author: MOSS, J,

text:
    High Tech Auto Repair, Inc. v. Dept. of Transportation

      P. Connell McNulty, for plaintiff.

      Mark A. Werlinsky, for defendant.
    September 29, 2010
   MOSS, J,

— The issue is whether petitioner should be granted nunc pro tunc relief to appeal a Pennsylvania Department of Transportation Order of Fine and Suspension of Official Inspection dated April 14, 2010. For the foregoing reasons, We denied nunc pro tunc relief.

Facts and Procedural History

Petitioner High Tech Auto Repair, Inc. (“High Tech”) is an auto repair station conducting business in Philadelphia. Part ofHighTech’s business is to conductbothPennsylvania safety and emissions inspections. The business is owner Thomas T. Keo’s primary income source and the sole source for his three (3) to four (4) employees.

In June, 2009, a Quality Assurance Officer at the Pennsylvania Department of Transportation (“PennDot”) reported an alleged violation at High Tech. Allegations stated High Tech kept fraudulent records and issued two certificates of emission inspection without actual inspections. At an October 20, 2009 hearing, Keo acted pro se and denied all allegations against High Tech. There was no further communication until March 30, 2010.

On March 30, 2010, PennDot notified High Tech their inspection privileges were subject to a $5,000 fine and a two (2) year suspension. The letter gave High Tech opportunity for an agreed eight (8) point assessment instead of the suspension and fine. High Tech was told if the alternative was not accepted within fifteen (15) days PennDot would issue an “Official Notice” imposing suspension and fine. Furthermore, High Tech subsequently “received notice thereof’ regarding suspension.

On April 3, 2010, Keo left for a one-month Cambodian vacation without responding to the March 30, 2010 letter although it required a fifteen (15) day response. During his absence, High Tech closed. It reopened on May 3, 2010. On April 14, 2010, while Keo was in Cambodia and High Tech was closed, PennDot wrote High Tech an order implementing the $5,000 fine and two (2) year suspension. The April 14th order required High Tech to present a check for a fine and all related emissions items. Moreover, the letter notified High Tech of its appeal rights to be exercised within thirty (30) days of the date of the order.

When High Tech reopened on May 3, 2010, a PennDot representative arrived to confiscate High Tech’s emission inspection items. The representative filed a report that referenced a failed attempt to serve suspension when High Tech was closed.

High Tech alleges it first received notice on May 3, 2010. Furthermore, High Tech claims it read the April 14th order to mean it had thirty (30) days to appeal after receipt. In reality, the appeal period was thirty (30) days from April 14, 2010.

High Tech appealed on May 26, 2010, twelve (12) days after the thirty (30) day appeal period had expired. Furthermore, the originally mailed April 14th order was discovered the next day on May 27, 2010 in High Tech’s files. Based on that discovery, High Tech filed a petition to appeal nunc pro tunc. Petitioner now appeals our denial of nunc pro tunc relief.

There are three issues raised in High Tech’s appeal. First, High Tech claims this court erred in denying the petition when there was apparent confusion about the appeal period. Second, High Tech argues said petition was improperly denied because the April 14th suspension order did not indicate a mailing date. Without this date, High Tech claims it could not determine the proper appeal period. Finally, petitioner suggests this court erred by not issuing a rule to show cause as required by Pa. R. Civ. P. 206.4 and 206.6 and Phila. Civ. R. P. 206.4(c) for petitions filed under Pa. R. Civ. P. 206.1. High Tech argues this resulted in adjudication on disputed facts without oral argument.

Discussion

High Tech’s petition to appeal nunc pro tunc should be denied. “The decision whether to permit an appeal nunc pro tunc is an equitable matter and this court’s scope of review is limited to a determination of whether the trial court has abused its discretion or committed an error of law.” PennDot, Bureau of Traffic Safety v. Rick, 462 A.2d 902, 903 (Pa. Commw. Ct. 1983) (citing Sergei v. The School District of the City of Pittsburgh, 368 A.2d 1359 (Pa. Commw. Ct. 1977)). A hard, steadfast deadline for filing an appeal “cannot be extended as a matter of grace or mere indulgence.” Bass v. Commonwealth, 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979) (internal citations omitted). To obtain nunc pro tunc relief, movant must demonstrate his or her failure to file a timely appeal was “due to fraud, a breakdown in the judicial or administrative system or a non-negligent happenstance.” Id. (citing West Penn Power Co. v. Goddard, 333 A.2d 909 (1975)).

We address the two substantive issues first. There was no fraud or administrative breakdown warranting relief. Petitioner claims commencement of the appeal period was confusing since there was no mailing date on the April 14th suspension order (“order”). However, High Tech’s two substantive arguments are rebutted by the order’s plain language (See petitioner’s petition to appeal, Ex. B). The fourth paragraph explains how to appeal. It states “[y]ou have the right to appeal this departmental order of suspension and fines to the court of common pleas of the county in which the above referenced inspection station is located, WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER.” (emphasis in original). The language is plain on its face. The order was dated April 14, 2010. The appeal period commenced on April 14, 2010 and lasted for 30 days. There is no ambiguity. Moreover, the language is presented in all capital letters and in boldface so anyone would specifically notice it. Once Keo received the letter on May 3, 2010, he knew or should have known the proper appeal period. Moreover, the mailing date was irrelevant since the April 14, 2010 date controlled. Even on May 3,2010, High Tech still had eleven (11) days until May 14, 2010 to file its appeal. There was neither fraud nor administrative breakdown.

It should be noted Keo could and should have had an agent check High Tech’s mail during his one month vacation since he had received a letter about an impending suspension a few days before leaving. (See petitioner’s petition to appeal, Ex. A). The March 30, 2010 letter informed Keo of his options and gave him fifteen (15) days to respond. He neither exercised the options nor responded. Furthermore, the letter informed him if there was no response within that time period, PennDot would issue an official suspension Notice. Hence, Keo was put on actual or at least constructive notice of a suspension order arriving by mid-April. The letter was in High Tech’s files and Keo had constructive possession. PennDot cannot be held responsible for High Tech’s negligent handling of such an important and anticipated document. Hence, Keo’s negligent actions detrimentally affected High Tech. Therefore, there is no substantive reason to grant relief.

Petitioner also makes a procedural argument. High Tech claims this court erred in not issuing a rule to show cause and allegedly denied movant a hearing over “disputed factual issues.” Petitioner did attach a proposed order for rule to show cause that complied with Pa.R. Civ.P. 206.6. However, this court was not required to issue one and the argument should be rejected. Under Phila. R. Civ.P. 206.4(c), this county had adopted the Pa. R. Civ. P. 206.6 rule to show cause process for all “petitions” filed pursuant to Pa. R. Civ. P. 206.1 et seq. petition to appeal nunc pro tunc is not one of the enumerated petitions to which the rule procedure applies. See Pa. R. Civ.P. 206.1 (listing only application to open a default judgment or judgment of non-pros as a “petition”); Phila. R. Civ.P. 206.1(a) (listing other applications designated as “petitions”). Hence, we were not required to issue a rule to show cause here.

Conclusion

For the reasons stated above, our order denying petitioner nunc pro tunc relief should not be disturbed.


source: Caselaw Access Project

author: DANIELE, J,

license: Public Domain

text:
    Leporace v. Mechanick

      C.P. of Montgomery County,
    no. 06-08098.

      Anthony P Baratía, for plaintiffs.

      E. Chandler Hosmer III, for defendant.
    May 26, 2010
   DANIELE, J,

— Plaintiffs appeal from this court’s order dated January 17, 2007 and entered upon the docket on January 18,2007. This order sustained defendant’s preliminary objections to plaintiffs’ amended complaint with respect to plaintiffs’ claim for defamation and punitive damages.

PROCEDURAL AND FACTUAL HISTORY

Plaintiffs filed a writ of summons on April 5, 2006. Following the filing of preliminary objections to the complaint, plaintiffs filed an amended complaint on July 21, 2006. The amended complaint alleges causes of action for defamation, loss of consortium, and tortious interference with contractual relations.

On August 9, 2006, defendant filed preliminary objections to plaintiffs’ amended complaint. Plaintiff filed a response to the preliminary objections. We held argument on January 17, 2007.

We entered an order on January 18,2007 that sustained defendant’s objections to the claim for defamation and request for punitive damages and overruled the objection to the claim for tortious interference with contractual relations.

Judge Wendy Demchick-Alloy entered an order on March 4, 2010 that granted defendant’s motion for summary judgment related to the claim for tortious interference with contractual relations.

On March 19, 2010, plaintiffs filed a notice of appeal related to the order entered on March 4, 2010. On March 30, 2010, plaintiffs filed an amended notice of appeal to include an appeal from our order entered on January 18, 2007. Following the entry of an order to file a concise statement, plaintiffs filed their concise statement on April 6, 2010.

