10/07, at 58, 69-70, 75-76.) Mr. Patten related further that, in or about 1997, he had begun to “clean” the property up for his mother, Ms. Goldia Patten, “for money, to help her out,” by “hauling scrap off” of the property “when he had time,” and that he no longer spent any time “stripping” automobiles or gas pumps, or burning cars. (N.T. 10/10/07, at 69.)

Similarly, Ms. Goldia Patten, the prior owner, testified that her husband, Richard Patten, suffered a stroke in 1980, and, as a result, his salvage activities on the property were severely limited and, the family, as a result, began removing scrap from the property. (N.T. 10/10/07, at 86-87,95.) In or about 1990, Ms. Patten explained that her husband became very sick and was no longer able to visit the property, and that her own visits to the premises were limited to about two weekends a month. (N.T. 10/10/07, at 95-96.) Ms. Patten stated that, from 1990 through 2007, the only activity on the property consisted of dismantling and removing items from the land in preparation for sale. (N.T. 10/10/07, at 97-98.)

John Wardzinski, the district manager for Waste Management, the title owner of the tract of land immediately adjacent to the appellants’ ground, in his review of certain photographs taken annually by the Pennsylvania Department of Environmental Protection (DEP) of Waste Management’s grounds and surrounding lots, testified that the photographs of the premises take during the years 1994 through 1997 depicted an effort to clean up the property with the removal of certain items. (N.T. 11/8/07, at 99.) Mr. Wardzinski stated that these photographs supported the prior owner, Mrs. Goldia Patten’s testimony that “over the years ... her son worked on cleaning this property up for sale.” (N.T. 11/8/07, at 99.) In addition, Mr. Wardzinski testified that, during his tenure as landfill manager, and more specifically from 1996 through 2006, he never saw “anybody conducting any business in the way of storage of vehicles, stripping of vehicles, recycling of vehicles, or any other junking operation on the property.” (N.T. 11/8/07, at 92-108.) Instead, Mr. Wardzinski stated that the appellants’ property “was basically a wooded area,” and that it was not until approximately August 2007, after the Moyers had purchased the tract, that he first noticed the presence of “loaders, trucks, trailers.” “a Chevy Suburban there that was just sitting on the ground and didn’t have any wheels on it,” and heard “generators running” (N.T. 11/8/07, at 108-09.)

Andrew Bealer, who has worked for Waste Management for approximately 34 years and has been an operations manager of the Pottstown landfill since approximately 1990, testified that he recalled visiting Waste Management’s site, located next to the appellants’ property, in 1994 or 199.5 and never witnessed any salvage operations being conducted on the subject premises, nor did he see at the time any junk cars on the tract. (N.T. 11/8/07, at 139.) In addition, he testified that, starting in 1996, his managerial duties required him to visit Waste Management’s site and to monitor its wells, which are approximately 200-300 feet from the Moyers’ property, on an almost a daily basis. During that time frame, Mr. Bealer related that he never noticed “any salvage operations, or recycling operations, or cars being stored” on the appellants’ property; that he never noticed any such activity being conducted on the premises until August of 2007, shortly following the Moyers’ purchase of the ground. (N.T. 11/8/07, at 139-41).

Finally, the West Pottsgrove Chief of Police, Mr. Earl Swavely, Jr., in no uncertain terms, confirmed that the nonconforming salvage yard use previously conducted on the subject property had been abandoned prior to the appellants’ purchase of the property. Chief Swavely related that he had been employed by the township for 31 years and that, during his tenure with the township, he frequently had occasion to visit the property in question and “didn’t notice anything out of the ordinary, or any accumulation of scrap or anything like that. . .,” and, since 1997 had never seen anyone conducting either a recycling or scrap business on the subject premises. (N.T. 12/6/07, at 85.) He emphasized that “never” during his tenure had he seen “200 cars, 200 transmissions, 200 engines, or anything near that number stored anywhere on that property,” or “anyone conducting a business in the way of an auto salvage or auto junk yard.” (N.T. 12/6/07, at 92-93.) Once the Moyers had purchased the property, Chief Swavely recalled seeing “a lot of stuff there____[a] lot of gas pumps, drums____a diesel truck, a white SUV, a trailer .... vehicles .... [mjetal” — all of which he had never seen in the prior years he had visited the property. (N.T. 12/6/07, at 87-88.) Interestingly, Chief Swavely stated that much of this “stuff” “appeared to be very similar to what” he had “observed on the Moyer property, along ... Flag Lane, where Mr. Moyer had his business prior to this, along the railroad siding.” (N.T. 12/6/07, at 88.)

A close examination of the record presented in this case clearly demonstrates that the township sustained its burden of establishing that the nonconforming uses that the appellants seek to implement upon their property were abandoned easily more than a decade prior to the Moyers’ purchase of the tract. The municipality, having demonstrated hoth the prior owners’ intent to abandon the nonconforming use in question, as well as the actual abandonment of the use of the property as either a salvage yard or recycling business, the presumption of abandonment remains unrebutted by the appellants who were unable to produce any credible convincing evidence warranting a contrary finding by the board.

