author: CEPPARULO, J,

text:
    Gross v. New Britain Township

      John P. Koopman, for appellants.

      John B. Rice, for appellee.
    June 28, 2005
   CEPPARULO, J,

I. INTRODUCTION

Susan Gross and Robert J. Kolmus (appellants) have appealed from the December 8,2003 decision of the New Britain Township Board of Supervisors denying appellant’s curative amendment challenge, which was filed on November 13, 2000. This court held a Bucks County Rule of Civil Procedure *27 conference on August 19,2004, and oral argument was held thereafter on November 22,2004. This court then reviewed the briefs submitted by each party as well as the voluminous record created during the hearings held before the New Britain Township Board of Supervisors on appellants’ curative amendment challenge. This opinion is offered to explain the court’s order dated June 28, 2005.

II. PROCEDURAL AND FACTUAL BACKGROUND

Appellants are the owners of two adjoining tracts of land comprised of approximately 37 acres located on Old Limekiln Road in New Britain Township, Bucks County, Pennsylvania. The property is located in the RA-1 and RA-2 Rural Agricultural Zoning Districts. The property has been used for agricultural purposes — specifically, for growing apples and grapes — by appellant Gross since 1967. In the early 1980s, appellants expanded the use of the property by opening the Peace Valley Winery, which remains in operation today. The board found that “[virtually the entire area of the subject tract consists of Class I and Class II soils” which was described by the township’s expert, Michael Frank, as “a uniquely high proportion of the site’s soils.” (Adjudication, 12/08/2003, p. 11.) Further, the board found, based on testimony by Mr. Frank, that the area in which the property is located is “very rural, with numerous cultivated fields, open farm fields, and dispersed residential development.” (Adjudication, 12/08/2003, p. 11.)

On January 3,2000, the New Britain Township Board of Supervisors adopted Resolution no. 2000-02 invoking the procedure for municipal curative amendments as set forth in section 609.2 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10609.2. Under section 609.2 of the MPC, a municipality has 180 days from the date of adoption of a Municipal Curative Amendment Resolution during which no curative amendment filed by a landowner will be considered. Resolution 2000-02 declared that the township’s zoning ordinance was potentially invalid because “[tjhe current minimum lot sizes in the RA-1, RA-2 and CR zoning districts for residential housing may not be justified” and because “[t]he Natural Resource Protection Standards and dimensional requirements of the zoning ordinance may not adequately preserve prime agriculture, farmland and existing natural resources considering topography, soil type and classification, and present use.” (See tab 36 in return of cert, for copy of Resolution 2000-02.) Therefore, the Resolution directed the New Britain Township Planning Commission “to prepare and consider a curative amendment amending the New Britain Township Zoning Ordinance so as to cure the declared potential invalidity.”

On June 12, 2000, the board held a hearing to consider an amendment that would reduce the minimum lot sizes in the RA-1 and RA-2, as well as the CR zoning districts from five acres per dwelling unit to one and one-half acres per dwelling unit. No amendment was adopted on that date. On July 3, 2000, the 180-day statutory period during which the municipality may refrain from considering landowner curative amendments expired. The township subsequently referred to a professional staff the question of amending the zoning ordinance to reflect a change in lot size. The professional staff proposed an ordinance that incorporated agricultural soil protection, a minimum lot size of 1.38 acres and the transfer of development rights between certain districts. The first two public hearings on the proposed ordinance were held on August 14,2000 and September 27,2000. Appellants attended both of these hearings and commented on the various drafts of the ordinance. Appellants filed a landowner curative amendment challenge on November 13,2000.

The third and final public hearing on the proposed ordinance was held on December 20,2000. At this hearing, the board amended the township’s zoning ordinance by adopting Ordinance 2000-12-02. Ordinance 2000-12-02 declares that the RA-1 zoning district “is envisioned as an area which will permit low density residential development in order to preserve agricultural soils, existing groundwater supplies and other natural resources and to maintain the current semi-rural character of the community.” Ordinance 2000-12-02 further states that the purpose of the RA-2 zoning district “is to preserve agricultural soils and other natural resources and character of the community by permitting only low density development in the currently semi-rural areas of the township.” To fulfill these purposes, Ordinance 2000-12-02 imposes various restrictions and requirements on land located in the CR, RA-1 and RA-2 zoning districts.

In both the RA-1 and RA-2 districts, a landowner’s ability to subdivide or develop his tract of land is restricted based on the size of the tract at the time of the adoption of Ordinance 2000-12-02. Under the restrictions and requirements placed on land in the RA-1 and RA-2 districts by Ordinance 2000-12-02 that apply to “all sites containing 10 acres or more,” the minimum lot size for principal and accessory uses is 1.9 acres in both districts. In both districts, no more than 50 percent of Class I, II or III soils may be developed except for agricultural uses, excluding commercial kennels and animal hospitals.

For the land that is available for development after setting aside at least 50 percent of agricultural soils, both districts have identical requirements regarding the depth and width of lots, the maximum building coverage, the maximum impervious surface ratio and the minimum front, side and rear yard measurements. In both districts, the minimum lot size is required to be expanded so that each lot will contain a contiguous unrestricted area of one acre, which may not contain watercourses, floodplains, floodplain soils, wetlands, lakes, ponds, or zones 1 and 2 of a riparian buffer area. In addition, the contiguous one-acre area may not contain more than 40 percent of slopes of eight to 15 percent grade, more than 30 percent of slopes of 15 to 20 percent grade, more than 25 percent of slopes of 25 percent or steeper grade, more than 20 percent of forest areas, or more than 20 percent of wetland margin areas. Further, in both districts, no more than 50 percent of Class I, II or III soils may be developed except for agricultural uses, excluding commercial kennels and animal hospitals.

The board held hearings on appellants’ landowner curative amendment challenge between January 24,2001 and February 24, 2003. The board issued a decision denying appellant’s challenge on December 8, 2003. Appellants appeal from this decision. A Rule *27 conference was held by this court on August 19, 2004, after which both sides submitted briefs, and oral argument was held on November 22, 2004.

III. ISSUES

The issues raised by appellants before this court are: (1) whether the five-acre minimum lot size and corresponding density regulations in the RA-1 and RA-2 zoning districts of New Britain Township are constitutionally valid; (2) whether the pending ordinance doctrine is applicable to appellants’ curative amendment challenge; and (3) assuming that the pending ordinance doctrine applies, the constitutional validity of the ordinance that was eventually adopted by the township (Ordinance 2000-12-02) to replace the five-acre minimum lot size ordinance in the RA-1 and RA-2 zoning districts of New Britain Township.

IV. ANALYSIS OF ISSUES

A. Constitutionality of the Five-Acre Minimum Lot Size

Appellants first allege that the five-acre minimum lot size and corresponding density regulations in the RA-1 and RA-2 zoning districts of New Britain Township are invalid. To reach this issue, this court would need to find that the pending ordinance doctrine does not apply in this case and that appellants’ curative amendment challenge was therefore properly filed against the five-acre ordinance. For reasons explained below, we find that the pending ordinance rule does apply in this case and that the curative amendment filed by appellants on November 13, 2000, did not properly challenge the five-acre minimum lot size and corresponding requirements that were once in place in New Britain Township. Therefore, we do not reach the validity of the five-acre minimum lot size and its corresponding density regulations.

B. Applicability of the Pending Ordinance Doctrine

Appellants contend that the pending ordinance doctrine does not provide New Britain Township with a defense to appellants’ curative amendment challenge because New Britain had previously declared the five-acre ordinance potentially invalid and then failed to adopt a new ordinance within the 180-day period provided for in section 609.2 of the MPC. Appellants argue that “[w]here a municipality... allows the six-month moratorium period under the Code to expire without the adoption of a curative amendment, the township should thereafter be precluded from taking advantage of the benefits of the common-law pending ordinance doctrine —” (Brief in support of appeal of Susan Gross and Robert J. Kolmus at 42.) Appellants contend that “the equitable basis for the application of the pending ordinance doctrine no longer exists” when a municipality has taken advantage of the 180-day moratorium provided in the MPC.

A review of applicable case law reveals no definitive statement that a municipality may not claim the benefit of the pending ordinance doctrine after having exhausted the moratorium period provided in section 609.2 of the MPC. In Urey v. Zoning Hearing Board of the City of Hermitage, PA, 806 A.2d 502, 506 (Pa. Commw. 2002), the court recognized that “[t]he pending ordinance doctrine was judicially created” and that cases cited by Urey regarding that doctrine “neither discuss nor apply the statutory authority of section 609.2 of the MPC.” Because the ordinance at issue in Urey was adopted within the 180-day window provided in the MPC, the court did not discuss the potential application of the pending ordinance doctrine in that case. Thus, the court in Urey suggests that the judicially created pending ordinance doctrine and the statutorily created moratorium in section 609.2 of the MPC represent two separate considerations. However, the court did not reach the question of whether both the statutory remedy and the pending ordinance doctrine can be used by a municipality to allow the municipality to deny a landowner’s petition after the expiration of the initial 180-day period provided by the MPC.