This action arises in connection with an independent psychiatric examination conducted by defendant on March 7, 2005.

In March of 1995, Mr. Leporace purchased a disability insurance policy from New York Life Insurance Company (“New York Life”). The policy contains the following the pertinent definitions:

(1) “Total Disability” means the Insured can not do the substantial and material duties of his or her regular job. The cause of the total disability must be an injury or a sickness.
(2) “Regular Job” the occupation, or occupations if more than one, in which the insured is engaged when a disability starts.

On the application for the disability policy, Mr. Leporace listed his occupation as “president, supervisor, owner” of AET Environmental, Inc. The policy permits New York Life to examine its insured, by physicians which it approves, while a claim continues. Mr. Leporace became disabled on May 22, 1997. Thereafter, he was diagnosed with bipolar disorder.

Mr. Leporace applied for disability benefits on June 25, 1997. New York Life paid benefits to Mr. Leporace from July 21, 1997 through May 31, 2005.

New York Life arranged for two independent medical examinations (“IMEs”) to occur in 1999. Drs. Grosso and Heilbrun conducted these examinations. Plaintiffs’ counsel, as well as a court reporter, attended both of these IMEs. Following these IMEs, New York Life continued to pay policy benefits to Mr. Leporace.

In addition to Dr. Mechanick’s examination of Mr. Leporace on March 7, 2005, psychologist Steven Samuel performed a neuropsychological examination of Mr. Leporace on March 2, 2005. During both of these examinations, plaintiffs’ counsel as well as two court reporters were present.

Dr. Samuel prepared a report dated March 9, 2005, which he sent to New York Life. The report contained the following relevant statements:

(1) “I indicated to Mr. Baratta (plaintiffs’ counsel) that having him, and the stenographer, present, during the neuropsychological testing administration, represented a non-standardized administration of the tests; therefore, i would not agree to this condition.”
(2) “The presence of any third party during a neuropsychological testing evaluation poses a serious risk to the conduct of a valid evaluation.”

Following his examination of Mr. Leporace, Dr. Mechanick prepared a report for New York Life dated April 7,2005. Among the information Dr. Mechanick used in preparing the report were the records of Mr. Leporace’s treating medical providers as well as the reports of the IMEs that had been conducted in 1999.

Dr. Mechanick’s April 7 report includes the following relevant statements:

(1) “Mr. Leporace’s history and clinical course have a number of features that are not typical of bipolar disorder.” (Report of April 7, 2005, p. 18).
(2) “His presentation during my examination and that of Drs. Grosso and Heilbrun has been exaggerated and not typical for a bipolar or other depressive disorder.” Id. at page 20.
(3) “Mr. Leporace has repeatedly been uncooperative with his psychiatric and psychological IME’s.” Id. at 21.

Dr. Mechanick concluded that Mr. Leporace’s psychiatric diagnoses are depression not otherwise specified and malingering. He opines that Mr. Leporace’s current psychiatric symptoms do not currently limit his capacity to function in any occupation. Id. at 22.

Dr. Samuel provided a report to New York Life dated April 21, 2005 based on his March 2, 2005 examination. In summary, Dr. Samuel indicates that, as he was not permitted to administer additional testing under conditions which he stipulated, he was unable to conclude whether Mr. Leporace is malingering. (April 21, 2005 report, pp. 5- 6) The report concludes with a request to complete the evaluation of Mr. Leporace.

Following receipt of Dr. Samuel’s April 21,2005 report, Dr. Mechanick prepared a supplemental report for New York Life dated May 7, 2005. The report notes that Dr. Mechanick had reviewed the April 21 report and discussed it with Dr. Samuel. Dr. Mechanick’s report includes the following statements:

(1) “Dr. Samuel’s evaluation of Mr. Leporace supports my conclusion that Mr. Leporace is malingering. Mr. Leporace’s performance on the MMPI-2 is consistent with malingering.”
(2) “Dr. Samuel noted that Mr. Leporace’s profiles on the nonverbal and verbal subtests of the validity indicator profile were invalid due to the large number of items he left unanswered. Based on my examination of Mr. Leporace it is my opinion that Mr. Leporace has the cognitive ability to complete such testing and that his choice to leave so many items unanswered indicates malingering.”
(3) “Mr. Leporace’s unwillingness to participate in neuropsychological testing under standard testing conditions and without his attorney being present is also suggestive of malingering.”

New York Life issued a letter to plaintiffs’ counsel dated May 31,2005. In the letter, New York Life indicates that based on its review of the record, including the IMEs conducted on March 2 and March 7,2005, it will no longer pay benefits past May 31, 2005.

DISCUSSION

The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Morley v. Gory, 814 A.2d 762, 764 (Pa. Super. 2002) (citation omitted). The court must accept as true all material averments of the complaint. Id.

Plaintiff must prove the following elements to succeed on a claim for defamation: (1) the defamatory character of the communication, (2) its publication by the defendant, (3) its application to the plaintiff, (4) the understanding by the recipient of its defamatory meaning, (5) the understanding by the recipient of it as intended to be applied to the plaintiff, (6) special harm resulting to the plaintiff from its publication, and (7) abuse of a conditionally privileged occasion. 42 Pa.C.S.A. § 8343(a).

Plaintiffs allege in the amended complaint that defendant had, prior to his examination of Mr. Leporace, predetermined that Mr. Leporace was a malingerer. (Amended Complaint, ¶22). Plaintiffs allege that such a predetermination is evident based on Dr. Mechanick’s commentary (in his May 7, 2005 report) to Dr. Samuel’s April 21,2005 report. Id. Plaintiffs aver that Dr. Mechanick could not have formed a medical opinion prior to his examination of Mr. Leporace. Therefore, plaintiffs allege that Dr. Mechanick’s predetermination is malicious and reckless.

Plaintiffs allege that Dr. Mechanick selectively chose portions of Dr. Samuel’s report to support his malicious predetermination. Id. at ¶29.

Defamation is a communication which tends to harm an individual’s reputation so as to lower him or her in the estimation of the community or deter third persons from associating or dealing withhim or her. Elia v. Erie Insurance Exchange, 430 Pa. Super. 384, 390, 634 A.2d 657, 660 (Pa. Super. 1993)(citation omitted). Only statements of fact can support an action for libel or slander, not merely expressions of opinion. Id. (citation omitted) Whether a particular statement or writing constitutes fact or opinion is a question of law for the court to determine. Id. (citation omitted)

We find that Dr. Mechanick’s May 7,2005 supplemental report constitutes a medical opinion. Dr. Mechanick’s April 7, 2005 report stated that he had reviewed the records of Mr. Leporace’s medical providers as well as the prior IMEs in completing his report. This report cites to observations Dr. Mechanick noted during the March 7, 2005 psychiatric examination.

The record does not support the allegation that Dr. Mechanick had formed a predetermination with respect to Mr. Leporace prior to his examination of Mr. Leporace. Rather, it is clear from a review of the May 7, 2005 report that is supplements Dr. Mechanick’s prior conclusion, stated in his April 7 report, that Mr. Leporace was a malingerer.

This case is analogous to Elia, supra. In Elia, the plaintiff was involved in a motor vehicle accident and sought first-party medical and wage loss benefits. At the request of plaintiff’s insurer, a physician conducted an IME of plaintiff. The physician concluded that the results of his examination are “typical of malingering.” Plaintiff filed an action that included a claim for defamation against the physician who conducted the IME. The trial court granted summary judgment for the physician. The Superior Court affirmed. It determined that the physician had examined the plaintiff at the request of the insurer and with plaintiff’s consent. The court noted that a conditional privilege existed with respect to the physician’s report as the commonwealth, insurance carriers, and insureds have an interest in precluding payments on illegitimate and fraudulent claims. Ultimately, the court concluded that plaintiff’s complaint did not allege an abuse of the conditional privilege.

In the case at hand, New York Life requested Dr. Samuel and Dr. Mechanick to each conduct an IME of Mr. Leporace pursuant to the terms of the disability policy. Dr. Mechanick’s April 7, 2005 report took into consideration the records of Mr. Leporace’s medical providers as well as the IMEs conducted in 1999. Taking this information into account, along with his personal observations of Mr. Leporace during the March 7, 2005 examination, Dr. Mechanick rendered his professional opinion in which he concluded that Mr. Leporace was malingering. He opined that Mr. Leporace’s current psychiatric symptoms do not currently limit his capacity to function in any occupation.

