author:
KLEINFELTER, P.J.,

      CHERRY, J.,
     HOOVER, J.,

text:
    Andreyo v. Radle

      C.P. of Dauphin County,
    no. 4264 S 2000.

      Scott W. Morgan, for plaintiff.

      John A. Statler, for defendant.
    EN BANC, KLEINFELTER, P.J., CHERRY, AND HOOVER, JJ.

    April 1, 2002
   KLEINFELTER, P.J.,

This is the summary judgment motion of defendant Nicholas A. Radie in this automobile accident case. For the reasoning asserted below, Radle’s motion is denied. We begin with a recitation of the pertinent facts. On October 8, 1997, Radie was driving his car along South 23rd Street when he struck plaintiff Matthew Andreyo. Matthew, who was 15 years old at the time and resided with his father, Joseph Andreyo, suffered injuries to his left knee. Sadly, Matthew passed away on January 11, 2001, of circumstances unrelated to this accident.

Matthew instituted this cause of action by filing a complaint on September 26, 2000, asserting negligence against Radie. The complaint does not assert a claim for economic losses. Thereafter, on November 9,2000, Radie filed an answer with new matter. In his new matter, Radie asserts that Matthew’s claims are barred by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., since Matthew’s father elected the limited tort option on his automobile insurance and Matthew was considered an “insured” under that policy. Matthew filed a reply to Radle’s new matter on November 14, 2000.

The matter presently for our consideration is Radle’s motion for summary judgment, filed June 19,2001. Both parties have submitted briefs supporting their respective positions, and a three-judge panel of this court entertained oral argument on August 16, 2001. As a preliminary matter, we note the standard promulgated by our appellate courts to guide us in deciding a summary judgment motion.

“[Sjummary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ... Summary judgment may be granted only in those cases where the right is clear and free from doubt. . . . The moving party has the burden of proving that there is no genuine issue of material fact.... Moreover, the record and any inferences therefrom must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party....” Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 73-74, 658 A.2d 423, 425 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995) (citations omitted); see also, Green v. Paul Revere Insurance Group, 121 Dauph. Cty. Rep. 63 (2001).

The threshold issue is whether a pedestrian (here a minor) who is injured through the negligence of a motor vehicle operator is limited in his recovery by his father’s election of the limited tort option in his automobile insurance policy. More directly, were pedestrian accidents contemplated to fall within the purview of the MVFRL?

We have found no appellate authority that directly answers this question. We emphasize “directly” since the case of Murray v. McCann, 442 Pa. Super. 30, 658 A.2d 404 (1995) (relied on by Radie), which is factually akin to the case at bar, would appear to answer this question in the affirmative. Murray, however, is of limited value since the only legal issue on appeal was the application of the “serious injury” exception under section 1705 of the MVFRL. Thus, the persuasiveness of Murray is limited to that of dicta.

Several county courts have addressed the pedestrian issue directly. In Leidy v. Hall, 77 Lancaster L.Rev. 561 (2001), the Lancaster County Court of Common Pleas, relying on Murray, applied the MVFRL and the limited tort option to a pedestrian. The Lancaster court also cited Reidinger v. Linebaugh, 35 D.&C.4th 78 (Lanc. Cty. 1998); but that case, too, only concerned a “serious injury” analysis.

Similarly, in Eckler v. Watson, 29 Mercer L.J. 393 (2001), the court held that, as the statutory listing of exceptions in the MVFRL does not except pedestrians in a motor vehicle accident, they must necessarily be bound by an election of the limited tort option in their insurance policy. Likewise, in Spearman v. Rabe, 146 Pitts. L.J. 111 (Allegheny Cty. 1998), the Allegheny Court of Common Pleas applied the limited tort provisions of the MVFRL, without analysis, to a pedestrian.

On the other hand, the Blair County Court of Common Pleas has reached a contrary result. In Stotler v. Bickel, 96 CP 519 (Blair Cty. slip op. 1998), the court addressed the issue as to whether the MVFRL applied to a pedestrian who was also the owner of an uninsured vehicle. Granted, the uninsured aspects of the MVFRL address a different issue than the limited tort option, but the force of logic applies equally to both. In refusing to hold the plaintiff to the terms of section 1714, the Stotler court relied on the Superior Court’s analysis in Kafando v. State Farm Mutual Automobile Insurance Co., 704 A.2d 675 (Pa. Super. 1998): “the deterrent purpose of section 1714 is not advanced by withholding benefits from a party who owns an uninsured motor vehicle but who is nevertheless injured while riding as a passenger in an insured vehicle.” Section 1714 did not apply since the plaintiff “was not operating his own uninsured vehicle at the time of the accident.” Id. at 676.

Kafando relies in large part on the logic of our Supreme Court in Henrich v. Harleysville Insurance Companies, 533 Pa. 181, 620 A.2d 1122 (1993):

“The MVFRL [Motor Vehicle Financial Responsibility Law] replaced the former ‘no-fault’ statute, PL. 489, no. 176 (1974). The MVFRL was designed to deter people from failing to insure their vehicles more forcefully than the prior statute. This is the purpose of section 1714. If [the claimant] had been injured while operating her own uninsured but registered motor vehicle, we can see how it could at least be argued that the deterrent purpose of section 1714 might be applied to her so as to prevent her from recovering under her father’s insurance policy. However, those are not the facts in the instant case (and we express no opinion as to how we would decide this case if they were). Here, [the claimant] was hurt while a passenger in her friend’s uninsured motor vehicle. It is hard to see how punishing a person like [the claimant] or the threat of punishing her, would deter someone like her driver, an unrelated third party, from neglecting to procure auto insurance. Likewise, it is draconian to punish [the claimant] for failing to insure her own car when she was not injured in it or hurt by it. Indeed, she was not even driving it. We cannot attribute either such unrealistic or harsh motives to the legislature unless they were clearly spelled out. We hold that section 1714 does not apply to [the claimant] because she was not operating her own uninsured motor vehicle at the time of the accident.” Kafando, 704 A.2d at 677 quoting Henrich, 533 Pa. at 185, 620 A.2d at 1124. (emphasis in original)

Kafando also relied heavily on Berger v. Rinaldi, 438 Pa. Super. 78, 651 A.2d 553 (1994), which held that the limited tort option, section 1714(a)(5), was not applicable to a plaintiff who was not operating his uninsured vehicle at the time of the accident.

Stotler, supra, concludes: “Following this reasoning, it would be highly incongruent for this court to permit application of section 1714 to a pedestrian when it does not apply to a passenger.” Stotler at 4. We subscribe to the Stotler-Kafando-Berger analysis, as it seems illogical to deny full tort coverage to a pedestrian plaintiff, who, at the time he was struck, had absolutely no connection with his father’s automobile.