Appellant contends that case-made rules like the pending ordinance doctrine cannot prevail over a section of the MPC, citing the case of Monumental Properties Inc. v. Board of Commissioners ofthe Township of Whitehall, 11 Pa. Commw. 105, 311 A.2d 725 (1973) for this proposition. Appellants further contend that section 609.2(4), which states that “[a] municipality having utilized the procedures as set forth in clauses (1) and (2) [referring to the 180-day window] may not again utilize said procedure for a 36-month period following the date of the enactment of a curative amendment, or reaffirmation of the validity of its zoning ordinance ...,” precludes reliance on the pending ordinance doctrine by a municipality during the 36-month period described in the statute.

Indeed, Monumental Properties Inc. stands for the proposition that the pending ordinance doctrine cannot prevail over an MPC section that “clearly and directly” regulates the applications that are sought to be disregarded or denied on the basis of the doctrine. (See 11 Pa. Commw. at 110,311 A.2d at 728.) In that case, the court addressed the issue of whether section 508(4) of the MPC precluded a municipality from using the pending ordinance doctrine. The court found that section 508(4) was both clear and direct in its regulation of the applications that Whitehall Township was seeking to deny, and that the township was therefore precluded from relying on the judicially created pending ordinance doctrine. The text of section 508(4) provides:

“From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land development ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed...53 P.S. §10508(4).

Because the relevant statutory provision explicitly declares that no change in zoning law subsequent to the filing of an application for approval of a plat shall affect the rights of the applicant adversely, the court held that the township could not rely on the judicially created pending ordinance doctrine because the doctrine is contrary to the express statutory provisions.

In the case sub judice, section 508 of the MPC is not relevant to our inquiry because that section governs applications for plat approval. Rather, the relevant section is section 609.2(4), which governs applications for curative amendments. Section 609.2(4) contains no language comparable to that found in section 508(4) and discussed in the Monumental Properties case. While section 508(4) states that a municipality may not deny an application for plat approval solely on the basis of a change in zoning that occurred subsequent to the filing of the application, section 609.2 explicitly provides that a township may deny a petition for curative amendment solely on the basis that the township has declared an ordinance invalid and is seeking to cure the invalidity. The language limiting application of section 609.2(4) provides only that a municipality may not deny petitions on the basis of the statutory provisions for more than 180 days after the declaration that the ordinance is invalid, and the township cannot rely on the 180-day moratorium more than once within a 36-month time period. The statute is silent as to whether the municipality may utilize other applicable doctrines to deny a landowner’s petition within the 36-month time period. Therefore, section 609.2(4) does not clearly and directly govern the power of a municipality to deny a landowner’s petition after expiration of the initial 180-day window so as to preclude application of the pending ordinance doctrine. Because no case or statutory provision prevents a township from relying on both the statutory moratorium and the pending ordinance doctrine, we find that the township is not so precluded.

To say that a township is theoretically able to utilize both section 609.2 of the MPC and the judicially created pending ordinance doctrine is not to say that the township may do so without limitation. Courts have carefully defined the circumstances in which the pending ordinance doctrine applies. In Boron Oil Company v. Kimple, 445 Pa. 327, 284 A.2d 744 (1971), the court addressed the limitations on the application of the pending ordinance doctrine. Appellant in that case argued that, once a municipality has resolved to consider a particular scheme of rezoning and has advertised this intention to the public, one or more years can pass before final action by the municipality, creating an undue restraint on the landowner’s rights to his or her land. The court determined that the task at hand is “to balance the interest of the municipality in effecting a change in its zoning laws free from the perpetuation of nonconforming uses against the interest of the individual property owner to be free from lengthy restraints upon the use of his property.” Id. at 332, 284 A.2d at 747. The court concluded that the interests of the municipality were “paramount and of greater concern than any regrettable but unavoidable harm suffered by an individual land owner,” but also cautioned that “our present decision is not to be construed in any sense as granting a license to a municipality to use the pendency of a zoning ordinance as a device to impose either a general or selective moratorium on local land development.” Id. The court ultimately held that “a building permit may be properly refused in situations such as the one at bar Only [sic] when the municipality acts initially in good faith to achieve permissible ends and thereafter proceeds with reasonable dispatch in considering the proposed zoning.” Id. at 333, 284 A.2d at 748. (emphasis in original)

We have said that no law specifically precludes the use of the pending ordinance doctrine following the expiration of the 180-day period prescribed in section 609.2 of the MPC. The danger of allowing a municipality to rely on the pending ordinance doctrine after it has exhausted the 180-day statutory window provided in section 609.2(4) is similar to the danger addressed by the court in Boron — that a municipality could utilize the doctrine to excessively prolong consideration of rezoning and thereby prejudice landowners. Safeguarding against this possibility, courts have required that a municipality act in good faith and with reasonable dispatch to achieve permissible ends. See Boron at 333, 284 A.2d at 748. Courts have further required a clear intention on the part of the municipality to consider a new ordinance and have required this intention to be advertised to the public. “The events preceding the adoption of an ordinance must be examined whenever the issue of pendency is raised. An ordinance is pending when the governing body ‘has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning.’ ” Casey v. Zoning Hearing Board of Warwick Township, 459 Pa. 219,226, 328 A.2d 464, 467 (1974). In Boron, the court found that an ordinance is pending where the municipality “proposes a new zoning ordinance, makes the proposal open to public inspection, and advertises that the proposal will be discussed at a forthcoming public meeting.” 445 Pa. Super. at 331, 284 A.2d at 747.

Based on the rules set forth in Boron and Casey, in order for the pending ordinance doctrine to offer a municipality protection from landowner challenges to zoning ordinances, the municipality must (1) have resolved to consider an ordinance which would impose a particular scheme of zoning; (2) be acting in good faith to achieve permissible ends; (3) have advertised its intention to discuss the new zoning at a forthcoming meeting; (4) have made the proposed ordinance available to the public for inspection; and (5) proceed with reasonable dispatch in considering the new ordinance. Therefore, our inquiry becomes whether New Britain Township complied with all of these requirements with respect to zoning ordinances at issue in the case sub judice. If so, then the pending ordinance doctrine offers protection from appellants’ curative amendment challenge. If not, no such protection exists.

Appellants first allege that the board did not resolve to consider an ordinance that would impose a particular scheme of rezoning. The minutes of the board meeting of January 3,2000, contain a notation of the adoption of Resolution no. 2000-02 “to address deficiencies in the zoning ordinance.” (Board of Supervisors meeting minutes, 01/03/2000.) Appellants object that this Resolution “only declared the possibility of invalidity of the township ordinance and did not, in any way, determine or address what form of ordinance the township was intending to adopt to cure the invalidity, if any, and if they determined to cure same. (Brief in support of appeal of Susan Gross and Robert J. Kolmus at 44.) While this may be true, the township began to hold hearings on June 12, 2000, well before appellants filed their curative amendment challenge, to consider reducing the minimum lot size from five to one and one-half acres in the RA-1 and RA-2 zoning districts. Therefore, the intention of the board to consider revising the five-acre minimum lot size was more than clearly expressed by the time appellants filed their challenge. In fact, the board had progressed beyond the mere intention to rezone and had begun to hold hearings on the proposed ordinance that would replace the five-acre minimum lot requirement. We therefore find that the board had adequately expressed a resolve to consider an ordinance that would impose something other than a five-acre minimum lot size in the RA-1 and RA-2 zoning districts of New Britain Township.

Appellants next contend that the township was not acting in good faith or to achieve permissible ends. In Bo ron, the court noted that there was no evidence that the new ordinance being considered by the municipality was directed specifically against the appellant’s property. 445 Pa. Super. at 330-31, 284 A.2d at 747. Furthermore, the municipality had advertised a public meeting two weeks before receiving the appellant’s application and the proposed ordinance was available for public inspection one week before the municipality received the appellant’s application. Id. The court found that the ordinance in Boron was pending at the time that the appellant filed his building permit request, but cautioned that the holding in Boron was to be applied only “in cases like the one at bar,” where there was no evidence that the municipality acted to enjoin action by the appellant specifically or where the municipality acted to “declare ‘time out’ and stop all development.” Id. at 333, 284 A.2d at 747-48.

In the case sub judice, there are no facts to indicate bad faith on the part of the township. In fact, there are several facts that tend to show the good faith efforts of the township to modify its zoning scheme. First, there is no evidence that the actions of the township were directed specifically toward appellants. Second, New Britain had been considering changing the ordinance regarding minimum lot size since, at the latest, January 3,2000. Appellants’ curative amendment challenge was not filed until more than 10 months later, onNovember 13,2000. Finally, the township did more than merely make the proposed ordinance available for public inspection — the township held three public hearings on June 12, August 14 and September 27,2000, before appellants even filed the curative amendment challenge. Furthermore, appellants actively participated in at least the last two of those hearings. The record contains a packet of materials submitted by Susan Gross and entitled “Statement Submitted to the New Britain Township Board of Supervisors at the Public Hearing September 27, 2000,” which is marked with a notation that the packet includes “previously submitted material.” All of this evidence leads to the conclusion that the township was considering a change to the minimum lot size well before the filing of a curative amendment challenge by appellants and that appellants were active participants in public hearings held by the township to address the minimum lot size issues. There is no evidence to suggest that the township acted in bad faith or to achieve an impermissible end, such as to stop development by appellants specifically, orto stop all development in New Britain Township. Therefore, we find that the township acted in good faith to achieve permissible ends throughout the entire process leading up to and eventually adopting Ordinance 2000-12-02.

