author: HODGE, J,

text:
    Zahorchak v. Neshannock Township School District

      December 1, 2006

      Joshua D. Lamancusa, for petitioners.

      Jonathan Solomon, for respondents.
   HODGE, J,

Before the court is a petition for review filed by Gary and Susan Zahorchak, parents of Shari Zahorchak, and Shari Zahorchak, a student at the Neshannock Township School District in school year 2005-2006.

This court has heard argument from counsel based upon the certification of the record filed by the respondent, Neshannock Township School District, pursuant to the Administrative Agency Law, 2 Pa.C.S. §754(b), which provides as follows:

“In the event a foil and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of subchapter B of chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. §706 (relating to disposition of appeals).”

The certification of the record filed by the Neshannock Township School District, consists of the following:

(1) Notes of testimony of the expulsion hearing held Monday, April 10, 2006;

(2) Adjudication dated April 12, 2006; and

(3) Notice of adjudication dated April 3, 2006.

The factual background for this case is developed in the petition for review and the briefs filed by both counsel, and can be summarized as follows.

Petitioners, Gary and Susan Zahorchak, are the parents of a minor, Shari Zahorchak (also a named petitioner herein), who is a student at the Neshannock Township School District in school year 2005-2006.

On March 28, 2006, Shari Zahorchak had in her possession, a flammable liquid device believed to be napalm, enclosed in two lip-gloss containers and a fingernail polish bottle, as more fully set forth in the notice of charges dated April 5, 2006, as attached to the petition for review filed by the petitioners. The notice of charges sets forth various charges of which the Neshannock Township School District Board of Directors was convened to consider the issue of whether the student should be expelled from school for violations of Pennsylvania law and the applicable student discipline code.

On April 10, 2006, there was an adjudication hearing held in the board room of Neshannock Township School District to consider the charges set forth in the notice of charges. On April 12, 2006, the Neshannock Township School District Board of Directors found the student guilty of all charges as alleged in the notice of charges and expelled her for a period of one year.

The petitioners have filed the petition for review, under the Administrative Agency Law, 2 Pa.C.S. §754(b), seeking review of the school district adjudication of April 12, 2006, for the following reasons:

(1) The findings contained therein are not in accordance with Pennsylvania law;

(2) The findings contained therein are not supported by substantial evidence; and

(3) School BoardPolice 218.1 Weapons is overbroad, void for vagueness and does not provide adequate notice of prohibited conduct.

Based on the April 10,2006 hearing of the Neshannock Township Board of School Directors, and contained in the transcript of the notes of testimony as hearing exhibit no. 1, is the notice of charges and hearing in re the expulsion of student Shari Zahorchak dated April 5,2006.

The charges listed in the notice of charges consist of the following:

(1) Incendiary device, pursuant to 18 Pa.C.S. §7306;

(2) Risking catastrophe, pursuant to 18 Pa.C.S. §3302(b);

(3) Recklessly endangering another person, pursuant to 18 Pa.C.S. §2805; and

(4) Possession of weapon on school property, pursuant to 24 P.S. 13-1317.2 and 18 Pa.C.S. §912.

Upon the petitioners’ filing the petition for review, a writ of certiorari was issued on May 12, 2006 by the Prothonotary of Lawrence County to the Neshannock Township School District, directing the filing of the certification of record, which certification of record was duly filed by the Neshannock Township School District solicitor on June 12, 2006.

The court will consider each of the charges against the student and the arguments of counsel in regard to each.

The allegations pertaining to violation of the Pennsylvania Crimes Code, incendiary device, 18 Pa.C.S. §7306, are summarized as follows:

“On Tuesday, March 28, 2006, student Shari Zahorchak did possess at the Neshannock Junior-Senior High School, by purchase from another student, namely, M.B., incendiary devices, namely, an inflammable liquid consisting of a mixture of gasoline and dish soap enclosed in two lip-gloss containers, and a finger nail polish bottle, which are readily breakable containers that can be equipped with a lighter of any type. Student Shari Zahorchak also had matches in her possession that day.
“The offense of possession and sale of incendiary devices is a misdemeanor of the first degree under 18 Pa.C.S. §7306.” Notice of charges, page 1.

The Pennsylvania Crimes Code, 18 Pa.C.S. §7306, defines incendiary devices as follows:

“(1) Offense defined — A person is guilty of a misdemeanor of the first degree if he owns, manufactures, sells, transfers, uses or possesses any incendiary device or similar device or parts thereof, including but not limited to a ‘Molotov cocktail.’
“(2) Exceptions — The provisions of subsection (a) of this section shall not apply to authorized personnel of the United States, the Commonwealth or any political subdivision, who use incendiary devices as part of their duties.
“(3) Definition — As used in this section the phrase ‘incendiary device,’ means any inflammable liquid enclosed in a readily breakable container that can be equipped with an igniter of any type.”

Petitioners argue in their brief that the findings of the board are not in accordance with Pennsylvania law nor are they supported by substantial evidence, specifically, that no testimony was ever presented as to whether or not the plastic lip-balm containers were readily breakable. The argument is further made that the only testimony regarding the containers themselves was Officer Carlo’s statement that one could easily open the container “by unscrewing the top.” N.T. 64. Officer Carlo admitted that neither of the containers were fitted with an igniter of any kind, nor was there any testimony as to how an igniter could be affixed. N.T. 72. Petitioner argues that Officer Carlo’s numerous statements constitute an erroneous legal conclusion that any type of “gasoline substance” is an incendiary device. N.T. 7.

The respondent argues that a flammable liquid was enclosed in a readily breakable container that can be equipped with an igniter of any type. Furthermore, respondent cites the court to the testimony of Officer Carlo, that gasoline bums instantly and that mixed with the gel, maintains a flame. N.T. 63.

In response to petitioners’ argument that there is no proof that the containers were readily breakable, respondent argues that the lip-balm containers were hardly hermetically sealed, were giving off the odor of gasoline, and the top was easily removable.

Both parties have referred the court to the case of Commonwealth v. Gallagher, wherein the Superior Court held that gasoline-breakable plastic trashcans, through which high resistant wires were mn, were incendiary devices. 276 Pa. Super. 593, 419 A.2d 616 (1980).

Having reviewed the statutory authority, the appellate authority of Commonwealth v. Gallagher, and in accordance with the standard of review set forth for the court in the Administrative Agency Law, 2 Pa.C.S. §754(b), the court finds that the respondent’s adjudication on the charge of possession of an incendiary device is supported by the evidence in this case. That is to say, that the lip-balm containers were capable of coming open and thus were readily breakable, and that the canisters could hardly serve any purpose other than to be an incendiary device. Accordingly, this court is satisfied that there is sufficient evidence to support the respondent’s adjudication under the incendiary device statute.

The next violation charged was risking catastrophe, 18 Pa.C.S. §3302(b), consisting of the following statement:

“On Tuesday, March 28,2006, student Shari Zahorchak did recklessly create a risk of catastrophe in the employment of a harmful substance, namely and having in her possession in a public high school building, during the school day, containers of a flammable substance consisting of gasoline and dish soap, enclosed in two lip-gloss containers and fingernail polish bottle and in purchasing the lip-gloss containers and the fingernail polish bottle from a fellow student, namely M.B., while inside the school building, and while school was in session.

“The offense of risking catastrophe is a felony of the third degree under 18 Pa.C.S. §3302(b).” Notice of charges, page 2.

Pennsylvania Crimes Code defines at 18 Pa.C.S. §3302, causing or risking catastrophe as follows:

“(1) Causing catastrophe — A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage, including selling, dealing in or otherwise providing licenses or permits to transport hazardous materials in violation of 75 Pa.C.S. ch. 83 (relating to hazardous materials transportation), commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.
“(2) Risking catastrophe — A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.”

The court notes that the student was charged only with 3302(b), risking catastrophe, a felony of the third degree.

The respondent refers the court to the Pennsylvania Bar Institute’s Standard Criminal Charge 15.3302(b), which defines catastrophe as a “situation capable of causing widespread injury or damage, regardless of whether such injury or damage actually occurs.”

Petitioner concedes that, for purposes of this charge, the student’s possession of a small amount of gasoline in school constituted reckless behavior, but that it is legally and factually impossible to find that her possession, of the gasoline mixture in the manner in which she possessed it, created a substantial risk exposing society to an extraordinary disaster. Petitioner’s argument is that the mixture itself is flammable but not without an outside source of ignition. N.T. 59. Petitioner further refers the court to the testimony of Officer Carlo, that the mixture was not an explosive nor was it fitted with an igniter of any kind. N.T. 70, 72. Petitioner further argues that the total volume of the gasoline mixture contained in both lip-balm containers was less than two ounces, and that based upon (1) the gasoline mixture itself; (2) the quantity of the mixture; and (3) the fact that it was sealed and kept in the student’s purse, that none of the above factors created the potential for an extraordinary disaster.

In addition, the petitioner refers the court to the letter that was sent to the parents of students in the school district from the Superintendent of Schools, Dr. Todora, that at no time were the children in any danger. Student exhibit A.

The respondent correctly points out that Superior Court of Pennsylvania has stated that the only requirement is that the facts surrounding a given situation have the potential to cause a catastrophe. See Commonwealth v. Salamone, 897 A.2d 1209 (Pa. Super. 2006) (wherein defendant’s conduct in piloting of airplane for four hours around maj or urban international airport and surrounding populated areas under the influence of alcohol and valium constituted “means” required for causing potentially widespread injury or damage, as would support conviction for risking catastrophe).