We further divine legislative intent by returning to the language of section 1705(a) and the required Notice To Named Insureds: “The laws . . . give you the right to choose a form of insurance that limits your right and the right of members of your household ... for injuries caused by other drivers.” “Caused by other drivers” necessarily implies that there is another driver in addition to the plaintiff driver.

We place no weight on defendant’s argument that “pedestrians” are not mentioned in the “exceptions” sub-paragraph (d) of. section 1705 since we conclude that section (b), application of tort options, is intended to apply only to operators or passengers of vehicles. To illustrate this point we need only look at the language in section (b)(2), which provides for resolution of the conflict that necessarily arises where “an insured” is covered by more than one policy. In such case, the section provides that he is covered by the policy covering the vehicle “in which the insured is an occupant at the time of the accident.” (emphasis added)

The MVFRL, in this court’s opinion, was not intended to apply to “an insured” when the “insured” is a pedestrian, on some other non-automobile conveyance; or, for that matter, sitting in his living room should an errant automobile come crashing through his door.

Had we held that the limited tort option applied to Matthew Andreyo, we would next need to evaluate whether Matthew’s injuries were “serious” as contemplated by section 1705. Instead, we may consider the noneconomic damages alleged in Matthew’s complaint, namely, the pain and suffering and emotional distress claims. Included in Matthew’s response to Radle’s motion for summary judgment is the operative report pertaining to the medical treatment he received following the car accident. The report provides a possible basis of recovery for pain and suffering as well as emotional distress damages resulting from his injuries. This evidence, of course, necessarily implicates issues of factual determination. As such, we cannot quantify such damages as a matter of law and are required to deny Radle’s motion.

We enter the following:

ORDER

And now, April 1, 2002, upon consideration of the motion for summary judgment submitted by defendant Nicholas A. Radie, said motion is hereby denied.

CHERRY, J.,

Concurring, April 1, 2002 — The facts of this case have been recited in the majority’s decision and need not be restated here. As was indicated in the opinion, our courts are divided on the pedestrian issue as it pertains to the limited tort option of the Pennsylvania Motor Vehicle Financial Responsibility Law. Therefore it seems prudent that this issue be fully addressed in order that a definitive conclusion replace the differing schools of thought that have developed throughout the Commonwealth.

The purpose here is not to legislate from the bench. Rather, the goal is to determine and uphold the legislative intent espoused by our lawmakers through the statutes. To this end, as President Judge Kleinfelter thoroughly explained, it is not logical to assume a result that would deny full tort coverage to persons wholly unconnected to an automobile. The MVFRL begs a conclusion that pedestrians simply are not to be included within the perimeters of the statute.

In support of this conclusion and in addition to the reasoning found in Judge Kleinfelter’s opinion, the language of the statute is replete with references and verbiage indicating the election of tort options is meant for cases involving motor vehicles and other operators of motor vehicles, but not pedestrians. For example, the insurance policies mentioned in the statute all pertain to private passenger motor vehicle liability. The very fact that one must obtain motor vehicle insurance and choose one of the options implies that contemplated coverage will deal with accidents between drivers of motor vehicles.

Even the legislature has opined a desire to ordain the full tort option as the default option as evidenced by the following quote:

“With respect to which tort option shall apply in any given case, Representative Hayden, who supported enactment of the 1990 amendments to the MVFRL, stated that, ‘in virtually every circumstance where there is a question about [which] coverage will apply, there is a conscious attempt to rule in favor of the full tort alternative.’ House Legislative Journal page 214, February 7, 1990.” Berger v. Rinaldi, 438 Pa. Super. 78, 88, 651 A.2d 553, 557 (1994).

It seems disingenuous to favor the full tort option when possible, but at the same time hold a pedestrian to a limited tort election. Granted, the decedent here was an insured under his father’s limited tort option motor vehicle insurance. This court would have no trouble in holding a minor to his adult parent’s limited tort election if the minor were the operator of a motor vehicle or even a passenger in a motor vehicle at the time of an accident. However, in this case, the injured was not an operator of, nor was he a passenger in, a motor vehicle at the time of the accident.

The answer to this dilemma could be simply that the legislative branch of the Commonwealth, by omitting the term pedestrian from the statute, thought it obvious that pedestrians were to be omitted from consideration when dealing with the MVFRL. The omission of the word “pedestrian” from the MVFRL is telling in that it may very well mean that pedestrians are not included in the mechanics of the statute.

Further examination of the MVFRL, specifically section (b)(2), declares “the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident.” 75 Pa.C.S. §1705(b)(2). (emphasis added) Moreover, “[a] basic tenant of statutory construction is to afford the words of a statute their plain meaning.” Carlino v. Bartley, 49 D.&C.4th 1, 6 (2000) (citing 1 Pa.C.S. § 1903(a)). Thus we have examples of the statute referring to motor vehicles and occupants of motor vehicles, but not pedestrians. The logical conclusion is that a pedestrian, wholly unattached to a motor vehicle whether as owner, operator, passenger, or any other type of occupant, is not contemplated to fall within the purview of the MVFRL.

The judiciary is simply not empowered to insert words or phrases into the statutes promulgated by the legislature, and we will not do so in this case. As our Supreme Court has instructed, “[i]n construing a statute, the court must ascertain and give effect to the legislative intention as expressed in the language of the statute, and cannot, under its powers of construction, supply omissions in a statute, especially where it appears that the matter may have been intentionally omitted.” Kusza v. Maximonis, 363 Pa. 479, 482, 70 A.2d 329, 331 (1950). Notwithstanding the court’s place in determining or interpreting legislative intent, circumstances may arise where it may be necessary to add an explanatory word or two. However, any additional words or phrases cannot alter the scope of the statute. O’Donoghue v. Laurel Savings Association, 556 Pa. 349, 357, 728 A.2d 914, 917 (1999), citing Kusza v. Maximonis, supra. Reading the statute so as to contain the word “pedestrian” certainly alters the scope of the statute in that the statute would be judicially expanded to include not only accidents between drivers of motor vehicles and other drivers, but also accidents between motor vehicles and pedestrians.

Perhaps the legislature will see fit to address this omission, but that act is for that governmental body on another day. I concur with Judge Kleinfelter’s opinion in this case in both the decision and in the reasoning.