Appellants next allege that the township did not properly advertise its intention to hold a hearing on the ordinance that was ultimately adopted because the advertised ordinance was materially different from Ordinance 2000-12-2. Under the pending ordinance doctrine, an ordinance is pending when it has been publicly advertised prior to the date of challenge and is ultimately enacted without substantial change.” Appeal of Board of Supervisors of Solebury Township, Bucks County, 49 Pa. Commw. 267, 274, 412 A.2d 163, 166 (1980). (citations omitted) (footnote omitted) In FPA Corporation Appeal, 25 Pa. Commw. 221, 225, 360 A.2d 851, 854 (1976), the court found that an ordinance was not legally pending because the municipality had “indefinitely tabled” consideration of the amendment and because the ordinance that was eventually adopted was “materially different” from the proposed ordinance. Appellants argue that the facts of this case are sufficiently similar to the facts of FPA to warrant the same outcome. We disagree.

Appellants contend that a statement at the end of the September 27,2000 meeting that the next meeting would take place upon “further notice” indicates that the board had indefinitely tabled the proposed ordinance. (Brief in support of appeal of Susan Gross and Robert J. Kolmus at 48.) In FPA, the court makes clear that the proposed amendment had been “indefinitely tabled.” 25 Pa. Commw. at 225, 360 A.2d at 853-54. In appellants’ case, there is no such clarity as to the action of the board. An examination of the board’s meeting minutes from September 27, 2000, reveals that further study of the agricultural soils portion of the proposed amendment was needed. Therefore, the board continued the hearing until further notice. At no point was any indication given that consideration of the amendment was tabled or suspended. Therefore, we find that the ordinance in the case sub judice was not “tabled indefinitely” because the supervisors were not sure of the completion date for the soil studies upon which the ordinance would be based and, because of the strict requirements with regard to public notice of the next hearing, all that the board could do was continue the hearing until further notice.

Appellants also argue that the ordinance that was eventually adopted is materially different from the ordinance that was advertised and considered at the initial hearings. The ordinance adopted on December 20, 2000 (Ordinance 2000-12-02) provided for protection of agricultural soils and a minimum lot size of 1.9 acres. The ordinance proposed at the August 14,2000 meeting provided for protection of agricultural soils and a minimum lot size of 1.38 acres. Both of these ordinances dealt with exactly the same areas of zoning concern — protection of agricultural soils and minimum lot size. The fact that the minimum lot size was adjusted does not make the proposed ordinance “materially” different from the one that was eventually adopted. In FPA, the material difference was far more evident — the municipality resolved to consider an amendment to allow a townhouse-apartment home zone, tabled consideration of that amendment indefinitely, and eventually adopted an ordinance that was “admittedly materially different” from the amendment concerning townhouses and apartment homes. 25 Pa. Commw. at 225, 360 A.2d at 853-54. Here, there is no admission that the adopted amendment is materially different from the proposed amendment and we specifically find that the mere adjustment of the minimum lot size does not represent a material difference between the two proposed ordinances.

Appellants next allege that the public was not invited to inspect the ordinance that was eventually adopted until December 2000. The right to public inspection of the ordinance that was set forth in Boron is simply the right to inspect the proposed ordinance and the right to notice that discussion about the proposed ordinance will take place within a reasonable time. See 445 Pa. Super. at 331, 284 A.2d at 747. Because the ordinance is, by its very terms, proposed and open to discussion, it is likely that the ordinance eventually adopted will differ in some respects from the original proposed ordinance. As previously noted, the important distinction is that the difference not be material. Here, the public was given an opportunity to inspect and comment upon the proposed ordinance well before appellants filed their curative amendment challenge. Two public hearings were held on August 14 and September 27, 2000. Appellants attended these meetings, commented on the proposal and actually submitted materials. Therefore, appellants and other members of the public were afforded adequate opportunity to review the proposed ordinance. The fact that the ordinance was adjusted in certain non-material respects before final adoption does not vitiate the opportunity for public inspection that was afforded during the many stages of consideration of the ordinance.

Appellants next allege that New Britain Township did not act with reasonable dispatch in attempting to cure the perceived invalidity of the five-acre minimum lot size ordinance. While the final adoption of the new ordinance did not occur until nearly one year after the township first adopted the resolution to consider an amendment to the zoning ordinance, the township was actively considering the amendments during the entire period. When, upon expiration of the 180-day moratorium, it became apparent that the township was going to be unable to finalize a new ordinance, the township promptly referred the matter to a professional committee. The professional committee fashioned a new proposed ordinance and held two public hearings on this proposal before appellants filed their curative amendment challenge. Within 90 days of the second hearing, the new ordinance was adopted. The township therefore acted with reasonable expediency after it became apparent that no new ordinance could be fashioned within 180 days from the date of the Resolution to consider a zoning change. Because appellants have not shown that the township failed to comply with an aspect of the pending ordinance doctrine, the doctrine applies to allow the township to avoid considering appellants’ curative amendment challenge under the old zoning ordinance requiring five-acre minimum lot sizes.

C. Constitutionality of Ordinance 2000-12-02

Appellants’ final argument is that the curative amendment effectively challenged the constitutionality of the ordinance that was eventually adopted. Appellants contend that they have proven the invalidity of the newly adopted ordinance and are entitled to approval of their curative amendment plan by this court or, in the alternative, are entitled to remand of this matter to the board, with instructions for the board to approve appellants’ curative amendment plan. Once a validly pending provision is adopted, “property owners are precluded from pursuing any zoning claim predicated on the substantive invalidity of a zoning ordinance that may have accrued at any time following ‘the date of the declaration and proposal.’ ” Urey, 806 A.2d at 507. If a curative provision has been determined to be pending at the time that a landowner attacks the validity of a zoning ordinance, “then the unconstitutionality of the unamended ordinance would not be relevant to our decision as our consideration would then be focused on the ordinance in its amended form.” Casey, 459 Pa. at 225, 328 A.2d at 466. In the case sub judice, we have found that the pending ordinance doctrine prevents consideration of appellants’ attack on the constitutionality of the five-acre minimum lot requirement. Thus, our focus shifts to determining whether appellants have shown that the amended ordinance is unconstitutional.

In light of the above determination, this court’s role is limited to reviewing the record, including all of the testimony and the written decision of the board, to determine solely whether the board abused its discretion or erred as a matter of law. In re Petition of Dolington Land Group, 576 Pa. 519, 526, 839 A.2d 1021, 1026 (2003) (citing C & M Developers Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. at 14, 820 A.2d 143 (2002)). “Under the traditional standard applied when determining the validity of zoning ordinances, a zoning ordinance must be presumed constitutionally valid unless a challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve.” C & MDevelopers Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. at 14, 820 A.2d 143, 150-51 (2002). “Among other reasons, an ordinance will be found to be unreasonable and not substantially related to a police power purpose if it is shown to be unduly restrictive or exclusionary.” Id. at 15, 820 A.2d at 151. “Moreover, in reviewing an ordinance to determine its validity, courts must generally employ a ‘substantive due process inquiry, involving a balancing of landowners’ rights against the public interest sought to be protected by an exercise of the police power.’ ” Id. (citation omitted)

In Mahony v. Township of Hampton, 539 Pa. 193, 196, 651 A.2d 525, 527 (1994), the court explained that “meaningful inquiry,” in evaluating the constitutionality of a challenged zoning restriction, requires reference to the municipal objectives sought to be accomplished. “A law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Id. (quoting Lutz v. Amour, 395 Pa. 576, 578-79, 151 A.2d 108, 110 (1959) (emphasis in original)).

The MPC expressly requires that each municipal zoning ordinance shall be designed “[t]o preserve prime agriculture and farmland considering topography, soil type and classification, and present use.” 53 P.S. §10604(3). Further, the MPC authorizes municipalities to enact zoning ordinances regulating “protection and preservation of . . . agricultural land and activities.” 53 P.S. § 10603(b)(5). However, “[wjhile the township undoubtedly has an interest in preserving its agricultural lands, that interest does not completely outweigh a landowner’s right to use his property as he sees fit.” Id. at 156. Therefore, we must examine the reasonableness of the zoning protection afforded by Ordinance 2000-12-02 in light of the restriction the ordinance imposes on appellants’ right to use their land.

Appellants contend that Ordinance 2000-12-02 unreasonably restricts the property rights of appellants by requiring the preservation of agricultural soils and by limiting development on the remaining land to minimum lot sizes of 1.9 acres with set-asides for certain land features. Ordinance 2000-12-02 states that the purpose of the RA-1 zoning district is to “permit low density residential development in order to preserve agricultural soils, existing groundwater supplies and other natural resources and to maintain the current semi-rural character of the community.” (Ordinance 2000-12-02, section 10.) In furtherance of this purpose, the ordinance requires a minimum lot size of 1.9 acres with a contiguous unrestricted area of one acre that may not contain watercourses, floodplains, floodplain soils, wetlands, lakes, ponds or zones 1 and 2 of a riparian buffer area. (Ordinance 2000-12-02, section 11.) The ordinance further provides that no more than 50 percent of land classified as Class I, II or III agricultural soils may be developed except for agricultural uses. (Ordinance 2000-12-02, section 11.) The ordinance provides identical restrictions for land located in the RA-2 zoning district while also allowing for construction of cluster homes. (Ordinance 2000-12-02, section 15.)