In addition, the court notes the case of Commonwealth v. Scott, where the Superior Court decided against convicting the defendant of risking catastrophe. 409 Pa. Super. 313, 597 A.2d 1220 (1991). In that case, there was circumstantial evidence that the defendant was present inside of a residence moments before a fire, and she squirted lighter fluid on her boyfriend while on the premises. Id. The Superior Court held that proof that the defendant squirted lighter fluid at her boyfriend, without proof that she thereafter intended to and did set the liquid on fire, was insufficient under the circumstances to convict the defendant of risking catastrophe, where the Commonwealth had based the charge on supposed proof that defendant started the fire. Id. The record contained no proof from which the fact-finder could conclude that defendant, by squirting lighter fluid and leaving the room, consciously created a risk of widespread destruction that exposed society to extraordinary disaster.

The court finds that the respondent’s adjudication on the charge of risking catastrophe is not supported by the evidence, based upon the court’s review of the testimony, the exhibits offered into evidence, and the applicable case law. The instant facts are distinguishable from Commonwealth v. Salamone, supra, and more analogous to Commonwealth v. Scott, in that the court finds that the student’s conduct (although reckless, see court’s analysis of recklessly endangering another person discussed infra) was insufficient under the surrounding circumstances. A total volume of gasoline mixture contained in both lip-balm containers amounting to less than two ounces does not rise to the “means” required for causing potentially widespread injury or damage, as would support conviction for risking catastrophe.

The third violation charged was recklessly endangering another person, 18 Pa.C.S. §2805, containing the following allegation:

“On Tuesday, March 28, 2006, student Shari Zahorchak did recklessly engage in conduct which may have placed another person, namely, her fellow students at Neshannock Junior-Senior High School, in danger of serious bodily injury in that she did have in her possession in the school building, while school was in session, and purchased from fellow student M.B., containers of flammable mixture of gasoline and dish soap, as described above, which containers were readily breakable and could be equipped with an ignition of any type.

“The offense of recklessly endangering another person is a misdemeanor of the second degree under 18 Pa.C.S. §2705.” Notice of charges, page 2.

Respondent’s evidence was that the student had no legitimate purpose to be carrying around the school two containers of homemade napalm. In addition, the student had a cigarette lighter in her purse along with the canisters. The canisters could be propelled as a dangerous object by merely unscrewing the top and igniting the contents with a cigarette lighter or match. N.T. 63.

Pennsylvania Crimes Code, 18 Pa.C.S. §2705, defines recklessly endangering another person as follows:

“A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”

Petitioner argues that the findings of the school board are not in compliance with Pennsylvania law nor are they supported by substantial evidence, in that the gasoline mixture, as possessed by the student, did not have the actual ability to place another person in danger of death or serious bodily injury.

The Superior Court of Pennsylvania has held that the common-law assault requirement of actual present ability to inflict harm must be shown in order to support a conviction under the recklessly endangering statute. See generally, Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978); Commonwealth v. Gouse, 287 Pa. Super. 121, 429 A.2d 1129 (1981) (the mere apparent ability to inflict harm is not sufficient to warrant a conviction of recklessly endangering another person).

The court finds that the respondent’s adjudication in finding the student guilty of the charge of recklessly endangering another person is supported by competent evidence, based upon review of the transcript of the notes of testimony, the statutory definition of recklessly endangering, and the applicable case law. Although the lip-balm containers remained in the student’s purse at all relevant times, the court has already made a finding, in regards to the incendiary device charge, discussed supra, that the containers were capable of coming open and thus were readily breakable. The court re-emphasizes that the student’s canisters, whether they be possessed inside or outside of her purse, could hardly serve any purpose other than to be an incendiary device. Accordingly, the court is satisfied that the containers had the actual present ability to place another person in danger of death or serious bodily injury to support a conviction under the recklessly endangering statute.

The final violation charged was the possession of a weapon on school property, 24 P.S. 13-1317.2 and 18 Pa.C.S. §912. The specific charge sets forth as follows:

“On Tuesday, March 28, 2006, student Shari Zahorchak, did possess a weapon at the Neshannock Junior-Senior High School, namely, the above-described containers of a mixture of gasoline and dish soap, which... are capable of inflicting serious bodily injury as defined at 18 Pa.C.S. §912(a).

“The offense of possession of a weapon on school property is a misdemeanor of the first degree (18 Pa.C.S. §912). Under 24 P.S. 13-1317.2, the student’s possession of such a weapon on school property is prohibited and requires the student’s expulsion for a period of not less than one year.” Notice of charges, pages 2-3.

Pennsylvania statute, 24 P.S. 13-1317.2, states in relevant part as follows:

“Possession of weapons prohibited
“(a) Except as otherwise provided in this section, a school district or area vocational-technical school shall expel, for a period of not less than one year, any student who is determined to have brought onto or is in possession of a weapon on any school property, any school-sponsored activity or any public conveyance providing transportation to a school or school-sponsored activity.
“(b) Every school district and area vocational-technical school shall develop a written policy regarding expulsions for possession of a weapon as required under this section. Expulsions shall be conducted pursuant to all applicable regulations.
“(c) The superintendent of a school district or an administrative director of an area vocational-technical school may recommend modifications of such expulsion requirements for a student on a case-by-case basis. The superintendent or other chief administrative officer of a school entity shall, in the case of an exceptional student, take all steps necessary to comply with the Individuals with Disabilities Education Act (Public Law 91-230,20 U.S.C. §1400 et seq.).
“(d) The provisions of this section shall not apply to the following:
“(1) a weapon being used as part of a program approved by a school by an individual who is participating in the program; or
“(2) a weapon that is unloaded and is possessed by an individual while traversing school property for the purpose of obtaining access to public or private lands used for lawful hunting, if the entry on school premises is authorized by school authorities.
“(e) Nothing in this section shall be construed as limiting the authority or duty of a school or area vocational-technical school to make an alternative assignment or provide alternative educational services during the period of expulsion.
“(e. 1) A school district receiving a student who transfers from a public or private school during a period of expulsion for an act or offense involving a weapon may assign that student to an alternative assignment or provide alternative education services, provided that the assignment may not exceed the period of expulsion.
“(f) All school districts and area vocational-technical schools shall report all incidents involving possession of a weapon prohibited by this section as follows:
“(1) The school superintendent or chief administrator shall report the discovery of any weapon prohibited by this section to local law enforcement officials.
“(2) The school superintendent or chief administrator shall report to the Department of Education all incidents relating to expulsions for possession of a weapon on school grounds, school-sponsored activities or public conveyances providing transportation to a school or school-sponsored activity. Reports shall include all information as required under section 1303-A.
“(g) As used in this section, the term ‘weapon’ shall include, but not be limited to, any knife, cutting instrument, cutting tool, nunchaku, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.”

Pennsylvania statute, 18 Pa.C.S. §912, states in relevant part as follows:

“Possession of weapon on school property
“(a) Definition — Notwithstanding the definition of ‘weapon’ in section 907 (relating to possessing instruments of crime), ‘weapon’ for purposes of this section shall include but not be limited to any knife, cutting instrument, cutting tool, nunchuck stick, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.
“(b) Offense defined — A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.
“(c) Defense — It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose.”

For a conviction to be proven of possession of weapon on school property, two elements are necessary:

“(1) That the accused possessed a weapon; and
“(2) That the accused possession was within the building or grounds of an educational institution.”

Respondent’s argument is that the devices were implements capable of inflicting serious bodily injury, in that the containers quickly can burn from the outside, even if it was left unopened. Testimony developed at the hearing was that the addition of gel to the gasoline increases burning temperature and makes the substance bum longer. In addition, the gel renders the contents sticky, and if thrown and the contents spill out, will stick to the victims skin or clothing, and make a more severe burn than mere gasoline. N.T. 60-62.

Petitioners argue that the finding of guilt to the charge of possession of weapon on school property is not supported by substantial evidence, as the containers possessed by the student were not capable of inflicting serious bodily injury. The petitioners’ argument is that the mixture, in and of itself, could not bum or cause serious bodily injury if it came into contact with another person, and that there is no evidence to support a conclusion or inference that the substance itself was capable of serious bodily harm. Petitioners further argue that the possession of an item without a legitimate reason does not mean that such possession is criminal in nature, and that no evidence exists in the record whereby the board could have concluded that the mixture met requisite statutory requirements of weapons per the Pennsylvania statute.

In the case of the Superior Court of Pennsylvania heard the appeal of an adjudication and dispositional order from York County, pertaining to the possession of a carbon dioxide-powered paintball gun on school property. 864 A.2d 1251 (Pa. Super. 2004). In that case, the court held that a carbon dioxide-powered paintball gun is a “weapon” within meaning of statute providing that a person commits a misdemeanor of the first degree if he possesses a “weapon” in the buildings of or on the grounds of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education, or any elementary or secondary parochial school. Id.; 18 Pa.C.S. §912.

The court finds that the respondent’s adjudication in finding the student guilty of the charge of possessing a weapon on school property is supported by competent evidence, based upon review of the transcript of the notes of testimony, the relevant statutory definitions cited infra, and the applicable case law. The court has already made a finding, in regards to the recklessly endangering charge, discussed supra, that the lip-balm containers had the actual present ability to place another person in danger of death or serious bodily injury. The term “weapon” shall include any instrument or implement capable of inflicting serious bodily injury. Accordingly, the court is satisfied that the containers constituted a “weapon” to support a conviction under the statutory definitions of 18 Pa.C.S. §912 as well as 24 P.S. 13-1317.2.

ORDER

And now, December 1, 2006, based upon review of the transcript of the notes of testimony, arguments of counsel, the relevant statutory definitions and the applicable case law cited infra, and in accordance with the standard of review set forth for the court in the Administrative Agency Law, 2 Pa.C.S. §754(b), it is ordered, adjudged, and decreed as follows.