The fact that Dr. Mechanick referenced portions of Dr. Samuel’s April 21, 2005 report does not support the allegation that Dr. Mechanick cited the portions to support his predetermined conclusion. Rather, the May 7, 2005 report was a supplemental report which merely reiterated Dr. Mechanick’s prior opinion, expressed in his April 7 report, that Mr. Leporace’s symptoms suggested malingering.

CONCLUSION

We find that Dr. Mechanick’s report of May 7, 2005 constitutes an opinion. More specifically, it is a professional medical opinion based on personal observations of Mr. Leporace along with a review of medical records, prior IMEs, and the April 21, 2005 report of Dr. Samuel.

As we have concluded that Dr. Mechanick’s reports are statements of opinion, plaintiffs cannot proceed with a defamation action. Therefore, we believe our order was proper and should be affirmed.

      . Plaintiffs’ concise statement of matters complained of on appeal does not challenge the striking of plaintiffs’ claim for punitive damages stated in the amended complaint. Therefore, it appears that plaintiffs are not challenging the portion of the order entered on January 18, 2007 which struck plaintiffs’ claim for punitive damages.

      . Plaintiffs allege in the amended complaint that New York Life came to be known as Unum Provident/The Paul Revere Life Insurance Company as Administrator for New York Life Insurance Company. Amended Complaint, ¶10. In this opinion, we will refer to the insurer as New York Life.


author: FOX, J,

text:
    Stones v. Philadelphia Zoning Bd. of Adjustment

      Richard C. DeMarco, for plaintiff.

      William H. Ewing, for defendant.
    August 30, 2010
   FOX, J,

— TheodoreStones (appellant) has filed an appeal from the decision of the Zoning Board of Adjustment (ZBA) which granted certain variances to the intervenor, Stanley Smith (Smith) which allowed for the combination of two lots into one for the use of a private penal facility at 4969 Wakefield Street (“Property”).

STATEMENT OF FACTS

In May 2009, an agent for Smith applied to the Department of Licenses and Inspection (L&I) for a zoning and use registration. The application was denied because a private penal facility is not permitted in the district in which the property located and multiple structures are not permitted on the lot in question. The property is located partially in an area zoned R-5 residential and partly in an area zoned R-9A residential. An appeal was taken to the ZBA. A public hearing was conducted on September 23, 2009. The intervenor presented testimony from the developer, the owner, the Executive Director of New Directions for Women (the proposed operator of the penal facility) and an attorney for the same organization. Appellant herein and a Karen Arthur testified in opposition to the application.

The property is located in an area with numerous abandoned and vacant properties. It is located within 500 feet of a playground. The property is currently not in use and has not been in use for sometime. The developer testified that he had tried to develop the property without success for at least four years. The property is in bad condition. It previously had been used as a factory and a storage facility.

The proposed operator of the private penal facility is New Directions for Women. The proposal is to establish a location as an alternative to incarceration for twenty-five to thirty women who have been convicted of non-violent, low level criminal offenses. New Directions has been in existence for about twenty years and has established a good and reputable reputation in the community without complaint. The organization has a facility near the property in question and has worked closely with the local police district. During its years of operation no complaints have been received about the facilities operated by New Directions. The ZBA received a letter of support from the local councilperson, Donna Reed-Miller, as well as the Wakefield 49ers Community Improvement Association.

The appellant herein and Ms. Arthur presented a petition signed by individuals residing on the same block as the property in question. Appellant expressed concerns as to the proximity of this proposed penal facility to the existing playground. He further testified that neighbors have had problems in the past with drug dealing at the playground as well as other disruptions caused by individuals using the playground. Appellant believes that the use of the property as a penal facility would further exacerbate these problems. He expressed concern that “group-type facilities” such as the one proposed herein, have inundated the neighborhood. Appellant is concerned about the increased use of the property and the potential of increased traffic on the block. The City Planning Commission recommended that the variance not be granted because the proposed use is inappropriate in a predominantly residential area.

The ZBA granted the variances as requested, finding that the intervenor met its burden of proving that a literal enforcement of the code would create an unnecessary hardship in light of the size and shape of the structure thereon, the location and the configuration of the lots. Appellant filed this timely appeal. Briefs were submitted and the court heard oral argument.

DISCUSSION

The standard of review is deferential to the ZBA. Where no further evidence is gathered, the court limits its scope of review of the ZBA to “whether the board committed a manifest abuse of discretion or an error of law...” Valley View Civic Ass ’n. v. Zoning Bd. of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). The board commits an abuse of discretion if its decision is not based upon “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 555, 462 A.2d at 640. When the reviewing court considers no further evidence, “questions of credibility and evidentiary weight are solely the province of the zoning hearing board.” Whitpain Township Bd. of Supervisors v. Whitpain Township Zoning Hearing Bd., 121 Pa. Commw. 418, 426, 550 A.2d 1355, 1359 (1988). Thus, it is the ZBA who establishes whether relevant evidence exists to meet all the necessary factors. The reviewing court does not alter the board’s conclusion unless it is not supported by substantial evidence. Valley View Civic Ass’n, at 559, 462 A.2d at 642.

The ZBA may grant a variance if there is no conflict with the public interest and if the circumstances of the area are such that a “literal enforcement of the provisions of this [Code] would result in unnecessary hardship.” Philadelphia, Pennsylvania, Zoning Code § 14-1801(1). The burden is on the party seeking the variance. A variance is granted only if the reasons are “substantial, serious and compelling.” Valley View Civic Ass’n., at 555, 462 A.2d at 640. The three key requirements set forth by § 14-1802(1) of the Code are: “1) unique hardship to the property; 2) no adverse effect on the public health, safety or general welfare; and 3) the variance is the minimum necessary to afford relief.” E. Torresdale Civic Ass’n v. Zoning Bd. of Adjustment, 536 Pa. 322, 324, 639 A.2d 446, 447 (1994).

Hardship is proven by showing that “(1) the physical features of the property are such that it cannot be used for the permitted purpose; or (2) that the property can be conformed for a permitted use only at a prohibitive expense; or (3) that the property has no value for any purpose permitted by the zoning ordinance.” Hertzberg v. Zoning Bd. of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (1998) (citing Allegheny W. Civic Council v. Zoning Bd. of Pittsburgh, 547 Pa. 163, 168, 689 A.2d 225, 227 (1997). The party seeking the variance must also prove that the hardship is “unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district.” Valley View Civic Ass‘n, at 555, 462 A.2d at 640. When deciding whether to grant a variance, all evidentiary factors as a whole must be taken into consideration, including “relationship to adj acent structures, as well as the surrounding neighborhood.” W. Cent. Germantown Neighbors v. Zoning Bd. of Adjustment, 827 A.2d 1283, 1288 (Pa. Commw. Ct. 2003).

The intervenor established to the ZBA that the property at issue is unique both as to the existing structures and physical configuration of the lots. Further, the testimony presented established that the property is currently vacant and not in use; and attempts to develop it have been unsuccessful for at least the last four years. Clearly, the ZBA had substantial evidence to find the hardship requirement. Although the appellant raised concerns regarding the use of this facility as a private penal facility, the ZBA received extensive evidence regarding the history of the organization that will operate this facility, New Directions for Women. This is an existing entity with a history of operating similar type facilities in the city of Philadelphia and specifically in the area in question with no problems and/or complaints. There is currently an overwhelming need for this type of facility in the city of Philadelphia. The facility would be monitored and secured with a population of non-violent, female low-level criminal offenders.

The ZBA is required to weigh the evidence before it and to determine the impact of the proposed use on the community. Although the appellant and the neighbors who signed the petition objecting to the variances, had concerns that this facility would exacerbate existing problems in the community, the ZBA’s conclusions to the contrary are supported by substantial evidence. The ZBA’s findings and conclusions that the variances will not have an adverse effect on the community is supported by substantial evidence.

The ZBA also found that the record as a whole established that that the requested variances are the minimum necessary to provide relief to the intervenor/ applicant given the lot size and shape, the prior use of the property and the physical structure of the existing buildings. This court finds that the ZBA’s conclusions are based on substantial evidence.

ORDER

And now, August 30, 2010 upon consideration of the appeal filed by Theodore Stones from the decision of the Philadelphia Zoning Board of Adjustment, the ZBA findings and conclusions, the briefs submitted by the parties and after oral argument, it is hereby ordered and decreed that the appeal is denied. The decision of the zoning board of adjustment is affirmed.

ADDENDUM TO OPINION

Theodore Stones has appealed this court’s order of August 30, 2010, which affirmed the zoning board of adjustment.

The basis for this court’s decision is set forth in the opinion that accompanied the order. A copy of that opinion is appended hereto and forwarded to Pennsylvania Commonwealth Court with the record.


author: COX, J.,

text:
    Commonwealth v. Lyles

      C.P. of Lawrence County,
    no. 42 of 2010.