Appellants argue that the minimum lot size of 1.9 acres is unconstitutional because other courts have found smaller lot sizes unconstitutional, the lot size is not substantially related to the township’s interest in preserving agricultural lands, and the minimum lot size was arbitrarily chosen by the township. Appellants attempt to bolster this argument by citing C & M Developers Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002), wherein the court found a minimum lot size requirement of one acre invalid. However, it is well settled that “[a]ny minimum acreage requirement is not unconstitutional per se; rather, its constitutionality must be determined on a case-by-case basis under a different set of facts and circumstances.” McGonigle v. Lower Heidelberg Township Zoning Hearing Board, 2004 WL 2101735 at *4 (Pa. Commw. 2004).

“In determining the constitutionality of the minimum lot size requirement for the agricultural preservation zoning district, the landowner’s interest in the unfettered use of his or her property must be balanced against the objectives of the community as a whole in preserving and maximizing productive farmlands.” Id. at *4 (citing Codorus Township v. Rodgers, 89 Pa. Commw. 79, 492 A.2d 73 (1985)). In In re Petition of Dolington Land Group, the Pennsylvania Supreme Court acknowledged that, in the time since the landmark decision in Surrick v. Zoning Hearing Board of the Township of Upper Providence, 416 Pa. 182, 382 A.2d 105 (1977), factors which were previously of little or no concern have gained importance:

“These include but are not limited to an increased awareness of the environmental sensitivity and public value of undisturbed wetlands, floodplains, slopes, and woodlands; the growing national and statewide awareness of the true costs of sprawl and the need to implement contrary land use policies; and the growing recognition of the importance of agricultural lands and activities and of prime agricultural soils. Each of these factors acts to counterbalance to some extent the desire for intense development and each of these factors can properly serve in an appropriate municipal or multimunicipal context as a legitimate justification for the imposition of carefully tailored restrictions of the type, design, location, and intensity of permitted development.” 576 Pa. 519, 537, 839 A.2d 1021, 1032 (2003).

In C&M, the court determined that the minimum lot size requirement, when considered with other required set-asides, was not reasonably related to the township’s interest in preserving agricultural lands. The court further found that the one-acre minimum lot size was unduly restrictive when considered with all of the other set-asides required in the ordinance and that the one-acre number had been arbitrarily chosen “merely because it was considered a ‘good number.’” 573 Pa. at 26, 820 A.2d at 158. However, in Kirk v. Zoning Hearing Board of Honey Brook Township, 713 A.2d 1226 (Pa. Commw. 1998), the court found that a minimum lot size of one or one and one-half acres, depending on the availability of public sewer and water services, was a valid requirement intended to protect the township’s prime farmland.

In Kirk, the landowners, who owned approximately 59 acres, challenged the validity of the minimum lot requirements. The board in Kirk found that the land consisted of prime agricultural soils, Classes I, II and III. The board then concluded that the larger minimum lot sizes for single family homes in the agricultural zoning district than the residential zoning districts serve the goal of preserving the prime agricultural land, and that such requirements are neither arbitrary nor unreasonable. The trial court affirmed the decision of the board, as did the Commonwealth Court on appeal. Similarly, in Henley v. Zoning Hearing Board of West Fallowfield Township, 155 Pa. Commw. 306, 625 A.2d 132 (1993), the court upheld the minimum lot size, stating the purpose of preserving productive agricultural lands and fostering conditions favorable to continued agricultural use in the township are directed by the MPC. Thus, while it may be true that the court in C & Mfound a one-acre requirement invalid in Bedminster Township, that holding does not mean that a similar requirement is automatically invalid in New Britain Township. Rather, this court is required to engage in an inquiry into the specific facts and circumstances of the case before us to determine the validity of the 1.9-acre minimum lot size.

While appellants have asserted that agricultural zoning is not a basis for their curative amendment, it is difficult, if not impossible, to evaluate their constitutional validity challenge, particularly the 1.9-acre minimum lot requirement, without contemporaneously considering the impact of the mandates regarding agricultural soils that are contained in Ordinance 2000-12-02. The preservation of agricultural soils has been held to be a legitimate governmental goal, which can be implemented by zoning regulation. Crystal Forest Associates LP v. Buckingham Township, 872 A.2d 206 (Pa. Commw. 2005). In C & M, the court recognized that a 50 percent set-aside of classified agricultural soils appeared to “reasonably balance the township’s interest in preserving its agricultural lands and activities with a landowner’s interest in using his property as he desires, given that the regulations direct a landowner seeking to subdivide or develop his tract to set aside approximately 50 percent of the tract for agricultural purposes, yet also permit a landowner to develop or subdivide the land which remains.” 573 Pa. at 23-24, 820 A.2d at 156. (footnote omitted) The court in C & M found further that a “portion of that remaining tract, however, contains areas not suitable for development, such as wetlands, floodplains, or steep slopes.” Id. at 25, 820 A.2d at 157.

In the case sub judice, the board accepted testimony that appellants’ tract of land is composed entirely of soils classified as Class I, II or III agricultural soils. The township’s ordinance requires a set-aside of 50 percent of those soils, which must be used solely for agricultural purposes. The record reveals that appellants’ tract of land contains no wetlands, floodplains, steep slopes or other geographical features that would prevent appellants from developing on any of the 50 percent of the tract that remains after the set-aside for agricultural soils. (N.T., 4/ 29/2002 at 6.) Because the 50 percent set aside for agricultural soils appears to reasonably balance appellants’ interest in developing the land with New Britain Township’s interest in maintaining prime farmlands, we find that the 50 percent set aside for agricultural soils was a valid exercise of the township’s police power. Further, because appellants’ tract of land contains no geographic or environmental features that would cause any further set-asides after the set-aside for agricultural soils, we find that the portion of the ordinance requiring preservation of geographic and environmental features does not limit appellants’ ability to develop the tract and is therefore not invalid under the facts and circumstances of this case.

Based on the specific facts and circumstances contained in the record before us, we find that Ordinance 2000-12-02 is a valid exercise of legislative discretion, reasonably and substantially related to the health, safety and welfare of the citizens of New Britain Township. The ordinance purports to protect agricultural lands in New Britain Township. While the ordinance does require a landowner to set aside 50 percent of soils classified as agricultural by the federal, state and local governments, it does not prevent development of the remaining 50 percent of the land in cases like the one before us, where the remaining land contains no geographic or environmental features that would require further set-asides.

Because the ordinance permits development on the land not set aside for agricultural preservation, we also find that the 1.9-acre minimum lot size is a valid and lawful exercise of the police power in this case. The restrictions placed on the use of the property in the instant matter are reasonable, and allow for a considerable amount of construction while simultaneously affording the opportunity to preserve rich soils and agricultural land in the township. The minimum lot size here does not appear to be unduly restrictive when considered with the fact that a landowner is free to develop all of the land not protected as agricultural soil into 1.9-acre lots. Appellants have argued that the 1.9-acre minimum was chosen arbitrarily. We disagree. During the hearings prior to adoption of Ordinance 2000-12-02, the township considered carefully the number of acres that would constitute the minimum lot size. It appears from the record that the township arrived at 1.9 acres because that number is less than 2 acres, which had been found to be unconstitutional by Pennsylvania courts. Therefore, it appears that the township chose the number that would most ably protect agricultural soils without running afoul of constitutional considerations. As noted, the township has aright to protect agricultural soils. Therefore, the choice of 1.9 acres was not arbitrarily chosen, but was chosen after careful consideration and pursuant to a legitimate exercise of the township’s police power. Thus, the landowners have not shown that Ordinance 2000-12-02 is unduly restrictive or arbitrary.

Under the facts presented to this court in the case sub judice, we decline to approve appellants’ curative amendment plan. Instead, we remand the matter to the New Britain Township Board of Supervisors for proceedings not inconsistent with this opinion. We further direct that this court will retain jurisdiction over all matters related hereto.

V. CONCLUSION

We therefore enter the following order:

ORDER

And now, June 28, 2005, upon consideration of appellants’ appeal from the December 8,2003 decision of the New Britain Township Board of Supervisors denying appellants’ curative amendment challenge, and following a Rule *27 conference thereon, submission of briefs, oral argument, and a full review of the record, it is hereby ordered and decreed that the denial of said challenge by the New Britain Township Board of Supervisors is hereby sustained.

It is further ordered that the matter is remanded to the New Britain Township Board of Supervisors for proceedings not inconsistent with this opinion. It is directed that this court shall retain jurisdiction over all matters related hereto.

      . Class I, II and 111 soils are defined as “prime agricultural land” under section 107 of the Pennsylvania Municipalities Planning Code. 53 P.S. §10107.