(1) The Neshannock Township School District/respondent’s adjudication on the charge of possession of an incendiary device is supported by the evidence in this case, pursuant to 18 Pa.C.S. §7306, in that the lip-balm containers were capable of coming open and thus were readily breakable, and that the canisters could hardly serve any purpose other than to be an incendiary device.

(2) The Neshannock Township School District/respondent’s adjudication on the charge of risking catastrophe is not supported by the evidence in this case, pursuant to 18 Pa.C.S. §3302(b), in that the student’s possession of gasoline mixture contained in both lip-balm containers amounting to less than two ounces, among other relevant factors, fully discussed in the accompanying opinion, does not rise to the “means” required for causing potentially widespread injury or damage, as would support conviction for risking catastrophe.

(3) The Neshannock Township School District/respondent’s adjudication on the charge of recklessly endangering another person is supported by the evidence in this case, pursuant to 18 Pa.C.S. §2805, in that the containers had the actual present ability to place another person in danger of death or serious bodily injury to support a conviction under the recklessly endangering statute.

(4) The Neshannock Township School District/respondent’s adjudication on the charge of possession of a weapon on school property is supported by the evidence in this case, pursuant to 24 P.S. 13-1317.2 and 18Pa.C.S. §912, in that the term “weapon” shall include any instrument or implement capable of inflicting serious bodily injury to support a conviction under the relevant statutes, fully discussed in the accompanying opinion.

(5) Pursuant to 24 P.S. 13-1317.2(e), as well 22 Pa. Code 12.6, 12.7 and 12.8, nothing in this order shall be construed as limiting the authority or duty of the Neshannock Township School District to make an alternative assignment or provide alternative educational services to the student during the period of expulsion.

(6) The period of expulsion shall terminate at the expiration of the 2006-2007 school year.

(7) The prothonotary shall properly serve notice upon counsel of record and any party not represented by counsel.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Concerned Citizens of Exeter Township. v. Board of Supervisors of Exeter Township

      December 11, 2006

      Josele Cleary, for appellants.

      Andrew J. Bellwoar, for appellee.

      Jon S. Malsnee, for intervenor.
   LASH, J.,

The matter before this court is the land use appeal filed by Concerned Citizens of Exeter Township Inc., Jack Bertolet, James Focht and Linda Focht, and J. Kim Kolakowski from the written decision of the Board of Supervisors of Exeter Township, dated July 6, 2006, granting the application of Exeter Township School District for conditional use approval. The school district’s application requested conditional use approval for a public school within an Agricultural Preservation District. For reasons set forth herein, this court reverses the decision of the board and denies conditional use approval to the school district.

On or about December 20, 2005, the school district entered into an agreement of sale with Jordan L. and Elizabeth M. Bausher to purchase a portion of real property owned by Baushers and located on the eastern side of Ritter Lane, between Boyertown Pike and Oley Pike, in Exeter Township. The Baushers contemplate a subdivision of their property, with the school district to receive approximately 110 acres, leaving a residue to the Baushers of approximately 40 acres, including a residence and other buildings. The property is located in the Agricultural Preservation District of Exeter Township.

On February 28, 2006, the school district filed an application for a conditional use to construct a school facility on the premises. A hearing was held on April 27,2006 and May 25, 2006. At the hearing, the school district submitted a plan which provided a rendering of the proposed school facility. Three buildings were identified, together with multiple driveways, an internal street system, parking compounds, and several play areas and sporting fields.

At a public meeting on July 6, 2006, the board, by a 3 to 2 vote, granted the school district’s application for a conditional use. A written decision was then issued, also dated July 6,2006, and mailed to the school district on July 10, 2006. The two dissenting board members also issued findings of fact, conclusions of law and a “minority decision.”

The board concluded that the school district did satisfy all conditions required by the Exeter Township Zoning Ordinance for conditional use approval, including but not limited to, “the specifics set forth in section 808 of the Exeter Township Zoning Ordinance.” This conclusion was buttressed by several findings of the board, all of which addressed the sufficiency of the school district’s evidence regarding compliance with five standards listed in section 808(3)(A-E). However, with two exceptions relating to procedures, the board made no specific findings regarding satisfaction of any conditions required by the zoning ordinance other than those set forth in the five standards of section 808(3)(A-E).

The board also imposed additional conditions and safeguards upon the school district necessary for the granting of the conditional use:

“(A) No street can extend from the proposed school into Glen Oley Farms.
“(B) Any additional use of the subject premises must be agricultural in nature with crops being planted on the unused portions of said property not used by and for the school and/or its associated uses.
“(C) As many of the existing whole growth trees shall be retained, and a vegetation buffer shall be erected with coniferous trees 10 to 15 feet in height between an erected sound deterrent barrier and the adjoining residential areas with said planting to occur in the early portions of said development.
“(D) The external lighting on the school premises shall be erected and built so as to not shine upon adjoining residential properties in Glen Oley Farms and any other adjacent subdivisions.
“(E) There shall be no further subdivision of the premises unless this provision is declared illegal as provided by law.
“(F) The school facilities shall not be leased to any third parties or entities for non-school functions, without prior written permission and approval of the Board of Supervisors of Exeter Township.
“(G) A traffic study shall be prepared and followed so as to minimize hazardous and congested traffic conditions as provided in all sections of the Exeter Township Zoning Ordinance.
“(H) Applicant shall comply with any and all historical area controls as more particularly set forth in section 625 of the Exeter Township Zoning Ordinance.
“(I) Applicant shall comply with any and all other ordinances and regulations of Exeter Township including, but not limited to those regarding development of the tract specifically testified to by applicant’s witnesses at the various public hearings including but not limited to the land development ordinances and requirements more particularly set forth therein.
“(J) One primary school, K-4 is presently allowed.
“(K) Spectator events will be scheduled so as to minimize impact of traffic on adjoining residential areas.
“(L) School spectator events shall be limited to daylight hours.
“(M) Bausher lot that remains must be a conforming lot.
“(N) There shall be no more than three recreational/ athletic fields, none of which shall be lighted.
“(O) The two private cemeteries currently on the site will be preserved and appropriately maintained.
“(P) The school district shall not apply for any variances or waivers.
“(Q) No modular classrooms will be permitted.”

Citizens filed their appeal on August 1,2006. On August 21, 2006, the school district intervened. Argument was held before this court on November 6, 2006.

In the case of In re Thompson, 896 A.2d 659, 667-68 (Pa. Commw. 2006), the Pennsylvania Commonwealth Court provides a comprehensive statement on this court’s scope of review:

“The proper scope of review in this appeal is set forth in section 754(b) of Local Agency Law, 2 Pa.C.S. §754(b); SSEN Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 206 (Pa. Commw. 2002). Section 754(b) provides:

“(b) Complete record. — In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of subchapter B of chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. §706 (relating to disposition of appeals) ....

“Pursuant to section 754(b), a reviewing court may properly reverse where it determines that constitutional rights were violated, an error of law was committed, the procedure before the agency was contrary to statute, or the necessary findings of fact were not supported by substantial evidence. SSEN; Sparacino v. Zoning Board of Adjustment, City of Philadelphia, 728 A.2d 445 (Pa. Commw. 1999), petition for allowance of appeal denied, 565 Pa. 680, 775 A.2d 811 (2001). A reviewing court may look only to the evidence relied upon by the fact-finder, ... to see if it is sufficiently substantial to support the findings. Section 754(b) of the Local Agency Law; SSEN; Kish v. Annville-Cleona School District, 165 Pa. Commw. 336, 645 A.2d 361, 363-64 (1994). ‘Nowhere in section 754 is the reviewing court given general authority to make its own findings of fact and conclusions of law when the local agency has developed a full and complete record...Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia, 804 A.2d 147, 150 (Pa. Commw. 2002).

“A reviewing court must accept the credibility determinations made by the municipal body which hears the testimony, evaluates the credibility of the witnesses and serves as fact-finder. Young v. Pistorio, 715 A.2d 1230 (Pa. Commw. 1998); Collier Stone Company v. Zoning Hearing Board for the Township of Collier, 710 A.2d 123 (Pa. Commw. 1998). The reviewing court is not to substitute its judgment on the merits for that of the municipal body. East Torresdale Civic Association v. Zoning Board of Adjustment of Philadelphia County, 536 Pa. 322, 639 A.2d 446 (1994); Kish; Snyder v. Railroad Borough, 59 Pa. Commw. 385, 430 A.2d 339 (1981). Assuming the record demonstrates the existence of substantial evidence, the court is bound by the municipal body’s findings, which are the result of resolutions of credibility and conflicting testimony. Snyder

The provisions governing conditional use procedures for Exeter Township are set forth in section 808 of the zoning ordinance. Section 808 provides:

“808. Conditional use procedures.
“(1) Application. Four copies of an application for permission to conduct a use permitted by condition shall be submitted to the township secretary. Such application shall include all information specified for a zoning permit application in 801 of this chapter and any other information necessary to allow the township supervisors to determine that all requirements of this chapter have been met.
“(2) Review. After receiving an application, the supervisors shall refer one copy of the application to the township planning commission for its review and one copy to the township zoning officer for his review. The application shall be reviewed at one or more advertised meetings of the township supervisors, and the supervisors shall either approve or disapprove the application within 90 days after the date the application is received by the township secretary, except for those uses also regulated by other township ordinances, such as sanitary landfills, which may require more than 90 days to review, the supervisors may take up to 120 days to act on the application.
“The granting of permission to conduct a use permitted by condition does not exempt an application from acquiring all approvals required by the township’s Subdivision and Land Development Ordinance.
“(3) Standards. Conditional uses shall meet the specific standards established for each use by this chapter and all other applicable zoning district requirements and general regulations established by this chapter. In addition, the following standards shall be met:
“(A) The use shall be one which is specifically authorized as a conditional use in the zoning district wherein the applicant is seeking a conditional use.
“(B) Services and utilities shall be made available to adequately service the proposed use.
“(C) The use will not generate traffic such that hazardous or unduly congested conditions will result.
“(D) The use is appropriate to the site in question.
“(E) The use shall not adversely affect the character of the general neighborhood, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.
“The applicant shall demonstrate, as a condition to approval of his application, that the standards in 808(3) and those specified elsewhere in this chapter for the use in question will be met.
“The township supervisors may impose such additional safeguards as are necessary to protect the public health, safety and welfare.”