Neither the Zoning hearing board nor the Trial Court Violated Intervenor, Blaine Moyer’s Due Process Rights

Without the benefit of a specific reference to the record by either the appellants or the intervenor, Blaine Moyer, the undersigned is unable to determine if the zoning hearing board violated Blaine Moyers’ due process rights by “failing to allow him to he heard at the zoning hearing” as claimed. However, the trial court’s own review of the record of the hearings conducted before the board found no support for such a claim. To the contrary, it appears that the intervenor was, in fact, permitted to enter his appearance as a party to the proceeding before the board and was thereafter provided with the opportunity to participate in each of the three public hearings scheduled. Mr. Moyer examined and cross-examined certain witnesses who testified in the case, and though he may have disagreed with certain of the rulings made by the attorney for the board and directed toward Mr. Moyer’s attempt to inject into the proceeding issues or evidence not relevant, there is no evidence that he was either discriminated against or at any time denied the right to be heard.

On November 20,2008, the trial court provided all of the parties, including the intervenor, Blaine Moyer, with an extraordinary amount of time to present their arguments in support of their respective positions taken with regard to both the underlying appeal and the last minute motion raised by the appellants to present additional evidence. All of the parties, including the intervenor, had earlier submitted briefs which the trial court read and thoroughly considered beforehand in anticipation of the arguments to he made by the participants. However, many of the arguments raised by the intervenor preliminarily in his brief and at argument were not relevant to the issues which were either presented and considered by the zoning hearing board or properly raised in and made the subject of the appeal of Ryan Moyer and Georgette Moyer. Indeed, contrary to the contention of the appellants and the intervenor, Mr. Moyer, at the time of argument, was permitted the opportunity to be heard. However, it is the trial court’s recollection that when he persisted in his attempts to discuss and argue facts not found in the record and issues with no relevance to, or bearing upon, the undersigned’s consideration of those raised on appeal, the trial court declined to entertain further argument from Mr. Moyer, following his persistent refusal to abide by the repeated cautions and instructions given him to refrain from his digressions and perceived impertinence.

Contrary to the assertions of the appellants, Ryan and Georgette Moyer, and the intervenor, Blaine Moyer, the zoning hearing board’s findings of fact and conclusions of law are amply supported by the substantial evidence produced in this case and the trial court did not err in denying the Moyers’ land use appeal and affirming the decision of the board. See McGrath Construction Inc. v. Upper Saucon Township Board of Supervisors, 952 A.2d 718, 730 (Pa. Commw. 2008).

CONCLUSION

In accordance with the aforementioned, the trial court believes that its order, dated January 14, 2009, denying the Moyers’ appeal and affirming the decision of the West Pottsgrove Township Zoning Hearing Board, should be affirmed.

      . Blaine Moyer resides at the premises which is the subject of this land use appeal and was permitted to intervene in the applicants’ request for zoning interpretation and relief.

      . Transcribed verbatim.

      . Each applicant for an appeal... shall, at the time of application, pay a fee... for the cost of advertising and mailing notices,” etc. [West Pottsgrove Twp. Zon. Ord., Revised 6/30/97, at §1807].

      . The township adopted its present ordinance in 1973 and the subject lots were utilized as a scrap said as far back as the 1950s. (N.T. 10/10/07, at 55.)


source: Caselaw Access Project

author: MOTTO, P.J.,

license: Public Domain

text:
    Commonwealth v. Kline

      C.P. of Lawrence County,
    no. 328 of 2010 CR.

      Luanne Parkonen, assistant district attorney, for Commonwealth.

      Larry J. Keith, assistant public defender, for defendant.
    June 15, 2010
   MOTTO, P.J.,

Before the court for disposition is the Commonwealth’s motion to revoke defendant’s bond. Defendant posted a $100,000 bond, a condition of which was that he refrain from committing any further criminal conduct. The Commonwealth contends that defendant violated such condition, as, on March 17,2010, while at liberty on such bond, defendant was arrested and charged with firearms not to be carried without a license (18 Pa.C.S. §6106(a)(l)); receiving stolen property (18 Pa.C.S. §3925(a)); possession of a small amount of marijuana (35 Pa.C.S. §780-113A31)), and, following a preliminary hearing before a district court judge, was held for court on such charges. At the bond revocation hearing, the Commonwealth presented no independent evidence of the defendant’s commission of such crimes, which are docketed at case no. 452 of 2010, CR., the record of that case showing the filing of the aforesaid charges and the holding of such charges for court following a preliminary hearing held by the district court judge. The issue is whether a finding that defendant violated the bond condition that he refrain from committing any further criminal act can be based upon the filing of charges and the determination of the district court judge, following a preliminary hearing, that a prima facie case was established and that the charges must be held for court.