HOOVER, J.,

Dissenting, April 1,2002 — Based upon our review of the language of the Pennsylvania Motor Vehicle Responsibility Law, the Superior Court’s analyses in analogous cases, and instructive common pleas decisions of other courts, we respectfully dissent, and would conclude that the restrictions of 75 Pa.C.S. § 1705 (limited tort), apply to a pedestrian struck and injured by a motor vehicle who is an “insured” under a policy for which the limited tort option has been affirmatively elected. We would also find, as a matter of law, that plaintiff has not presented evidence sufficient to demonstrate that the scar he allegedly sustained constitutes a “serious injury” in the form of a “serious permanent disfigurement” under the Pennsylvania Motor Vehicle Responsibility Law. Accordingly, we would hold that plaintiff’s claims are not recoverable, and would grant defendant’s motion for summary judgment.

We highlight the factual background reflecting that plaintiff filed a complaint alleging that as a result of the accident, he suffered severe injury, including scarring, and mental and emotional distress. Certainly plaintiff would claim that his injuries were caused by the operation of a motor vehicle, a significant factor in view of the majority’s analysis.

We also note, on the issue of plaintiff’s claims of injuries, that the record does not include any written discovery, depositions or affidavits. All that we know of plaintiff’s alleged injuries is offered by way of exhibit to defendant’s motion for summary judgment: an emergency department note relating to treatment of the plaintiff on October 8, 1997, notes of a history and physical examination, progress notes, an x-ray report, an operative report dated October 7, 1997, a discharge summary dated October 10,1997, and an undated copy of a photograph of plaintiff.

Because we would find that plaintiff is bound by the limited tort option, we would apply the traditional summary judgment analysis to determine whether the case is clear and free from doubt as to whether plaintiff sustained a “serious injury,” and find that he has not. See Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998).

A. As an “Insured,” Under His Father’s Policy, the Plaintiff-Pedestrian Is Bound by the Limited Tort Election

We feel it necessary to provide additional background regarding the Motor Vehicle Responsibility Law. The Pennsylvania Motor Vehicle Responsibility Law, 75 Pa.C.S. §1705 allows policyholders of private passenger motor vehicles to elect a limited tort option or a full tort option. An amendment of the MVFRL to include the option of tort election was one of the legislative attempts to reduce increasing insurance rates. The amendments, known as Act 6 of 1990, “made numerous changes to motor vehicle insurance law in Pennsylvania. These changes were made to redress what most observers believed were the root causes of the automobile insurance crisis — escalating health care costs and the increasing number of automobile tort lawsuits.” Berger v. Rinaldi, 438 Pa. Super. 78, 82, 651 A.2d 553, 555 (1994).

We do not believe, as the majority would suggest, that this court need enter into a causation analysis which excepts from the limited tort election “an insured” based upon his status as a pedestrian. Surely the injury of a pedestrian by a motor vehicle is not so remote a consequence of the operation of a motor vehicle to have been unintended by the legislature.

A person who has elected or otherwise bound by the limited tort option is precluded from maintaining an action for noneconomic losses unless he has suffered a “serious injury,” or statutory exceptions to limited tort applies. An insured who selects the limited tort option under the Motor Vehicle Financial Responsibility Law affirmatively agrees, in exchange for a lower premium rate, that any potential tort action for noneconomic damages is precluded where injuries are not serious. Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995). Section 1705 of the MVFRL provides for this election as follows:

“Notice To Named Insureds
“(A) ‘Limited, tort’ option — The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other members of your household covered under this policy may seek recovery for all medical and other out-of-pocket expense but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of ‘serious injury’ as set forth in the policy, or unless one of several other exceptions noted in the policy applies . ...” 75 Pa.C.S. § 1705(a)(1)(A).

The majority agrees that there is no difficulty in concluding that Matthew Andreyo was an “insured” on a limited tort policy. There is no dispute that his father, Joseph Andreyo, elected the limited tort option on his automobile insurance policy. There is also no dispute that Matthew Andreyo resided in his father’s household. Minor children residing in their parents’ household are subject to the same tort option as elected by their parents. See Hames v. Philadelphia Housing Authority, 696 A.2d 880 (Pa. Commw. 1997), appealed after remand, Hames ex rel. Hames v. Philadelphia Housing Authority, 737 A.2d 825 (Pa. Commw. 1999); Berger v. Rinaldi, 438 Pa. Super. 78, 651 A.2d 553 (1994). Further, section 1705(b)(2) of the Pennsylvania Motor Vehicle Financial Responsibility Law provides that “the tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.” 75 Pa.C.S. § 1705(b)(2). (emphasis added) The term “insured” includes those “residing in the household of the named insured, a minor in the custody of either the named insured or relative of the named insured.” 75 Pa.C.S. §1702. Therefore, because Joseph Andreyo was a named insured, and Matthew Andreyo was a minor residing in his household, Matthew Andreyo was an “insured” on the limited tort option policy purchased by his father.

We are perplexed by the majority’s recitation of the issue at hand. (More directly, were pedestrian accidents contemplated to fall within the purview of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq.?) We believe that the majority distorts the correct issue, that is, the applicability of the limited tort election to a pedestrian, by questioning at the outset whether the legislature contemplated that pedestrian accidents would fall within the purview of the MVFRL. We would point out that the language of both the full tort and limited tort provisions apply to losses “sustained in a motor vehicle accident as a consequence of the fault of another person pursuant to applicable tort law, ” in other words, causally related. See 75 Pa.C.S. § 1705(c) full tort alternative, and section 1705(d) limited tort alternative. We view the causation requirements the same under both full and limited tort. Accordingly, we do not believe it is appropriate or logical to undertake a separate analysis of causation under the limited tort option. There being no dispute that plaintiff claims that a motor vehicle caused his injuries, we look to the pivotal issue of whether plaintiff was an insured, so as to be bound by the election of the policyholder.

We further disagree with the majority’s suggestion that pedestrians are not bound by the limited tort option based upon the language of section 1705, which references application of the limited tort option to “injuries caused by other drivers.” While the majority points to such language to find that pedestrians are not drivers and therefore excepted from the limited tort election, illogically, it would not suggest that passengers, also not “drivers” are similarly excepted.

We also disagree with the conclusion that the limited tort option does not apply to pedestrians, based upon, inter alia, rules of statutory construction. We first look to the plain language of the statute. The MVFRL recognizes several exceptions to limited tort election, none of which apply here. This court may not read into the statute an exception which does not exist. “Exceptions expressed in a statute shall be construed to exclude all others.” 1 Pa.C.S. § 1924. Further, “[i]t is not within the province of this court to second-guess the legislature and to add words to a statute where the legislature has failed to supply them.” Guinn v. Alburtis Fire Co., 531 Pa. 500, 503 n.4, 614 A.2d 218, 220 n.4 (1992), citing, Kusza v. Maximonis, 363 Pa. 479, 482, 70 A.2d 329, 331 (1950); see also, O’Donoghue v. Laurel Savings Association, 556 Pa. 349, 357-58, 728 A.2d 914, 917-18 (1999). Accordingly, we must conclude that the legislature did not intend to exclude pedestrians from limited tort status.

