author: DEVLIN SCOTT,

text:
    In re Appeal of C&M Developers Inc.

      C.P. of Bucks County,
    no. 98-05738-19-6.

      John Rice, for appellee Bedminster Township.

      John VanLuvanee, for appellant C&M Developers Inc.
    June 30, 2000
   DEVLIN SCOTT,

C&M Developers Inc. has appealed the decision of the Bedminster Township Zoning Hearing Board denying C&M’s substantive challenge to the validity of the Bedminster Township Zoning Ordinance. C&M claims that the zoning ordinance is constitutionally invalid because it imposes unreasonable and extreme restrictions upon the development of single-family detached housing in the township’s AP-Agricultural Preservation Zoning District. For the reasons discussed below, we deny C&M’s appeal and affirm the decision of the board.

A review of the record and the board’s findings of fact reveals the following: C&M is the equitable owner of five tracts of land in Bedminster Township. The properties contain a total of 199.9 acres and are located between Applebutter, Log Cabin, Scott, and Smith School Roads. The properties are zoned AP-Agricultural Protection.

Bedminster is a rural, agricultural township. The township sits within a significant agricultural area of Bucks County. F.F., 47; Bedminster Township comprehensive plan 1996, map 3. In 1990, Bucks County produced $54 million of agricultural sales, which ranked the county as the thirteenth largest seller of agricultural products in Pennsylvania. Comprehensive plan, 27. By 1992, these sales had increased 15 percent to $62 million, twelfth largest amount in the Commonwealth. F.F., 45. Moreover in 1992, Bucks County ranked first in sod, floriculture, bedding plants, and foliage plants sales and second in nursery crops sales. The county also had the second most acreage of vegetables and sweet com in the Commonwealth, while ranking twelfth in overall agricultural acreage. Exhibit T-3; F.F., 46.

The township provided an apt description of its rural environment in its brief of appellee, Bedminster Township, in opposition to land use appeal. This description, which was uncontradicted by C&M and strongly supported by the board’s findings of fact and the record, stated the following:

“Bedminster Township has a total area of 19,303 acres. Of that total, 17,167 acres [as of 1990], are included in four land uses of a rural and agricultural character, including 5,178 in rural residential uses (dwelling on multiacre lots of at least five acres), equaling 26.83 percent of the township’s total land area; 8,267 acres in active agricultural uses, equaling 42.83 percent of the township’s total land area; 944 acres in recreational uses, equaling 4.89 percent of the township’s total land area; and 2,778 acres vacant, equaling 14.39 percent of the township’s total land area. The total acreage in land uses of a rural and agricultural character total 88.94 percent of the township’s total land area, and is consistent with land uses of a rural community. [See Bedminster Township comprehensive plan 1996; exhibit T-16.]

“In 1990, Bedminster Township had the fifth lowest population density (number of people per square mile) in the Upper Bucks County Region as established by the Bucks County Planning Commission, which also represented the fifth lowest population density in Bucks County as a whole. [See exhibit T-21.]

“Between 1990 and 1997, the population of Bedminster Township increased by 141 people, representing an average of 16.11 people per year; and a percentage increase over that entire period of 3.1 percent, or an annual average of 0.44 percent. [See exhibit T-18; exhibit A-54.]

“Between 1990 and 1997, only 67 new residences were constructed in Bedminster Township, representing an average of 8.6 new residences per year; (sic) Between 1988 and 1998, only 83,721 sq. ft. of nonresidential land use was developed. There are no shopping centers or significant retail shopping opportunities in Bedminster Township. [See exhibit T-18; Bedminster Township comprehensive plan 1996.]

“All of the roads within the township, including those characterized as ‘arterial’ and ‘collecter’ roads, are two lane, high crown rural roads with inadequate or no shoulders. Drainage improvements, where they exist, consist of open swales. All existing land uses, with the exception of a few residential subdivisions and an industrial part, take direct access from the township and state roads within the township. There is only one traffic light in the entire township, that on its border with Hilltown Township. There are no existing or proposed public transportation centers or facilities within Bedminster Township. There are no airports within Bedminster Township with the exception of a small, private landing strip. [See exhibit T-17; exhibit A-51; Bedminster Township comprehensive plan 1996.]” Respondent’s brief, pp. 7-8; see also, Appeal of Heritage Building Group Inc., 72 Bucks Co. L. Rep. 188 (1999).

On February 14, 1996 the township enacted Resolution 96-02 pursuant to section 609.2 of the Pennsylvania Municipalities Planning Code. This resolution declared the township’s then current zoning ordinance to be invalid and stated in part:

“[T]he Bedminster Township Board of Supervisors has determined that its current zoning ordinance is substantively invalid because of its failure to provide for cluster housing options or its failure to designate sufficient areas for mixed use developments, and because the lots sizes set forth in the current zoning ordinance may not be justified.”

At the time of this resolution, the only permitted form of residential development in the township was single-family detached dwellings on 80,000 square foot lots. The zoning districts that allowed this form of development covered the large majority of the township.

On August 12,1996, at the end of the six-month moratorium period provided to the township under section 609.2, the township amended its zoning ordinance by adopting ordinance no. 118. This ordinance eliminated several zoning districts and created a new “AP-Agricultural Preservation zoning district” which covers approximately 90 percent of the township. This ordinance also expanded the R3 zoning district to accommodate the anticipated growth of demand for single-family, multifamily, and mobile homes within the township.

The AP zoning district was specifically established to preserve the township’s agricultural lands. Ordinance 118 sets forth two sets of restrictions within the district based on original lot size. Tracts of 10 acres or less can be subdivided into lots no smaller than 80,000 sq. ft. All of the larger tracts, however, are deemed to be agriculturally significant, and their development is limited based on the soil types found within their boundaries. The soil types are separated into three categories of soil: prime farmland; farmland of statewide importance; and farmland of local importance. These categories are based on the soil classifications compiled by the United States Department of Agriculture, Soil Conservation Service. Under this ordinance, any plan to subdivide a tract containing areas of soil that fall into any of these three categories must allow for the permanent restriction from development and/or dedication to the township of 60 percent of the prime farmland and 50 percent of the farmland of statewide importance and/or farmland of local importance present on the tract.

Ordinance 118 also limits the size of the lots created out of the developable remainder of the tract to “one good acre” and requires a minimum building envelope of 10,000 sq. ft. on each lot. “One good acre” means that the lot must contain one acre free and clear of watercourses, floodplains, floodplain soils, wetlands, lakes or ponds. Meanwhile, the building envelope requires that at least 10,000 sq. ft. of this “one good acre” being contiguous to allow for the construction of the house on solid ground.

On August 20, 1996, C&M filed a substantive challenge to the newly revised zoning ordinance with the board. C&M alleged that the provisions of the zoning ordinance:

“which regulate development of single-family detached dwellings in the township’s A-P zoning district are unreasonable and invalid by reason of the fact that, with respect to the subdivision and development of any tract larger than 10 acres containing soils identified and defined by the zoning ordinance as being agriculturally significant, there is a requirement that between 50 percent and 60 percent of the tract be set aside and perpetually restricted from development; and

“because the degree to which the developable portion of any such tract may be developed is unreasonably limited.” F.F., 9.

The board held a series of 29 hearings from September 16,1996 to September 20,1999 to receive evidence with respect to C&M’s challenge. On October 18,1999, the board issued its decision denying the challenge. C&M filed this timely appeal.

Since we did not conduct a hearing on this matter, nor did we receive any additional evidence, the applicable standard of review is whether the board committed an error of law or an abuse of discretion in denying the substantive challenge. An abuse of discretion can only be found if the board’s findings are not supported by substantial evidence. Larsen v. Zoning Board of Adjustment, 543 Pa. 415, 421, 672 A.2d 286, 288-89 (1996). Substantial evidence is that evidence which is relevant and acceptable to a reasonable mind as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). See also, Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). We further note that where the court does not receive any additional evidence, findings of facts made by a board whose decision is appealed “shall not be disturbed by the court if supported by substantial evidence.” 53 P.S. §11005-A.

A zoning ordinance is presumed to be constitutionally valid. BAC Inc. v. Board of Supervisors of Millcreek Township, 534 Pa. 381, 633 A.2d 144 (1993). Therefore, a party seeking to overturn such an ordinance bears a heavy burden of proving the ordinance’s invalidity. Even “where the validity of the zoning ordinance is debatable, the legislative judgment of the governing body must control.” Kirk v. Zoning Hearing Board of Honey Brook Township, 713 A.2d 1226, 1229 (Pa. Commw. 1998), alloc. denied, 558 Pa. 615, 737 A.2d 745 (1999); see also, Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 70, 141 A.2d 851 (1958) (“A legislative enactment can be declared void only when' it violates the fundamental law clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in the minds of the court.”).