      Luanne Parkonen, for Commonwealth.

      Larry J. Keith and Darrell Haeberle, for defendant.
    October 7, 2010
   COX, J.,

— Before the court for disposition is the petition for writ of habeas corpus filed on behalf of the defendant Kevin Robert Lyles, which argues that the commonwealth has failed to present sufficient evidence to establish that the defendant was in possession of marijuana.

On May 29, 2009, Patrolman Ronald L. Williams of the New Castle Police Department received a call from off-duty police officer James Paglia, informing Patrolman Williams that the defendant, who had approximately nine outstanding bench warrants and state parole detainers, was observed in the passenger seat of a maroon Ford Explorer in the area of Beer 4 Less, which is located in New Castle, Lawrence County, Pennsylvania. Patrolman Williams located the Explorer and activated his lights while traveling on West Washington Street, which is in the vicinity of Beer 4 Less. At that time, a female, who was driving, began to stop the vehicle; however, before the vehicle stopped completely, the defendant exited the same and ran through the Beer 4 Less parking lot toward Body Structure Fitness. Patrolman Williams pursued the defendant who made a sudden right-hand turn, which caused him to strike the police officer’s vehicle. Officer Paglia was also approaching the defendant from the other end of the parking lot. Eventually, the defendant was apprehended, searched and no contraband was found on his person. The police officers also searched between the vehicles and discovered a cellular phone and a bag of marijuana in close proximity to each other. The defendant admitted that the cellular phone belonged to him, but denied ownership of the marijuana. It must be noted that neither of the police officers observed the defendant drop the cellular phone or the bag of marijuana.

The defendant was arrested and charged with a violation of 35 P.S. § 780-113(a)(31), which prohibits possession of a small amount of marijuana. A preliminary hearing was held before Magisterial District Judge Scott A. McGrath on January 13,2009, and the charge was bound over to this court. Now, the defendant contends that the commonwealth did not present sufficient evidence to establish that he was in possession of the bag of marijuana discovered in close proximity to his cellular phone.

Where a criminal defendant seeks to challenge the sufficiency of the evidence presented at his preliminary hearing, he may do so by filing a writ of habeas corpus. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1995). The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Fox, 422 Pa. Super. 224, 234, 619 A.2d 327, 332 (1993). In a pre-trial habeas corpus proceeding, as in a preliminary hearing, the commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owens, 397 Pa. Super. 507, 580 A.2d 412 (1990). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish sufficient probable cause that the accused has committed the offense. Commonwealth v. Prosdocimo, 331 Pa. Super, 51, 479 A.2d 1073 (1994).

The standard in determining whether a defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes have been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 263, 566 A.2d 246, 248 (1989). A prima facie case consists of evidence, read in the light most favorable to the commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Commonwealth v. Fountain, 811 A.2d 24 (Pa. Super. 2002). The commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177, 1180 (1995). The commonwealth need not prove the elements of the crime beyond a reasonable doubt. Id. The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. Additionally, the evidence is to be reviewed in a light most favorable to the commonwealth and the commonwealth is entitled to reasonable inferences drawn from the evidence. Id.

The weight and credibility of the evidence is not a factor at this stage, the commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id. As a result of the commonwealth bearing the minor burden of establishing a prima facie case, a witness’ credibility is not an issue at a preliminary hearing. Fox, supra. The committing magistrate is precluded from considering the credibility of a witness who is called upon to testify during the preliminary hearing. Liciaga, supra, (citing Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983); Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975)). Neither is it for the court ruling on the petition for writ of habeas corpus to assess the credibility of the witnesses presented at the preliminary hearing. Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002).

The defendant contends that the commonwealth failed to establish that he was in possession of the marijuana; thus, it has not established the charge of possession of a small amount of marijuana. 35 P.S. § 780-113(a)(31) states:

(a) The following acts and the causing thereof within the commonwealth are hereby prohibited:
(31) Notwithstanding other subsections of this section, (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount marijuana but not for sale.
For purposes of this subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be considered a small amount of marijuana.

In cases where the contraband is not found on the defendant’s person, the commonwealth may establish that the defendant had constructive possession over the contraband. Commonwealth v. Haskins, 450 Pa. Super. 540, 544, 677 A.2d 328, 330 (1996) (citing Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548 (1992)). Constructive possession means that the defendant had “power to control the contraband and the intent to exercise that control.” Id. In other words, “Constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control.” Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003) (citing Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983)). Constructive possession may be determined by the totality of circumstances for each case. Id. Additionally, the fact that the contraband is discovered in a location that is only accessible to the defendant may lead to the inference that he or she placed the substance there or, at the very least, knew of its location. Commonwealth v. Thompson, 286 Pa. Super. 31, 34-35, 428 A.2d 223, 224 (1981).

In Commonwealth v. Clark, 746 A.2d 1128 (Pa. Super. 2000), the appellant was convicted of two counts each of possession with intent to deliver a controlled substance and criminal conspiracy arising from police surveillance operations in response to numerous reports of drug trafficking. During the first surveillance, a police officer observed the appellant and another individual standing at the northwest comer of two streets. As the police officer watched, three other individuals approached the appellant, gave the appellant money and the appellant walked to an abandoned lot approximately one-half block away. The appellant then approached a tree surrounded by high weeds, bent over and subsequently returned to the street comer. The appellant then handed something to the individuals. It must be noted that the police officer could not decipher what the appellant handed to the other individuals. Eventually, other police officers stopped the individuals and, as the officers approached, the individuals dropped several packets containing a white substance. As those events unfolded, the police officer conducting the surveillance went to the abandoned lot and discovered a deodorant case at the base of a tree containing twenty small packets and a larger clear plastic bag holding forty small packets all packed with a chunky white substance. The white substance in all of the packets was later tested. The tests were positive for cocaine.

On another occasion, the appellant and an accomplice perpetrated a similar crime, in which the appellant was approached by individuals and then walked approximately 30 feet to a lawn area. The appellant bent over and then returned to the street corner and handed something to the individual. Again, the individual was stopped by police officers and drugs were discovered in small tinted packets. Another police officer then approached the appellant on foot and the appellant attempted to flee. An officer walked to the lawn area and discovered a brown bag and found ten tinted packets inside the bag, which matched the other packets. The appellant was convicted ofthe aforementioned offenses and sentenced to a term of incarceration of three to six years. The appellant appealed and asserted the argument that the evidence was insufficient to establish that he possessed the drugs that were discovered in the abandoned lot and the lawn area because those are public areas and an unidentified individual or the police officers could have placed the drugs in those locations.

The Clark court explained that the police officer on the first occasion spent approximately fifteen to twenty minutes conducting surveillance, and observed three individuals approach the appellant and hand the appellant money. Id., 746 A.2d at 1136. At that point the appellant walked to the weeded area and gave the individuals something small. The court reasoned that when one of those individuals was stopped, he possessed a small packet containing cocaine. Id. During the second incident, the appellant was observed conducting a similar operation involving the lawn area. The Clark court stated that the appellant was the only person who approached the abandoned lot and the lawn area where the cocaine was found during the relevant time period. Id. As a result, the court ruled, “The totality of the circumstances gives rise to an unrebutted inference that appellant and his accomplice were keeping their supply of drugs for sale hidden where the police found them.” Id., 746 A.2d at 1136-1137. Thus, the commonwealth presented sufficient evidence that the appellant was in constructive possession of the cocaine. Id.

In the current case, Officer Paglia observed the defendant, who had numerous warrants for his arrest, traveling as a passenger in a maroon Ford Explorer. Officer Paglia was off duty at the time and placed a call to Patrolman Williams to apprehend the defendant. As Patrolman Williams approached the Beer 4 Less store, he activated the lights on his police cruiser and the female driving the Explorer began stopping the vehicle; but before the vehicle came to a complete stop, the defendant exited the same and began running through the Beer 4 Less parking lot toward Body Structure Fitness. Patrolman Williams continued to pursue the defendant while in his police cruiser. Eventually, the defendant turned right and struck the police cruiser. Shortly thereafter, the defendant was cornered by the police officers as Officer Paglia approached him from the other end of the parking lot. The defendant was apprehended and searched, but no contraband was found on his person. However, the police officers searched the area where the defendant was apprehended and discovered a cellular phone and a bag of marijuana. It must be noted that the defendant admitted the cellular phone belonged to him, but denied possession of the bag of marijuana.