Citizens contend that section 808 requires that conditional use applications meet all applicable zoning district requirements provided in the zoning ordinance. They raise the following four issues:

“(A) Whether the school district failed to present a plan meeting the specific and objective requirements of section 803 [sic] of the zoning ordinance which requires that an application contain a plan meeting requirements of zoning ordinance section 801.
“(B) Whether the school district failed to demonstrate that it complied with the specific and objective requirement of the zoning ordinance concerning the maximum impervious surface coverage in the Agricultural Preservation District.
“(C) Whether the school district failed to demonstrate compliance with the specific and objective requirements of the zoning ordinance regulating off-street parking and driveways.
“(D) Whether the school district failed to demonstrate compliance with the specific and objective requirements of the zoning ordinance by presenting a plan which proposed creation of a lot without street frontage.”

Citizens’ first concern is that the school district’s application is deficient on its face and that this deficiency is fatal to its request for a conditional use. Under section 808.1, the application is to include, among other things, “all information specified for a zoning permit application in 801 of this chapter.” Section 801.2 delineates specific information required to be contained within the application. Citizens argue that the required information does not appear on the application, nor was it produced as evidence at the hearing.

Citizens also claim that the school district’s plan should have specifically set out which portions of the land will constitute “open area by delineating the location and size of the principal and accessory buildings, as well as the location of paving and other impervious surfaces.” While the plan does designate building footprints, internal roadways and parking areas, there will be other areas of impervious surface coverage which must be separately designated from the open area. The plan is presently insufficient to determine whether the plan complies with section 401.5 of the zoning ordinance, which requires a minimum open area of 80 percent and maximum lot coverage of 10 percent.

Citizens’ third concern is that the school district failed to comply with section 612, relating to off-street parking. None of the parking lots delineated any parking spaces reserved for disabled drivers. Additionally, the plan fails to comply with section 613.7 of the zoning ordinance requiring that the proposed driveways meet the clear site distance requirements established by the Pennsylvania Department of Transportation.

Finally, citizens contend that the remainder property reserved to the Baushers has no street frontage. Under section 600 of the zoning ordinance, no lot shall be created which does not abut a public street or approved private street.

The school district counters by arguing that it has presented sufficient evidence to meet the standards required by the zoning ordinance at this stage of the proceeding. In seeking approval of a conditional use, the school district urges that it is only required to meet the standards of section 808.3(A-E) of the zoning ordinance, and is not required to provide detailed and specific information establishing compliance with all applicable provisions of the zoning ordinance. While ultimately the specifics will have to be presented through the subdivision and land development process, requiring strict compliance with the entire zoning ordinance at this stage would be premature, impractical, and unnecessary.

An applicant for conditional use has the burden to demonstrate compliance with the specific criteria of the zoning ordinance. To meet this burden, the applicant is generally not imposed upon to demonstrate compliance with all provisions of the zoning ordinance which ultimately would become pertinent at the final stages of subdivision. Rather, the applicant must show compliance with those provisions of the zoning ordinance “that relate specifically to the conditional use.” The courts have recognized that obtaining approval for a conditional use represents only one stage of the subdivision approval process. At this stage, the governing body’s function is to review the proposed use and determine its appropriateness. This review need not involve design details, which can be delineated at a later time. In re Thompson, supra at 670-71.

We also note, however, that the extent of the burden of production at the conditional use approval stage is governed by the terms of the zoning ordinance itself. This determination is made on a case-by-case basis and will vary among municipalities, “based upon the use requested and the language in the ordinance.” In re Thompson, supra at 670. Therefore, when the ordinance so states, approval of a conditional use may be conditioned upon a showing of compliance with all applicable zoning requirements.

In this case, the terms of the zoning ordinance are clear. Contrary to the school district’s contentions, the zoning ordinance requires more than a mere showing that the five standards set forth in section 808.3(A-E) are met. Section 808.3 provides that the five standards are “additional” to other specific standards established for the conditional use by the terms of “this chapter and all other applicable zoning district requirements and general regulations established by this chapter.” Thus, the board was required to also determine whether the plan, as submitted, complied with all applicable zoning ordinance requirements.

As stated, citizens complain of several zoning deficiencies, namely, the failure to properly reserve open area, the failure to delineate disabled driver parking spaces, the failure to provide satisfactory driveway site lines, and the failure to provide street frontage for the property reserved to the Baushers.

We find no problem with the school district’s presentation of the proposed open area/impervious surface designations. Under section 401.5 of the zoning ordinance, the plan is sufficient if maximum lot coverage does not exceed 10 percent, maximum paved area does not exceed 10 percent, and the minimum open area is at least 80 percent. The plan submitted by the school district provides that the development shall meet these parameters. The fact that there is a lack of specificity on where buildings, paving or sidewalks will be located does not warrant a rejection on this basis because section 401.5 does not require specific delineations on measurement or location. Citizens’ claim, that the plan omits some of the paving requirements for the project, such as sidewalks, and that, therefore, the proposed percentages are not credible, is speculative. The plan’s terms comply with section 401.5, and that is all that is necessary for this stage of the project.

We find, however, that citizens’ other challenges have merit. Section 600 of the zoning ordinance requires that all lots that are created must abut a public street or a private street approved by the township supervisors. It is undisputed that the planned subdivision does not provide street frontage for the property reserved for the Baushers. The board attempted to address this concern in its additional conditions and safeguards by requiring that the “Bausher lot that remains must be a conforming lot.”

Section 611.18 of the zoning ordinance requires that there should be one parking space reserved for disabled drivers, with a minimum ratio of one disabled parking space for every 25 regular parking spaces. Section 613.7 of the zoning ordinance requires that site distances of driveways shall meet the requirements of PennDOT Publication 201, Engineering and Traffic Studies, section 201.6.16. Nothing in the plan, or in any of the evidence presented by the school district, establishes that these requirements of the zoning ordinance will be met.

These deficiencies are not cured by an expectation or promise that the conditions would be adequately addressed at a later stage of the process. Section 808.3 states that the “applicant shall demonstrate, as a condition to approval of his application, that the standards in 808(3) and those specified elsewhere in this chapter for the use in question will be met.” The school district argues that this provision merely requires compliance with the five enumerated standards, for the zoning ordinance does not enumerate any other “standards” for use of land as a school facility. However, as stated, the first paragraph of 808(3), entitled “Standards”, includes “specific standards established by the zoning ordinance, and all other applicable zoning district requirements and general regulations,.” (emphasis supplied)

We also find that the board’s action in premising the approval of the application on additional conditions which, when met, would bring the application into compliance with the zoning ordinance, is improper. In the case of Edgmont Township v. Springton Lake Montessori School Inc., 154 Pa. Commw. 76, 79-80, 622 A.2d 418, 419-20 (1993), the Commonwealth Court, in reviewing the granting of a special exception on condition that the school applicant bring its plan into compliance prior to occupancy, stated:

“To be entitled to receive a special exception it was incumbent on the school to come forward with evidence detailing how it was going to be in compliance with the requirements necessary to obtain a special exception to operate a preschool in aR-1 zoning district. N. Pugliese Inc. v. Palmer Township Zoning Hearing Board, 140 Pa. Commw. 160, 592 A.2d 118 (1991). Evidence is not a ‘promise’ that the applicant will comply because that is a legal conclusion the board makes once it hears what the applicant intends to do and then determines whether it matches the requirements set forth in the ordinance. In Appeal of Baird, 113 Pa. Commw. 637, 641, 537 A.2d 976, 978 (1988), a zoning hearing board denied an applicant a special exception to operate a dog kennel on 11.86 acres of land because the applicant failed to show compliance with ordinance requirements applicable to buildings in the zone in question. Overturning the board, the trial court held that because the lot was in excess of 11 acres, it was self-evident that the parcel was large enough to provide for any building configuration necessary to meet the zoning ordinance requirements. Reversing, we held that the board properly denied the special exception because an applicant is required to show at the time of the hearing that it met the requirements of the ordinance.

“The failure of the promise to establish sufficient evidence of compliance is not cured by a condition contained in the board’s decision that the school meet the requirements of the ordinance prior to occupying the property. In Lafayette College v. Zoning Hearing Board of the City of Easton, 138 Pa. Commw. 579, 587, 588 A.2d 1323 (1991), we overturned the grant of a special exception where the plan submitted to the board did not comply with the on-site parking requirement necessary to obtain a special exception even though the grant of the special exception was conditioned on the applicant obtaining off-site parking. Rejecting that the off-site parking condition cured its failure to meet the specific requirement of on-site parking, we held that the proper function of a condition imposed upon a special exception is to reduce the adverse impact of that permitted use, and not to enable the applicant to meet its burden of showing that it met the requirements necessary to obtain a special exception.4 Id. at 586,588 A.2d at 1326. The standard to be observed by the board is whether the plan as submitted complies with specific ordinance requirements at the time the plan comes before it. Id. at 588, 587 A.2d at 1327; see also, Baird.