In Pennsylvania, an ordinance is deemed a constitutional exercise of police power when it promotes the public health, safety, morals and general welfare and is substantially related to the purpose it purports to serve. When an ordinance is constitutionally challenged, a court will review this challenge to the ordinance under a substantive due process analysis. This type of analysis requires the court to weigh the public interest served by the ordinance against the exclusionary or confiscatory impart of the ordinance on individual rights. The party challenging an ordinance bears the burden of proof and must establish that the ordinance’s provisions are arbitrary, unreasonable and unrelated to the public health, morals, safety and welfare. Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 507 Pa. 481, 489, 491 A.2d 86, 90 (1985). Whether or not the restrictions created by the ordinance are consistent with the stated purpose of the particular zoning district is a significant factor in determining the reasonableness of the ordinance. Honey Brook, 713 A.2d at 1229. If the challenging party is unable to prove its case, then the public interest served by the ordinance outweighs its impact on individual rights, and the ordinance must be upheld.

In its appeal, C&M requests the following from the court:

“[Tjhat the decision of the zoning hearing board be reversed; that the provisions of the Bedminster Township zoning ordinance regulating development of single family detached housing in the AP zoning district and requiring the mandatory set aside of 60 percent of prime farmland and 50 percent of farmland of statewide importance and 50 percent of farmland of local importance be declared unconstitutional and invalid; and order and direct that C&M be granted definitive relief to develop the properties in accordance with the sketch plans marked as exhibits A-91 and A-94, subject to the submission and approval of preliminary and final subdivision and land development plans under the provisions of the Bedminster Township subdivision and land development ordinance in effect as of the date of the filing of the substantive challenge.”

In its brief, however, C&M only presents the court with the following two questions:

“Whether the township has presented extraordinary justification for the unreasonable and extreme restrictions imposed upon development of single-family detached housing in the AP-zoning district.

“Whether the township, by declaring the challenged zoning ordinance to be invalid and by imposing a moratorium on landowner curative amendments, has, as a matter of law, admitted that C&M’s challenge has merit.”

We will first address the two questions C&M raises in its brief, and then we will discuss the requests C&M made in its appeal.

EXTRAORDINARY JUSTIFICATION

It is a well established rule in Pennsylvania that municipalities can zone for density by using procedures such as minimum lot sizes. A minimum lot size requirement is a legitimate exercise of police power and is not unconstitutional per se. Although, the constitutionality of these requirements must be determined on a case by case basis, when the ordinance calls for a minimum lot size in excess of two acres, the municipality must show extraordinary justification for this requirement. Honey Brook, 713 A.2d at 1229-30; Berman v. Board of Commissioners of Township of Lower Merion, 147 Pa. Commw. 405, 608 A.2d 585 (1992).

C&M argues that the AP zoning district and the “one good acre” provisions of the zoning ordinance result in a zoning density of 2.8 acres per dwelling on a typical site in the township and in a density of almost 4 acres per dwelling unit on their properties. Therefore, C&M believes that Bedminster must put forth extraordinary justifications to defend these restrictions. C&M’s argument, however, misconstrues the applicable law, as well as the facts of the instant case.

The concept of extraordinary justification was first set forth in Concord Township Appeal, 439 Pa. 466, 268 A.2d 765 (1970). In that case, Concord Township’s zoning

scheme called for a minimum lot size of two or three acres. The court found that these requirements were a great deal larger than what was necessary to build a house, and went on to state: “a house can fit quite comfortably on a one acre lot without being the least bit cramped. Absent some extraordinary justification, a zoning ordinance with minimum lot sizes such as those in this case is completely unreasonable.” Id. at 471,268 A.2d at 767. (footnote omitted) The Concord court and the courts in the cases that followed it found fault with minimum lot requirements above two acres not because the lots were too big, but rather, because the size requirement of the lot bore no relation to the land it was situated on or to the house that was to be built upon it. In other words, the requirements were arbitrary, unreasonable, and unrelated to the public health, safety, welfare, and morals, and therefore they were an invalid exercise of police power. See Concord, supra; Honey Brook, supra; Hock v. Board of Supervisors of Mount Pleasant Township, 154 Pa. Commw. 101, 622 A.2d 431 (1993); Reimer v. Board of Supervisors of Upper Mount Bethel Township, 150 Pa. Commw. 323, 615 A.2d 938 (1992); Berman, supra; Mill Valley Associates v. Zoning Hearing Board of Tredyffrin Township, 126 Pa. Commw. 340, 559 A.2d 985 (1989), alloc. denied, 527 Pa. 656,593 A.2d 427 (1990); Martin v. Township of Millcreek, 50 Pa. Commw. 249, 413 A.2d 764 (1980).

This is not the situation with Bedminster’s minimum lot requirement. First, Bedminster’s minimum lot requirement is “one good acre.” This requirement calls for a minimum lot size of one acre. The fact that the township does not allow certain types of land be counted towards this one acre requirement has no bearing on whether or not extraordinary justifications are needed. The extraordinary justifications standard arose because the courts felt that houses only need a certain amount of land to support their construction, which they set at two acres, and that anything beyond that was superfluous. Thus, requirements for lots larger than two acres needed to be supported by extraordinary justifications for this additional land. See Concord Township Appeal, supra.

C&M is basically arguing that it should be allowed to create lots out of watercourses, floodplains, floodplain soils, wetlands, lakes and ponds. This is patently ridiculous. These areas cannot be built upon without major engineering improvements that are regulated, if not banned, by state and federal statutes. The township cannot be held accountable for regulations not of their own making. The extraordinary justification rule applies to minimum lot requirements of more than two acres of buildable land within a tract, not all land. As such, Bedminster’s “one good acre” requirement falls well under the bright line rule of two acres set forth in Honey Brook, supra, and thus, does not need to be extraordinarily justified.

Second, C&M’s argument confuses lot density with minimum lot size requirements. C&M argues that lot density should be used to measure the township’s minimum lot size requirement because enforcement of all of the township’s regulations results in an actual effective minimum lot size that is much larger than one acre. The extraordinary justification standard, however, only applies to blanket minimum lot size requirements that explicitly state “a building lot must be at least ‘x’ acres.” We could find no case that applied this standard based on the actual density of lots after all the zoning regulations were met.

Furthermore, C&M does not appropriately calculate the lot density. To get its density of nearly four acres per dwelling unit, C&M must have divided 57 dwellings (total number of houses C&M calculated they could build under the township’s regulations) into 199.9 acres (total size of the properties). This formula, however, fails to take into account several important variables. First, it does not exclude acreage used for roads, utilities and storm water management. This acreage would have to be used regardless of whether minimum lot size requirements were in place and thus, should not be included in any calculation of an effective requirement. Second, the formula does not exclude wetlands acreage, as it should for the reasons discussed above. Moreover, since C&M never planned to develop this acreage (see exhibits A-91, A-94), they cannot use this acreage to decrease the lot density under the township’s regulations. Lastly, C&M wrongly included the agriculture preservation lands in their calculations. C&M did not have to purchase this land. C&M could have had the sellers subdivide the properties and then convey to C&M only that portion which was developable. C&M made a decision to purchase all of the acreage contained within the properties and must reap both the benefits and the burdens of this ownership. This decision cannot be used against the township in an attempt to invalidate its zoning ordinances.

This examination of the problems with C&M’s formula highlights why the extraordinary justifications standard only applies to blanket minimum lot size requirements. Lot density is too nebulous and subjective a concept to be consistently applied under a variety of fact patterns. Therefore, we hold that Bedminster’s minimum lot size requirement is one acre, and the township does not need to provide extraordinary justifications to uphold the validity of their zoning ordinance.

Finally, even if we do apply the extraordinary justification standard, the “one good acre” requirement meets this rule. The township excludes watercourses, floodplains, floodplain soils, wetlands, lakes and ponds to protect environmentally sensitive areas from destruction. This type of zoning is specifically allowed under 603(b)(5) and 604(1) of the M.P.C. Furthermore, these exclusions protect the public from purchasing houses built on unsuitable ground. We find that these reasons constitute the type of extraordinary justifications necessary to uphold the minimum lot size restrictions greater than two acres. The township’s “one good acre” requirement is reasonably related to legitimate public interests of preserving natural resources and protecting the public from flooding and other forms of water damage. At the same time, this requirement is narrowly tailored to expand or contract its restrictions as conditions vary from lot to lot. Since this requirement only burdens those lots which contained these certain conditions, it furthers the public’s interest without exceeding the township’s police power. Reimer, 150 Pa. Commw. at 330-31, 615 A.2d at 941-42 (adjustable minimum lot size requirements exceed the extraordinary justification standard).

RESOLUTION 129

On August 18,1999, the Bedminster Board of Supervisors adopted Resolution 129. This resolution stated in part:

“Whereas, the Bedminster Township Board of Supervisors seeks the protection of section 609.2 of the Pennsylvania Municipalities Planning Code, July 31, 1968, P.L. 805, no. 247, as amended.