In researching this issue the court has found only one case in this Commonwealth that has squarely addressed this issue, Commonwealth v. Ramsey, 19 D.&C.3d 156 (1981), where the Court of Common Pleas of Blair County held that defendant’s bail, conditioned on his good behavior, could not be revoked because he was bound over for trial after a magisterial hearing on subsequent criminal charges. This court recognizes that the Blair County decision operates as persuasive authority only, and it is not binding upon this court; however, the court having reviewed the case finds that it is based upon sound reasoning which will be followed by this court.

In Ramsey, the Commonwealth sought revocation of the bail posted by the defendant in three criminal actions pending against him. The basis for revocation was that while out on bond, defendant was arrested and charged with the commission of two additional crimes. The Commonwealth argued that the subsequent charges violated conditions of his bail, specifically citing the bond condition that “defendant will conduct himself... as a peaceable and law-abiding citizen during the effective period of the bond.” Commonwealth v. Ramsey, 19 D.&C. 3rd 157 (1981). At the revocation hearing, the Commonwealth presented no evidence of defendant’s commission of the subsequent offenses charged. The Commonwealth and defendant stipulated to the record of the subsequent charges, which showed defendant had pled not guilty, and that defendant was bound over for trial after a preliminary hearing before a magistrate.

The Ramsey court held that the mere fact that a defendant is bound over for trial on subsequent charges alleged to have been committed while at liberty on bail is insufficient proof of his noncompliance with a “good behavior” condition of bail. The facts in the case sub judice are strikingly similar to those in Ramsey where the court held the mere fact a defendant is bound over for trial on subsequent charges alleged to have been committed while at liberty on bail is insufficient proof of his noncompliance with a “good behavior” condition of bail. Here, as in Ramsey, the Commonwealth has failed to provide any evidence of defendant’s newly charged crimes at the revocation hearing, relying on the fact that the charges were held over by the magisterial district court judge for trial.

Although defendant’s bail bond condition was reasoned to be just and valid in Ramsey, the Ramsey court specified that the prosecution must show evidence of the alleged violation(s) with some reasonable specificity at the revocation hearing itself, reasoning that the “mere fact that one is accused of a crime is absolutely no evidence whatsoever.” Id. Ramsey analogized a bail revocation proceeding to a proceeding to revoke parole where the revocation is based upon new charges. The court stated that, because the burden of proof at parole revocation hearings is the presentation of “probative and reliable” evidence that demonstrates a satisfaction of the preponderance standard, no lesser standard should be used at a bail revocation hearing. Id. The court reasoned that since “anticipated criminal activity alone cannot stand as a grounds for the denial of bail” neither is it alone sufficient as a ground for revoking bail, citing Commonwealth v. Truesdale, 449 Pa. 325, 339, 296 A.2d 829, 836 (1972); Ramsey at 158.

Ramsey specifically found that the court’s determination at bail revocation matters must be grounded upon evidence other than the finding of the district court judge who conducted the preliminary hearing, as the court determining revocation must make its own independent evidentiary assessment and evaluation.

Finally, the Ramsey court specifically held that:

“in order to obtain a decree of declaration of bail revocation for [a] violation of a ‘good behavior’ condition based upon subsequent criminal conduct, the Commonwealth must produce at the show cause hearing either (a) proof that the defendant has been convicted thereof after trial, (b) proof that the defendant has entered a plea of guilty thereto, or (c) proof by a preponderance of the evidence that [the] defendant committed the alleged criminal offense.” Ramsey at 161.

This court must be permitted to make its own evidentiary evaluations and assessments to determine if the previously mentioned preponderance of the evidence standard is met. Because the Commonwealth has failed to provide this court with any evidence of defendant’s newly alleged charged crimes relying upon the decision of the magisterial district court judge to hold over the charges for trial, this court finds that it is appropriate to follow the rationale contained in the Ramsey decision in denying the Commonwealth’s petition to revoke defendant’s bond. However, the denial of the Commonwealth’s petition shall be without prejudice to the right of the Commonwealth to re-file the petition to revoke bond and proceed in accordance with this opinion.

ORDER

And now, June 15, 2010, in accordance with the accompanying opinion of even date herewith, it is ordered and decreed that the Commonwealth’s petition to revoke bond is denied, without prejudice to the right of the Commonwealth to re-file the petition and to proceed in accordance with the directives of this accompanying opinion.


author: COX, J,

text:
    Denucci v. The Cathedral Foundation

      C.P. of Lawrence County,
    no. 10938 of 2009.

      Charles W. Garbett, for plaintiffs.

      Diane A. Blackburn, for defendant.
    June 8, 2010
   COX, J,

Before the court for disposition are the preliminary objections to plaintiffs’ complaint filed on behalf of the defendant The Cathedral Foundation, which argues that paragraphs 10(a) and ll(s) are too vague and overbroad to establish a cause of action in negligence.