“4. In other words, a zoning board has power to impose conditions restricting a use or permission if the evidence indicates that a proposed use or permission will have an adverse effect sufficient to justify the denial of an exception. The zoning board is obligated to reduce that impact to an acceptable level, if it can, by imposing conditions, rather than by denying the exception. Ryan, Pennsylvania Zoning Law and Practice §5.2.7.”

Citizens also correctly point out that the application itself is defective. Under the terms of section 808.1, the application for conditional use approval shall include all information specified for a zoning permit application as set forth in section 801. The information required specifically calls for such things as an “exact location” on the lot of all existing and proposed buildings, use, height, length, width, and proportion of the total lot area covered of all proposed and existing buildings, locations, dimensions and design of parking and loading areas, including size and arrangement of all spaces and means of ingress, egress, recreation areas, buffer yards and landscaping, location of all utility lines, method of proposed water supply and sewage disposal, and all streets, right-of-ways and easements on or adjacent to the lot. It is undisputed that the application does not provide these details. In fact, the application is vague and general, it being apparent that final decisions have not been made on locations and dimensions of the buildings, or the site in general. In correspondence dated March 30, 2006, addressed to the township manager, the school district’s architect, in forwarding a copy of a “conceptual site plan” states: “Please understand this is a conceptual design drawing and is not to be considered a final arrangement on location of building, parking area or internal road configuration. However, the conceptual drawing offers an opportunity for El Associates to acquaint township officers with a possible direction for the project.”

A sufficient application is important because the information required provides a necessary framework, specifically defining the applicant’s proposal. As stated in section 808.1, the information is “necessary to allow the township supervisors to determine that all requirements of this chapter have been met.” Proceeding without providing proper information through the application severely hampers meaningful review by the board on the appropriateness of the conditional use. Additionally, a stated requirement of the zoning ordinance would be ignored. See In re Appeal From Decision of Board of Supervisors of Penn Township, 62 D.&C.4th 492 (Lancaster Cty. 2002).

For the aforesaid reasons, we hold that the Board of Supervisors of Exeter Township erred in its finding that the school district satisfied all the conditions set forth in the zoning ordinance necessary to satisfy the conditions for conditional use approval. This court Reverses the decision of the board granting conditional use.

The school district has requested, in the event of an adverse ruling, that the matter be remanded to the board for further proceedings. The remand, however, is not appropriate under these facts and circumstances. For the court to issue a remand, it must first determine that the record before the board is incomplete. A record before a local agency is determined to be full and complete if “there is a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal, and also, that the appellate court is given a sufficient record upon which to rule on questions presented.” Monaghan v. Board of School Directors of Reading School District, 152 Pa. Commw. 348, 353, 618 A.2d 1239, 1241-42 (1992). When the record is complete, a trial court is without authority “to remand the matter to the [board] to give [a party] another opportunity to prove what he or she should have proved in the first place; [Therefore, the record before the local agency is not considered incomplete based solely on the [party’s] failure to present evidence available at the hearing.” Sparacino v. Zoning Board of Adjustment, City of Philadelphia, 728 A.2d 445, 448 n.4 (Pa. Commw. 1999) citing Monaghan, supra.

Here, the school district had ample opportunity to present its case. It is not complaining that the record is deficient or that it needs to be augmented in any way. A remand would simply give the school district the opportunity to start over, in essence, getting a “second bite of the apple.”

We enter the following order:

ORDER

And now, December 11, 2006, upon consideration of the land use appeal filed by Concerned Citizens of Exeter Township Inc., Jack Bertolet, James Focht and Linda Focht, and J. Kim Kolakowski, the response thereto, briefs filed by the parties, review of the record, and after argument held, the appeal is sustained. The order of the Board of Supervisors of Exeter Township dated July 6, 2006, granting Exeter Township School District approval for a conditional use to construct an elementary school building on premises currently owned by Jordan L. Bausher and Elizabeth M. Bausher, is reversed. The aforesaid conditional use of the Exeter Township School District is hereby denied.

      . On February 28, 2006, public schools were permitted as a conditional use under section 401.4.D. of the Exeter Township Zoning Ordinance. Subsequently, the board amended the zoning ordinance, removing the provision listing schools as a conditional use within the Agricultural Preservation District. The timing of the application has not been raised as an issue in this case.

      . Conclusion of law no. 5.

      . In conclusion 8, the board found that the school district’s application was timely filed. In conclusion 9, the board found that all notice requirements were met.

      . This is a typographical error which should read 808.

      . 801.2 provides:
      “(2) Application procedures. The application for a zoning and/or building permit shall be submitted to the zoning officer in writing on a form prescribed by the zoning officer. The application shall be submitted by the owner or lessee of any building, structure or land or the agent of either, provided, however, that if the application is made by a person other than the owner or lessee, it shall be accompanied by a written authorization from the owner or lessee authorizing the work and designating the agent. The application shall be accompanied by at least the following information:
      “(A) A map of the lot in question, drawn to scale, indicating the lot size and showing all dimensions of lot lines and the exact location(s) on the lot of all existing and proposed buildings, fences, signs, structures and alterations to buildings or structures.

        “(B) The use, height, length, width and proportion of the total lot area covered of all proposed and existing buildings, structures and additions or alterations to buildings or structures.
      “(C) A statement indicating the number of dwelling units and/or commercial or industrial establishments to be accommodated within existing and proposed buildings on the lot. In the case of commercial and industrial uses and home occupations, the floor area to be devoted to each use shall be indicated.
      “(D) The location, dimensions and design of parking and loading areas including the size and arrangement of all spaces and means of ingress, egress and interior circulation, recreation areas, screens, buffer yards and landscaping, means of egress from and ingress to the lot, routes for pedestrian and vehicular traffic and outdoor lighting.
      “(E) The location of all utility lines, the method of proposed water supply and sewage disposal and the location of any on-lot facilities.
      “(F) All streets, right-of-ways and easements on or adjacent to the lot.
      “(G) Proof of worker’s compensation coverage, if the application is submitted by a contractor.
      “(H) All other information necessary for the zoning officer to determine conformance with and provide for enforcement of this chapter.”

      . The term “chapter” is not specifically defined in the zoning ordinance. However, section 100 sets forth that the word “chapter” is synonymous with the Exeter Township Zoning Ordinance of 2000. We, therefore, read the word “chapter” to encompass the entire zoning ordinance.

      . Condition M.


author: YATRON, J,

text:
    Commonwealth v. Leonti
    November 27, 2007

      Matthew Eltringham, assistant district attorney, for Commonwealth.

      I. Emmanuel Dimitriou, for defendant.
   YATRON, J,

The appellant, Samuel Leonti, was tried before this court and a jury on May 21-22, 2007. The jury convicted the appellant of five counts of robbery, 18 Pa.C.S. §3701(a)(l)(ii); one count of conspiracy to commit robbery, 18 Pa.C.S. §903(a)(l)(2); one count of burglary, 18 Pa.C.S. §3502(a); one count of conspiracy to commit burglary, 18 Pa.C.S. §903(a)(l)(2); five additional counts of robbery, 18 Pa.C.S. §3701(a)(l)(v); one additional count of conspiracy to commit robbery, 18 Pa.C.S. §903(a)(l)(2); one count of criminal trespass, 18 Pa.C.S. §3503(a)(l) (i); one count of conspiracy to commit criminal trespass, 18 Pa.C.S. §903(a)(l)(2); one count oftheft by unlawful talcing or disposition, 18 Pa.C.S. §3921(a); one count of conspiracy to commit theft by unlawful taking or disposition, 18 Pa.C.S. §903(a)(l)(2); one count of receiving stolen property, 18 Pa.C.S. §3925(a); one count of conspiracy to commit receiving stolen property, 18 Pa.C.S. §903(a)(l)(2); five counts of simple assault, 18 Pa.C.S. §2701(a)(3); and one count of conspiracy to commit simple assault, 18 Pa.C.S. §903(a)(l)(2). On June 28, 2007, this court sentenced the appellant to serve 12 to 24 years of confinement in a state correctional facility. Specifically, this court sentenced the appellant to six and one-half to 13 years for the robbery counts, under subsection (a)(1)(h), and five and one-half to 11 years for the conspiracy to commit robbery count, to run consecutive to the robbery counts. All the remaining counts either merged or were sentenced concurrently with the robbery counts and conspiracy to commit robbery count.

Following the appellant’s sentencing, the appellant filed a “petition to reconsider sentence.” The appellant opined that this court abused its discretion by deciding to run the conspiracy count consecutive to the five robbery counts, under subsection (a)(1)(h). On September 4, 2007, this court held a hearing on the petition, but ultimately denied it. This appeal followed.

In the appellant’s “concise statement of the errors complained of on appeal,” he opines that:

“The sentencing court abused its discretion by entering a manifestly excessive and clearly unreasonable sentence for [conspiracy to commit robbery] which violated the Sentencing Guidelines because the sentencing court ignored appellant’s mitigating circumstances, such as the facts and circumstances of the case, in imposing this sentence as a consecutive sentence to all of appellant’s other sentences under this docket without sufficient reasons and where the sentencing court erred in ruling that appellant could not have committed his crimes alone.”

In order to address the appellant’s claim thoroughly, a brief summary of trial testimony is appropriate.

SUMMARY OF FACTS

At docket number 4610-06, the defendant was charged with 50 counts of robbery, burglary, criminal trespass, theft, receiving stolen property, unlawful restraint, simple assault, recklessly endangering another person, harassment and conspiracy. All of the charges stemmed from an incident alleged to have occurred during the early morning hours of August 27, 2007 at 1515 Hill Road, in the City of Reading, Berks County. According to the Information there were six alleged victims.