Clearly, the bag of marijuana was located in close proximity to the defendant and to the cellular phone that the defendant admitted that he owned. Additionally, there is no indication that anyone else was near the area where the defendant was apprehended and where the bag of marijuana was located. There is no evidence that the bag appeared to have been outside in the weather for an extended period of time. As in Clark, the police officers observed the defendant’s movements and searched the area where he was located. In doing so, they found a cellular phone and a bag of marijuana. In Clark, the court stated that the appellant was the only person located in the vicinity where the cocaine was found in the abandoned lot and the lawn area. Id. Moreover, an inference proving a defendant’s constructive possession of contraband can be made if the contraband is found in a location that is only accessible to that defendant. Thompson, supra. Therefore, the commonwealth has presented sufficient evidence to establish that the defendant had constructive possession of the bag of marijuana because it was found in the area where the defendant was apprehended, it was located near a cellular phone that belonged to the defendant and the defendant was the only person who was in the vicinity during that period of time.

For the reasons set forth in this opinion, the defendant’s petition for writ of habeas corpus is denied.

ORDER OF COURT

Now, October 7, 2010, this case being before the court on September 30, 2010, for a hearing on the petition for writ of habeas corpus filed by the defendant, with both parties appearing, the commonwealth of Pennsylvania, represented by counsel, Luanne Parkonen, Esquire, Assistant District Attorney for the county of Lawrence, and the defendant, Kevin Robert Lyles, represented by counsel, Darrell Haeberle, Esquire and after a hearing held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the petition for writ of habeas corpus filed by the defendant is hereby denied.
2. The defendant shall be placed on the November 2010 criminal jury trial term.
3. The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Luanne Parkonen, Esquire and Darrell Haeberle, Esquire.


author: PICCIONE, J.,

text:
    Commonwealth v. Ainalchaybeh

      C.P. of Lawrence County,
    no. 155 of 2005, C.R.

      Gregory J. Simatic, for Commonwealth.

      Carmen F. Lamancusa, for defendant.
    October 19, 2010
   PICCIONE, J.,

— Before the court for disposition is the defendant’s petition under the Pennsylvania Post-Conviction Relief Act. Defendant Fires Ainalchaybeh (hereinafter, the “defendant”) was bom in Marmarita, Syria and is currently classified as a permanent resident of the United States. His ability to remain in the United States has been jeopardized by his decision to plead guilty to a felony on January 10, 2006.

The background of this case is as follows. On February 7,2005, a criminal complaint was filed charging defendant with acquisition of a controlled substance by misrepresentation (18 P.S. § 780-113(a)(12)), possession with the intent to deliver a controlled substance (18 P.S. § 780-113(a)(30)), and possession of a controlled substance (18 P.S. § 780-113(a)(16)). Defendant retained attorney Norman Levine as counsel, and after numerous continuances, trial was set for the October 2005 trial term. Defendant failed to appear for trial, and a bench warrant was issued. On October 29,2005, attorney Levine passed away, and attorney George M. Freed entered his appearance on behalf of defendant. Attorney Freed filed a petition to rescind bench warrant and reinstate bond which was granted by this court.

On January 10,2006, defendant pled guilty, pursuant to a plea agreement, to the charge of acquisition of a controlled substance by misrepresentation. He was sentenced to a term of two years intermediate punishment on January 31, 2006. The other charges against defendant were later dismissed. Following a violation of his probation, defendant’s intermediate punishment was revoked, and he was sentenced to a term of not less than six months nor more than twelve months in the Lawrence County jail followed by twelve months probation.

After serving his sentence, defendant filed the instant petition under the Pennsylvania Post-Conviction Relief Act on January 26, 2010, and a hearing regarding defendant’s petition was held on July 1, 2010. In the petition, defendant asserts that his conviction and sentence were unlawfully sustained as a result of prior defense counsel’s ineffectiveness. Specifically, defendant claims that neither of his previous attorneys notified him of the consequences of entering a guilty plea to the charge of acquisition of a controlled substance by misrepresentation, an aggravated felony for immigration purposes. The Immigration and Nationality Act provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A) (iii). According to the act, the term “aggravated felony” includes “illicit trafficking in a controlled substance..., including a drug trafficking crime (as defined in section 924(c) of title 18).” 8 U.S.C. § 1101(a)(43)(B). During the hearing, defendant testified that he would not have pled guilty and instead would have proceeded to trial had he known the consequences of entering a guilty plea. In his petition, defendant requests that the court grant any and all relief that is proper under the circumstances.

To be eligible for relief under the commonwealth of Pennsylvania’s Post Conviction Relief Act (hereinafter the “PCRA”), the petitioner must satisfy four general requirements. 42 Pa.C.S. §§ 9541-9546.First,thepetitioner must have been convicted of a crime under Pennsylvania law and subsequently sentenced to either incarceration or probation. 42 Pa.C.S. § 9543(a)(1). Second, the conviction and sentence must have resulted from at least one of the errors and/or violations elucidated in § 9543(a)(2) of the PCRA. Third, the allegation of error must not have been previously litigated or waived by the petitioner. Id. at § 9543(a)(3). Finally, the petitioner must demonstrate that the failure to litigate the claim could not have been “the result of any rational, strategic or tactical decision by counsel.” Id. at § 9543(a)(4).

The PCRA permits a petitioner to seek post-conviction relief for a claim of the ineffective assistance of trial counsel. 42 Pa.C.S. § 9543(a)(2)(h). Under Pennsylvania law, there is a basic presumption that counsel acted effectively. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Thus, the burden rests on the petitioner to demonstrate ineffectiveness. Id. To do so, the petitioner “must plead and prove by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reasonable adjudication of guilt or innocence could have taken place.” Commonwealth v. Granberry, 644 A.2d 204, 207 (Pa. Super. 1994) (citing Commonwealth v. Dukeman, 565 A.2d 1204 (Pa. Super. 1989)).

Pennsylvania courts apply a three-prong test to determine whether the petitioner has established ineffectiveness of counsel. Commonwealth v. Sneed, 587 Pa. 318, 332, 899 A.2d 1067, 1076 (Pa. 2006). The petitioner must first demonstrate that the issue underlying the claim has arguable merit. Id. Next, if the claim does have arguable merit, it must then be determined whether counsel’s acts or omissions had some reasonable basis designed to serve the interests of his client. Id. “Once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests, counsel will be deemed constitutionally effective.” Commonwealth v. Miller, 431 A.2d 233, 235 (Pa. 1981) (citing Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1978)). If a reasonable basis for counsel’s actions cannot be found, the petitioner must show that the ineffectiveness of counsel resulted in prejudice to him. Sneed, supra at 1076. “Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.” Commonwealth v. Pierce, 567 Pa. 186, 202, 786 A.2d 203, 213 (Pa. 2001) (citing Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999)). F ailure to satisfy any of the three prongs will require rejection of the claim. Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

Defendant’s petition contains allegations concerning a violation of the constitution, ineffective assistance of counsel, and an unlawfully induced guilty plea: The allegations rest on defendant’s claim that his previous attorneys were ineffective for failing to advise him of the consequences of his guilty plea. In making his argument, defendant relies exclusively on the recent Supreme Court case, Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

In Padilla, the petitioner faced deportation after pleading guilty to the transportation of a large amount of marijuana, also a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i). Padilla, 130 S.Ct. at 1477. The petitioner claimed that defense counsel failed to advise him of the consequences of entering the plea. Id. at 1478. The petitioner also alleged that he would have insisted on proceeding to trial if he had known that a conviction could lead to deportation. Id. The Supreme Court of the United States accepted the case to determine “whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.” Id. In finding that such an obligation existed, the Supreme Court concluded that Padilla’s counsel’s representation was constitutionally deficient in that it fell below an objective standard of reasonableness, Id. at 1483.The Supreme Court left it to the Kentucky courts to decide whether the petitioner established that he suffered prejudice as a result of the ineffective assistance of his attorney. Id. at 1484.

The Supreme Court’s decision in Padilla was recognized and adopted in Pennsylvania in Commonwealth v. Abraham, 996 A.2d 1090 (Pa. Super. 2010). In that case, the Superior Court of Pennsylvania held that a defense attorney representing a teacher who was charged with indecent assault of a person less than 16 years of age was required to warn his client that the petitioner would forfeit his pension as a consequence of pleading guilty to the indecent assault charge. Abraham, 996 A.2d at 1095. The failure to do so, the court stated, constituted ineffective assistance of counsel and satisfied the first two prongs of an ineffective assistance of counsel claim, Id. The Superior Court also recognized that Padilla abrogated Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989), which stood for the principle that deportation was a collateral consequence of a guilty plea and therefore did not need to be explained to a defendant contemplating a guilty plea. Id. at 1092. As in Padilla, the Superior Court found defense counsel to be ineffective and remanded the case for a hearing to determine whether the petitioner could satisfy the third prong of an ineffective assistance of counsel claim by demonstrating prejudice. Id. at 1095.