According to the plaintiffs’ complaint, Gina M. Denucci was employed as a public safety 911 dispatcher and her employer leased office space from the defendant located at 110 East Lincoln Avenue, New Castle, Lawrence County, Pennsylvania. On March 8, 2008, Ms. Denucci was traversing the defendant’s parking lot to enter her place of employment when she fell on an accumulation of ice or snow. As a result, Ms. Denucci and her husband Michael Denucci (plaintiffs) filed suit claiming that Ms. Denucci suffered serious injuries, including post-concussion syndrome, cervical and thoracic strain or sprain, lumbar and sacral strain or sprain, a cerebral concussion, blurred vision, muscle weakness, tremors, headaches, intermitten estropia and decompensated esphoria.

The defendant subsequently filed these preliminary objections claiming that paragraphs 10(a) and ll(s) of the plaintiffs’ complaint should be stricken because they are too vague and overbroad to establish the plaintiffs’ negligence claim. Paragraph 10(a) states that the defendant was negligent “in being careless;” and paragraph 1 l(s) says Ms. Denucci suffered “other serious and severe injuries the exact nature of which are unknown at this time.”

The specificity of a pleading is governed by Pa.R.C.P. 1019, which states “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Comission (PGC), 950 A.2d 1120, 1134 (Pa. Commw. 2008) (quoting Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992)). Additionally, the plaintiff must summarize the facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products Inc., 868 A.2d 624, 635 (Pa. Commw. 2005) (citing PennDot v. Shipley Humble Oil Co., 29 Pa. Commw. 171, 370 A.2d 438 (1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 103, 477 A.2d 473, 477 (1984) (citing Sokoloff v. Strick, 404 Pa. 343, 172 A.2d 302 (1961);Hornsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877(1914)).

The defendant claims that paragraphs 10(a) and ll(s) violate the court’s ruling in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). In that case, the court determined that an averment stating, “otherwise fail[ed] to use due care and caution under the circumstances,” lacked specificity and the defendant could have filed a motion to strike off that statement, but chose not to do so. Id., 501 Pa. at 311 n.3, 461 A.2d at 603 n.3 (citing Arner v. Sokol, 373 Pa. 587, 592-93, 96 A.2d 854, 856 (1953); King v. Brillhart, 271 Pa. 301, 304, 114 A. 515, 516 (1921)). However, a complaint is sufficiently specific if the whole complaint contains material facts which set forth a cause of action. Lipinsky v. Graham, 88 D.&C. 156, 158 (Mercer Cty. 1954). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L. B. Smith Inc., 69 D.&C.2d 420, 423 (Columbia Cty. 1974) (citing General Acceptance Corp. v. Wilson, 40 Northum. L. N. 54).

In Lipinsky, supra, the plaintiff’s complaint contained an averment that the defendant was operating his vehicle “at an excessive rate of speed under the circumstances.” Although the court found that allegation to be overly-broad, the complaint as a whole was sufficiently specific to place the defendant on notice of the plaintiff’s claims and the defendant’s preliminary objection was overruled. Lipinsky, 88 D.&C. at 158.

Similarly, in the case sub judice, the plaintiffs made the broad averment in paragraph 10(a) that the defendant was negligent “in being careless.” Moreover, the plaintiffs aver in paragraph ll(s) that Ms. Denucci suffered “other serious and severe injuries the exact nature of which are unknown at this time.” Although these allegations clearly lack specificity on their own, the court must also consider them in conjunction with the remaining paragraphs in the plaintiffs’ complaint. First, paragraph 10 contains paragraphs 10(a) through (j), which specifically set forth negligent behavior performed on behalf of the defendant, which includes the following: failing to inspect the premises, failing to warn Ms. Denucci of the dangerous condition created by the accumulation of ice and failing to remove the accumulated ice. Additionally, paragraph 11 contains paragraphs 11 (a) through (t), which present the defendant with a comprehensive list of the injuries suffered by Ms. Denucci. Those averments provide sufficient notice of the alleged negligent acts of the defendant and the injuries suffered by Ms. Denucci, so the defendant can prepare its defense.

Furthermore, the plaintiffs are not required to plead details that are evidentiary in nature. Discovery must be conducted to enable the plaintiffs to ascertain all of the injuries that were caused by the defendant’s alleged negligence. The plaintiffs were able to provide a comprehensive list of injuries sustained by Ms. Denucci in paragraphs 11(a) through 11 (t); however, there may be other injuries that are discovered once Ms. Denucci is further examined by a medical expert during the course of discovery. The plaintiffs are required to produce an expert report pursuant to Pa.R.C.P. 212.2, which will specifically identify all of the injuries that the plaintiffs can claim at trial. Once the expert report is provided to the defendant, the plaintiffs will be precluded from amplifying their claim to include any injuries beyond those contained in that report. Therefore, the court holds that the plaintiffs have pleaded their cause of action with sufficient specificity to provide the defendant with notice of their claims.

For the reasons set forth in this opinion, the defendant’s preliminary objections to plaintiffs’ complaint are overruled.