At trial, the Commonwealth called Jason Yasso, one of the alleged victims. Yasso testified that he was at 1515 Hill Road, which is an apartment complex, with Kevin Burk, Amy Baranoski, Matt Thorp, Melissa Nagle, Troy Hughes, Eric Silvennan, Jen Sheperd and Shawn Troxel during the late evening hours of August 26, 2006 into early morning hours of August 27, 2007. (N.T. 26-27, 42-44.) Yasso said he was playing PlayStation in apartment number C-5, when he heard a knock on the door. (N.T. 28-29,40.) Yassso said that he got up to answer it, but noticed that the peephole was blocked. (N.T. 29.) As a result, according to Yasso, he cracked the door to see who was on the other side. (N.T. 29.) Once he cracked the door open, he testified, someone’s foot pushed the door farther open. (N.T. 29.)

The foot belonged to the appellant, whom Yasso had met a month prior to the incident through a mutual friend. (N.T. 38-39.) Yasso next testified that the appellant used both of his hands to reach in and grab Yasso’s shirt, and then he ordered Yasso to the ground. (N.T. 30, 44.) Yasso further stated that the appellant gripped his arms and pushed him on to the floor, stomach first. (N.T. 31, 44.) Once Yasso was on the floor, the appellant got on top of him, went through his pockets, took $80 from his wallet, and punched him with a closed fist. (N.T. 31-32, 44, 64.)

Yasso also stated that once the appellant had him on the ground, two other individuals entered the apartment. (N.T. 35.) However, Yasso was not able to identify the other two individuals, other than remarking that they were “African-American, Hispanic.” (N.T. 54-56.) The two individuals, according to Yasso’s testimony, searched the pockets of the other people in the apartment and then searched the apartment. (N.T. 35.) Yasso said that he could hear them walking from room-to-room, while he was lying on the floor. (N.T. 36.) When asked why he remained on the floor, Yasso stated that the second individual, not the appellant, brandished a pistol once he was inside the apartment. (N.T. 36, 52.) Yasso also testified that the appellant had the pistol, or a pistol, later and “put it to Matt Thorp just to make sure... that he wasn’t [sic] going to move or try to do anything to stop what they were doing.” (N.T. 37.) Afterwards, Yasso testified, he “felt a little scared, nervous, anxious.” (N.T. 37.)

The Commonwealth also called Kevin Burk, another one of the alleged victims, to testify. Burk testified that he was also at the Hill Road apartment complex with seven other individuals, when he heard a knock on the door. (N.T. 68.) He further corroborated Yasso’s testimony by stating that when Yasso opened the door a crack, he (Burk) saw a foot push the door farther open. (N.T. 69.) Burk described the entrants as a white man, a taller, heavier black man, and a Puerto Rican man. (N.T. 77, 81.) Burk also testified that two of the individuals that entered the apartment did so with pistols drawn. (N.T. 69-70.) Burk stated that someone went through his pockets and wallet and took his cash and cell phone. (N.T. 70.) Burk also said that two of the individuals were speaking Spanish. (N.T. 72.)

Next, the Commonwealth called Melissa Nagle, another alleged victim, who testified that she was at the apartment on the date and time in question. (N.T. 84-86.) She also testified that after hearing a knock on the door of the apartment, an angry male voice ordered everyone to lie on the floor. (N.T. 88.) While she was lying on the floor, she felt someone rip jewelry off of her person, including rings, a bracelet, and a necklace, and saw someone take her purse, which contained her digital camera. (N.T. 90.)

The Commonwealth also called Amy Bamoksi. Barnoski testified that the Hill Road apartment was hers, and that she was there on the date and time in question. (N.T. 105-106.) She testified that after hearing the apartment door fly open, she stepped out of the kitchen and saw a man holding a pistol. (N.T. 107.) After seeing the gun, she lay on the ground and then felt someone go through her pockets and feel her legs. (N.T. 108-109.) She also testified that one man was white and the other two were “darker people... speaking Spanish to each other.” (N.T. 110-15.)

SENTENCING

As previously stated, this court sentenced the appellant to serve 12 to 24 years in a state correctional facility, with the sentences on the five robbery counts, under subsection (a)(1)(h), and the conspiracy to commit robbery count running consecutive.

As our Superior Court recently noted in Commonwealth v. Hoch:

“ ‘ [A]n abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.’” Commonwealth v. Hoch, 936 A.2d 515 (Pa. Super. 2007) citing Com monwealth v. Shugars, 893 A.2d 1270, 1275 (Pa. Super. 2006).

In imposing a sentence, “the trial judge may determine whether, given the facts of a particular case, a sentence should run consecutive to or concurrent with another sentence being imposed.” Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa. Super. 2003).

Here, in fashioning the appellant’s sentence, this court considered the presentence investigation report (N.T. II 14); the appellant’s prior record score of five (N.T. II 4, 15); the appellant’s criminal history, which includes a first-degree felony and a conviction for possession of a prohibited offensive weapon (N.T. II 15); the offense gravity scores for robbery, 10, and conspiracy to commit robbery, nine; the standard, mitigated, and aggravated ranges for the robbery counts on the deadly weapon enhancement/used matrix, 78 to 90 months plus or minus 12 months, and the conspiracy to commit robbery count on the deadly weapon enhancement/used matrix, 66 to 78 months plus or minus 12 months; as well as testimony from the appellant’s trial and sentencing, including his allocution and a letter from his mother asking for this court’s mercy. (N.T. II 14-16.) Further, this court feels that because each of the offenses that the appellant was sentenced on — robbery and conspiracy to commit robbery — proscribes a different social harm, i.e., the commission of theft by force or threat of force and the act of agreeing with others to carry out such an act and taking substantial step in doing so, it is both logical and reasonable to impose their concomitant punishments consecutively so as not to diminish the gravity of either offense. Having followed the controlling legal dictates, while taking into account the particular facts of this case, we conclude that the sentence imposed on the appellant was not an abuse of discretion.

Accordingly, for the foregoing reasons, we respectfully submit that appellant’s appeal be denied and his sentence affirmed.

      . N.T. refers to notes of testimony from the appellant’s jury trial, which was held on May 21-22,2007.

      . N.T. II refers to the notes of testimony from the appellant’s sentencing, which was held June 28, 2007.

      . 18 Pa.C.S. §3701(a)(l)(ii) (a felony of the first degree).

      . 204 Pa.Code §303.15 at 42 Pa.C.S. §9721 under 18 Pa.C.S. §3701(a)(l)(ii).

      . 204 Pa.Code §303.3(c)(l) at 42 Pa.C.S. §9721.

      . 204 Pa.Code §303.18 at 42 Pa.C.S. §9721. 204 Pa.Code §303.10(a)(2) states “[a]n offender has used a deadly weapon if any of the following were employed by the offender in a way that threatened or injured another individual: (i) Any firearm, (as defined in 42 Pa.C.S. §9712) whether loaded or unloaded.” Further, the “deadly weapon enhancement shall apply to each conviction offense for which a deadly weapon is possessed or used.” 204 Pa.Code §303.10(a)(4). Here, there was testimony from Yasso that the appellant used a pistol in a threatening manner. (N.T. 37.) Moreover, this court finds it difficult to believe that such offenses could have been committed in the absence of a weapon under the circumstances. (N.T. II15.)

      . See 42 Pa.C.S. §9721(b).


author: KUNSELMAN, P.J.,

text:
    Bukoskey v. Palombo

      November 20, 2007

      Aimee L. Burton, for plaintiff.

      Nick Francalancia, for defendants Palombo & Howard Hanna.

      Allen Andrascik, for defendant Cordasco Estate.
   KUNSELMAN, P.J.,

Before the court are preliminary objections filed on behalf of defendants, the estate of Donna Rose Cordasco and Christine Stanley, executrix of the estate, and defendants, Sue Palombo and Howard Hanna Company. For the following reasons, the preliminary objections will be sustained in part.

The basic facts and procedural history of the case are as follows. This matter stems from a property dispute involving the sale of real property to plaintiff located at 65 Valley View Drive, Economy, Beaver County, Pennsylvania 15003. The plaintiff avers the following facts: the property in question had been owned by the decedent, Donna Rose Cordasco, prior to her death by suicide; defendant Christine Stanley, executrix of the estate of Donna Rose Cordasco, listed the property for sale with defendant Howard Hanna; plaintiff engaged the services of defendant Howard Hanna in searching for a home to purchase; defendant, Sue Palombo, an agent with defendant Howard Hanna, showed plaintiff the home on January 27, 2007; on the date he visited the house, the master bedroom was filled with furniture and the floor was obstructed from view; on that date, plaintiff entered into an exclusive buyer agency contract with defendant Howard Hanna and a standard agreement for the sale of real estate, which was presented to the estate as plaintiff’s offer to purchase the residence for $80,000; the offer was then accepted; after the offer was accepted, closing was scheduled for March 9, 2007, and defendant Palombo arranged for a survey of the property, a formal appraisal and a home inspection; the final walk-through of the residence occurred on March 8,2007; at the time of the walk-through, the furniture had been removed, and a piece of carpeting that was the same color and material as the carpeting underneath it in the master bedroom was placed on the floor in the center of the room, covering an area of the floor that had previously been covered with furnishings.

The closing on the residence occurred on March 9, 2007. Plaintiff contends that none of the defendants disclosed to him prior to the closing that Ms. Cordasco had committed suicide with a firearm in the master bedroom of the residence. Instead, the plaintiff learned of the manner of Ms. Cordasco’s death through a neighbor on March 10,2007. On March 12,2007, the carpet cleaners he hired to clean the carpeting informed him that they were unable to remove a blood stain on the floor of the master bedroom. Plaintiff then had his counsel send the defendants correspondence on March 21,2007, informing them of his desire to void the sales agreement.