In the case sub judice, there is no dispute that defendant’s prior attorneys failed to warn him of the consequences of his guilty plea. Consistent with the holdings of Padilla and Abraham, this court concludes that defendant has sufficiently alleged that his representation by prior attorneys was constitutionally deficient. Therefore, defendant must demonstrate that the ineffectiveness of his prior attorneys resulted in prejudice to him. “In terms of a guilty plea, this means he must show that it was reasonably probable that, but for the errors of counsel, he would not have pled guilty, and would have gone to trial.” Id. (citing Commonwealth v. Hickman, 799 A.2d 136, 142 (Pa. Super. 2002)) As stated above, defendant testified during the PCRA hearing that he would not have pled guilty and instead would have proceeded to trial had he known the consequences of entering a guilty plea. The commonwealth did not offer any evidence or testimony to discredit defendant’s claim. The court accepts defendant’s testimony as credible and concludes that defendant was prejudiced by his previous attorneys’ failure to notify him about the consequences of his guilty plea. Therefore, defendant successfully established his ineffective assistance of counsel claim.

Having been sentenced on March 22, 2007 to six to twelve months incarceration followed by twelve months probation, defendant has already served his sentence. The court is aware that, under most circumstances, petitioners whose sentences have expired are ineligible for relief, regardless of the collateral consequences. Commonwealth v. Ahlborn, 548 Pa. 544, 549, 699 A.2d 718, 721 (Pa. 1997). However, Padilla and Abraham make clear that the risk of deportation is more than a collateral consequence of a guilty plea. Instead, “’[preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’” Padilla, 130 S.Ct. at 1483 (citing INS v. St. Cyr, 533 U.S. 289, 296 (2001)). Therefore, defendant is entitled to relief under the Post Conviction Relief Act, and, as a result, defendant shall be granted a new trial.

ORDER OF COURT

And now, October 19, 2010, the court having held a hearing on July 1, 2010 regarding the defendant’s petition under the Pennsylvania Post-Conviction Relief Act, with Gregory J. Simatic, Esquire, appearing and representing the commonwealth, and Carmen F. Lamancusa, Esquire, appearing and representing the defendant, it is hereby ordered and decreed as follows:

1. The defendant’s petition under the Pennsylvania Post-Conviction Relief Act is granted pursuant to the attached opinion.
2. The defendant’s convictions are vacated and the defendant is granted a new trial.
3. The clerk of courts shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: PAGE, J, andTILSON, J.,

text:
    In re Appeal Of Bruce Jones

      C.P. of Montgomery County,
    no. 2009-19869.

      Julie L. Vonsprecklesen, for appellant.

      Carol M. Lauchmen and Catherine M. Harper, for appellees.
    June 28, 2010
   PAGE, J, andTILSON, J.,

Appellant, Bruce Jones, appeals from this court’s order dated February 26,2009, which affirmed the Upper Moreland Township’s Zoning Hearing Board’s decision dated May 5, 2006, wherein the zoning board denied appellant’s application for a use variance to conduct his Allstate Insurance Agency from his residential property.

Appellant is the owner of the property at 517 West Moreland Road, located in Upper Moreland Township, Willow Grove, Pennsylvania. The property is zoned R-4 residential, comprises 25,000 square feet, and consists of a large single-family home, a detached garage and an asphalt parking area. The property has two street frontages — West Moreland Road and Cameron Road — with access limited to Cameron Road. Neighboring properties along Moreland Road include professional, commercial, and single-family and multi-family residential uses. Cameron Road consists of a neighborhood of single-family dwellings.

In appellant’s original application, he proposed to relocate his Allstate Insurance Agency on the property. Appellant applied to the zoning board for a use variance to permit a professional office use in the R-4 residential district, a parking variance to allow four parking spaces, rather than the required eight parking spaces, and a design variance from the requirement to plant a strip along the residential district. After two hearings, May 28, 2009 and June 11,2009, the zoning board denied all requested relief. Appellant appealed the original decision to this court and on July 22,2009, this court ordered the appeal be remanded, thereby allowing appellant to present additional evidence to the zoning board.

On remand, appellant withdrew the parking and design variance requests. After hearing additional evidence on September 10, 2009, the zoning board again denied appellant’s application in a decision dated September 24, 2010. The zoning board based its denial on its finding that appellant failed to meet his burden of proof that the use would not be contrary to the public health, safety, and welfare due to the possibility of increased traffic to the residential area. Appellant appealed the September 24, 2009 decision to this court, and Upper Moreland Township intervened as an interested party.

ISSUES

Appellant filed the instant appeal on May 19,2010 and raised the following issues in his concise statement of matters complained of on appeal, filed on May 19, 2010:

1. The landowner provided substantial competent evidence satisfying all five criteria specified by section 910.2 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10910.2, for the grant of variances, reflected in the Zoning Hearing Board’s own conclusion that unnecessary hardship was proven.
2. The Zoning Hearing Board abused its discretion by denying the variance based on existing traffic safety issues unrelated to the proposed professional office use.
3. The only competent and relevant evidence of record demonstrated that landowner’s proposed professional office use would generate the same amount of traffic as a permitted single-family residential use, and would have no greater impact on the public health, safety, and welfare than a permitted residential use.
4. The Zoning Hearing Board’s finding that the proposed professional office use would be detrimental to the safety and welfare of adjacent properties because of increased traffic in a residential area is not supported by any evidence contained in the record, and is an abuse of discretion.
5. The Zoning Hearing Board’s denial of the use variance results in a confiscatory taking of landowner’s property.

STANDARD OF REVIEW

In an appeal from a decision of a Zoning Hearing Board, where the trial court accepts no new evidence, the standard of review is whether the zoning board abused its discretion or committed an error of law in reaching its decision. Moy v. Zoning Hearing Bd. of Municipality of Monroeville, 912 A.2d 373 (Pa.Cmwlth. 2006); Schultheis v. Board of Supervisors of Upper Bern Township, 727 A.2d 145, 148 (Pa.Cmwlth 1999). A zoning board will be found to have abused its discretion only upon a showing that its findings are not supported by substantial evidence in the record. Id. Substantial evidence is defined as that which a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Ass’nv. Zoning Hearing Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (Pa. 1983). In reviewing a record demonstrating substantial evidence, the court is bound by the zoning board’s findings which resolve questions of credibility and weigh evidence, and may not substitute its own judgment for that of the board. Zoning Hearing Bd. of Sadsbury Township v. Bd. of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa.Cmwlth. 2002).

ANALYSIS

Appellant’s objection that the zoning board failed to recognize that appellant satisfied his burden of proof for a grant of a variance under section 910.2 of the Pennsylvania Municipalities Planning Code, and that the zoning board committed an abuse of discretion and/or an Error of Law by Relying on Unsubstantiated Traffic Concerns Unrelated to the Proposed Professional Office Use.

In his concise statement, appellant asserts (1) that he provided substantial competent evidence satisfying all five criteria specified by section 910.2 of the Pennsylvania Municipalities Planning Code for the grant of variances which is reflected in the zoning board’s own conclusion that unnecessary hardship was proven, and (2) that the only competent and relevant evidence of record demonstrated that appellant’s proposed professional office use would generate the same amount of traffic as a permitted single-family residential use, and would have no greater impact on the public health, safety, and welfare than a permitted residential use. Further, appellant asserts that when the board (1) denied the variance based on existing traffic safety issues unrelated to the proposed professional office use, and (2) found that the proposed office use would be detrimental to the safety and welfare of adjacent property because of increased traffic in a residential area, the board committed an abuse of discretion and/or error of law, because the findings were not supported by any relevant and competent evidence contained in the record. Although appellant sets forth these issues separately in its concise statement, this court shall discuss these four issues together because the analysis is similar.

The applicant for the variance has the burden of proving that the reasons for granting the variance are “substantial, serious and compelling.” Valley View Civic Assn, at 555, 462 at 640. Section 910.2 of the Municipal Planning Code the Zoning Board provides that:

[t]he board may grant a variance, provided that all of the following findings are made where relevant in a given case: (1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located. (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. (3) That such unnecessary hardship has not been created by the appellant. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare. (5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

53 P.S. §10910.2. Section 23.03 of the Upper Moreland Code further states that “[a]n applicant...shall have the burden of establishing that the provisions of the zoning code inflict unnecessary hardship...and that the application will not be contrary to the public health, safety and welfare.” In deciding whether a variance is contrary to the public health, safety and welfare, the

Zoning Hearing Board shall consider whether the application, if granted, will: (a) Be detrimental to appropriate use of adjacent property; (b) Cause undue congestion or danger to pedestrian or vehicular traffic; (c) Endanger the safety of persons or property by location or design of the facilities for ingress and egress; (d) Increase the danger of fire or otherwise endanger the public safety; (e) Overcrowd the land or create an undue concentration of population, or otherwise be contrary to the Township Comprehensive Plan, or sound land use planning principles; (f) Impair an adequate supply of light and air to adjacent property; (g) Adversely affect transportation...(h) Adversely affect the public health, morals, safety or general welfare; (i) Be contrary to the spirit, intent and purpose of this ordinance.