We reject the conclusion that this issue, not yet decided by our appellate courts, should be governed by a purported legislative intent to “provide full tort coverage whenever there is a question of whether the full tort or limited tort option is applicable.” Because we rely upon a clear rule of statutory construction which precludes us from reading into the statute an exception for pedestrians which does not exist, we find it unnecessary to refer to broad statements as to legislative intent. See Washington v. Baxter, 553 Pa. 434, 442, 719 A.2d 733, 738 (1998). (“It is axiomatic that in construing statutory material, we first examine the language of the statute in question. If the language in question is unambiguous, we may not avoid its plain application under the pretext that we are remaining faithful to the legislature’s intent.”)

While no appellate cases have directly addressed whether the limited tort election applies to pedestrians, we find that several provide an instructive framework applicable to the issue. We would also follow the analyses of other common pleas decisions which we find most sound and logical. Based upon these, Matthew Andreyo’s status as an “insured” on an affirmatively elected limited tort policy, rather than his geographic position as a pedestrian, is dispositive of his claim.

The Superior Court has, in fact, applied limited tort status to a minor pedestrian whose parent affirmatively elected the limited tort option. In Murray v. McCann, 442 Pa. Super. 30, 658 A.2d 404 (1995), the Superior Court held sub silentio that the limited tort option applied to a pedestrian. The 17-year-old plaintiff in Murray was struck by a car while crossing a street. Her mother had chosen the limited tort option. Apparently finding no need for further discussion of the issue, the Superior Court stated that the mother’s choice of the limited tort option limited the plaintiff’s right to recover noneconomic losses. The court found that the trial court applied the correct legal standard in deciding that plaintiff did not suffer serious impairment of bodily function. Id. at 38, 658 A.2d at 408.

Two appellate cases cited as supportive of the proposition that a pedestrian is not subject to the restrictions of the limited tort option, in fact, lead us to the opposite conclusion. In both cases, the Superior Court looked to the plaintiffs’ status as an “insured” to determine whether they were bound by the limited tort option.

In Berger v. Rinaldi, 438 Pa. Super. 78, 651 A.2d 553 (1994), the Superior Court reversed the trial court’s decisión that the plaintiff, Mr. Berger, was bound by the limited tort option, finding that he was an “insured” on a full tort policy. In that case, Mr. Berger was a vehicle owner who failed to maintain financial responsibility as required by the MVFRL. At the time of the accident at issue, Berger was operating his mother’s vehicle, which carried the full tort option. Berger resided with his mother, and the parties stipulated that under the terms of the mother’s policy, he was an “insured.” The trial court found that because Berger failed to carry insurance, he was deemed to have chosen the limited tort option.

In reversing the trial court’s decision, the Superior Court looked to the parties’ stipulation that Mr. Berger was an “insured” on the mother’s full tort policy. The court also relied heavily upon 75 Pa.C.S. § 1705(b)(2) which provides, in relevant part, that “[t]he tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy . . . .” The plaintiff’s status was therefore governed by his designation as an insured on a full tort policy.

Also, in Ickes v. Burkes, 713 A.2d 653 (Pa. Super. 1998), the court looked to whether the non-driver plaintiff was an “insured” to determine her entitlement to limited or full tort status. In Ickes, the plaintiff, Mrs. Ickes was injured while riding as a passenger in a vehicle operated by the defendant Burkes, and owned by plaintiff’s husband, Mr. Ickes. Mr. Ickes’ vehicle was registered, but not insured, at the time of the accident. He was, therefore, “uninsured,” and deemed to have chosen the limited tort option by failing to insure his vehicle. 75 Pa.C.S. § 1705(a)(5). The appellant Burke argued that, therefore, Mr. Ickes became a “named insured” of a limited tort policy, and, accordingly, his wife, residing in his household, was an “insured” of a limited tort policy.

In rejecting this argument, the court looked closely at the statute’s use of the terms “named insured” and “insured.” The court refused to read into the statute language which did not appear, and held that because Mrs. Ickes was not an “insured” under any policy she was not bound by the tort option elected by a “named insured.” Id. at 656. Again, the Superior Court looked to whether the claimant was an “insured” on a limited tort policy.

In Berger and Ickes, the Superior Court based its determination of whether a plaintiff was bound by limited tort status upon whether that plaintiff was an “insured” on an affirmatively elected limited tort policy. Applying that analytical framework to the case at bar, we conclude that because Matthew Andreyo was an “insured” under the limited tort policy elected by the named insured, his father, Matthew Andreyo is bound by that election.

In reaching the conclusion that plaintiff is bound by the limited tort election, and not excepted by virtue of his status as a pedestrian, we also look to instructive common pleas decisions. While diversity exists among the holdings of other common pleas courts which have addressed this issue, several decisions provide sound analysis and guidance. In Leidy v. Hall, 77 Lancaster L.Rev. 561 (2001), the Lancaster County Court of Common Pleas held that the limited tort option applied to the personal injury claims of a pedestrian who made that election on his automobile insurance policy. The court rejected the plaintiff’s argument that he was not bound by that election because he was not occupying his vehicle at the time of the accident. In rejecting that argument, as well as plaintiff’s reliance upon two cases from Blair County, the court focused upon the plaintiff’s affirmative election of the limited tort option.

Also, in Eckler v. Watson, 29 Mercer L.J. 393 (2001), the court held that the limited tort election of the plaintiff’s husband applied to the pedestrian-wife plaintiff. The court noted that the exceptions to limited tort election set forth in the MVFRL do not include pedestrians. The court reasoned that, except where specifically stated, e.g. Pa.C.S. § 1705(a)(1)(A) and (B), the location of the injured party is not a factor. Id. at 399.

Similarly, in Spearman v. Rabe, 146 Pitts. L.J. 111 (Allegheny Cty. 1998), the Allegheny County Court of Common Pleas held that a plaintiff struck by a vehicle while directing traffic at a construction site was bound by his election of the limited tort option. The court looked to plaintiff’s election of that option as controlling, rather than his location as a pedestrian.