“Now, therefore, it is hereby resolved by the Bed-minster Township Board of Supervisors as follows:

“The Bedminster Township Zoning Ordinance, as amended, may be substantively invalid.

“The possible invalidity of the zoning ordinance consists of an inconsistency in various agricultural uses which are permitted in the AP zoning district, the impact of the table of dimensional requirements and the environmental performance standards of the ordinance throughout the various zoning districts, and the possible lack of available land for those zoning purposes set forth at section 604(3), (4), and (5) of the Municipalities Planning Code.

“The Bedminster Township Planning Commission is hereby directed to prepare and consider a curative amendment amending the Bedminster Township Zoning Ordinance so as to cure the declared potential invalidity.”

C&M argues that section 609.2 only applies to those zoning ordinances that are found to be substantially invalid. Therefore, since the township passed this resolution under the aegis of section 609.2, the resolution must be construed as an admission by the township that the zoning ordinance is invalid and that C&M’s substantive challenge has merit and should be upheld.

This same argument was put forth by the petitioner in Appeal of Marple Gardens Inc., 99 Pa. Commw. 485, 514 A.2d 216 (1986), alloc. denied, 514 Pa. 650, 524 A.2d 496 (1987). In Marple Gardens, the petitioner was the owner of undeveloped real estate in Marple Township and wanted to build a mobile home park on this property. On May 5, 1980, the petitioner filed a challenge to Marple Township’s zoning ordinance, alleging that it was invalid because it made no provision for mobile home parks. The township scheduled hearings to be held on this challenge for June 24 and 30, 1980, but on June 9, 1980, the township board of commissioners passed a resolution pursuant to section 609.2 that declared its zoning ordinance to be substantially invalid. This resolution was reaffirmed on June 23, 1980, and the hearing dates on the challenge were cancelled. On December 3 and 8, 1980, the township adopted its own curative amendment that established a mobile home park district in the township. This district, however, did not include the petitioner’s property. Id. at 488, 514 A.2d at 217-18.

Prior to the township’s adoption of this curative amendment, the petitioner filed two appeals to the court of common pleas on July 22 and August 28,1980. Both of these appeals were based on the township’s failure to hold timely hearings on the petitioner’s challenge. After consolidating these appeals, the trial court held that the township’s 609.2 resolution established, as a matter of law, that its zoning ordinance was invalid. The court went on to direct the township to issue a zoning permit to petitioner. The township appealed this order. Id. at 489, 514 A.2d at 218.

Upon examining the trial court’s holding that the township’s 609.2 resolution established the zoning ordinance’s invalidity as a matter of law, the Commonwealth Court found this holding improper on two grounds. First, the Commonwealth Court noted that the resolution was passed after the petitioner had filed its challenge. The court held that the 609.2 resolution constituted a separate proceeding that was not before the trial court on appeal, and thus “the township’s factual findings on which it based its declaration of invalidity were not before the court for review.” The court went on to state that while the township’s actions in passing this resolution may have had some evidentiary value, the trial court was obligated to make its own findings of fact on this matter. Second, the Commonwealth Court held that the 609.2 resolution could not establish the zoning ordinance’s invalidity as a matter of law. The court found that since the determination of whether an ordinance is exclusionary is a question of law, a local agency’s finding on this question cannot bind a reviewing court. Thus, the determination of this issue remains an appropriate subject for judicial review. Id. at 415, 514 A.2d at 221.

In the instant case, Resolution 129 was passed over three years after C&M filed its substantive challenge. Under the holding in Marple Township, we are not obligated to find as a matter of law that this resolution established the invalidity of the zoning ordinance. Moreover, a close reading of the language of the resolution shows that it is immaterial to the matters before this court. This resolution only evidences the township’s concern that the zoning ordinance “may” be invalid regarding various agricultural uses, the table of dimensional requirements, and the environmental performance standards. The resolution does not find the zoning ordinance to be invalid but merely discusses “possible” and “potential” invalidity, nor does the resolution involve the AP district’s size and restrictions upon development, the “one good acre” requirement, nor the 10,000 sq. ft. building envelope requirement. We hold that Resolution 129 does not establish the invalidity of the township’s zoning ordinance as a matter of law and is inconsequential to the matters at hand.

AP-AGRICULTURAL PRESERVATION ZONING DISTRICT

Zoning to preserve agriculture is allowable under the MPC. Section 603(b)(3) states that “[zjoning ordinances may permit, prohibit, regulate, restrict and determine [the] protection and preservation of natural resources and agricultural land and activities.” This language is reiterated in section 604(3), “[t]he provisions of zoning ordinances shall be designed [t]o preserve prime agriculture and farmland considering topography, soil type and classification, and present use,” and in section 606, “the need for preserving agricultural land and protecting natural resources.” Moreover, this type of zoning has been upheld by the courts as a proper exercise of police power. Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 507 Pa. 481, 491 A.2d 86 (1985); Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 452 A.2d 1337 (1982); Honey Brook, supra; Henley v. Zoning Hearing Board of West Fallowfield Township, 155 Pa. Commw. 306, 625 A.2d 132 (1993); Codorus Township v. Rodgers, 89 Pa. Commw. 79, 492 A.2d 73 (1985).

In Boundary Drive, the appellant landowner had challenged certain provisions of the township’s zoning ordinance that were designed to preserve agricultural land. The challenged provisions of the zoning ordinance designated certain parts of the township as agricultural districts and restricted the development of property within these districts based on the soil capability of the property. The ordinance created categories of farmland. The first category encompassed the best farmland in the township, and the ordinance prohibited all nonagricultural use of this type of land except for the construction of two dwelling units on each tract consisting entirely of this highest quality farmland. The second category comprised of good quality farmland but which was not as productive as the farmland in the first category. Owners of property falling within this category could place non-farm dwelling units on their property, the number of which was determined by an area-based density schedule. This schedule increased the number of permissible dwellings as the size of the property increased, but not in direct linear proportion with the increase in property size. The third category was basically a buffer zone between agricultural and residential uses, created to minimize conflicts between these two uses. It encompassed soils not suitable for agricultural purposes and allowed for the development of small farms, large homesites or a variety of uses permitted by special exemption. Boundary Drive, 507 Pa. at 487, 491 A.2d at 88-89.

In Boundary Drive, the Pennsylvania Supreme Court found that the preservation of agricultural land through zoning regulations was a legitimate governmental goal. Id. at 490, 491 A.2d at 90. The court then compared Shrewsbury’s ordinance with the ordinance in Hopewell, supra. In Hopewell, the Supreme Court had invalidated the ordinance because it failed to adjust its restrictions to the size of the lot they were being imposed upon, and thus these restrictions were arbitrary and discriminatory. Id. at 258-59 452 A.2d at 1343; Boundary Drive, at 493, 491 A.2d at 91. The Boundary Drive court distinguished Shrewsbury’s ordinance from Hopewell’s by pointing out that the restrictions placed on development by Shrewsbury’s ordinance as a whole varied based on soil capacity and on the size of the original tract. Boundary Drive, 507 Pa. at 493, 491 A.2d at 91. The court went on to hold that Shrewsbury’s zoning ordinance scheme was substantially related to the township’s goal of agricultural preservation and thus was not unduly restrictive when balanced against the public interest in protecting farmland. Id. at 494, 491 A.2d at 92. Later courts have upheld a variety of agricultural preservation zoning provisions on a case by case basis. Honey Brook, supra (upheld density regulation designed to discourage development of agricultural land); West Fallowfield, supra (ordinance preserving agricultural land based on soil type cannot be considered arbitrary under the language of the MPC that explicitly allows this); Codorus, supra (upheld provisions limiting number of dwellings to a scale based on size of tract).

In challenging the validity of the township’s agricultural preservation zoning provisions, C&M raises several arguments trying to show that the zoning ordinance is unconstitutionally restrictive and arbitrary. These arguments include, but are not limited to: the AP district is too large; the zoning ordinance protects soils that are not agriculturally viable; the zoning ordinance does not actually result in the preservation of agricultural lands; the zoning ordinance does not ensure the preserved land actually is farmed; Bedminster is not a farming community and agriculture is not economically viable within the township. All of these arguments, however, fail to overcome the “heavy burden of proof’ placed upon parties who challenge the constitutional validity of zoning ordinances. Moreover, many of these arguments attack legislative decisions made by the township in designing the zoning ordinance. We cannot address these issues because the courts are neither a super zoning hearing board nor a planning commission of last resort which can substitute their judgment for that of the township. Honey Brook, 713 A.2d at 1231.