ORDER

Now June 8,2010, this case being before the court on May 24, 2010, for oral argument on the preliminary objections to plaintiffs’ complaint filed by the defendant, with both parties appearing through their counsel, the plaintiffs, Gina M. Denucci and Michael Denucci, her husband, represented through counsel, Charles W. Garbett, Esquire and the defendant, The Cathedral Foundation, represented through counsel, Diane A. Blackburn, Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the preliminary objections to plaintiffs’ complaint filed by the defendant are hereby overuled.

(2) Defendant shall file a written answer within 20 days after notice of this order of court.

(3) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Charles W. Garbett, Esquire and Diane A. Blackburn, Esquire.


author: CARRAFIELLO, J,

text:
    Vessells v. Jones

      Keith W Williams II, for plaintiff.

      Margaret M. Fenerty, Brian M. Puricelli and Matthew K Hubbard, for defendants.
    June 14, 2010
   CARRAFIELLO, J,

Defendant, officer Harry Jones, appeals from an order of the Philadelphia Court of Common Pleas entered on March 5,2010, denying post-trial motions in the above captioned matter.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiffs Charlymane Vessells and Kevin Harrell, husband and wife, filed an action against defendants and Philadelphia Police Officers Harry Jones, Charlton Lane, Steven Mitchell, William Smith, Christopher DiPietro, and Paul Camarote (collectively Defendants) for damages arising from an incident that occurred on January 19,2006, at which time defendants were on duty in their capacity as police officers.

Plaintiffs, who sued each defendant in an individual capacity, alleged that they were dragged from their parked car in the early morning hours of January 19, 2006, beaten, and arrested for driving under the influence, aggravated assault, and resisting arrest.

Plaintiffs specifically alleged that defendant Harry Jones initiated the assault by removing plaintiff Vessells from the vehicle, punching her in the face, and slamming her facedown into the sidewalk, causing her to sustain serious injuries. Plaintiffs further alleged that defendant Jones punched plaintiff Harrell in the face and that the remaining defendants subsequently joined in the assault by punching and kicking plaintiff Harrell. Defendant Harry Jones filed a counterclaim for assault and battery against plaintiffs.

Plaintiffs’ lawsuit proceeded to a jury trial on October 16,2009. The jury returned a verdict on October 30,2009 in favor of plaintiff Vessells and against defendant Jones only on her assault, battery, and intentional infliction of emotional distress claims in the amount of $550,000, awarding $350,000 in compensatory damages and $200,000 in punitive damages.

The jury also found in favor of all defendants and against plaintiff Harrell on his claims, and in favor of plaintiffs and against defendant Jones on his counterclaim.

Defendant Jones timely filed post-trial motions which were denied on March 5,2010, following oral argument. On the same date, this court granted plaintiffs’ motion for delay damages and accordingly molded the verdict to $564,895. Plaintiff filed a praecipe to enter judgment on the verdict on March 30, 2010, at which time judgment was entered.

This court additionally dismissed defendant’s objections to plaintiffs’ bill of costs on March 5, 2010, for failing to comply with the applicable rules of court.

Defendant’s appeal followed.

STATEMENT OF ISSUES:

Defendant filed a Pa.R.A.P. 1925(b) statement, pursuant to this court’s order, stating four issues on appeal. For ease of discussion, we have restated them as follows:

(1) Did the court err in exercising personal jurisdiction over defendant, who was not personally served with original process?

(2) Did the court err in reconsidering an order sustaining defendant’s preliminary objection to service and allowing plaintiffs to file a second amended complaint, and in dismissing the preliminary objections to the second amended complaint as moot?

(3)Did the court err in denying defendant’s motion for a mistrial after plaintiffs’ counsel referenced the Rodney King case in his closing argument where the court stopped the argument, gave a detailed curative instruction to the jury, and did not allow plaintiffs’ counsel to proceed until the court was satisfied that each juror’s impartiality was unaffected?

(4) Did the court err in

(a) granting delay damages to plaintiffs;

(b) Dismissing defendant’s objections to plaintiffs’ bill of costs where said objections were filed in violation of Phila. Local Rule 227.5(E); and

(c) Denying defendant’s motion for sanctions where plaintiffs did not exhibit dilatory, obdurate, or vexatious conduct?

DISCUSSION:

We must first note that defendant failed to order notes of testimony as required by Pennsylvania law, which renders his post-trial motions deficient and provides grounds for the appellate court to dismiss or quash his appeal.

Pursuant to Pa.R.C.P. 227.3, “[a]ll post-trial motions shall contain a request designating that portion of the record to be transcribed in order to enable the court to dispose of the motion.” Pa.R.C.P. 227.3(a). In addition, Pa.R.A.P. 1911 provides that an appellant is required to request a transcript and that his or her failure to do so entitles an appellate court to dismiss an appeal. Pa.R.A.P. 1911(a), (d). See also, Gorniak v. Gorniak, 350 Pa. Super. 502, 504 A.2d 1262 (1986).