Plaintiff then filed the above-referenced complaint. The complaint sets forth several counts as follows: Count 1, fraud — rescission as to the estate of Donna Rose Cordasco, and Christine Stanley, executrix of the estate of Donna Rose Cordasco; Count 2, fraud — damages as to the estate of Donna Rose Cordasco, and Christine Stanley, executrix of the estate of Donna Rose Cordasco; Count 3, punitive damages as to the estate of Donna Rose Cordasco, and Christine Stanley, executrix of the estate of Donna Rose Cordasco; Count 4, breach of fiduciary duty/fraud as to Sue Palombo and the Howard Hanna Company; Count 5, breach of warranty as to the Howard Hanna Company; and Count 6, violation of the Unfair Trade Practices Act as to Sue Palombo and the Howard Hanna Company. As we have noted, both sets of defendants have filed preliminary objections to the complaint.

Defendants Estate of Donna Rose Cordasco and Christine Stanley (estate defendants) assert the following preliminary objections: (1) lack of personal jurisdiction over Christine Stanley in an individual capacity; (2) failure of plaintiff to elect between inconsistent remedies which cannot be maintained simultaneously; (3) demurrer to Count 3, as the claim for punitive damages is not a separately maintainable action under Pennsylvania law and must be dismissed; (4) failure to state a claim upon which relief can be granted in Counts 1, 2 and 3 of the complaint, as the suggested disclosures are not mandated under Pennsylvania law; and (5) failure to demonstrate the requirements to maintain a cause of action for fraud.

First, we will address estate defendants’ assertion that plaintiff fails to state a claim upon which relief can be granted in Counts 1,2 and 3 of the complaint. The basis of the plaintiff’s claims in Counts 1,2 and 3 of the complaint is that the decedent’s suicide in the house was a material defect in the property that required disclosure on the part of estate defendants, which was not disclosed in an updated disclosure form. Estate defendants point out that under Pennsylvania law, a known material defect of the physical aspects of the property must be disclosed by the seller. 68 Pa.C.S. §§7304(b), 7306. However, estate defendants argue that a suicide does not fall within the enumerated list of required items that must be disclosed under 68 Pa.C.S. §7304(b). Moreover, estate defendants point out that “mere silence in the absence of a duty to speak... cannot suffice to prove fraudulent concealment.” Baker v. Cambridge Chase Inc., 725 A.2d 757, 770 (Pa. Super. 1999), appeal denied, 560 Pa. 716, 745 A.2d 1216 (1999). (citations omitted) As such, estate defendants argue that Counts 1,2 and 3 should be stricken from the complaint.

In Pennsylvania, “[t]o be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred.” Connor v. Archdiocese of Philadelphia, 933 A.2d 92, 95-96 (Pa. Super. 2007). (citation omitted) Further, “[a]ny doubt should be resolved by a refusal to sustain the obj ections.” Id. (citation omitted) Moreover,

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001) (citing Pa.R.C.P. 1028(a)(4)). ‘Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.’ Id. at 321-22. (citation omitted) All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. Id. at 321.” Hess v. Fox Rothschild LLP, 925 A.2d 798, 805 (Pa. Super. 2007).

In this matter, the crux of the complaint is based upon the alleged fraud and misrepresentations regarding the sale of the residence in question without the disclosure of the suicide of the prior owner. However, 68 Pa.C.S. §7304 sets forth the following:

“Section 7304. Disclosure form
“(a) General rule. — A form of property disclosure statement that satisfies the requirements of this chapter shall be promulgated by the State Real Estate Commission. Nothing in this chapter shall preclude a seller from using a form of property disclosure statement that contains additional provisions that require greater specificity or that call for the disclosure of the condition or existence of other features of the property.
“(b) Contents of property disclosure statement. — The form of property disclosure statement promulgated by the State Real Estate Commission shall call for disclosures with respect to all of the following subjects:
“(1) Seller’s expertise in contracting, engineering, architecture or other areas related to the construction and conditions of the property and its improvements.
“(2) When the property was last occupied by the seller.
“(3) Roof.
“(4) Basements and crawl spaces.
“(5) Termites/wood destroying insects, dry rot and pests.
“(6) Structural problems.
“(7) Additions, remodeling and structural changes to the property.
“(8) Water and sewage systems or service.
“(9) Plumbing system.
“(10) Heating and air conditioning. “(11) Electrical system.
“(12) Other equipment and appliances included in the sale.
“(13) Soils, drainage and boundaries.
“(14) Presence of hazardous substances.
“(15) Condominiums and other homeowners associations.
“(16) Legal issues affecting title or that would interfere with use and enjoyment of the property.” 68 Pa.C.S. §7304(a), (b).

The fact that the prior owner committed suicide in the master bedroom of the residence is not a legal issue that would interfere with use and enjoyment of the property. In Colaizzi v. Beck, 895 A.2d 36 (Pa. Super. 2006), the seller’s disclosure form indicated that the sellers “were not aware of any condition that would affect the use and/ or enjoyment of the property or the fair market value and/or title of the property.” Id. at 38. Shortly after the sale of the property, the plaintiff discovered that the property directly adjacent to his newly purchased residence was the site of a home for mentally-challenged adults. The plaintiff filed suit, asserting claims of breach of contract and violation of the Real Estate Seller Disclosure Law against the sellers, and claims of fraud and a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law against the sellers, the real estate company and the agent. Specifically, the plaintiff complained that the trial court erred in determining that the close proximity of a group home to the plaintiff’s residence was not a condition of material fact that must be disclosed to a potential buyer. The Superior Court noted:

“Appellant provides no authority, and our research has disclosed none, to suggest that the requirements of section 7304(b) should be extended beyond the property which is subject to transfer to include neighboring properties. Moreover, even if we were persuaded by appellant’s argument, we find that the existence of a group home for mentally-challenged adults on the adjacent property does not constitute a ‘legal issue,’ as contemplated by section 7304(b)(16), which would affect appellant’s title to or use and enjoyment of the property.

“Finally, we note that in Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232 (1992), a case cited by appellant, this court recognized that ‘a vendor or his agent may be responsible for concealing the existence of an imperfection in the property which is known to be material to the purchaser. 'Id. at 12, 611 A.2d at 1238. (emphasis added) Unlike the instant case, Sevin concerned an easement on the property being transferred, not a characteristic of an adjacent property. Moreover, even if the holding in Sevin applied herein, there is no evidence that appellees were aware of appellant’s desire not to live near a group home. Accordingly, even if the existence of the group home on the adjacent property could be considered an imperfection, there would be no fraudulent misrepresentation in the instant case.” Colaizzi, 895 A.2d at 39.

Thus, the Superior Court held that the plaintiff was not entitled to recovery because the existence of a group home on adjacent property was not a “legal issue” that required disclosure and because there was no evidence that the real estate company and agent knew that the plaintiff did not want to live near a group home. Id. Although the factual scenario in Colaizzi is different from that of the case at bar because in that case the alleged imperfection dealt with an adjacent property, we find the Superior Court’s reasoning is applicable here and the defendants had no duty to disclose the prior owner’s suicide.

Plaintiff cannot establish fraud based upon the facts alleged. We note that in order for a plaintiff to succeed in a cause of action based upon an allegation of fraudulent misrepresentation, the plaintiff must demonstrate: “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. W. Page Keaton, Prosser and Keaton on the Law of Torts §105 (5th ed. 1984). See also, Restatement (Second) of Torts §525 (1977).” Gibbs v. Ernst, 538 Pa. 193, 207-208, 647 A.2d 882, 889 (1994). (footnote omitted)

These elements must be demonstrated by clear and convincing evidence. Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002). Further,

“In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Sewak v. Lockhart, 699 A.2d 755,759 (Pa. Super. 1997). ‘Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. ’ Id. (quotation omitted)” 811 A.2d at 1034.

In this matter, plaintiff cannot demonstrate that the estate defendants misrepresented any condition of the property that was material to the sale of the house. Although plaintiff may be disturbed by the fact that a suicide occurred in the master bedroom, this does not make it a material fact. As the suicide of the prior owner is not something that is the subject of mandatory disclosure under the Real Estate Seller Disclosure Law, the defendants could not knowingly make a misrepresentation, undertake a concealment for the purpose of deceiving a buyer, or commit non-privileged failure to disclose. As such, as we have concluded that the manner of the prior owner’s death is not a legal issue that would interfere with the use and enjoyment of the property, and because estate defendants were not aware that such a fact was material to plaintiff, plaintiff cannot recover for fraudulent concealment. Thus, it is clear and free from doubt that plaintiff cannot maintain a cause of action for fraud, and Counts 1,2 and 3 should properly be dismissed. As such, the court need not address the remaining preliminary objections filed on behalf of estate defendants.

Next, we shall address the preliminary objections filed by realtor defendants. Realtor defendants assert that all of the counts of plaintiff’s complaint are based upon the notion that the decedent’s suicide should have been or was known to realtor defendants and therefore should have been disclosed. Realtor defendants point out that plaintiff has not averred that plaintiff advised realtor defendants prior to the entry into the agreement of sale that the manner of death of the decedent was a material fact to him. Realtor defendants further point out that given the fact that plaintiff was purchasing the property from an estate, plaintiff should have been aware of the fact that the prior owner was deceased. Realtor defendants assert that the only subject that may arguably relate to plaintiff’s claim under 68 Pa.C.S. §7304(b) is section 16, which deals with “legal issues affecting title or that would interfere with use and enjoyment of the property.” Id. Realtor defendants argue that this subsection does not apply to the facts alleged, and thus assert that the manner of death of the prior owner is not a material fact that must be disclosed unless the purchaser has made it known that it would be a material fact prior to the transaction of sale. Also, realtor defendants argue that even if this court determines that the manner of death of the prior owner is a material fact that should be disclosed, plaintiff’s complaint fails to assert that he justifiably relied on the misrepresentation. Further, realtor defendants note that plaintiff has failed to assert that any alleged actions or failure to act on the part of the realtor defendants served as a condition upon which plaintiff justifiably relied to purchase the house. Also, realtor defendants assert that plaintiff has not alleged that he was unable to discover the manner of the prior owner’s death. Realtor defendants note that the decedent’s death and the condition of the home were reasonably ascertainable upon inspection.