Under section 606 of the MPC, municipalities are directed to enact zoning ordinances that reflect the policy goals of the municipality listed in a statement of community development objectives. Bedminster Township lists these objectives in the Bedminster Township Comprehensive Plan of 1996, which states that Bedminster’s planning process is guided by two primary goals: (1) to retain the agricultural and rural character of Bedminster Township — created by rolling farmland, steep slopes, meandering streams and woodland, and a wealth of historic structures; and (2) to provide for the township’s fair share of residential and nonresidential growth. The zoning ordinance reflects these goals by setting forth a comprehensive zoning scheme that protects agricultural lands within the township. As stated previously, the zoning ordinance limits development on all tracts larger than 10 acres within the AP district. Development is restricted based on the type of soils contained in a tract. Any plan to subdivide a tract containing protected soils must permanently restrict from development 60 percent of the prime farmland and 50 percent of the farmland of statewide importance and/or farmland of local importance present on the tract. This is a constitutionally valid exercise of the township’s police power.

The agricultural preservation provisions of the zoning ordinance are specifically designed “to preserve prime agriculture and farmland considering topography, soil type and classification and present use” as is mandated by section 604(3) of the MPC. The soil classifications used by the zoning ordinance to denote farmland worth preserving are the same classifications used by Shrewsbury’s ordinance to define its first two categories of protected farmland. Furthermore, like Shrewsbury’s ordinance, the zoning ordinance varies the restrictions based on the soil types and on the size of the original tract. Finally, the zoning ordinance clearly accomplishes its stated purpose of preserving farmland, because its implementation results in the creation of large, contiguous tracts of land, free from development pressures, that are economically and geographically suitable for farming.

C&M fails to prove the zoning ordinance’s invalidity on every level. The board did not commit an abuse of discretion or an error law in determining that Bedminster is a rural and agricultural township with a vibrant agricultural economy. The board’s findings of fact are strongly supported by substantial facts found throughout the record, and these findings evidence the township’s need and obligation to preserve farmland. Moreover, C&M fails to show that the zoning ordinance is arbitrary, unreasonable and unrelated to the public health, safety, morals and general welfare. In fact, many of C&M’s arguments were contradictory and many of their citations actually supported the township’s position, and not their own. Finally, a balancing of the township’s interest in agricultural preservation against the restrictions placed on C&M shows that Bedminster’s interest in preserving approximately 50 percent of the farmland in the township far outweighs the individual right to develop this land, especially when the zoning ordinance explicitly allows for the development of the remaining 50 percent of farmland in the township. Therefore, we hold that Bedminster’s agricultural preservation provisions contained within the zoning ordinance are a valid exercise of police power that promotes the public health, safety, welfare and morals, and these provisions are substantially related to the preservation of agricultural lands within the township.

ONE GOOD ACRE

As stated previously, it is well-established that municipalities can zone for density and that the MPC allows for zoning to protect and preserve natural resources. Since density zoning is a legitimate exercise of police power, such ordinances are not unconstitutional per se. Rather, the constitutionality of these requirements must be determined on a case by case basis because the facts and circumstances vary from case to case. Honey Brook, 713 A.2d at 1229-30. The township’s “one good acre” requirement is this type of zoning regulation. Under the zoning ordinance, this requirement means that a lot must contain at least one acre free and clear of watercourses, floodplains, floodplain soils, wetlands, lakes or ponds.

As with the AP zoning district, C&M must show that this requirement is arbitrary, unreasonable and unrelated to the public health, safety, morals and general welfare in order for this court to find the requirement unconstitutionally invalid. C&M has failed to do this. The exclusion of watercourses, floodplains, floodplain soils, wetlands, lakes and ponds from being included in the building lot is clearly allowable under section 603(b)(5) of the MPC.

Furthermore, the requirement is not arbitrary or unreasonable because the lot size only increases above one acre when these natural resources exist on the lot and this increase is directly related to the protection of that resource. Finally, this requirement is related to the public health, safety, moral and general welfare, since it protects these natural resources from encroachment, pollution, and contamination, and also, protects the public from flooding and other types of water damage. Therefore, we find that Bedminster’s “one good acre” requirement is a valid exercise of police power and is substantially related to the protection of the public health, safety, and general welfare of the township.

BUILDING ENVELOPE

The zoning ordinance also requires that each lot contain a building envelope that is at least 10,000 sq. ft. We hold that this requirement is constitutional for the same reasons we found the “one good acre” requirement constitutional.

For all the above reasons, we deny C&M’s appeal and enter the attached order.

ORDER

And now, June 30, 2000, the appeal of C&M Developers Inc. is denied and dismissed. The October 18,1999 decision of the Bedminster Township Zoning Hearing Board is affirmed.

      . The court in this case, decided in March 1999, found the following regarding the character of Bedminster:
      “An examination of the record reveals that Bedminster is essentially a rural and agricultural community. Based upon Delaware Valley Regional Planning Commission projections through 2010, Bedminster would still be classified as rural. Bedminster’s population grew by 11 percent during the period between 1970 and 1980 and by 27 percent during the period between 1980 and 1990. While the increase in population may be dramatic if expressed in percentages, when the actual numbers are examined, its growth is modest. For example, from 1970 to 1990 the population increased by 1340 or 67 people per year, and from 1990 to 1995 the population increased in total only by 89. There are no substantial commercial, industrial, public transportation or road construction projects. No highways run through Bedminster and the only major roads (Route 611 and Route 313), both of which are just two lanes, are on the perimeter of the township. ... In this same period [from 1970 to 1990], Bedminster’s population grew by only 68 people per year, and from 1990 to 1995, Bedminster’s growth was only 18 people per year____There is only one traffic light located entirely in Bedminster and there are no shopping centers in Bedminster.”

      . The zoning ordinance allows for up to 20 percent of the one good acre to contain wetland margins or lake and pond shoreline. So, the imnimum amount of buildable land actually needed for a lot is only .8 acre.

      . Actually, this formula arrives at a density of 3.5 acres per dwelling unit, not “closer to four acres per dwelling unit.”

      . Several of the sellers actually retain large pieces of land under the contracts they have with C&M. See exhibits A-64, A-65, A-71, and A-72.

      . This section states: “[z]oning ordinances may permit, prohibit, regulate, restrict and determine: (5) [protection and preservation of natural resources and agricultural land and activities.”

      . This section provides: “[t]he provisions of zoning ordinances shall be designed: (1) To promote, protect and facilitate any or all of the following: ... as well as preservation of the natural, scenic and historic values in the environment and preservation of forests, wetlands, aquifers and floodplains.”

      . The opinion actually lists this date as May 5,1983. This must be in error, since the challenge must have been filed prior to June 9,1980, and we believe that the challenge was filed on May 5, 1980.

      . Since the township held no hearings on appellant’s challenge, the trial court appointed a master to hold hearings and make recommendations to the court.

      . Hopewell Township’s ordinance limited subdivisions in its prime agricultural zone to a maximum of five lots regardless of the size of the original tract of land.


source: Caselaw Access Project

author: KELLER, P.J.,

license: Public Domain

text:
    Commonwealth v. Burdette
    C.P. of Berks County,
    no. 1859/99.

      Brian G. McDonnell, assistant district attorney, for the Commonwealth.

      Jeanne M. Trivellini, for defendant.
    March 14, 2000
   KELLER, P.J.,

On November 12, 1999, the defendant/appellant, Gilbert Burdette, was brought to trial before a jury. Later that day, due to the defendant’s substantial intoxication, a mistrial was declared.

On January 18, 2000, defendant motioned to dismiss all charges due to violation of the constitutional prohibitions against double jeopardy. We denied this motion the same day.

Defendant was again tried before a jury on February 8, 2000. This time, the defendant was found guilty of receiving stolen property and conspiracy to commit receiving stolen property. On February 10,2000, this court sentenced the defendant to nine to 18 months incarceration with a credit of 103 days for time served. Defendant was represented throughout these proceedings by Abby L. Wertzberger and Dominic A. DeCecco, Esquires.

Defendant filed a notice of appeal to the Superior Court of Pennsylvania on February 10,2000. We requested and subsequently received a 1925(b) concise statement of matters complained of on appeal. In said statement, defendant raises the following issues:

“(1) Whether the trial court erred in denying a defense motion to dismiss on double jeopardy grounds when a mistrial had been previously declared sua sponte by the court over the objection of defense counsel. No alternatives to mistrial were considered on the record and manifest necessity did not exist.

“(2) Whether the evidence was insufficient to support the verdict of guilty on Count two and Count four of the information. The defendant was found not guilty of theft of immovable property, so that the jury must have found that the Commonwealth did not prove that defendant detached the items from realty. No independent evidence was introduced that such items were stolen at any time or that the defendant knew or should have known the items were stolen at the time he took possession of them.”

This opinion is written in response to said concise statement.