When an appellant’s failure to comply with the Rules of Appellate Procedure prevents a court from discerning what questions are before it to conduct a meaningful appellate review, the appeal may be quashed. Wilkerson v. Temple University Health Sys., 2005 Phila.Ct.Com.Pl. LEXIS 407, *27 (2005) (affirmed without opinion by Wilkerson v. Temple University Children’s Medical Center, 913 A.2d 955 (Pa. Super. 2006)).

The trial court, lacking the relevant notes of testimony, has been prevented from addressing the issues defendant has raised on appeal with the precision, particularity, and degree of accuracy this matter deserves.

Given defendant’s failure to comply with the applicable statutory mandates, this court respectfully submits that the instant appeal should be quashed or, alternatively, dismissed.

In the event that defendant’s appeal is reviewed on its merits, each of the issues raised in his 1925(b) statement, as restated, is discussed below.

(1) Did the Court Err in Exercising Personal Jurisdiction Over Defendant, Who Was not Personally Served with Original Process?

It is axiomatic that a defendant must be served with original process for a court to obtain personal jurisdiction. The rules governing service of process must be strictly followed and invalid service renders a court powerless to enter judgment against a defendant. Witherspoon v. City of Philadelphia, 564 Pa. 388, 397, 768 A.2d 1079, 1084 (2001).

Pa.R.C.P. 402 provides that original process may be served “by handing a copy at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof’. Pa.R.C.P. 402(a) (2)(iii).

Defendant, who was on duty as a Philadelphia Police Officer during the January 19, 2006 altercation with plaintiffs, subsequently retired from the Philadelphia Police Department. Plaintiff served defendant by serving original process on the City of Philadelphia Law Department on December 19, 2007, at which time defendant was no longer a city employee. Service was therefore invalid.

Despite this initial defect in service, defendant acquiesced in the city’s representation, thereby giving it the authority to accept service on his behalf, and waived his objections to service through the city’s actions in representing defendant on the merits of the case.

Margaret Fenerty, Esquire, an attorney with the Philadelphia City Solicitor’s Office, entered her appearance on behalf of defendant on March 17, 2008, and later moved to withdraw her appearance on November 21, 2008. Her motion was granted and Brian Puricelli, Esquire, entered his appearance on behalf of defendant on November 28, 2008 and represented him thereafter.

Defendant acknowledged in his August 28,2009 deposition that the city informed him that a complaint was filed against him, that he met with Margaret Fenerty, Esquire regarding the complaint, that she informed him that the city would represent him, and that he did not have a problem with that representation.

Defendant testified as follows:

“Q: And you were made aware of the fact that if a civil complaint was ever filed against you, you would be represented by someone from the city, correct?

“A: Not during the time I was a police officer.

“Q: When you say not during the time you were a police officer, what do you mean by that?

“A: I had retired. And then after I retire, then I received notification.

“Q: You received notification of what?

“A: That I would be represented.

“Q: By the City of Philadelphia?

“A: That’s correct.

“Q: Okay. Did you have a problem with that?

“A: Excuse me, sir?

“Q: Did you have a problem with the City of Philadelphia representing you?

“A: No sir.

“Q: When did you receive that notification?

“A: I can’t recall the time frame.” See plaintiffs’ memorandum of law in opposition to defendant’s post-trial motion, ex. A, pp.22-23.

Defendant further testified:

“Q: I’ve already identified that the complaint in this matter was filed December 2007. Correct, you know about that, correct, Mr. Jones?

“A: Yes.

“Q: And you came down to this office some time shortly after that correct?

“A: Yes.

“Q: And in fact sir, when you came to the office, you met with Ms. Fenerty, correct?

“A: That’s correct.

“Q: At the City of Philadelphia Law Department, 14th floor, when you left out of there, you were under the impression that you were being represented, correct... no . . . you can’t look at your attorney. Just tell the truth.

“Mr. Puricelli: If you know.

“Mr. Williams: Just tell the truth.

“A: Yes, sir.

“Q: Thank you.” See plaintiffs’ memorandum of law in opposition to defendant’s post-trial motion, ex. A, pp. 34, 44-45.

Based on defendant’s testimony, which establishes that the city represented him and that he acquiesced in said representation, the city had the authority to accept service on his behalf.

Defendant additionally waived his objections to service through Ms. Fenerty’s actions on the merits of the case. When a party takes actions on the merits of the case, he waives his right to raise jurisdictional questions. O’Barto v. Glossers Stores Inc., 228 Pa. Super. 201, 205, 324 A.2d 474, 476 (1974). A waiver will be found when a court determines that a party has performed an act that unconditionally accepts the jurisdiction of the court. Id. (quoting Hohlstein v. Hohlstein, 223 Pa. Super. 348, 296 A.2d 886 (1972)).

While an entry of appearance alone does not amount to a waiver, it may constitute a waiver when supplemented by other actions on the merits. Id. at 205, 324 A.2d at 475-76. In O ’Barto, the original defendant served a writ of summons to join an additional defendant, and the court found that the service was improper. Id. at 204, 324 A.2d at 474. However, the court held that the additional defendant waived its objection to defective service because it entered an appearance, answered the complaint on the merits, served interrogatories on the plaintiff, and attempted to join an additional defendant. Id. at 205,324 A.2d at 475-76.