We would respectfully decline to follow cases of other common pleas courts which have reached the opposite result. In Stotler v. Bickel, 96 CP 519 (Blair Cty. slip op. 1998), the court held that the limited tort option did not apply to a pedestrian injured by a motor vehicle. In its opinion, the court relied upon Kafando v. State Farm Mutual Automobile Insurance Co., 704 A.2d 675 (Pa. Super. 1998), and Henrich v. Harleysville Insurance Companies, 533 Pa. 181, 620 A.2d 1122 (1993). Neither of those cases address the issue of limited tort status; Kafando involved a claim for first-party benefits, and Henrich a claim for uninsured motorist coverage. Accordingly, the analysis of the court in Stotler is not helpful to the matter sub judice.

Nor would we rely upon Baker v. Campbell, 98 GN 6518 (Blair Cty. 2000). In Baker, the court held that a pedestrian struck by a vehicle was not bound by his election of the limited tort option. In reaching its holding, the court relied upon its earlier opinion, Stotler, which we choose not to follow, and case law interpreting the definition of a “private passenger motor vehicle,” not at issue here. See Gettis v. Crawford, Schuylkill County, no. 513-1997 (February 4,1999). That court also looked to general rules of statutory construction which we do not find applicable.

Accordingly, we would find that where a pedestrian claiming injury is an “insured” under a policy for which there has been an affirmative election of the limited tort option, the injured pedestrian is bound by that election, and must prove a “serious injury” under the MVFRL in order to recover noneconomic damages.

B. As a Matter of Law, Plaintiff Cannot Demonstrate That He Has Suffered a “Serious Injury” Under the Pennsylvania Motor Vehicle Financial Responsibility Law

Based upon the standards governing grant of summary judgment, the factors enunciated in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), and review of the record before us, we would find that plaintiff has not adduced sufficient evidence to prove a “serious injury” and would grant summary judgment.

Review of defendant’s motion for summary judgment, as in all summary judgment cases, requires that we view the record in the light most favorable to the non-moving party, and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Washington v. Baxter, 533 Pa. 434, 441, 719 A.2d 733, 737 (1998), citing Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-45, 615 A.2d 303, 304 (1992). Pennsylvania Rules of Civil Procedure provide that the “record” includes any

“(1) pleadings,
“(2) depositions, answers to interrogatories, admissions and affidavits, and
“(3) reports signed by an expert witness that would, if filed comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories.” Pa.R.C.P. 1035.1 motion for summary judgment. Definition.

Further, “[i]n order to withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Washington v. Baxter, supra at 441, 719 A.2d at 737, citing Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

The record in this matter, relevant to the determination of whether plaintiff’s injury is “serious” as defined in the MVFRL, consists of an emergency department note, an operative report relating to irrigation, debridement and closure of plaintiff’s left knee laceration, progress notes, a discharge summary, and an undated photograph of plaintiff.

Plaintiff’s brief acknowledges that the scar, purportedly depicted in the photograph, is the sole injury at issue. Having determined that plaintiff is bound by the provisions of the limited tort option, we would next look to whether, based upon this record, the scar depicted in the photograph is a “serious injury.”

We believe that there is insufficient evidence upon which a jury could determine that plaintiff suffered a “serious injury.” The MVFRL defines “serious injury” as “a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702. The record in this case is insufficient upon which a jury could make that determination. In Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), in affirming the entry of summary judgment against a plaintiff claiming “serious injury,” the court addressed the type and quality of evidence which the plaintiff must adduce to withstand summary judgment. The Supreme Court stated therein, “[gjenerally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment____In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Washington, 553 Pa. at 447-48, 719 A.2d at 740, quoting DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 901 (1986).

The Washington court noted that documents relied upon by the plaintiff in responding to the motion for summary judgment, purportedly generated by a treating physician, were not sworn to, nor did they even bear the signature of the physician. Further, that record lacked an opinion of a physician rendered to a reasonable degree of medical certainty. Even considering the plaintiff’s own testimony as to the injury, the court found that the plaintiff failed to present sufficient evidence that would require the issue to go to a jury. Washington, 553 Pa. at 448-49, 719 A.2d at 741.

Applying those standards to the record before us, we believe that insufficient evidence exists upon which a jury could find that plaintiff sustained a serious injury, in this case, a permanent serious disfigurement. The record does not include the deposition or sworn statement of a physician, nor any medical opinion as to the permanency of the alleged scarring. In fact, none of the medical records produced reference a permanent scar, its dimensions, or prognosis for improvement. (Plaintiff asserts that the scar is “at least seven centimeters.”) (Plaintiff’s response to defendant’s motion for summary judgment, ¶6.) To submit the issue of “permanent disfigurement” to a jury would invite speculation. Further, no evidence appears of record as to the date of the photograph allegedly depicting the scar. The record does not include a deposition of the plaintiff; because plaintiff is deceased, the jury would have no opportunity to see the alleged injury. Even viewing that photograph, and all other evidence of record, in a light most favorable to the plaintiff, we believe that it is inadequate to support a finding of a permanent serious disfigurement. Accordingly, plaintiff could not prove a cognizable claim for noneconomic damages, and we would grant defendant’s motion for summary judgment.

For all of the foregoing reasons, we dissent from the decision of the majority.

        .(d) Limited tort alternative — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the in

        jury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss, except that:
      “(1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault
      “(i) is convicted or accepts accelerated rehabilitative disposition for driving under the influence of alcohol or a controlled substance in that accident;
      “(ii) is operating a motor vehicle registered in another state;
      “(iii) intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or
      “(iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage).” 75 Pa.C.S. §1705. (emphasis added)
      “Serious injury” is defined in 75 Pa.C.S. §1702: “A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement.”

      . We agree with the dissent that Matthew’s injuries were not “serious” as a matter of law and that, if the MVFRL were applicable, he would fall within the ambit of an “insured.”

      . Noneconomic loss is defined as “pain and suffering and other nonmonetary detriment.” 75 Pa.C.S. §1702.

      . The Motor Vehicle Financial Responsibility Law defines “serious injury” as “a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702.

      . “(1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as a consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault:
      “(i) is convicted or accepts accelerated rehabilitative disposition for driving under the influence of alcohol or a controlled substance in the accident;
      “(ii) is operating a vehicle registered in another state;
      “(iii) intends to injure himself or another person .. .; or
      “(iv) has not maintained financial responsibility as required by this chapter...;
      “(2) An individual otherwise bound by the limited tort election shall retain full tort rights with respect to claims against a person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles arising out- of defect of such motor vehicle which is caused by or not corrected by an act or omission in the course of such business other than a defect in a motor vehicle which is operated by such business.
      “(3) An individual otherwise bound by the limited tort election shall retain full tort rights if injured while a passenger of a motor vehicle other than a private passenger vehicle.” 75 Pa.C.S. §1705(d)(l)-(3).