In respect to defendant’s first issue, we believe it useful to review the facts that led up to the November 12, 1999 mistrial:

On said morning, defendant’s counsel, Abby L. Wertzberger, Esquire, requested a conference with this court and the district attorney in our retiring room. At this time, defense counsel informed the court that she had noticed the distinct odor of alcohol on the defendant’s breath. (N.T., mistrial, 11/12/99, p. 4.) Defendant had apparently admitted having alcohol to his counsel and further informed her that he had been out until 1 a.m. the previous night drinking beer. (N.T., mistrial, 11/12/99, p. 4.) Ms. Wertzberger further stated to the court that based on her conversations with the defendant that she believed him to be sufficiently sober to participate in his trial. (N.T., mistrial, 11/12/99, p. 5.)

All parties then returned to the courtroom, where this court conducted a colloquy of the defendant in respect to his potential intoxication. (N.T., mistrial, 11/12/99, p. 5.) In response to our questioning, the defendant replied that be had been drinking the previous night, but that he was sufficiently free of the influence of alcohol to assist in his defense and that he was ready to proceed to trial. (N.T., mistrial, 11/12/99, p. 5.)

The remainder of the morning of the trial passed without incident. Shortly after 12 p.m., we recessed this trial for a lunch break. (N.T., mistrial, 11/12/99, p. 45.) As defendant was not in custody, he was free to leave the courthouse to get lunch.

Court reconvened at 1:40 p.m. at which time the defendant was given a colloquy as to whether he wished to testify at trial. (N.T., mistrial, 11/12/99, p. 46.) During this questioning, the defendant appeared rather disoriented and confused about the questions that were posed to him. As these conclusions were based almost solely on the defendant’s demeanor, the record in this case cannot adequately depict our observations.

Following this, there was some discussion about a missing defense witness. (N.T., mistrial, 11/12/99, pp. 45-48.) After a short break, testimony resumed. (N.T., mistrial, 11/12/99, p. 48.) Suddenly, during the cross-examination of Officer Robert Bowers, the defendant began to shout interjections. (N.T., mistrial, 11/12/99, p. 50.) After warning the defendant to keep quiet, we immediately called a sidebar to discuss the situation with counsel. (N.T., mistrial, 11/12/99, p. 50.) Defense counsel DeCecco informed the court that he did not believe that the defendant had imbibed any more alcohol. (N.T., mistrial, 11/12/99, p. 4.) Flowever, in light of defendant’s erratic behavior and pursuant to a request by the Commonwealth, we again recessed court and ordered a breathalyzer test of the defendant. (N.T., mistrial, 11/12/ 99, p. 51.)

Berks County Adult Probation and Parole Officer Jay Schmehl arrived shortly thereafter to administer the portable breathalyzer test. This test revealed that defendant had a blood alcohol level of approximately .179. (N.T., mistrial, 11/12/99, p. 52.) Based on this finding, we immediately called for a conference in the retiring room. (N.T., mistrial, 11/12/99, p. 52.) At that point, based upon the findings of this test as well as defendant’s outburst and demeanor, we concluded that the defendant was well beyond the limit of legal intoxication. (N.T., mistrial, 11/12/99, p. 52.) We therefore stated our belief of the manifest necessity for a mistrial. (N.T., mistrial, 11/12/99, p. 52.)

Defense counsel Wertzberger objected and stated that she believed that her client was sufficiently aware of the proceedings to continue with trial. (N.T., mistrial, 11/ 12/99, pp. 52-53.) However, after consideration of all the factors involved, we ultimately concluded that a mistrial was the only appropriate solution to this issue. (N.T., mistrial, 11/12/99, p. 53.) We then revoked the defendant’s bail and ordered him placed in custody to insure his sobriety at his next trial. (N.T., mistrial, 11/ 12/99, p. 54.)

Defense counsel Wertzberger subsequently filed a motion to dismiss based on double jeopardy on January 18,2000. Said motion was denied and the defendant was retried on February 8, 2000.

Mistrial in a criminal proceeding is governed by Rule 1118(b) of the Pennsylvania Rules of Criminal Procedure, which is as follows:

“(b) When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise the trial judge may declare a mistrial only for reasons of manifest necessity.”

The Superior Court of Pennsylvania has stated the following in regards to mistrial and manifest necessity:

“Where the defendant does not consent to the mistrial, trial courts should be especially reluctant to declare a mistrial. Commonwealth v. Bradley, 311 Pa. Super. 330, 457 A.2d 911, 914 (1983), aff’d, 504 Pa. 175, 470 A.2d 524 (1984). Rather, ‘[t]he determination of whether to declare a mistrial after jeopardy has attached is one of utmost importance since the defendant has a substantial interest in having his fate determined by the jury first impaneled.’ Commonwealth v. McCord, 700 A.2d 938, 943 (Pa. Super. 1997). There is no rigid rule for determining whether manifest necessity for a mistrial existed; rather, each case must ‘ “turn on the particular facts.” ’ Commonwealth v. Balog, 395 Pa. Super. 158, 576 A.2d 1092, 1095 (1990), quoting Commonwealth v. Bolden, 472 Pa. 602, 638, 373 A.2d 90, 107 (1977). However, the failure to consider less drastic alternatives to a mistrial ‘creates doubt about the propriety of the exercise of the trial judge’s discretion and is grounds for barring retrial because it indicates that the court failed to properly consider the defendant’s significant interest in whether or not to take the case from the jury.’ [Commonwealth v.] Diehl, [532 Pa. 214,] 217, 615 A.2d 690, 691 (1992). ‘[A]ny doubt relative to the existence of manifest necessity should be resolved in favor of the defendant.’ Id.” Commonwealth v. Rivera, 715 A.2d 1136, 1138 (Pa. Super. 1998).

After a review of case law on this issue, this court waf quite surprised to find that no court has previously addressed whether a drunken defendant constituted manifest necessity for a mistrial. We nonetheless assert that when a defendant becomes substantially impaired by alcohol during the course of trial there is manifest necessity for a mistrial.

We believe that this finding is consistent with the law of Pennsylvania. 50 P.S. §7402 governs incompetence to proceed on criminal charges. While we recognize that this section has been traditionally interpreted to apply to mental or psychological disorders, we believe it is also applicable to this instance. The relevant portion of this statute is as follows:

“(a) Definition of incompetency — Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues.” 50 P.S. §7402.

In this case, the defendant’s severe inebriation definitely caused him to have difficulty participating in his own defense. This is shown by his confusion during the colloquy as well as his outburst. We assert that as the defendant’s participation in his defense was impaired, that he was therefore incompetent to be tried while under the influence of alcohol. As defendant was incompetent, the only appropriate remedy under Pennsylvania law was to immediately terminate trial until defendant was in a sober condition and was once again competent.

From a purely policy perspective, the Superior Court must agree that any criminal trial involves a host of minor decisions by the defendant and contacts with defense counsel which could ultimately be outcome determinative. We would note that any decision made by a defendant during trial must have generally been knowing, intelligent and voluntary. An intoxicated person cannot make knowing, intelligent and voluntary decisions; hence the reasoning behind inquiring whether a defendant has had any mind altering substances upon accepting a guilty plea. Allowing a defendant who cannot comprehend or participate in trial decisions of intoxication to proceed through a case is simply poor policy as it certainly prejudices the defendant and allows for multiple appellate issues later. For this reason, we assert that there was manifest necessity for a mistrial.

In defendant’s motion to dismiss based on double jeopardy, the defendant argues that this court improperly failed to consider other possible alternatives to a mistrial. While we did not discuss any potential alternatives at length on the record, they were certainly considered before our final decision on this matter.

Perhaps the most obvious alternative to this situation would have been recessing the court upon the discovery of defendant’s drunkenness and reconvening the following day when the defendant was sober. While initially this seems like a viable option, we would note that defendant did show signs of intoxication prior to the lunch recess. While defendant may not have been as severely inebriated in the morning as he was later in the day, the events of the afternoon certainly create the high probability that the defendant was quite impaired prior to lunch. As such, all decisions made by the defendant that morning must necessarily come into question.

Since the morning session of the trial was tainted by the possibility of alcohol impairment, we obviously could not continue to try the defendant with that same jury. Therefore the only appropriate recourse was to declare a mistrial and retry the defendant in a sober state before a new jury.

For all the foregoing reasons we assert that a mistrial was of manifest necessity and was appropriately invoked. Therefore, defendant’s appeal must be denied as to this complaint.

In respect to the defendant’s second issue, defendant has argued that the evidence was insufficient to find the defendant guilty of receiving stolen property in that the jury found insufficient evidence to convict the defendant of theft of immovable property.

At this time we believe it instructive to review the facts of this case:

On March 15,1999, at approximately 7:30 p.m., Reading Traffic Engineer John Dundon was in a vehicle on Franklin Street near Seventh Street in Reading, Berks County, Pennsylvania. (N.T., jury trial, 2/8/00, p. 38.) Mr. Dundon observed two men cross the street carrying aluminum railings. (N.T., jury trial, 2/8/00, p. 38.) Mr. Dundon recognized the railings as having come from the Reading Parking Authority Parking Garage at Eighth and Franklin Streets. (N.T., jury trial, 2/8/00, p. 38.) Mr. Dundon followed the men and saw them enter 114 S. Eighth Street. (N.T., jury trial, 2/8/00, p. 39.) Mr. Dundon then proceeded to go back around the block where he encountered Reading Police Officers Pentheny, Bowers and Fisher. (N.T., jury trial, 2/8/00, pp. 40 and 57.)