      . Testimony was taken indicating that the difference between the RA-1 and RA-2 districts as far as permitted uses is that cluster homes are permitted in RA-2, while RA-1 allows only single family dwellings. (N.T., 05/07/2001 at 482-83.)

      . Lots containing less than 10 acres are subject to a minimum lot size of two acres under Ordinance 2000-12-02.

      . The ordinance defines agricultural soils as follows: “Those soils that have been designated by the Natural Resource Conservation Service of the U.S. Department of Agriculture as Capability Class I Land, Capability Class II Land and Capability Class III Land. These soils are best suited for producing food, feed, forage, fiber and oilseed crops, and also available for these uses based upon their soil quality, growing season and moisture supply needed to produce high yields of crops. For purposes of this ordinance, the 1975 Soil Survey of Bucks and Philadelphia counties shall be utilized in determining soil classifications until such time as the USDA finally adopts new and revised soil criteria, unless otherwise approved by the Board of Supervisors.”

      . The ordinance contains the following additional definitions: Bankfull flow or level: “The discharge that just fills the water channel to the top of its banks and at a point where the water begins to overflow onto a floodplain. Bankfull discharge is a relatively frequent event with a return rate of 1.0 year.”

        Riparian buffer: “An area adjoining surface water bodies including lakes, ponds and watercourses. These areas intercept surface runoff, subsurface flow and deeper groundwater flows from upland sources which remove and buffer the effects of associated nutrients, sediment, organic matter, pesticides, or other pollutants prior to entry into surface waters or groundwater recharge areas.”

        Watercourse: “Any natural or artificial stream, river, creek or canal in which water flows in a definite direction or course, either continuously or intermittently, and has a definite channel, bed and banks, and includes any area adjacent thereto subject to inundation by reason of overflow or flood water.”

        Wetlands margin: “A transitional area extending from the outer limits of the wetlands, as defined in this ordinance. Wetlands margins serve to filter pollutants, reduce stormwater velocities, provide for floodwater storage, provide wildlife habitat (which may include endangered or threatened species), facilitate groundwater recharge, and allow for slight variations of the wetlands boundary seasonally or over time. For the purpose of this ordinance, the wetlands margin shall extend 25 feet from the wetland boundary.”

      . Incidentally, it was during the course of these hearings (subsequent to the subject of this curative) that the township adopted Ordinance no. 2003-04-02, which rezoned the subject properties to a WS (Watershed) Zoning District in an effort to preserve agricultural soils and protect the Lake Galena water supply, which is used for both recreation and by the North Penn Water Authority.

      . It bears repeating that for 11 of the 12 months during which New Britain was considering a method of reducing the minimum lot size in the RA-1 and RA-2 districts, there was No curative amendment yet filed seeking to “cure” any portion of the New Britain Zoning Ordinance. Indeed, appellants did not file their curative amendment until November 13, 2000, and the ordinance that we have held to be pending was adopted at the next public hearing, which was held on December 20, 2000.

      . Evidence did show that the township supervisors and solicitor made comments indicating that the goal of the township was to discourage development as much as possible. However, the comments quoted in appellants’ brief in all instances reflect a desire that any action on the part of the township comply with the law. Therefore, we do not find an impermissible goal or bad faith on the basis of these comments.

      . This court finds it curious that appellants would complain of the township acting in a manner that was not expedient. Appellants themselves attended meetings, discussed proposed ordinances and submitted materials for several months before filing their curative amendment challenge. Appellants waited until 10 months after the 180-day moratorium began and five months after the township began additional hearings on proposed ordinances to file their curative amendment.

      . In In re Appeal of Realen Valley Forge Greenes Associates, 199 A.2d 938 (Pa. Commw. 2002), the Commonwealth Court found the “state of mind” of the supervisors irrelevant to the ultimate determination of validity. The legislation must stand or fall on its own terms. In re Appeal of Apgar, 661 A.2d 445, 447 (Pa. Commw. 1995) (citing Klein v. Council of the City of Pittsburgh, 164 Pa. Commw. 521, 643 A.2d 1107 (1994). Thus, “the circumstances and declarations of the township as to their intent regarding the adoption of this ordinance,” while they may be relevant to the inquiry as to whether the township acted in good faith under the requirements of the pending ordinance doctrine, are not relevant to the inquiry as to the constitutionality of Ordinance 2000-12-02, as appellants suggest in their brief. (See appellants’ brief, page 53.)

      . In fact, appellants have both been direct beneficiaries of the township’s farmland preservation objective for many years. Appellants have utilized the land currently at issue as farmland to grow crops, including grapes. Recently, appellants have been selling wine made from grapes grown on the land.


source: Caselaw Access Project

author: MORAN, J,

license: Public Domain

text:
    Liquori v. Wind Gap Chiropractic Center

      Mark Scoblionko, for Kunkle.

      William Coffin, for Liquori.
    March 22, 2005
   MORAN, J,

STATEMENT OF REASONS

Dr. Kunkel and Wind Gap Chiropractic Center have filed preliminary objections, alleging that the defendant cannot be found negligent per se, due to the violation of the statutes cited by Frank Liquori in his complaint and counterclaim. He further objects to the overly general and vague allegations of negligence; moves to strike scandalous and impertinent matters; and moves to strike punitive damages. The parties also seek to clarify the procedural irregularity at the district justice level that has led to each party filing a complaint in this matter. Pa.R.C.P.DJ. no. 1004.

Standard of Law

In ruling upon preliminary objections, we must accept as true all well pleaded allegations and material facts averred in the complaint as well as all reasonable inferenees deducible therefrom. Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). This court’s analysis is confined to the complaint itself. Pawlowski v. Smorto, 403 Pa. Super. 71, 588 A.2d 36 (1991). If any theory of law will support a claim, preliminary objections are not to be sustained as any doubt should be resolved against the objecting party. Foster v. Peat Marwick Main & Co., 138 Pa. Commw. 147, 587 A.2d 382 (1991).

Statement of Fact

The docket in this case contains two documents, one filed by Frank Liquori against Dr. Kunkel and the Chiropractic Center, the other filed by Dr. Kunkel against Frank Liquori, both of which are captioned as complaints. These cases began as proceedings before the district justice. In both cases, District Justice Adrianne L. Masut entered a judgment against Mr. Liquori.

The docket indicates that Mr. Liquori filed an appeal from the district justice decisions in both cases. The notice of appeal also contained a praecipe to enter rule to file complaint and rule to file. In short, this required Dr. Kunkel to file a complaint in the court of common pleas by September 7, 2004, or face a judgment of non pros. The docket reflects that Dr. Kunkel’s complaint was filed on September 7, 2004.

On September 10, 2004, Mr. Liquori filed an answer, new matter, and counterclaim to that complaint. A week earlier, on September 3,2004, Mr. Liquori had filed a complaint naming Dr. Kunkel and the Chiropractic Center as defendants. The averments contained in Mr. Liquori’s complaint and in his counterclaim are nearly identical.

With respect to the specific averments by Mr. Liquori against Dr. Kunkel and the Chiropractic Center, he asserts they are negligent per se. He asserts that Dr. Kunkel violated 63 P.S. §625.506 and 49 Pennsylvania Administrative Code §5.81. The statute referenced by Mr. Liquori pertains to the state licensure requirements for a chiropractor generally, and the basis for suspending or revoking a license specifically. Likewise, the section of the Administrative Code referenced by Mr. Liquori pertains to the State Board of Chiropractic of the Commonwealth generally, and the basis for disciplinary action of a chiropractor by the board specifically. There is no allegation that any disciplinary action has been taken against the defendants for the treatment of Mr. Liquori.

Mr. Liquori alleges that after receiving spinal manipulations from the defendants, he suffered increased pain in his legs that immediately abated when he ceased treatment. Liquori complaint at 12; counterclaim at 44.

Discussion

When taking an appeal from a hearing before a district justice, the rules of procedure governing the proceedings state:

“When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within 30 days after the date on which the appellant served a copy of his notice of appeal upon the appellee.” Pa.R.C.P.DJ. no. 1004 (C).

This section governs the appeal brought by Mr. Liquori, which is now before this court. Mr. Liquori filed an appeal from both judgments entered against him by District Justice Masut. Therefore, the rules provide that he may assert his claim as a counterclaim if it can be properly pleaded in the court of common pleas. Dr. Kunkel and the Chiropractic Center filed a complaint within the time allotted by the rules. The Rules of Civil Procedure allow Mr. Liquori to raise his lawsuit by way of a counterclaim to Dr. KunkePs and the Chiropractic Center’s complaint, which is precisely what Mr. Liquori did. Mr. Liquori also filed a complaint. The Pennsylvania Rules of Civil Procedure do not permit a party to an individual to file a complaint and a counterclaim. Pa.R.C.P. 1017. Accordingly, we strike Mr. Liquori’s complaint, which is nearly identical to the counterclaim he filed to the complaint filed by Dr. Kunkel, however, the Chiropractic Center is not named as a counterclaim defendant in Liquori’s counterclaim. The caption in this case shall reflect that Dr. Kunkel is the plaintiff and Mr. Liquori is the defendant.

Negligence Per Se

In order to plead a claim based on negligence per se, a plaintiff must allege that (1) the purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) the statute or regulation must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute or regulation; (4) the violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries. Wagner v. Anzon Inc., 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (1996); Restatement (Second) ofTorts §§286, 288.