10UPMC §23.03.

The zoning board found that though appellant established hardship, he failed to sustain his burden of proof on other criteria set forth in the Municipalities Planning Code and the Upper Moreland Township Code, specifically with regard to the safety and welfare of the public. (Findings, Opinion and Order p. 4) Appellant’s position is that he sustained his burden, yet the zoning board improperly denied the variance relying upon the unsubstantiated claims of existing traffic safety issues raised by the objectors.

In Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Township, the Pennsylvania Commonwealth Court held that objectors’ testimony about the negative impact of the proposed expansion on their lives, health, the environment, noise, water quality, and the safety of the community was not speculative and constituted substantial evidence by which the zoning board could deny a variance. Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Township, 987 A.2d 1243 (Pa.Cmwlth. 2009). Though the court in Pennsy stated in dicta that had the applicant applied for a new use, the testimony would be more likely to be speculative, the court held that the objectors’ testimony, when based on personal experiences, could hardly be considered speculative. Id. In addition, finding that the lay witness’ testimony was sufficiently persuasive and not less valuable than expert evidence, the court upheld the zoning board’s decision. Id. Similarly, this court upheld the zoning board’s decision finding that the objector’s testimony about the negative impact of the proposed use on traffic and safety was not speculative and constituted substantial evidence.

The zoning board properly found that appellant did not satisfy his burden because appellant failed to provide sufficient evidence that the variance would not be contrary to the public health, safety, and welfare of the community. (N.T. 9/24/10 p. 11) Specifically, appellant failed to prove that the proposed use would not increase undue congestion or danger to pedestrians or vehicular traffic, and endanger the public safety. The record revealed that the board heard from objectors from the neighborhood, who testified to the past and current traffic and safety concerns, specifically the serious accidents, some resulting in death, and the unsafe nature of the intersection. Id. (N.T. 9/10/08 p. 81-82) (N.T. 9/10/08 p. 88) The objectors also testified that by changing the residence into a professional office, these traffic and safety incidents w;ould increase. (N.T. 9/10/08 p. 81-82) (N.T. 9/10/08 p. 88) Finding that there were already safety issues existing at the comer of Moreland Road and Cameron Road which would be exacerbated by appellant’s proposed uses, especially as appellant’s insurance business grows and expands, the zoning board denied appellant’s variance request. (Findings, Opinion and Order p. 3) (N.T. 9/24/10 p. 8) Upon careful review of the evidence, this court finds that appellant was unable to meet his burden as weighed against the concerns of the residents, and concludes that the findings of the zoning board are supported by substantial evidence.

The board properly found that appellant failed to satisfy his burden of proving the criteria set forth in the Municipal Planning Code and the Upper Moreland Code because substantial evidence shows that appellant’s proposed use would exacerbate the safety issues already present at the intersection. (Findings, Opinion and Order p. 3) In discussing the present state of the intersection at Cameron and Moreland Roads, a resident, Mr. Luecke, compared the intersection to an insane asylum. (N.T. 5/28/09 p. 38) He testified that that area was especially dangerous because many children reside in the area. (N.T. 5/28/09 p. 38) Mr. DeLaurentis, a resident whose home faces the property, testified to the decreased line of sight afforded at Cameron and Moreland Road which has caused several accidents, some involving fatalities. (N.T. 5/28/09 p. 45) Other incidents in the area involved multiple-car accidents. (N.T. 9/10/20 p. 82) Mr. Delaurentis also testified that because of the hill-like nature of the intersection, traffic and safety concerns at the intersection are particularly, heightened in the winter when conditions are icy. (N.T. 9/10/09 p. 83) Additionally, Mr. DeLaurentis testified that there will be more accidents if more people turn left and attempt to cut through to route 611. (N.T. 9/10/09 p. 83-84)

Appellant offered no evidence to refute the objectors’ safety and traffic concerns or sustain his burden of proving that the requested use would not be contrary to the public health, safety, and welfare of the neighbors. (N.T. 9/24/09 p. 11) Instead, appellant offered, and the zoning board accepted, testimony from the Eighth Edition of the “Institution of Traffic Engineers Trip Generation Report for Single Family Homes” which indicated that single family dwellings would generate on average, 9.57 trips per day. (Findings, Opinion and Order p. 2) Appellant juxtaposed this daily traffic with the four or five car daily traffic at appellant’s actual Allstate business, located two doors down from the property at issue. Appellant argues that this evidence satisfied his burden. (N.T. 9/10/09 p. 52-54) Appellant also testified that of the four or five potential visitors, four would be his employees and himself, and if his business were to expand, it would not result in more traffic because most of his business is conducted over the internet and telephone. (N.T. 9/10/09 p. 67-68) The zoning board was not persuaded by appellant’s testimony and found his traffic comparison insufficient to disprove the public concern. (N.T. 9/24/09 p. 11) Furthermore, the zoning board weighed the appellant’s testimony against that of the concerned residents and found that appellant failed to meet his burden of proof that the use would not be detrimental to the community. (N.T. 9/24/09 p. 12) (Findings, Opinion and Order p. 3)

Despite appellant’s offer to mitigate the safety concerns by putting up a “No Left Turn” sign, other safety concerns remain. (N.T. 9/10/09 p. 84-85) Mr. DeLaurentis testified that accidents may result from drivers seeking to make a quick left or right after seeing appellant’s business sign. (N.T. 9/10/09 p. 85) Mr. Luecke, testified that a “No Left Turn” sign will force drivers through the neighborhood located on Cameron Road where children often play haphazardly, (N.T. 9/10/09 p. 94) Mr. Gilligan, a resident who has lived on Cameron Road, two blocks from Moreland Road, since 2006, also voiced his concerns about the actual enforcement of the sign once it is there; especially considering that due to the dangerous nature of the intersection it may be more prudent for people to ignore the sign. (N.T. 9/10/09 p. 95-96) In addition to the fact that the record is devoid of any evidence or testimony that the proposed use would not be detrimental to the public health, safety, and welfare of the community, the above testimony constituted substantial evidence to support the board’s finding that the safety issues would be exacerbated by appellant’s proposed use. (N.T. 9/24/09 p. 11) (Findings, Opinion and Order p. 3)

Since the above testimony provides a substantial basis for the board’s decision, analysis of the other requirements under the Municipal Planning Code is not necessary. Based on a careful review of the evidence, this court found that the board did not err in finding that appellant failed to sustain his burden of proof. Appellant offered no substantial evidence that proved the traffic would not adversely affect the community and the objectors’ competent, relevant testimony challenging appellant’s proposed use, made it difficult for appellant to overcome the burden required for the board to grant a variance. As such, this court found that the board correctly determined that appellant failed to sustain his burden of proving the criteria as set forth in the Municipalities Planning Code and the Upper Moreland Township Code, specifically with regard to the safety and welfare of the community.

Appellant objects to board’s decision as it results in a confiscatory taking of appellant’s property.

In his concise statement, appellant asserts that the board’s denial of the use variance results in a confiscatory taking of appellant’s property. When a zoning regulation is restrictive to the point of confiscation, the issuance of a validity variance is necessary to permit a reasonable use of the land. Shohola Falls Trails End Property Owners Ass’n., Inc. v. Zoning Hearing Bd. of Shohola Township, 679 A.2d 1335, 1341 (Pa.Cmwlth. 1996). However, any party seeking a validity variance must also comply with the variance requirements set forth in section 910 of the Municipal Planning Code. Boyer v. Zoning Hearing Bd. of Franklin Township, 987 A.2d 219, 221-222 (Pa.Cmwlth. 2010 )\ Laurel Point Ass. v. Susquehanna Township Zoning Bd., 887 A.2d 796, 801 (Pa.Cmwlth. 2005); Boundary Drive Ass’n v. Shrewbury Township Bd. of Supervisors, 473 A.2d 706, 708 (Pa.Cmwlth. 1984), aff’d, 491 A.2d 86 (Pa. 1985). As stated above, though the board found that appellant proved a hardship, appellant has failed to meet all of the requirements of the Municipalities Planning Code. (Findings, Opinion and Order p. 4) Specifically, appellant did not satisfy the fourth requirement of the Municipalities Planning Board because he failed to prove that the safety issues already existing at the property would not be exacerbated by his proposed use. (Findings, Opinion and Order p. 3) Even though the board found hardship pursuant to the case law, a validity variance must still comply with the variance regulations of the Municipalities Planning Code, and appellant did not satisfy that burden. Therefore, this court found that the board acted properly and in accord with the law.