After receiving information from Mr. Dundon, Officer Pentheny proceeded to 114 S. Eighth Street. (N.T., jury trial, 2/8/00, p. 58.) Upon arriving at 114 S. Eighth Street, the officer found that the property was a city row home that had been converted into multiple apartments. (N.T., jury trial, 2/8/00, p. 58.) Officer Pentheny proceeded to the second floor, where he encountered the defendant, James Allen and Nancy Trate. (N.T., jury trial, 2/8/00, pp. 58-60.) The defendant and Mr. Allen matched descriptions that had been given to the officer by Mr. Dundon. (N.T., jury trial, 2/8/00, p. 59.) After observing that all three individuals appeared to be somewhat intoxicated, Officer Pentheny requested identification. (N.T., jury trial, 2/8/00, p. 60.) About that same time Officers Fisher and Bowers arrived. (N.T., jury trial, 2/ 8/00, p. 60.) Sergeant Fisher then accompanied Mr. Allen upstairs to his room to get his identification. (N.T., jury trial, 2/8/00, p. 60.)

Ms. Trate then attempted to open the door to hers and the defendant’s room. (N.T., jury trial, 2/8/00, p. 61.) Upon finding it locked, Ms. Trate kicked the door, which caused it to fly open (N.T., jury trial, 2/8/00, pp. 60-61.) There in the room leaning up against the bed were the four aluminum railings clearly exposed for the eyes of the police officers. (N.T., jury trial, 2/8/00, p. 61.)

Later on November 8, 1999, David R. Readinger, operations manager of the Reading Parking Authority, traveled to the Eighth and Franklin Garage, where he confirmed that the railings recovered from the defendant’s apartment matched spaces where railings had been removed from the garage. (N.T., jury trial, 2/8/00, pp. 46-50.) At trial, Mr. Readinger stated that no one had the authority to remove the railings from the garage on the date in question. (N.T., jury trial, 2/8/00, p. 48.)

Defendant subsequently called James Allen to testify. (N.T., jury trial, 2/8/00, p. 59.) Mr. Allen stated that on March 15, 1999 he had encountered the defendant and observed the railings lying in slush by the street. (N.T., jury trial 2/8/00, p. 82.) The defendant then requested that Mr. Allen help him to take the railings back to their apartment building, which Mr. Allen willingly did. (N.T., jury trial 2/8/00, p. 82.)

With respect to the sufficiency of the evidence to sustain a conviction, the standard of review is as follows:

“In reviewing a challenge to the sufficiency of the evidence, we must determine ‘whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense . . . charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.’ ... ‘This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.’ . . . ‘Moreover, it is the province of the triér of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact-finder is free to believe all, part, or none of the evidence.’ . . . The facts and circumstances established by the Commonwealth ‘need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence “be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.” ’ ” Commonwealth v. Sanders, 426 Pa. Super. 362, 367, 627 A.2d 183, 185 (1993) (citations omitted); see also, Commonwealth v. Hodge, 441 Pa. Super. 653, 656-57, 658 A.2d 386, 387-88 (1995).

In Pennsylvania, receiving stolen property is defined as follows:

“(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

“(b) Definition. — As used in this section the word ‘receiving’ means acquiring possession, control or title, or lending on the security of the property.” 18 Pa.C.S. §3925.

In this case, the evidence shows that the defendant did possess the railings that were stolen and either knew or should have known that they were stolen.

We hesitate to spend much time discussing why defendant knew or should have known these railings were stolen as we think their being stolen would be extremely obvious to anyone. Nevertheless, we would note that in Reading, one does not generally find parking garage railings that have been violently ripped from their bases lying unattended in puddles of slush on Franklin Street. Although defendant most likely does not have the deductive reasoning of Sherlock Holmes, we would think that the mere presence of these unusual items in the street might be enough of a clue that the defendant or any average person could easily determine, that the railings were in fact stolen.

A number of cases have followed this same approach and found that circumstantial evidence may be used to establish that defendant had knowledge that property at issue had been stolen. See e.g., Commonwealth v. Dunlap, 351 Pa. Super. 43, 505 A.2d 255 (1985); Commonwealth v. Whiteman, 336 Pa. Super. 120, 495 A.2d 459 (1984); Commonwealth v. Fox, 259 Pa. Super. 565, 393 A.2d 970 (1978).

No evidence was presented to suggest that defendant had any intention of restoring these railings to their proper owner. For this reason, we think it quite clear that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of receiving stolen property.

In respect to conspiracy:

“A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

“(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

“(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.” 18 Pa.C.S. §903(a).

Evidence clearly establishes that the defendant did agree with James Allen to carry these stolen railings back to their apartment building. On this basis, we find that there was sufficient evidence to find the defendant guilty of conspiracy to commit receiving stolen property.

In support of his argument, defendant makes much of the fact that he was acquitted by the jury of theft by unlawful taking and conspiracy to commit theft by unlawful taking. Defendant apparently believes that it is illogical for him to be guilty of receiving stolen property, when he has not been convicted of stealing said property. We would note that nowhere in Pennsylvania law does it require that a person be convicted of theft to be convicted of receiving stolen property. In consideration of the facts of this case, the verdict makes perfect sense. While we are of the belief that the defendant was most likely the culprit who severed the railings from their moorings in the parking garage, there was not enough evidence to prove this beyond a reasonable doubt as no one actually saw him do it. There was, however, unquestionable proof that the defendant did possess railings that he knew or should have known to be stolen. On this basis, we contend that the jury’s verdict was logical and consistent.

For these reasons we submit that the evidence was sufficient to find the defendant guilty of theft by receiving stolen property and conspiracy. We therefore contend that this issue is without merit

For all of the foregoing reasons we hereby request that defendant’s appeal be denied.

      . Namely 18 Pa.C.S. §3925(a) and §903(a)(l), (2).


author: FORD, J.,

text:
    Tirado v. Lehigh Valley Hospital

      C.P. of Lehigh County,
    no. 1997-C-2100V.

      Nancy H. Fullam and David Felderman, for plaintiffs.

      Richard F. Stevens, for defendants.
    March 14, 2000
   FORD, J.,

This is a medical malpractice action which arose out of alleged negligent treatment by the defendants to plaintiff, Maritza Tirado, during the delivery of her son, Richard A. Santiago Jr., the decedent.

Defendant, Crystal Singleton M.D., is alleged to have been one of the physicians involved in the delivery of the child who died days after the birth.

Plaintiffs served a request for production of documents upon defendant, Dr. Singleton, on April 6,1998. In pertinent part, the request reads that Dr. Singleton should produce “any and all documents and records pertaining to examinations, treatment and any other medical attention precipitated by or occurring after the alleged negligence of defendant which is the basis of plaintiffs’ complaint.”

On September 9, 1998, counsel for plaintiffs was in the process of deposing defendant Dr. Singleton. In the course of the deposition, counsel for plaintiffs asked Dr. Singleton, “Did you make any notes or record about what happened that night anywhere other than in the patient’s chart?” Dr. Singleton proceeded to describe her preparation of the seven-page document which was marked Singleton exhibit 1 at that deposition. Dr. Singleton prepared the report within one week of the birth of the child. 9/9/98 Singleton N.T., pp. 36-38.

Plaintiffs’ counsel made a request for a copy of the document. Defense counsel refused to give the copy, except for the first page and a portion of the second page, claiming that the rest was confidential as a peer review document. The deposition was then discontinued.

The plaintiffs filed a motion to compel production of Singleton exhibit 1. Defendants requested an evidentiary hearing. We attempted to resolve the issue by argument only. That resulted in our order of December 29, 1999, denying the motion to compel without prejudice, pending an evidentiary hearing.

On March 1, 2000, an evidentiary hearing was conducted at which defendant, Dr. Singleton, who prepared the report, testified by speaker phone in the courtroom. Dr. Roger Atlas, who was the assistant resident director for obstetrician and gynecological residents at Lehigh Valley Hospital at the time that the alleged negligence occurred, also testified by speaker phone. Both of the witnesses were located out of state when their testimony was taken. The following pertinent facts were developed at hearing.

Dr. Singleton was an Ob-Gyn resident at Lehigh Valley Hospital on January 25, 1996, when the birth took place. She is alleged to have been one of the physicians involved in the problematic delivery. Dr. Atlas, one of the directors of the program, was not involved in the delivery. However, within one week of the incident, he asked Dr. Singleton to write a summary for peer review purposes. As Dr. Atlas explained, the summary would be to analyze the case within the department.