The provisions of the Chiropractic Practice Act cited by Mr. Liquori, and the administrative regulations thereunder, deal with disciplinary actions the Board of Chiropractic may take against a chiropractor. As such, they are irrelevant to a claim of negligence by a chiropractor’s former patient. The provisions cited by Mr. Liquori do not set a standard of care and are irrelevant to this cause of action. The preliminary objections are therefore granted. All allegations of negligence per se are stricken from Mr. Liquori’s answer with new matter and counterclaim. Paragraph 64 of the counterclaim is likewise stricken insofar as there have been no allegations of immoral conduct. Immoral conduct is phraseology used in the administrative regulations for disciplinary actions against chiropractors, which are irrelevant, as well as scandalous and impertinent pursuant to Pa.R.C.P. 1028(a)(2).

Shotgun Allegations of Negligence

The Pennsylvania Supreme Court has ruled that parties may not make general allegations of negligence using “boilerplate language” such as “in otherwise failing to use due care and caution under the circumstances.” See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). A court may strike any such vague language from the complaint in order to prevent a defendant from being prejudiced in preparing a defense. Id. This court has ruled under Connor that a defendant has an obligation to file preliminary objections to general allegations of negligence in a complaint to avoid “shotgun theories of a plaintiff’s case.” Brown v. Snyder, no. 1991-C-599 (Northampton Cty. C.P., Freedberg, P.J.).

The allegations in paragraph 62 state in pertinent part that the defendant was negligent in:

“(a) Failure to possess the degree of care and skill ordinarily exercised in similar cases by other chiropractors;
“(b) Failure to exercise the requisite degree of care and skill;
“(c) Failure to possess the degree of knowledge and skill ordinarily possessed by other chiropractors;
“(d) Failure to perform to the requisite standards of care under the circumstances;...
“(n) Failure to properly and adequately supervise counterclaim defendant’s agents, servants and/or employees during the examination and treatment of counterclaim plaintiff;
“(o) Failure to exercise reasonable care in the diagnosis and treatment of counterclaim plaintiff;....” Counterclaim at 62.

These allegations run afoul of Rule 1019(a) of the Pennsylvania Rules of Civil Procedure, which requires a party to set forth the material facts of a cause of action. Connor, 501 Pa. at 310, 461 A.2d at 602. The allegations in these subparagraphs are little more than boilerplate language, meant as a catch-all provision. Accordingly, we strike paragraph 62(a)-(d), (n), (o) of the counterclaim. If discovery should turn up additional facts to support the negligence claim, Mr. Liquori may move to amend his counterclaim according to the liberal rules permitted by Pennsylvania Rule of Civil Procedure 1033. See also, Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo Inc., 326 Pa. Super. 509, 527, 474 A.2d 605, 614 (1984) (“Amendments which merely restate in a more distinct form the grounds set forth originally as the basis of the plaintiff’s cause of action... or merely vary the cause of action, as originally stated, so that the subject matter remains the same, may be made at any time, even after the statute of limitations has run on the claim sued for.”).

The remaining allegations in the subparagraphs of paragraph 62 shall not be struck, as these allegations fairly apprise the claims that are being pursued.

Punitive Damages

The counterclaim asks for punitive damages. As the basis for punitive damages, Mr. Liquori opines that he was required to sign contracts locking him into receiving and paying for 70 visits with the chiropractor which he did not need. The contract has been attached to the complaint filed by Mr. Liquori at exhibits B and C. Contrary to the allegations in the pleadings, the contract permits a patient to discontinue care at his option. Liquori complaint at exhibit C, 4. If a patient chooses to discontinue care before 70 office visits, paragraph 5 of the contract provides for reimbursement of any overpayment.

Accordingly, the rationale for punitive damages is not borne out by the contract language itself. Punitive damages are therefore dismissed.

ORDER

And now, March 22,2005, preliminaiy objections filed by Wind Gap Chiropractic Center and Alan H. Kunkel Jr. are sustained.

Mr. Liquori’s complaint is stricken and dismissed. The caption in this case shall reflect that Dr. Kunkel is the plaintiff and Mr. Liquori is the defendant.

All allegations of negligence per se appearing in Mr. Liquori’s counterclaim are dismissed. Paragraph 62(a)-(d), (n), (o) of Mr. Liquori’s counterclaim are stricken for insufficient specificity. Mr. Liquori’s counterclaim seeking punitive damages is stricken and dismissed.


author: MORAN, J.,

text:
    Metzgar v. Star Pontiac Inc.

      William Coffin, for plaintiff.

      David Brennan and Larry Eisman, for defendants.
    February 4, 2005
   MORAN, J.,

STATEMENT OF REASONS

Presently before this court is the preliminary objection of the defendant Western General a/k/a Western General Warranty Inc. to enforce an agreement to arbitrate. The plaintiff argues that the agreement to arbitrate is unenforceable because it is unconscionable.

Standard of Law

In ruling upon preliminary objections, we must accept as true all well-pleaded allegations and material facts averred in the complaint as well as all reasonable inferences deducible therefrom. Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). This court’s analysis is confined to the complaint itself. Pawlowski v. Smorto, 403 Pa. Super. 71, 588 A.2d 36 (1991). If any theory of law will support a claim, preliminary objections are not to be sustained, as any doubt should be resolved against the objecting party. Foster v. Peat Marwick Main & Co., 138 Pa. Commw. 147, 587 A.2d 382 (1991). The pertinent facts, as laid out by the complaint, are as follows.

Statement of Facts

Plaintiff purchased a used motor vehicle from Star Pontiac Inc. and Star Pontiac GMC Truck Inc. She also purchased a limited warranty for the vehicle which covered the vehicle for three months or 3,000 miles, which was serviced by Western General.

Shortly after purchasing the vehicle, it suffered mechanical difficulty requiring extensive repairs. Western General determined that the necessary repairs were not within the scope of the warranty and refused to make the repairs. Plaintiff filed this lawsuit. Star Pontiac Inc. and Star Pontiac GMC Truck Inc. have answered the complaint. Western General raised the agreement to arbitrate in the warranty contract by preliminary objection.

The executed contract between Western General and the plaintiff is attached as exhibit B of the preliminary objections. On page two of three of the contract appears the following language:

''''Arbitration agreement — Any controversy or claim arising out of or relating to this service contract or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgement [sic] upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any arbitration shall be conducted in the judicial district of purchase and pursuant to the rules of the American Arbitration Association.” Western General P.O.’s at exhibit B.

During oral argument, the parties provided the court with the procedural rules governing arbitration under the American Arbitration Association. The rules include a fee schedule.

Discussion

Western General has filed preliminary objections pursuant to 1028(a)(6) based on the alleged contractual agreement for alternative dispute resolution. The plaintiff argues that enforcing the agreement to arbitrate would be unconscionable pursuant to the Pennsylvania Superior Court’s decision in Lytle v. CitiFinancial Services Inc., 810 A.2d 643 (Pa. Super. 2002). “[Generally accepted contract defenses such as duress, illegality, fraud or unconscionability are available to challenge the application of an arbitration provision.” McNulty v. H&R Block Inc., 843 A.2d 1267, 1272 (Pa. Super. 2004). As a matter of strong public policy, the courts of this Commonwealth strongly favor the settlement of disputes by arbitration. Langston v. National Media Corp., 420 Pa. Super. 611, 616, 617 A.2d 354, 356 (1992).

The determination of whether a contract or clause is unconscionable is a question of law for the court, which can be decided on preliminary objections. See e.g., Lytle, 810 A.2d at 658. The test of unconscionability in a contract is two-fold: (1) the party signing the contract must have lacked a meaningful choice in accepting the challenged provision; and (2) the challenged provision must unreasonably favor the party asserting it. Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d 689, 700-701 (Pa. Super. 2000).

Plaintiff may not have had a meaningful choice in accepting the arbitration clauses, which appear on a preprinted form contract and a identifiable with boldface type lettering “Arbitration agreement.” However, there is no reason to conclude that the arbitration provision unreasonably favors the defendant, and thus the plaintiff cannot meet the second prong of the unconscionability test.

The plaintiff argues that arbitrating this case is unconscionable because the cost of filing the arbitration exceeds the cost of filing a complaint, and requires the parties to pay arbitrators to hear this case. This is not a sufficient legal basis to find that the contract is unconscionable. Assuming the amount of this claim exceeds $10,000 but is less than $75,000, the cost to the consumer under the rules would be a maximum of $375. This amount is not unconscionable. Further, the consumer and the business split the arbitrator’s fees, and therefore no party is favored.

The arbitration is to take place in the judicial district where the plaintiff purchased the warranty contract. This provision does not unreasonably favor Western General nor unreasonably burden the plaintiff. Although it limits where an arbitration may take place, having it occur near to where the plaintiff purchased the warranty contract is a reasonable limitation.