      . Baker v. Campbell, 98 GN 6518 (Blair Cty. 2000), and Stotler v. Bickel, 96 CP 519 (Blair Cty. slip op. 1998).


source: Caselaw Access Project

author: SHEPPARD JR., J.,

license: Public Domain

text:
    Tesauro v. The Quigley Corporation

      Mark H. Edelson, for plaintiffs.

      John P. McShea, for defendant.
    August 14, 2002
   SHEPPARD JR., J.,

This opinion addresses the proposed class notification procedure and forms of notice pertinent to this pending class action by named class representative plaintiffs, Jason Tesauro and Elizabeth Eley, against defendant, The Quigley Corporation. For the reasons discussed, the proposed notification procedures and proposed forms of notice submitted by both plaintiffs and defendant are disapproved, in part. The parties are directed to redraft proposed notification procedures and forms of notice consistent with this opinion’s instructions.

BACKGROUND

The case background is set forth in the court’s opinion granting plaintiffs’ motion for certification as to the claims for breach of the implied warranty of merchantability and unjust enrichment, but not as to claims under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL). Tesauro v. The Quigley Corp., August Term, 2000, no. 1011 (C.P. Phila. Jan. 25, 2002). Briefly, the class is designated as all persons who, between August 15, 1996 and November 20, 1999 (the class period), purchased defendant’s Cold-Eeze zinc lozenges. Id. at ¶2. The certified claims are based on the assertion that defendant’s Cold-Eeze product was not merchantable, malfunctioned in some manner or suffered from a defect and that defendant received an unlawful premium paid by consumers of Cold-Eeze.

The parties submitted similar proposed notices with certain differences as to the scope of the class, the opt-out provisions and the explanation of the nature of the claims. The parties also differ as to the notification procedures. This opinion addresses both the inadequacies of the proposed forms of notice and the proper notification procedures.

DISCUSSION

I. Notification Procedures

Rule 1712 of the Pennsylvania Rules of Civil Procedure sets forth the provisions for providing notice to members of a certified class. Specifically, subsection (a) of this Rule states, in pertinent part, that:

“In determining the type and content of notice to be used and the members to be notified, the court shall consider the extent and nature of the class, the relief requested, the cost of notifying the members and the possible prejudice to be suffered by members of the class or by other parties if notice is not received. The court may designate in the notice a person to answer inquiries from, furnish information to or receive comments from members or potential members of the class with respect to the notice... .” Pa.R.C.P. 1712(a).

Further, individual notice by personal service or by mail may be required where members can be identified with reasonable effort. Pa.R.C.P. 1712(b). The rule also provides that where members of the class cannot be identified with reasonable effort, “the court shall require notice to be given through methods reasonably calculated to inform members of the class of the pendency of the action.” Id. These methods may include newspaper, television, radio or distribution through a trade, union or public interest group. Id. Further, pursuant to the rule, plaintiff bears the expense of providing notice to the class, though “[t]he court may require a defendant to cooperate in giving notice by taking steps which will minimize the plaintiff’s expense including the use of the defendant’s established methods of communication with members of the class.” Pa.R.C.P. 1712(c). Notwithstanding, plaintiff must pay any additional costs incurred by defendant in using its methods of communications in giving notice to members of the class. Id.

Here, plaintiffs propose a dual-track method of providing notice through pubhcation to members of the class: (1) to post an appropriately worded notice on defendant’s web site maintained at www.quigleyco.com; and (2) through print pubhcation in a magazine or journal of prominent national circulation. Pis. proposed notification procedure, at 3-4. Defendant, in turn, asserts that use of its web site is not a proper notice method because there is no evidence that any class members who purchased Cold-Eeze and found it to be defective ever used defendant’s web site, and the named plaintiffs had not seen the Internet “advertisements” alleged in the complaint. Def. proposed notification procedure, at 5. Rather, defendant contends that individual notice could be accomplished by the list maintained by defendant of the approximately 100 people who returned Cold-Eeze because they were dissatisfied. Id. at 6.

The cases relied upon by plaintiffs do not support publishing notice on defendant’s web site. For instance, plaintiffs cite Greer v. Shapiro & Kreisman, 2001 WL 1632135 (E.D. Pa. Dec. 18, 2001), which allowed for individual notification by first-class mail to those members readily identifiable and additional notification by pubhcation through print media outlets such that the pubhcation is targeted at Pennsylvania residents determined to be a member of the class. 2001 WL 1632135, at *6. Other cases cited by plaintiffs support pubhcation of the notice to potential class members via the Internet, but none of these cases require notice to be placed on defendant’s web site. See In re Aetna Inc., 2001 WL 20928, *5 (E.D. Pa. Jan. 4, 2001) (class notice sent to identifiable individuals and companies, coupled with summary notice in the national edition of the Wall Street Journal and on the Internet through the Business Wire deemed appropriate means to meet due process); Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461, 472 (E.D. Pa. 2000) (holding that individual notice via first-class mail, together with newspaper and Internet publication will satisfy the notice requirement of Fed.R.C.P. 23.); In re California Micro Devices Corp. Securities Litig, 2001 WL 765146, *1 (N.D. Cal. June 4, 2001) (notice through individual mailings, the Wall Street Journal and broadcast to the Internet).

Moreover, plaintiffs’ proposed publication of notice on defendant’s web site may be targeting shareholders to achieve a negative reaction or to otherwise prejudice defendant, rather than to provide notice to class members. It is true that there is a link on defendant’s home page at www.quigleyco.com, relating “where to buy Cold-Eeze,” but there is no concrete evidence that any potential member of the class bought Cold-Eeze through the defendant’s web site. Absent such evidence, the potential prejudice to defendant outweighs plaintiffs’ desire to minimize the expense of sending notice through defendant’s established methods of communication as provided in Pa.R.C.P. 1712(c).

Further, individual notice through first-class mail could be accomplished as to the list of people maintained by defendant who were dissatisfied with Cold-Eeze. As to other members of the class, notice could be accomplished through publication in a national journal or magazine and through publication over a news service on the Internet. In accord with Pa.R.C.P. 1712(c), plaintiffs must bear the expense for providing notice to other class members whether through individual notice or through news services or other media.