Here, plaintiffs served defendant, albeit improperly, on December 19, 2007. Ms. Fenerty subsequently filed an answer on February 19, 2008, attended a case management conference on March 10, 2008, entered her appearance on March 17, 2008, served interrogatories on plaintiffs, and defended a motion to compel defendant’s deposition on September 16,2008. Further, while Ms. Fenerty sent defendant a declination of representation letter on September 8, 2008, she did not move to withdraw her appearance until November 21, 2008.

The O’Barto court stated that the “appellee’s actions, subsequent to the filing of appellant’s complaint, clearly demonstrates active participation in the litigation of the lawsuit on the merits. Thus, the appellee has taken that ‘further action to the merits’ which evidenced an intent to forego any objection to the defective service.” Id. at 205, 324 A.2d at 476.

Likewise, here Ms. Fenerty took sufficient actions on the merits of the case for this court to find a waiver of jurisdictional questions. Indeed, preliminary objections were not filed until November 28, 2008, eleven months after the filing of the complaint.

Because defendant acquiesced in the city’s representation and waived jurisdictional objections, this court properly exercised personal jurisdiction over him.

(2) Did the Court Err in Reconsidering an Order Sustaining Defendant’s Preliminary Objection To Service and Allowing Plaintiffs To File a Second Amended Complaint, and in Dismissing the Preliminary Objections to the Second Amended Complaint as Moot?

Defendant raises issues regarding two pretrial orders that were entered by Judge Manfredi and Judge Mclnemey prior to this case arriving before this court. As these two issues were not ruled upon by this trial judge, and said rulings were made without participation of the trial judge, if the issues were addressed we would only be either restating the letter of the orders or just be guessing. Therefore we shall not attempt to address these issues.

(3) Did the Court Err in Denying Defendant’s Motion for a Mistrial After Plaintiffs ’ Counsel Referenced the Rodney King Case in His Closing Argument Where the Court Stopped the Argument, Gave a Detailed Curative Instruction to the Jury, and Did Not Allow Plaintiffs’ Counsel To Proceed Until the Court Was Satisfied that Each Juror’s Impartiality Was Unaffected?

It is unfortunate that effective review of this issue cannot be had, since the notes of testimony have not been ordered. However, a brief statement of our recollection of what occurred at trial follows.

Plaintiffs’ counsel, during closing argument, stated that photographs in the instant case reminded him of the Rodney King case. Defendant moved for a mistrial, at which point this court stopped plaintiffs’ closing argument, asked the jurors whether they were capable of disregarding the comment as if it were never made, and inquired as to whether they would be able to weigh the evidence in a fair and impartial manner. Only upon each juror indicating that they could and the court finding their answers credible did the court deny the motion and give a further curative instruction.

“A mistrial is only appropriate where the occurrence is so inflammatory and prejudicial so as to preclude a fair trial and to have undoubtedly influenced the jury, distracting the minds of the jurors from the pivotal issue and influencing their verdict.” Harsh v. Petroll, 840 A.2d 404, 432 (Pa. Commw. 2003). It is the trial judge who is best situated to determine the necessity of a mistrial. Commonwealth v. Gains, 383 Pa. Super. 208, 220, 556 A.2d 870, 876 (1989).

Further, “[i]n evaluating whether a request for a mistrial is manifestly unreasonable, the record must be reviewed to fully appreciate the testimony in the context in which it was made and any subsequent remedial actions designed to remove any prejudicial effects.” Harsh at 432.

Absent the transcript, our explanation and review is impeded. However, the comments made by plaintiffs’ counsel were not so inflammatory and prejudicial as to have influenced the jury and necessitated a mistrial. On the contrary, each juror individually affirmed that he or she was capable of disregarding the comment and remaining impartial in weighing the evidence. These affirmations, considered together with the curative instruction given by the court, establish that a mistrial was not warranted and that the denial of defendant’s motion was proper.

(4) Did the Court Err in (a) Granting Delay Damages to Plaintiffs; Dismissing Defendant’s Objections to Plaintiffs ’Bill of Costs Where Said Objections Were Filed in Violation of Philadelphia Local Rule 227.5(E); and (c)DenyingDefendant’s Motion for Sanctions Where Plaintiffs Did Not Exhibit Dilatory, Obdurate, or Vexatious Conduct?

(a) Delay Damages

Plaintiffs requested delay damages pursuant to Pa.R.C.P. 238. Having found plaintiffs’ request to comply with the statute, this court granted the motion on March 5, 2010.

Defendant opposed the motion and argued that Rule 238 is unconstitutional, that the court lacked personal jurisdiction due to improper service, and that plaintiffs failed to engage in good faith settlement negotiations as required by the Rule. These arguments are without merit.