The arbitration provision in this case is unlike the arbitration provision found unconscionable in Lytle. In so holding, the Superior Court noted several aspects of the agreement that it found to unreasonably favor the defendant:

“The arbitration provision at issue in the instant case provides that the Lytles are required to arbitrate all issues involving more than $15,000, while CitiFinancial remains free to enforce its rights to repayment of the debt or to commence foreclosure against the Lytles’ home in the Court of Common Pleas. The arbitration provision also provides a right to a de novo appeal on any issue, while requiring the payment of substantial costs by the unsuccessful party in connection with such an appeal. The arbitration provision also prohibits the Lytles from arbitrating their claim as a class action and precludes them from class action participation as even a member of a class.” Id. at 660. (footnote omitted)

The arbitration agreement in this case is neutral on its face. It does not give Western General the right to opt out of arbitration as CitiFinancial could have done, nor does it place excess costs nor unnecessary hurdles in order for plaintiff to bring a claim. We therefore hold that it is not unconscionable and direct that the plaintiff and Western General proceed to arbitration as directed in the service contract.

ORDER

And now, February 4,2005, the preliminary objection to enforce the arbitration agreement filed by defendant Western General a/k/a Western General Warranty Inc. is granted.

      . Western General raised other preliminary objections which the plaintiff acknowledged would require an amended complaint. In view of that fact and in view of the enforceability of the arbitration agreement, we do not reach the other preliminary objections.


author: O’CONNOR, Member,

text:
    Office of Disciplinary Counsel v. McVay

      Disciplinary Board Docket no. 112 D.B. 2002.
    November 2, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

O’CONNOR, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On November 25,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, William W. McVay III. The petition charged respondent with ethical misconduct arising from his failure to appear before the Disciplinary Board for the imposition of a private reprimand. Respondent did not file an answer to petition.

A disciplinary hearing was held on April 14, 2004, before Hearing Committee 4.14 comprised of Chair Beth L.F. Orbison, Esquire, and Members John P. Goodrich, Esquire, and Marcia H. Haller, Esquire. Respondent did not appear for the hearing.

The Hearing Committee filed a report on August 11, 2004, finding that respondent violated the Rules of Disciplinary Enforcement and Rules of Professional Conduct charged in the petition for discipline, and recommending that respondent be suspended for one year and one day.

This matter was adjudicated by the Disciplinary Board at the meeting on September 27, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania, and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, William W. Me Vay III, was bom in 1963 and was admitted to practice law in the Commonwealth of Pennsylvania in 1990. He maintains his office at 107 Lamar Road, Pittsburgh, PA 15241. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent is currently on inactive status due to his failure to fulfill his required Continuing Legal Education courses and to pay his annual assessment.

(4) Respondent has no prior record of discipline.

(5) In accordance with Rules 208(a)(2), (3) and (5), Pa.R.D.E., by order dated August 23, 2002, the Disciplinary Board determined that respondent should receive a private reprimand with condition as a result involving misconduct in two separate matters at file reference no. C4-01-1049 and no. C4-02-274.

(6) The condition attached to the private reprimand states that, at least 10 days prior to the scheduled reprimand, respondent submit to the executive director and secretary of the board and Disciplinary Counsel proof that he paid $5,000 to Beechwood Settlement Funding Inc.

(7) By letter dated August 23,2002, which was sent to respondent by both first class and certified mail, respondent was informed of the determination of the Disciplinary Board, and was forwarded a copy of the Disciplinary Board’s order dated August 23, 2002.

(8) The letter dated August 23,2002 further informed respondent that, pursuant to Rule 208(a)(6), Pa.R.D.E., respondent had 20 days to demand as of right that a formal proceeding be instituted against him before a hearing committee and that, in the event of such demand, respondent need not appear for the administration of the private reprimand.

(9) On August 26,2002, respondent received the copies of the August 23,2002 letter and order sent by certified mail.

(10) Respondent made no demand that a formal proceeding be instituted.

(11) As a result of respondent’s failure to demand the institution of formal proceedings against him, respondent is conclusively deemed to have violated the Rules of Professional Conduct set forth in the August 23,2002 letter and order.

(12) By notice dated December 16,2002, sent to him by first class and certified mail, respondent was informed that his private reprimand was scheduled for January 15, 2003.

(13) Although the certified mail copy of the notice was returned unclaimed, the copy sent by first class mail was not returned.

(14) On December 18, 2002, respondent made a request via voice mail message to Elaine M. Bixler, executive director and secretary to the Disciplinary Board, that the January 15, 2003 reprimand be continued because he was scheduled for ear surgery on that day.

(15) By letter dated January 9, 2003, sent to respondent by certified mail, and received by him on January 12,2003, Ms. Bixler informed him the private reprimand would be rescheduled for May 14,2003 in Hershey, Pennsylvania.

(16) In that same letter, Ms. Bixler informed respondent that the Board Chair directed that evidence of compliance with the condition attached to the private reprimand must be received on or before January 29, 2003.

(17) Sometime before January 29, 2003, respondent informed Ms. Bixler that he would be unable to comply with the condition until he and his wife refinanced their mortgage, the closing of which was expected to occur in about 45 days, upon which closing, respondent would immediately comply with the condition.

(18) By letter dated January 29,2003, respondent confirmed his agreement with Ms. Bixler.

(19) Respondent has not complied with the condition attached to the private reprimand.

(20) By notice to appear dated March 28, 2003, sent by first class and certified mail, respondent was directed to appear for imposition of the private reprimand on May 14, 2003, in Hershey, Pennsylvania.

(21) Although the certified mail copy of the notice to appear dated March 28, 2003, was returned unclaimed, the first class mail was not returned.

(22) On May 14,2003, respondent failed to appear for the private reprimand.

(23) By letter dated October 6,2003, sent by first class and certified mail, respondent was directed by the Chair of the Disciplinary Board to provide, within 10 days of date of the letter, “good cause” for his failure to appear for the private reprimand.

(24) Although the certified mail copy of the October 6,2003 letter was returned unclaimed, the first class mail was not returned.

(25) Respondent never replied to the Disciplinary Board Chair’s letter of October 6, 2003.

(26) Respondent failed to file an answer to the petition for discipline filed against him on November 25, 2003.

(27) Respondent was personally served with notice of the disciplinary hearing scheduled for April 14, 2004.

(28) Respondent failed to appear or participate in the disciplinary hearing held on April 14, 2004.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) Pa.R.D.E. 203(b)(2) — Respondent’s willful failure to appear before the board for private reprimand is grounds for discipline.

(2) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(3) Respondent is conclusively deemed to have violated the following Rules of Professional Conduct as a result of his failure to demand the institution of formal proceedings:

(a) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession, in connection with a representation, separate from the lawyer’s own property.

(b) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(c) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(d) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(e) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(f) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with violations of the Rules of Disciplinary Enforcement and Rules of Professional Conduct arising out of his failure to appear for a private reprimand. Respondent was personally served with the petition for discipline in this matter and did not file an answer. Therefore the allegations are deemed admitted. Rule 208(b)(3), Pa.R.D.E.

Respondent engaged in misconduct in regard to two separate client matters. This misconduct involved client neglect, commingling of funds, and failure to return client funds which respondent was not entitled to keep. Respondent was informed of the determination of a private reprimand and made no demand for the imposition of formal proceedings. The private reprimand was scheduled for January 2003, but was continued at respondent’s request due to medical reasons. The board secretary then rescheduled the private reprimand for May 2003. Respondent failed to appear and failed to comply with specific conditions attached to the reprimand. He did not present good cause for his failure to appear. Respondent subsequently failed to appear for the disciplinaiy hearing in this matter, although he was personally served with notice of time and place.

The record clearly demonstrates respondent’s total disregard for his professional license. He has refused to take part in any of the proceedings brought against him. The record is devoid of any explanation or justification for respondent’s actions. The board cannot allow respondent to continue practicing without analysis of his fitness to do so. Although respondent is currently on inactive status, at this point in time he need only fulfill his Continuing Legal Education requirements and pay his annual assessment to obtain reinstatement. This could potentially cause harm to the public. A suspension of one year and one day will ensure that respondent’s fitness to practice is tested and found sufficient before he is allowed to practice law in Pennsylvania.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, William W. Me Vay III, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member McLaughlin recused in this matter.

Board Member Nordenberg did not participate in the September 27, 2004 adjudication.

ORDER

And now, January 31,2005, upon consideration of the report and recommendations of the Disciplinary Board dated November 2, 2004, it is hereby ordered that William W. Me Vay III be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: DOBSON, J,

text:
    Elia v. O’Neil

      Joseph P Valentino, for plaintiff.

      Gregg A. Guthrie, for defendant.
    October 25, 2005
   DOBSON, J,

This opinion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925 following defendant’s timely appeal from the order of September 2, 2005, granting plaintiff’s motion for judgment n.o.v. and ordering a new trial solely on the issues of damages.

This case arises out of a motor vehicle accident on November 17,1995, involving motor vehicles driven by plaintiff and defendant. Plaintiff commenced this action by filing a writ of summons on October 28, 1997. The complaint was filed on August 17, 1998.

A jury trial commenced on August 10, 2005. During defendant’s counsel’s opening, counsel conceded plaintiff was not at fault for the accident.

At the conclusion of the evidentiary phase of the trial, this court found defendant negligent as a matter of law. The questions of whether or not defendant’s negligence was a substantial factor in causing plaintiff’s injuries and what damages plaintiff was entitled to were submitted to the jury.