In addition, the court does not find persuasive defendant’s contention that notification by national print publication is unwarranted. The class, as defined by the order of January 25, 2002, includes all purchases of Cold-Eeze through the class period, which implicitly includes both residents and nonresidents of Pennsylvania. The court is empowered to certify nationwide classes provided that residents and nonresidents of the forum state receive notice which complies with the requisite constitutional due process. See Phillips Petroleum v. Shutts, 472 U.S. 797, 811-12 (1985) (setting forth the constitutional boundaries for nonresident notification and allowing an “opt-out” procedure as to absent plaintiffs who were otherwise members of the class); Parsky v. First Union Corp., February term 2000, no. 771, slip op. at 5-7 (C.P. Phila. August 17, 2001) (applying Shutts and allowing for an “opt out” procedure for nonresident class members where Pennsylvania has the most significant relationship to the action). Here, notice by publication through national print media or over the Internet would meet the requirements of due process provided the form of notice was properly worded.

II. Form of Notice

In addition to the mandates set forth in Rule 1712, our Superior Court states that:

“Notice in a class "'suit must present a fair recital of the subject matter and proposed terms and inform the class members of an opportunity to be heard.... It ‘may consist of a very general description of the proposed settlement, including a summary of the monetary or other benefits that the class would receive and an estimation of attorneys’ fees and other expenses.’ ... The notice need not provide a complete source of settlement information, and class members are not expected to rely upon the notices as such.” Fischer v. Madway, 336 Pa. Super. 289, 293-94, 485 A.2d 809, 811 (1984). (citations omitted)

Here, both plaintiffs and defendant submitted proposed forms of notice which were in a single paragraph form. In accord with Rule 1712(a), both forms of notice designate to whom inquires may be made and give a cursory explanation of the nature of the class action. Both proposals also include one to two sentences on “opt-out” provisions. The main differences between defendant’s proposed form and plaintiffs’ proposed form are that defendant limits the membership of the class to Pennsylvania residents, defendant limits the members of the class to those individuals which found that the product malfunctioned or suffered a defect and defendant qualifies the “opt-out” procedures in a different manner from plaintiffs.

In examining both proposed forms of notice, the court finds them inadequate and vague. It is true, as proposed by defendant, that the notice should explain the nature of the claim in a more detailed manner, i.e., to relate that members of the class would include those purchasers of Cold-Eeze who suffered from a defect or that the product did not work as warranted or was not merchantable. However, neither proposed form sufficiently sets forth the nature of the claim. Also, the opt-out procedures have to explain more fully the consequences of failure to opt-out of the class, i.e., that failure to opt-out of the class would limit any recovery to that achieved by the class and bar any individual action. The notice should also clarify the timing for the operation of the opt-out procedures. Moreover, the form of notice would be clearer if it had enumerated paragraphs with subheadings to address each topic, i.e., the nature of the claim, identification of the class members, the opt-out procedures, who to contact for inquires, how to raise objections, timing for making such objections, the court’s class action mling, future proceedings, etc. Absent these changes, the court does not deem the proposed notice to class members sufficient to meet the requirements of Rule 1712.

CONCLUSION

For these reasons, this court is issuing a contemporaneous order denying approval of the proposed form of notice and denying plaintiffs’ request to publish notice on defendant’s web site. The court also directs both parties to submit new forms of notice consistent with the instructions discussed.

ORDER

And now, August 14, 2002, upon consideration of plaintiffs’ proposed form of notice and notification procedures to members in this pending class action, defendant’s proposed form of notice and notification procedures to class members, all other matters of record and in accord with the opinion being filed contemporaneously with this order, it is ordered that the proposed notification procedures and proposed forms of notice are disapproved, in part. The plaintiffs’ request to publish on defendant’s web site is denied. The parties are further ordered to submit new forms of notice to be consistent with the court’s instructions within 22 days of this order.

      . Available at http://courts.phila.gov/cptcvcomp.htm. Other opinions, providing more background in this case, were issued on April 9, 2001, and July 9, 2002, and are also posted at the court’s web site.

      . Neither plaintiffs’ nor defendant’s proposals were filed or docketed.

      . Opinion is available at http://courts.phila.gov/cptcvcomp.htm.


author: FORD, J.,

text:
    West Park Civic Association v. Zoning Hearing Board of the City of Allentown

      C.P. of Lehigh County,
    nos. 2001-C-2399 and 2001-C-2406.

      Maryesther S. Merlo, for appellant West Park Civic Ass’n.

      Henry S. Perkin, for appellant Bayham Antiques. Frances A. Fruhwirth, for appellee Z.H.B.

      Neil D. Ettinger, for intervenor Grace United Evangelical Church.

      Francis P. Burianek, for intervenor City of Allentown.
    June 27, 2002
   FORD, J.,

These consolidated zoning appeals raise interesting issues about the continued use of an architectural treasure in the City of Allentown, Grace United Evangelical Church, a neo-Gothic edifice located at 15th and Turner Streets.

Bayham Antiques Ltd. tendered a proposed written agreement of sale to Grace United Evangelical Church, the present owner of the building and lot, to buy the property for $300,000. The proposed agreement was accompanied by a down payment of $30,000. Bayham wants to use the church as a fine art antique business. The property is located in a medium high density residential district. A church is a permitted use in this district but an antique business is not. Accordingly, Grace Church and Bayham filed a zoning application for a variance. It was denied by the zoning officer. Grace Church and Bayham appealed to the zoning hearing board of the City of Allentown which granted the variance.

One of the objectors at the hearings before the board was one of the appellants herein, West Park Civic Association, which describes itself as a non-profit community group with a mailing address only a few doors from the church. West Park presents various reasons as to why the variance should have been denied, and we will address each of those below. Bayham also appealed the decision of the board on the basis that conditions placed upon the grant of the variance were unreasonable.

We begin by discussing our limited scope of review. In an appeal from a zoning board decision where, as here, no additional testimony or evidence is taken, our review is limited to determining if an error of law or an abuse of discretion occurred. East Torresdale Civic Association v. Zoning Board of Adjustment, 536 Pa. 322, 325, 639 A.2d 446, 448 (1994). An abuse of discretion can only be found if a board’s findings are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support its conclusion.” Id.

After our review of the record and the excellent briefs and arguments of the attorneys, we conclude that the board acted in accord with its authority in case 2001-C-2399 so we deny West Park’s appeal. We grant the appeal in case 2001-C-2406 by remanding to the board for clarification of a point and by our correcting an ambiguity in a provision of the board’s order on a separate issue.

PROCEDURAL HISTORY

The zoning hearing board conducted hearings on Grace Church’s and Bay ham’s request for a variance on June 4, and June 25, 2001. The transcripts of those hearings are part of the record. The board met again on July 23, 2001, to decide the request for zoning relief. By a two to one vote, it granted the variance with conditions attached. Its written decision is dated August 8,2001, and includes findings of fact. Under the board decision, Bayham may convert the church into a wholesale antiques dealer shop.