Dr. Singleton then dictated the report. She read the seven-page transcribed report and signed it. She then gave an original or a copy to Attorney Stevens, defense counsel in this case. She also maintained a copy at her own home and gave an original or a copy to Dr. Atlas.

An original or a copy was also given to Ms. Georgine Saliba, the director for risk management at Lehigh Valley Hospital.

We have chosen to utilize an in camera review to make an informed decision about this issue. The use of in camera review is appropriate when there is a dispute as to whether a document is privileged. The Superior Court has encouraged the use of in camera review as an aid in determining whether privilege (if it is not an absolute privilege) applies to a document. Young v. Western Pennsylvania Hospital, 722 A.2d 153 (Pa. Super. 1998).

Plaintiffs sent a notice to take the deposition to defense counsel with the deposition to be on June 1,1998. The deposition did not occur on that date. Rather, the deposition took place on September 9, 1998. However, Dr. Singleton admitted that she reviewed Singleton exhibit 1 with Mr. Stevens during the summer of 1998. When she reviewed the exhibit with Mr. Stevens, she knew that her deposition was going to be taken. She did not know the date of the deposition.

While the report may have been prepared for quality assurance purposes, there is no evidence that it was actually presented to the quality assurance committee. Dr. Atlas had no idea as to what happened to the report or who received copies of it. Dr. Singleton did appear before the quality assurance committee but she did not give testimony.

After our in camera review, which we directed by order dated March 6, 2000, we see that the document addresses the events leading to, during and after the delivery. It also recounts the patient’s history of other deliveries, compiled from other hospital or patient records. It appears that the portion of Singleton exhibit 1 which was voluntarily given to plaintiffs’ counsel at the deposition was Dr. Singleton’s summary of this delivery. What was withheld, under the claim of peer review, was the rather mechanical recounting of the other deliveries taken from other records.

Pennsylvania Rule of Civil Procedure 4003.1 reads in pertinent part: “[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” Further, Pa.R.C.P. 4003.1(b) provides, “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

As was stated in Bennett v. Graham, 552 Pa. 205, 714 A.2d 393 (1998), “Discovery cannot achieve its aims of crystallizing the facts and issues for trial if counsel are to be subject to the same evidentiary limitations encountered at trial.” Id., 714 A.2d at 396.

Plaintiffs’ counsel was rightfully concerned that she had to learn about the existence of the seven-page report by asking the right question at a deposition. The existence of the report should have been made known by defense counsel in his response to the request for documents. Pa.R.C.P. 4009.12(b)(2). We return to this subject later in this opinion.

Defense counsel has asserted that the document is confidential under the Peer Review Protection Act, 63 P.S. §§425.1-425.4.

Confidentiality of certain reports of healthcare professionals is addressed in PRPA at 63 P.S. §425.4. It provides that the proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery in a civil action against a healthcare provider. Many appellate decisions have acknowledged the salutary rationale for PRPA. It serves the legitimate purpose of maintaining high professional standards in medical care for the protection of patients. It is meant to foster the medical profession’s policing itself and its own activities. Cooper v. Delaware Valley Medical Center, 539 Pa. 620, 654 A.2d 547 (1995). Additionally, the immunity and confidentiality provisions within PRPA seek to foster the greatest candor and frank discussion at medical review committee hearings so that patients are served competently, morbidity and mortality are reduced and costs are kept within bounds. Robinson v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979).

However, the confidentiality is subject to limitations. PRPA itself provides:

“Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.” 63 P.S. §425.4.

It is our opinion that the confidentiality provisions of PRPA do not shield the seven-page report from discovery by plaintiffs for two reasons.

First, the exception to confidentiality stated within PRPA mandates disclosure of the report in discovery. Everything stated in Singleton exhibit 1 is available from original sources.

The first part of the report contains relevant, crucial information compiled by a physician, Dr. Singleton, who was sued. She has firsthand knowledge of all this. She is an original source as to what is contained in that first part of the report. In a deposition and at trial, plaintiffs’ counsel can certainly inquire of Dr. Singleton of all the events she addressed in that first part of the report. This is pointed out to demonstrate that Dr. Singleton is truly an original source, accessible to plaintiffs, of what is written in the first part of the exhibit. Additionally, much of this information is found in other parts of Ms. Tirado’s chart. But this part of the report is not even controverted because the first page and a part of the second page were given to plaintiffs’ attorney.

There clearly are other original sources for the second part of the report, the part that the defense refuses to reveal absent a court order. As stated, these pages of the exhibit contain no more than setting forth Ms. Tirado’s delivery history with her other children. These pages are compiled from the hospital or the patient’s records and so they are not shielded by confidentiality under PRPA.

Counsel for plaintiffs would have the court draw many inferences, including certain nefarious motivations attributed to the defense, from the failure to properly respond to the request for documents and from the way the document was produced at the deposition. We reject many of those inferences as unsupported by the evidence. However, we do conclude that Singleton exhibit was a source of information for Dr. Singleton and her counsel as she prepared for her deposition. For this second reason, confidentiality does not bar the production of this document.

In defining what is confidential under the PRPA, our colleague, President Judge James Knoll Gardner, stated in Hanzsek v. McDonough, 44 D.&C.3d 639, 644 (1987), “[W]e interpret the Act to mean that where a document is prepared solely for purposes of peer review, that document is not discoverable.”

Because of our finding that Dr. Singleton, with defense counsel, made some use of the report in preparation for the deposition, fairness dictates that opposing counsel be provided with a copy of it, It was stated in Commonwealth v. Proctor, 253 Pa. Super. 369, 374, 385 A.2d 383, 385 (1978), “[I]t is clearly settled that once a witness has resorted to a writing or other object to refresh recollection, the adverse party is entitled to inspect the writing and to have it available for reference in cross-examining the witness.” See also, Pa.R.E. 612(a) and Leonard Packel and Anne Bowen Poulin, Pennsylvania Evidence, §612-1 at 604-609 (2d ed. 1999).

As stated, the plaintiffs’ request for documents, seeking reports like the one at issue here, was served more than four months before the September 9, 1998 deposition of Dr. Singleton. If defense counsel had responded properly, it is conceivable that the issue of the discover-ability of this statement would have been resolved before Dr. Singleton traveled from out of state for her deposition, As things turned out, plaintiffs’ counsel was surprised, during the course of the deposition of Dr. Singleton, to learn of the existence of the seven-page document. After an attempt to resolve the issue, defense counsel refused to deliver a copy of the document to plaintiffs’ counsel. Plaintiffs’ counsel was precluded from cross-examining Dr. Singleton about the document. Accordingly, her ending the deposition at that point was reasonable,

The difficulty in deposition was created by the defense. Under these circumstances, we permit a further deposition of Dr. Singleton. We see no reason, why it cannot be completed within the course of a morning and afternoon session.

Transportation and other costs for Dr. Singleton to travel here for the deposition must be borne by her.

ORDER

Now, March 14, 2000, after hearing conducted on March 1, 2000, after argument by counsel, and for the reasons set forth in the accompanying opinion, it is hereby ordered that plaintiffs’ “motion to compel the production of the seven-page typed medical record prepared by defendant Crystal Singleton M.D.” is granted. Counsel for the defendants shall provide counsel for the plaintiffs a copy of this seven-page document, also known as “Singleton exhibit 1,” from the September 9,1998 deposition of Dr. Singleton, within 20 days of service of this order.

It is further ordered that plaintiffs may continue with their deposition of Dr. Singleton, which deposition may not exceed one day. The cost for attending the deposition shall be borne by Dr. Singleton.


author: HALPERN, Member,

text:
    In re Anonymous No. 77 D.B. 97

      Disciplinary Board Docket no. 77 D.B. 97.
    November 16, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

HALPERN, 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

The Pennsylvania Supreme Court issued an order dated July 2, 1997, placing respondent, [ ], on temporary suspension and referring this matter to the Disciplinary Board pursuant to Pa.R.D.E. 214(f)(1). Respondent was temporarily suspended as a result of his criminal conviction of one count of indecent assault in violation of 18 Pa.C.S. §3126(a)( 1). A petition for discipline was filed against respondent by petitioner, Office of Disciplinary Counsel on October 21, 1998. Respondent did not file an answer to the petition.

A hearing was held on March 30, 1999 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire. Respondent did not testify nor did he present any witnesses or evidence for consideration by the committee.

The committee filed a report on June 3,1999 and recommended a three-year period of suspension retroactive to September 23, 1998, the date that the Supreme Court of Pennsylvania denied respondent’s petition for allowance of appeal in his criminal matter.

This matter was adjudicated by the Disciplinary Board at the meeting of August 18, 1999.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the 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 is a formerly admitted attorney in the Commonwealth of Pennsylvania, having been admitted to practice in 1959, and temporarily suspended by order of the Supreme Court of Pennsylvania dated July 2,1997. Respondent previously practiced law at [ ]. Respondent’s home address is [ ].