It is of particular moment that Rule 238(a)(2) specifically provides that delay damages are calculated from the date one year after the date original process is first served in the action. Pa.R.C.R 238(a)(2). (emphasis supplied)

Based on this provision, if delay damages are ultimately awarded in a case involving codefendants, damages will be assessed against each defendant from the date that original process was first served. See notes to Pa.R.C.P. 238.

In the instant case, codefendants William Smith and Steven Mitchell were served with original process on December 19,2007. Because this is the date that original process was first served in the action, it becomes the date from which delay damages begin to accrue.

Therefore, even if it is determined that defendant was not properly served on December 19, 2007, delay damages would still be assessed against him from that date because service on codefendants William Smith and Steven Mitchell was perfected at that time. See notes to Pa.R.C.P. 238.

Upon determination that plaintiffs’ request was made in accordance with Rule 238, this court granted the motion and awarded delay damages.

(b) Defendant’s Exceptions to Plaintiffs’ Bill of Costs

Plaintiffs filed a bill of costs on November 6,2009, to which defendant filed exceptions.

Philadelphia Local Rule 227.5 permits a prevailing party to file a bill of costs, itemizing the costs claimed to be due, with the prothonotary within 10 days after final judgment. Phila. Cty. LR 227.5 (2009).

Rule 227.5(E) states that “[n]o later than 20 days after final judgment, exceptions (identifying those costs to which objection is made with the reason therefor) shall be filed with the prothonotary and a copy served on other parties.”

Rather than following the procedure mandated by Rule 227.5(e), defendant filed his exceptions with the clerk of civil court. Having failed to file his exceptions with the prothonotary as required by Rule 227.5(E), defendant’s exceptions were dismissed.

(c) Sanctions

Plaintiffs filed a post-trial motion on November 9, 2009 to enjoin defendant from dissipating his assets. Pursuant to Rule 3118, the court in which a judgment has been entered may enter supplementary relief in aid of execution, including enjoining a defendant from disposing of his assets. Pa.R.C.P. 3118(a)(l)-(5).

Defendant, in his response to plaintiffs’ motion, argued that the motion was not ripe for disposition because plaintiffs lacked a judgment that would entitle them to seek relief under Rule 3118. Defendant additionally sought sanctions for having to respond to plaintiffs’ motion, which he alleged was frivolous. Specifically, defendant requested $1,800 at $450 per hour for the four hours expended responding to plaintiffs’ motion.

By an order entered on November 24,2009, this court denied plaintiffs’ motion due to the lack of an existing judgment and also denied defendant’s request for sanctions.

Counsel fees may be awarded when a party’s conduct is dilatory, obdurate, or vexatious. 42 Pa.C.S. §2503(7). The rule is meant to sanction those who “knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party.” In re Estate of Liscio, 432 Pa. Super. 440, 446, 638 A.2d 1019, 1022 (1994) (citing Dooley v. Rubin, 422 Pa. Super. 57, 64, 618 A.2d 1014, 1018 (1993)).

Defendant maintained that plaintiffs knew that they did not have a judgment at the time they filed their motion, and that they therefore “knew or should have known” that the particular relief could not be sought. See defendant’s answer to plaintiffs’ motion, p. 3. Defendant, who cited Liscio in his response, did not argue that plaintiffs’ conduct was intended for harassment, obstruction, or delay, and in fact made no reference to this part of the standard whatsoever.

While plaintiffs may have known that they lacked a judgment at the time they filed their motion, they did not knowingly raise, in bad faith, a frivolous claim that was worthy of sanctioning. Defendant’s request for sanctions was therefore denied.

CONCLUSION:

For all of the foregoing reasons, this court’s order denying defendant’s post-trial motions was properly entered.

      . On January 19, 2006, all named defendants were employed by the Philadelphia Police Department; defendants Harry Jones and Charlton Lane have since retired from and been terminated by the department, respectively.

      . While it was uncontested that defendant was retired at the time process was served on December 19, 2007, neither plaintiffs nor defendant provided his specific date of retirement.

      . At the February 16, 2010 oral argument on post-trial motions, Ms. Fenerty stated that she did not meet with defendant until September 2008, at which time she informed him that the city would not represent him. However, defendant did not submit any such argument to this court in writing, nor did Ms. Fenerty, who was present at defendant’s August 28, 2009 deposition, ask defendant follow-up questions at the deposition to clarify when they met.

      . We notified the issuing judges of the instant appeal in a May 18, 2010 memorandum, delivered to their chambers on the same date together with copies of the 1925(b) statement and appeal docket sheet, and gave them an opportunity to discuss the issues either by participating in this opinion or by writing separately. As we received no notification that either judge intended to join in this opinion, it does not specifically address the pertinent issues.

      . Plaintiffs first moved for delay damages in the amount of $55,595, a figure that was apparently reached by incorrect math calculations. Plaintiffs then filed a second motion for delay damages in the amount of $14,895, which this court granted.

      . Defendant incorrectly states in paragraph (D) of his 1925(b) statement that his objections to plaintiffs’ bill of costs were not ruled upon. For the aforementioned reasons, his exceptions were dismissed by an order entered on March 5,2010.