CONCLUSION

For the reasons set forth above, this court’s order dated May 5, 2010, which affirmed the Upper Moreland Township’s Zoning Hearing Board’s decision, dated September 24, 2010, wherein the zoning board denied Bruce Jones’ application for a use variance, should be affirmed.


author: TILSON, J,

text:
    White v. Center Point Farm Homeowners Assoc.

      C.P. of Montgomery County,
    no. 1169 EDA 2010.

      Joseph Zaffarese, for plaintiffs.

      Hal A. Barrow, for defendants.
    May 27, 2010
   TILSON, J,

— Clarence E. White and Barbara White h/w (appellants) appeal this court’s order dated March 30, 2010, granting Center Point Farm Homeowners Association’s (appellee) petition for attorney fees filed September 29,2009 and awarding the amount of $32,390.29 in favor of appellee and against appellants, to be paid within thirty (30) days of the date of the order.

On August 20, 2003, appellants filed a complaint against appellee and neighboring unit owners, Dale and Carol McClain. Appellee is a Unit Owners Association created by the recording of a declaration on April 30, 1996. Appellants’ complaint contained three counts: (1) declaratory judgment nullifying the fifth amendment to the declaration; (2) a mandatory injunction directing the removal of landscaping from the McClains' property; and (3) monetary damages in excess of $50,000 alleging that the appellee breached a fiduciary duty owed to appellant. The McClains counterclaimed for injunctive relief in the form of ejectment with respect to the alleged encroachment of the appellant’s driveway over their property line, and the McClains also filed a cross-claim against appellee. A bench trial was held in December 2007 before the Honorable S. Gerald Corso, who granted judgment in favor of the appellee on all of the appellants’ claims. In the court’s conclusions of law, Judge Corso stated, “the Homeowners’Association is entitled to recover attorneys’ fees and costs from plaintiffs pursuant to section 14.17E of the declaration.” On June 18,2008, appellants appealed this court’s decision to the Superior Court raising the issue of the attorney fees and costs, and the Superior Court affirmed this court’s order. Appellants filed an untimely petition for allowance of appeal to the Supreme Court,but this was withdrawn by appellants. On September 29, 2009, appellee filed a petition for attorney fees, seeking fees and costs in the amount of $35,699.72. On February 23, 2010, oral argument was held on appellee’s petition for attorney fees. On March 30, 2010, this court entered the order granting appellee’s petition, and from which appellants now appeal. On April 7, 2010, a praecipe for judgment was filed by appellee which requests that judgment be entered in favor of appellee and against appellants in the amount of $32,390.29. On April 29,2010, appellants filed a notice of appeal of the order dated March 30, 2010.

ISSUES

Appellants filed the instant appeal on April 29, 2010 and raised the following issues in their concise statement of matters complained of on appeal filed May 20, 2010:

1. Whether the trial court abused its discretion in awarding attorney’s fees absent a full hearing as to the legitimacy of the fees.
2. Whether the trial court abused its discretion in awarding attorney’s fees where all legal fees were paid by a third party insurance company and no actual fees were incurred by the association.

STANDARD OF REVIEW

Generally, there can be no recovery for counsel fees from adverse parties in the absence of either an express statutory allowance or a clear agreement by the parties. Com., Dept. of Transp., Bureau of Driver Licensing v. Smith, 602 A.2d 499 (Pa. Commw 1992). The reasonableness of attorney’s fees is a matter to be decided by the sound discretion of the trial court, and an appellate court should not alter such a decision unless there has been a clear abuse of discretion. Borough of Bradford Woods v. Platts, 799 A.2d 984 (Pa. Commw. Ct. 2002).

ANALYSIS

First, appellant contends that the trial court abused its discretion in awarding attorney’s fees absent a full hearing as to the legitimacy of the fees. This court heard oral argument on whether appellee’s petition for attorney’s fees should be granted, and this court determined that attorney fees should be awarded based on this court’s conclusions of law, in which Judge Corso stated after a trial on the merits of this matter that, “the Homeowners ’ Association is entitled to recover attorneys’ fees and costs from plaintiffs pursuant to section 14.17E of the declaration.” This court also heard oral argument on the reasonableness of appellee’s attorneys’ fees, and determined that the amount of $32,390.29 was reasonable attorneys’ fees. Pursuant to the declaration and Judge Corso’s order, there was no issue as to whether appellee was entitled to attorney’s fees. The only remaining issue pertained to the amount of reasonable attorney’s fees.

Although there was no record from this proceeding, appellant’s counsel stated during oral argument that appellant did not have a problem with appellee’s counsel’s hourly rate, but with the allocation of costs for appellant’s claims versus the McClains' cross claims. Appellee’s counsel replied that the costs related to the McClains' cross claim were $496.00. This court determined that since appellant’s did not take issue with appellee’s counsel’s hourly rate and the costs related to the McClains' cross claim were minimal in comparison, that this court could rely on appellee’s counsel’s verified statement of attorney’s fees with dates and the invoices related to this matter, as well as a supplemental statement of fees in rendering a decision.

It is important to note that appellee’s counsel submitted a verified statement, which sets forth the legal fees and expenses prior to the filing of appellee’s petition. Appellee’s counsel included bills and fees to the Sugarman firm. Appellee’s counsel claims that at his request the Sugarman firm reviewed the petition for attorneys fees in order to express their opinion about the request for reimbursement. The verified statement provided the following fees:

$30842.30 legal fees
$1547.99 expenses
$808.98 to Sugarman law firm for expert opinion
$33199.27 Total

At the oral argument on the petition, appellee’s counsel submitted a revised verified statement and a supplement verified statement, which accounts for costs incurred after the filing of this petition and a revised amount to the Sugarman firm:

$1794.50 legal fees after the filing of the petition
$75.90 expenses after the filing of the petition
$2088.60 to Sugarman law firm for expert opinion
$3959.00 Total

It was unclear from appellee’s verified statements whether appellee was requesting both the $808.98 and $2088.60 to the Sugarman firm, or if the $2088.60 amount is a revised amount. No one from the Sugarman firm was at the argument, and there was no argument or testimony from the Sugarman firm that their fees are reasonable. Therefore, this court decided that the fees to the Sugarman firm were not reasonable and these fees were excluded. This court also determined that it was not reasonable to include the legal fees and expenses incurred after the filing of the petition, because there was no basis for these fees. The attorneys’ fees that appellee was entitled to were for the defense of appellant’s claim in the complaint. Removing the fees to the Sugarman firm and the fees incurred after the filing of appellee’s petition for attorney’s fees, this court determined that $32,390.29 was the reasonable amount of attorneys’ fees to be awarded.

Second, appellant contends that the trial court abused its discretion in awarding attorneys’ fees where all legal fees were paid by a third party insurance company and no actual fees were incurred by the association. This court determined that appellee incurred attorneys’ fees, despite any payment by a third party insurance company. The court relied on Ed. A. Wilson, Inc. v. General Services Admin., 126 F.3d 1406 (C.A. Fed. 1997), cited by appellee. Although the case is factually distinguished, the court found that “It is well-settled that an award of attorney fees is not necessarily contingent upon an obligation to pay counsel. Generally, ‘awards of attorneys’ fees where otherwise authorized are not obviated by the fact that individual plaintiffs are not obligated to compensate their counsel. The presence of an attorney-client relationship suffices to entitle prevailing litigants to receive fee awards.’ Ed A. Wilson, Inc. v. General Services Admin., 126 F.3d 1406, 1409 (C.A. Fed. 1997); Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3d Cir.1977). In Ed A. Wilson, Inc. v. General Services Admin, the court explained that the litigant (either the union member or the insured) pays á third party (the union or the insurer) for certain benefits. Among these benefits is legal representation for which the litigant will incur no additional obligation of payment to counsel. In this regard, both the union employee and the insured can be viewed as having incurred legal fees insofar as they have paid for legal services in advance as a component of the union dues or insurance premiums.” Ed A. Wilson, Inc. v. General Services Admin., 126 F.3d at 1409-1410. Based upon case law, the fact that appellee did incur attorneys’ fees for this instant matter, regardless whether those fees were in fact paid for by an insurance company, and Judge Corso’s order that, “the Homeowners’ Association is entitled to recover attorneys’ fees and costs from plaintiffs pursuant to section 14.17E of the declaration,” this court determined that appellee was entitled to attorneys’ fees.

CONCLUSION

For the reasons set forth above, this court’s order dated March 30, 2010 should be affirmed.

      . It is necessary to note that Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3d Cir. 1977) was overruled for other reasons not relating to attorneys fees.