Moreover, realtor defendants note that the case of Roberts v. Estate of Barbagallo, 366 Pa. Super. 559, 569, 531 A.2d 1125, 1130-31 (1987) stands for the proposition that in order for a broker to be liable, any concealment must be intentional and must relate to material information. Realtor defendants argue that because plaintiff did not first advise them of the materiality of the manner of the prior owner’s death, the nondisclosure is not material and the claims against the broker must fail. Finally, realtor defendants assert that the plaintiff’s claim against realtor defendants set forth in Count 5 (breach of warranty) must fail, because plaintiff fails to assert any contract between plaintiff and realtor defendants regarding a money back guarantee, and realtor defendants further contend that Count 6 (violation of the Unfair Trade Practices Act) must also be dismissed because in that count plaintiff again relies solely upon the manner of decedent’s death as being a material fact.

In Count 4, plaintiff asserts that realtor defendants breached their fiduciary duty to plaintiff and committed fraud by concealing and/or not disclosing the suicide of the prior owner of the residence. We incorporate by reference herein our discussion supra regarding the applicability of section 16 of 68 Pa.C.S. §7304(b) and the elements of fraud with regard to estate defendants. Additionally, we note that in Pennsylvania, “a vendor or his agent may be liable not only for failure to disclose a dangerous condition but also for failure to disclose material information.” Roberts v. Estate of Barbagallo, 366 Pa. Super. 559, 568, 531 A.2d 1125, 1130 (1987). The Pennsylvania Supreme Court has stated:

“We have recognized the tort of intentional misrepresentation and intentional concealment in the context of real estate broker liability to the buyer of residential property. See e.g., Aiello v. Ed Saxe Real Estate Inc., 508 Pa. 553, 499 A.2d 282 (1985) (Real estate broker may be liable for intentional misrepresentation). See also, Highmont Music Corp. v. J.M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363 (1959) (recision of sale appropriate where the agent intentionally failed to disclose latent defects in real estate.)” Bortz v. Noon, 556 Pa. 489, 499-500, 729 A.2d 555, 560-61 (1999).

Further, we note that liability may be imposed pursuant to section 550 of the Restatement (Second) of Torts, which provides:

“Section 550. Liability for fraudulent concealment
“One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.” Restatement (Second) of Torts, §550.

Moreover, “[liability under this section is encompassed by the Supreme Court’s rule that fraud may arise by: (1) the making of a knowingly false representation of fact; (2) an intentional concealment of true facts which is calculated to deceive the other party; or (3) a non-privileged failure to disclose certain facts to the other party.” Roberts, 366 Pa. Super. at 569, 531 A.2d at 1130 (citing DeJospeh v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958)). The Superior Court in Roberts further noted: “[a]n agent, however, may be liable to an injured third party for his own deceit in a transaction on behalf of his principal.” Id. (citation omitted)

Here, we again note that plaintiff’s argument is based upon the premise that the violent manner of the prior owner’s death was a material fact to the sales transaction. As discussed supra, the prior owner’s suicide is not a material fact subject to disclosure, and therefore, Count 4 must be dismissed. Again, as noted supra, 68 Pa.C.S. 7304(b)(16) is inapplicable because the suicide of the prior owner is not a legal issue that would interfere with the use and enjoyment of the residence.

In Count 5, plaintiff alleges breach of warranty. Specifically, plaintiff asserts that defendant Howard Hanna advertises through the media that it offers a “ 100 percent money back guarantee.” Complaint, ¶¶69-70. Further, plaintiff asserts that this guarantee constitutes a warranty of plaintiff’s satisfaction with the residence he purchased. Realtor defendants assert that plaintiff fails to allege any relation by contract or otherwise between plaintiff and realtor defendants that would entitle plaintiff to recover for breach of warranty.

Here, plaintiff has not set forth any factual basis to demonstrate that any specific promises regarding a guarantee made by defendant Howard Hanna became the basis of the bargain for the particular sales transaction in question. Although plaintiff pleads that defendant Howard Hanna offers a “100 percent money back guarantee,” this does not mean that such a guarantee was applicable to the case at bar, and plaintiff fails to specifically plead that there was any express contract or statements made by realtor defendants to the effect that such a guarantee applied to the instant sales transaction. Thus, we shall give plaintiff 20 days from the date of notice of this order to amend Count 5 of the complaint to set forth how or in what manner the “100 percent money back guarantee” offered by defendant Howard Hanna is applicable to this particular sales transaction.

Next we shall consider realtor defendants’ demurrer to Count 6 of the complaint, which alleges a violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. Specifically, plaintiff complains that Ms. Palombo engaged in an unfair trade practice by purposely concealing a blood stain on the carpeting of the master bedroom with a piece of matching carpeting. Further, plaintiff asserts that realtor defendants engaged in unfair trade practices by failing to provide an updated seller disclosure statement setting forth the manner of the prior owner’s death, and for failing to honor the “100 percent money back guarantee” set forth in Howard Hanna’s advertising. Plaintiff alleges that these violations constitute unfair or deceptive practices in accordance with 73 P.S. §201-2, as follows:

“(4) ‘Unfair methods of competition ’ and ‘unfair or deceptive acts or practices ’ mean any one or more of the following: ...
“(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;...
“(xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made;...
“(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. §201-2(4)(vii), (xiv), (xxi).

With regard to the UTPCPL, our Superior Court has determined: “[a]n individual who purchases goods, including real estate, may bring a private action to recover damages caused by another’s ‘act or practice declared unlawful’ by the UTPCPL.” Skurnowicz v. Lucci, 798 A.2d 788,794 (Pa. Super. 2002) (citing 73 P.S. 201-9.2). As to plaintiff’s claim that realtor defendants acted in an unfair or deceptive manner by “[Representing that the goods are of a particular standard, quality or grade ...,” we note that plaintiff claims that the agent “knew or should have known a massive blood stain was purposely hidden by covering it with a piece of carpeting identical to the surrounding carpeting....” Complaint, ¶74. However, as noted supra, there is no requirement under the Real Estate Seller Disclosure Law that mandates that a seller disclose a prior owner’s suicide. Further, allegedly covering up a blood stain on carpeting with a matching piece of carpeting does not rise to the level of representing that the house was “of a particular standard, quality or grade ...,” especially when such a factor is not a material defect under 68 Pa.C.S. §7304(b). The carpeting itself may have had a material defect, but the carpeting can be replaced, so there could not be a defect in the house.

Finally, we note that in order for a claim to be actionable under the “catchall” provision of the UTPCPL (section 73 P.S. §201-2(4)(xxi), formerly 73 PS. §201-2(4) (xvii)), “a plaintiff must prove the elements of common-law fraud.” Sewak v. Lockhart, 699 A.2d 755, 761 (Pa. Super. 1997). We have concluded that plaintiff has not set forth elements demonstrating a prima facie case of fraud, and so he cannot recover under section 201-2(4) (xxi) of the UTPCPL.

Thus, we shall reject plaintiff’s claims under the UTPCPL, except for plaintiff’s allegation in paragraph 76 of the complaint, wherein plaintiff avers that failing to honor the 100 percent money back guarantee constitutes a deceptive or unfair trade practice. As set forth supra in our discussion regarding Count 5, we shall grant plaintiff 20 days from the date of notice of this order to amend the complaint to set forth how or in what manner the “100 percent money back guarantee” offered by defendant Howard Hanna is applicable to the sales transaction at hand.

An appropriate order is attached.

ORDER

And now, upon review of the preliminary objections in the nature of a demurrer to Counts 1, 2 and 3 of the complaint filed on behalf of the estate of Donna Rose Cordasco and Christine Stanley, it is hereby ordered and decreed that the preliminary objections are sustained and those counts are dismissed from the complaint. As to the preliminary objections in the nature of a demurrer to Counts 4,5 and 6 of the complaint filed on behalf of Sue Palombo and the Howard Hanna Company, it is hereby ordered and decreed that the preliminary objection to Count 4 of the complaint is sustained. The preliminary objections in the nature of a demurrer to Counts 5 and 6 of the complaint are overruled. However, plaintiff shall have 20 days from the date of notice of this order to amend the complaint in conformity with the attached opinion. Should such an amendment not be filed, then the preliminary objections will be sustained by separate order and Counts 5 and 6 will likewise be dismissed.

      . Further, we note that in Pennsylvania, there is not an independent cause of action for punitive damages. Nix v. Temple University, 408 Pa. Super. 369, 380, 596 A.2d 1132, 1138 (1991). Therefore, Count 3 must be dismissed for this reason; plaintiff acknowledges this in his brief in opposition to the preliminary objections filed on behalf of estate defendants.
      Because we have dismissed Counts 1,2 and 3 of the complaint by granting estate defendants’ preliminary objection in the nature of a demurrer to these counts, we need not address estate defendants’ remaining preliminary objections.

      . We recognize that the Superior Court decisions on this issue have been criticized because they were decided subsequent to the 1996 amendments to the UTPCPL and failed to discuss the effect of the amendments. See eg., Commonwealth v. Percudani, 825 A.2d 743 (Pa. Commw. 2003). However, until the Superior Court changes the rule, we are bound to follow it.