On August 11, 2005, the jury found the defendant’s negligence was not a substantial factor in bringing about plaintiff’s harm.

Plaintiff filed timely post-trial motions. After oral argument on September 2, 2005, this court granted plaintiff a judgment n.o.v. in plaintiff’s favor on the question of substantial factor and ordered a new trial on the issue of damages.

The sole issue raised on appeal is whether or not this court abused its discretion and/or committed an error of law in granting plaintiff’s motion for judgment n.o.v.

“There are two bases upon which a judgment n.o.v. can be entered: one, the amount is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.” Ty-Button Tie Inc. v. Kincel and Co. Ltd., 814 A.2d 685, 690 (Pa. Super. 2002), reargument denied, (citations omitted)

“The decision whether to grant a new trial is within the sound discretion of the trial court____[A] new trial is warranted where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. However, a new trial should not be granted because of a mere conflict in testimony or because the trial judge, on the same facts, would have arrived at a different conclusion.” Mano v. Madden, 738 A.2d 493, 495-96 (Pa. Super. 1999) (en banc), (citations omitted)

Viewed in the requisite light, the essential facts of this case may be summarized as follows:

OnNovember 17,1995, at approximately 7 p.m., plaintiff was traveling south and defendant was traveling north on Mercer Avenue in the Borough of Sharpsville, Pennsylvania. Defendant pulled into plaintiff’s lane of traffic when he realized he could not stop in time to avoid striking the rear of a truck he had been following that had come to a stop. Plaintiff pulled his vehicle as far to the right as he could to try and avoid a collision, but was unable to do so. The vehicles collided head-on. Plaintiff’s car’s airbag deployed. Each vehicle sustained several thousand dollars in damage. A police officer had to pull out the fender on plaintiff’s car so that he could drive the car home.

Plaintiff noticed he had chipped a molar in the accident, but did not notice any other injuries at the scene other than some pain in his neck and back.

The pain in plaintiff’s neck and back significantly worsened over the next several hours. Plaintiff, a practitioner of holistic medicine, chose to treat himself with a combination of massage therapy, hot and cold compresses, acupuncture and magnets.

When the pain failed to lessen after three months, plaintiff went to a Dr. Baumeier. Dr. Baumeier treated him with moist heat, electrical stimulation, and neuromuscular massage, and prescribed plaintiff Vitamin B-6. After several visits, plaintiff resumed treating himself.

When the pain failed to lessen, plaintiff went to the Neural Spinal Clinic in May of 1996. He underwent chiropractic manipulations as well as receiving moist heat, electrical stimulation and neuromuscular massage three times a week into September of 1996, when his insurance benefits ran out.

Plaintiff resumed treating himself as needed over the next several years.

In August of2003, plaintiff went to see another chiropractor. After several months of treatment, the chiropractor referred the plaintiff to a pain center.

Plaintiff was examined by Dr. Joseph Stoner at the Pain Clinic. Dr. Stoner diagnosed the plaintiff as suffering from: “(1) cervical-thoracic sprain/strain; (2) cervical-thoracic joint dysfunction; (3) cephalgia/occipital neuralgia; (4) left jaw pain; (5) right shoulder pain; (6) lumbo-sacral sprain/strain; (7) lumbo-sacral joint dysfunction; (8) left hip pain; and (9) myofascial pain syndrome.” (Dr. Stoner deposition, p. 16.) Dr. Stoner found these injuries to be permanent and to have all been caused by the accident of November 17, 1995.

Plaintiff underwent an IME by Dr. William Abraham on September 29, 2004. It was Dr. Abraham’s opinion that if plaintiff sustained any injuries as a result of the accident, those injuries had “long since resolved” and he has no ongoing problems. (Dr. Abraham’s deposition, p. 34.) He did note, however, plaintiff had a chipped molar in an x-ray taken July 2, 1996. (Dr. Abraham’s deposition, pp. 57-58.)

On four separate occasions, Dr. Abraham was asked if plaintiff was injured. Each time his answer was essentially the same:

“I think that a couple of things. One was that I did not obviously have an opportunity to examine him on that day to look for those sorts of things, but I think that based on his history, what he told me, his experiencing pain after the accident in a variety of locations that I discussed earlier, they could those types of complaints could be consistent with what I would describe as soft tissue injuries.” (Dr. Abraham’s deposition, pp. 33-34);
“I think that’s a good question. I don’t think that I can do anything other than to gather the history that he’s given to me and make comments as I did in my report, but certainly his subjective complaints afterwards could be compatible with a soft tissue or soft tissue injuries, and I think that’s probably the most that I can say.” (Dr. Abraham’s deposition, p. 41);
“I would say it’s hypothetical that he did. I’m merely here pointing out that he offered subjective complaints after an accident, and those would be or could be compatible with soft tissue injuries. I’m not sure again, unless we were all there, that anybody can say for certainty that he did or didn’t have an injury.” (Dr. Abraham’s deposition, p. 42); and
“And again I’ve offered my opinion. As I stated earlier, Mr. Elia describes, you know, complaints of pain after the accident in question, and those could be compatible with an injury. I was not there. I examined him years down years later, as you’ve already pointed out, and the best that I can say is that he may have had an injury based on his subjective complaints, and if he did, it appeared to be a minor injury and has long since resolved.” (Dr. Abraham’s deposition, p. 63.)

A “substantial” factor is “conduct (that) has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense.” Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998) (quoting Restatement (Second) of Torts §431 (1965)) (citing Ford v. Jeffries, 474 Pa. 588, 595, 379 A.2d 111, 114 (1977)). “Under the law of Pennsylvania, a cause can be found to be substantial so long as it is significant or recognizable; it need not be quantified as considerable or large.” Id. at 636.

The issues of whether or not a plaintiff was really suffering any pain and whether or not such pain was caused by the defendant’s conduct are generally issues for the jury. Holland v. Zelnick, 329 Pa. Super. 469, 478 A.2d 885 (1984). “[T]he existence of compensable pain is an issue of credibility and juries must believe that (a plaintiff) suffered pain before they compensate for that pain.” Davis v. Mullen, 565 Pa. 386, 396, 773 A.2d 764, 769 (2001).

Where the defense concedes the existence of an injury, a judgment n.o.v. will be sustained when a jury determines a defendant’s negligence was not a substantial factor in bringing about a plaintiff’s injury. See Kruczkowska v. Winter, 764 A.2d 627 (Pa. Super. 2000); Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997).

This court believes the evidence shows defendant effectively conceded the existence of an injury in two ways.

The first way involves the chipping of one of plaintiff’s molars. Defendant never contested this injury. Moreover, the defendant’s expert noted the existence of a chipped molar in an x-ray taken several months after the accident. While such an injury may be minor, it still is an injury and a jury must determine what damages should be awarded.

The second way involves the testimony of Dr. Abraham regarding whether or not plaintiff sustained any injury. In essence, Dr. Abraham’s testimony is that he does not know if plaintiff was injured because he was not at the scene of the accident, but his reported symptoms are consistent with a soft tissue injury. This court believes such testimony effectively concedes plaintiff suffered some injury given the severity of the accident, plaintiff’s age at the time of the accident, 63, and Dr. Abraham’s diagnosis that plaintiff had pre-existing degenerative arthritis problems at the time of the accident. To conclude otherwise elevates form over substance to the point of absurdity.

This court recognizes this conclusion would appear contrary to the holding in Holland v. Zelnick, 329 Pa. Super. 469, 478 A.2d 885 (1984), and its progeny. The facts in this case are substantially different than those in Zelnick.

In Zelnick, plaintiff was a 22-year-old college graduate whose vehicle was “bumped” in the rear while stopped at a traffic light. “Plaintiff sought no medical treatment immediately after the accident, continued to work without interruption for more than a year after the accident, swam, jogged, sat through sporting events,..., and frequently drove from Washington, D.C. to Shamokin, PA a three and a half-hour trip, alone and without aid after the accident.” Holland v. Zelnick, 329 Pa. Super. at 474-75, 478 A.2d at 887. The plaintiff’s complaints involved alleged soft tissue to her neck.

In the case at hand, the accident was of sufficient force to cause plaintiff’s airbag to deploy and several thousand dollars in damage to each vehicle. Plaintiff was 63 and suffering from pre-existing degenerative arthritic problems. While plaintiff did not seek immediate medical care, he did not fail to do so for lack of need. Plaintiff did so because of his distrust of the mainstream medical community. Plaintiff treated his problems in the manner he believed in. To penalize him for doing so would be fundamentally wrong. Finally, the plaintiff’s activities have been limited as a result of his problems.

Given the dramatic differences between the two cases, the expert’s testimony in Zelnick that plaintiff might veiy well have suffered such an injury and Dr. Abraham’s testimony that plaintiff’s subjective complaints afterward could be compatible with a soft tissue or soft tissue injury must be viewed differently by the court.

      . One of the fears of the court is that the jury in this case did so. Plaintiff’s views regarding the medical profession are so extreme that he comes off as an unlikeable crack-pot. While plaintiff’s views may be unpalatable, that does not mean he was not injured.