(3) On or about February 22, 1996, a criminal complaint was filed against respondent before District Justice [A] by Sergeant [B] of the [ ] Township, [ ] County Police Department.

(4) The complaint charged respondent with one count of simple assault and one count of indecent assault.

(5) On April 2,1996, a criminal information was filed for the Court of Common Pleas of [ ] County in the matter of Commonwealth of Pennsylvania v. [Respondent] no. [ ].

(6) By the aforementioned information, the attorney general of Pennsylvania charged respondent with one count of indecent assault in violation of 18 Pa.C.S. §3216(a)(l), which is a misdemeanor of the second degree.

(7) The information charged as follows:

“That the defendant did have indecent contact with another, not his spouse, and did so without the consent of the other person; to wit, the defendant did attempt to kiss [C], did fondle her breast, saying ‘do you like this’ and placed her hand on his genital area and did state to her ‘do it,’ when her head was near his genital area, all of which was without her consent.”

(8) On February 12, 1997, the Honorable [D] entered a verdict of guilty against respondent after sitting at a non-jury trial.

(9) On February 12, 1997, respondent was sentenced as follows: (a) serve two years of probation; (b) pay a fine of $250; (c) undergo DNA testing; and, (d) submit to an evaluation and follow any recommended treatment.

(10) Respondent appealed the [ ] County judgment of sentence of February 12, 1997, to the Superior Court of Pennsylvania.

(11) On April 24, 1998, the Superior Court affirmed the judgment of sentence.

(12) On May 22, 1998, respondent filed in the Supreme Court of Pennsylvania, an allowance of appeal from the Superior Court judgment.

(13) On September 23, 1998, the Supreme Court denied respondent’s petition for allowance of appeal.

(14) Respondent’s probation started on March 23, 1999. His sentence was held in abeyance while his case was on appeal. Subsequent to the Supreme Court’s denial of the petition for allowance of appeal, there was some confusion in the [ ] County probation office as to respondent’s status, as he never reported to that office after his appeals had run. The trial court then determined the start date of the probation. Respondent’s probation will end in March of 2001.

(15) Petitioner has no prior history of discipline.

in. CONCLUSIONS OF LAW

Respondent’s conviction of one count of indecent assault is an independent basis for the imposition of discipline pursuant to Pa.R.D.E. 203(b)(1).

Respondent’s conduct is a violation of R.P.C. 8.4(b), which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

IV. DISCUSSION

This matter is before the board upon a petition for discipline charging respondent with violations of Pennsylvania Rule of Disciplinary Enforcement 203(b)(1) and Rule of Professional Conduct 8.4(b), based on his conviction of one count of indecent assault.

Rule 203(b)(1), Pa.R.D.E., provides that conviction of a serious crime shall be grounds for discipline. Rule 214(e), Pa.R.D.E., specifies that a certificate of conviction of an attorney for a serious crime shall be conclusive evidence of that crime. When a disciplinary proceeding is commenced against an attorney based upon a criminal conviction, the board does not engage in a retrial of the underlying facts of the crime. The board’s responsibility is to determine the appropriate measure of discipline relative to the seriousness of the crime. The focal issue is whether the attorney’s character, as shown by his or her conduct, makes the attorney unfit to practice law. Office of Disciplinary Counsel v. Casety, 511 Pa. 177, 512 A.2d 607 (1986). This test balances a concern for the public with a respect for the substantial interests of an attorney in maintaining his or her privilege to practice law. Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981). It is appropriate for the board to examine the events surrounding the criminal charge as well as any aggravating and/or mitigating circumstances when determining an appropriate measure of discipline. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982).

Respondent was found guilty in a non-jury trial of one count of indecent assault in violation of 18 Pa.C.S. §3126(a)(1). Indecent assault is a misdemeanor of the second degree and carries a maximum penalty of two years imprisonment. Respondent was sentenced to a term of probation of two years, which term commenced on March 23, 1999. Respondent appealed his judgment of sentence to the Superior Court, which affirmed respondent’s judgment of sentence by order of February 12, 1997. Respondent filed a petition for allowance of appeal with the Supreme Court, which was denied by order dated April 24, 1998. Respondent was placed on temporary suspension from the practice of law by order of the Supreme Court dated July 2, 1997.

The underlying facts of the criminal conviction as gleaned from the record reveal that on one occasion on January 19, 1996, [C] met with respondent at his law offices in regard to receiving representation in a divorce. During the meeting, respondent attempted to kiss [C] and fondled her breast saying “Do you like that?” He then placed her hand on his genital area and grabbed her head to his genital area saying “Do it.” These actions were done without [C’s] consent.

The misconduct engaged in by respondent is quite serious. [C] came to respondent for legal advice and was treated in an offensive and outrageous fashion. Respondent assaulted her in his law office, a place where the victim believed she would receive assistance with her personal problems. Instead, respondent created more problems for [C]. Respondent’s actions cast a negative reflection on the public perception of the legal profession.

The case law in Pennsylvania in this subject area is extremely limited. In the matter of In re Anonymous No. 127 D.B. 94, no. 64, disciplinary docket no. 3 (Pa. June 2, 1998), the attorney was convicted of three counts of indecent assault and was sentenced to imprisonment of three months to 18 months and two years of probation. The attorney asked three different women, either clients or married to clients, to come to his office on separate occasions ostensibly to review legal matters. The attorney then asked the women to stand in front of a wall calendar to look at dates. While the women were doing this, respondent stood in back of them and engaged in offensive touching and other inappropriate behavior. The Disciplinary Board found that respondent’s actions were extremely serious, as he used his law office to engage in these activities. The attorney specifically arranged the meetings with the women and arranged to have them stand in front of the wall calendar. The board viewed the attorney as using his power as a licensed professional to place the women in the compromising positions, thus abusing the trust of the women. The board recommended a five-year suspension retroactive to the attorney’s temporary suspension. The Supreme Court imposed this discipline.

In another matter, In re Anonymous No. 116 D.B. 93, 31 D.&C.4th 199 (1995), a complainant filed a complaint with Office of Disciplinary Counsel alleging that her minor son’s attorney had touched her offensively. Complainant and her family were known to the attorney and they shared a very good relationship. The attorney was hired to represent the minor son in a traffic offense. Complainant met with police one day to discuss the case and became involved in a confrontation with the police. Complainant was very upset and went directly to the attorney’s office. He suggested they go to lunch. Then, without consent of complainant, the attorney held her and kissed her. Complainant became concerned and reminded the attorney that they were leaving for lunch. On the way to lunch, in the attorney’s car, he placed his hand on her breast without permission and made an inappropriate suggestion. Complainant continued riding in the car and had lunch with the attorney. Complainant then told her husband later that day about the incident. The attorney called the next day to apologize and return the son’s file. No criminal charges were filed against the attorney. Complainant terminated the attorney’s services. The board imposed a private reprimand.

These two cases suggest the range of behavior and discipline possible in such matters. The instant case falls in the middle of the cited cases in the level of seriousness. In the instant matter, one client was involved, and although the incident took place at the attorney’s office, the victim was not summoned there by respondent in an attempt to carry out a planned assault, as happened to the three women in No. 127 D.B. 94. However, the instant case is more serious than No. 116 D.B. 93, as the woman in the cited case continued to lunch with the attorney and spend time with him after the inappropriate touching, and did not appear to show demonstrable concern for her safety. The victim in the case at bar was sufficiently disturbed to leave the law office and report the incident to the police.

The Hearing Committee recommended a three-year suspension retroactive to September 23, 1998, the date the Supreme Court denied respondent’s petition for allowance of appeal. The board concurs with the committee as to the length of suspension. Certainly a criminal conviction for indecent assault on a client must be considered with the utmost gravity. This behavior, even though it occurred only once in respondent’s 40-year legal career, as respondent points out, is intolerable and reflects adversely on respondent’s character and fitness to practice law. The five-year suspension imposed in No. 127 D.B. 94 dictates that a lengthy suspension is appropriate for this matter. A three-year suspension takes into consideration the factual differences between the cases.

The board recommends that the suspension be made retroactive to the date of respondent’s temporary suspension on July 2, 1997. Generally in criminal conviction cases if a respondent is suspended or disbarred it is made retroactive to the date of temporary suspension to reflect the time already spent on suspension by the attorney. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999); Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405 (1997). While there are exceptions to any rule, this case provides no factual reason to deviate from the accepted custom.

The board recommends a three-year period of suspension retroactive to July 2, 1997.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law for a period of three years retroactive to July 2, 1997.

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 Rudnitsky did not participate in the August 18, 1999 adjudication.

ORDER

And now, January 13, 2000 upon consideration of the report and recommendations of the Disciplinary Board dated November 16, 1999, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of three years, retroactive to July 2, 1997, 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.