On September 7, 2001, West Park appealed the grant of the variance to us (2001-C-2399). Grace Church and Bayham intervened in this appeal.

The board attached six conditions to the grant of the variance. Only the fifth and sixth conditions were challenged by Bayham in the appeal to us that it filed on September 7,2001. The City of Allentown intervened in this appeal. Condition five reads: “The cultural events will be by invitation only and shall not exceed four per year.” Condition six reads: “The number of individuals who will come by appointment to the premises shall not exceed three to five per week.”

We consolidated the two cases by our order of February 12, 2002.

On February 12, final argument on the consolidated appeals was conducted. We have reviewed the substantial record developed before the board. As stated previously, the record developed before the board was not supplemented with evidence taken before our court. We now explain the reasons for our ruling. The facts stated in the discussion which follows are gleaned from the board’s findings of fact and transcribed notes of testimony.

DISCUSSION AND CONCLUSIONS OF LAW

Construction on the church began in 1905 and was finished in 1922. The church has the capacity to hold up to 400 people. No off-street parking is or ever has been available for the use of the church.

The area surrounding the church is primarily residential. There are a number of commercial uses in the immediate vicinity of the church including a pizza shop, a steak shop, a laundromat and funeral homes.

Church membership has dwindled over the years. In the 1960s, membership was almost 500 people. In the 1980s, the membership was between 150 and 160 people.

Even in the 1980s, with the lower membership, the church was used almost daily. There were Sunday school, church services, choir practice and youth activities. Many of the people who attended the activities used vehicles. Use of the church on Sundays was particularly intensive and involved as many as 40 to 50 vehicles. During the holiday season, church use was also intense and produced congestion on the streets near the church.

In 1994, Grace Church took formal action to sell the building to move to a new location. The property was initially listed for $650,000. One indicator of the value of the property was the securing of insurance for the church in 1999 with a replacement cost determined to be $3,431,790.

The findings of fact chronicle the aggressive and meaningful efforts made in succeeding years to sell this property. Thus, in 2000, the asking price was reduced to $350,000.

In approximately 1999, Grace Church vacated the property and began leasing it to other congregations. At one time, there were four congregations which simultaneously occupied the site. One of the tenants is known as the Church of God.

The property has an outstanding mortgage balance of approximately $238,000. The mortgage was created so that the property could be used as collateral for other property bought by Grace Church in Whitehall Township for its new church. In addition to servicing this mortgage, Grace Church pays all costs of maintaining the building including heating, electric, insurance, gas and water. These costs total approximately $1,000 per month. These costs are not the responsibility of the tenants.

The Church of God expressed interest in purchasing the property. Although the asking price at the time of inquiry from the Church of God was $350,000, Grace Church indicated that it would consider a $300,000 offer if it included a deposit. A formal offer and deposit were never submitted by Church of God.

A formal offer was submitted for the purchase of the property by Bayham. The offer was for $300,000 and was accompanied by a cash deposit.

Finding of fact 30 summarizes this marketing experience for Grace Church.

The offer of $300,000 by Bayham Antiques was the only bona fide offer ever received for the purchase of this structure in the six years in which it has been listed for sale, notwithstanding the fact that the broker had contacted between 50 and 100 churches for the purpose of selling the property as a church.

Bayham intends to refurbish the exterior and interior of the property. The design of the exterior will remain as it always has been. The only significant change to the interior of the church will be the removal of church pews which will be stored in the basement.

Bayham will use the building to display fine antique items. This will not be a retail business and will not be open to the general public. Viewing of the antique items will be by invitation only. Bayham estimates that three to five individuals per week will come to the premises to view the antiques. Approximately four times per year Bayham plans to have cultural activities take place at the building. It is anticipated that 100 to 150 people will attend these functions.

In addition to the four cultural events each year, Bayham proposed to hold four receptions per year, which will occur when prospective purchasers are invited to view a large collection of art work. It is anticipated that no more than 100 people will attend each of these receptions.

The cultural events will be held from 5 p.m. to 8 p.m. on designated evenings. The receptions would be held from 6 p.m. to 9:30 p.m. on designated evenings.

The board approved Bayham’s request for four cultural events per year which must be by invitation only. However, the board, in its opinion and order, is silent in regard to the request that Bayham be permitted to have four receptions per year.

According to the testimony, the original stocking of the church building, under Bayham’s plans, will generate additional traffic in the area. However, the delivery and pick-up of items after that will occur no more than two times per week. Automobiles, sport utility vehicles or small vans will be used for the routine delivery and pick-up of items after the initial stocking.

A number of years ago, the City of Allentown designated a 30-foot area on 15th Street (in front of the church, 15 feet from the intersection) as a pick-up and drop-off zone. This pick-up and drop-off zone will be used to transport art work. In addition, pick-up and delivery of art work can occur in the alley behind the church (Newton Street), where the pick-up and delivery of other items for the church has occurred for many years.

Bayham has restored three other buildings, two of which were formerly churches. Photographs of the refurbishing work done by Bayham on the other structures were introduced into evidence.

Bayham also proposes a dwelling unit be constructed in the church for a caretaker for the property. This request was approved by the board. However, the board provided that no rent shall be charged for the dwelling unit and no portion of the premises may be leased to another entity.

In taking its appeal, West Park argues that the board committed an error of law in granting the use variance to Grace Church and Bayham. We conclude that the board’s findings of fact are supported by substantial evidence and an error of law was not committed in granting the variance.

Grace Church and Bayham require a use variance in order to proceed with its proposal because the use of the church building as a fine arts antique business is not permitted in this medium high density residential district. A dimensional variance from the off-street parking requirements of the zoning ordinance will also be required for Bayham’s proposed use. The zoning ordinance requires eight off-street parking spaces but no off-street parking spaces are available. We first address the use variance and then the parking issue.

The type of use variance sought by Grace Church and Bayham is actually a “validity variance.” A party who questions the substantive validity of a zoning ordinance, while requesting a variance from the provisions of the ordinance, seeks a validity variance. A validity variance differs from the normal variance in that the normal variance is granted to adjust the zoning regulation to a particular property. A validity variance is granted where the zoning regulation is restrictive to the point of confiscation and a variance is necessary to permit a reasonable use of the land. In order to obtain a validity variance, the applicant must establish (1) the effect of the regulations complained of is unique to the applicant’s property and not merely a difficulty common to other lands in the neighborhood and (2) that the regulation is confiscatory to the point that it deprived the owner of a reasonable use of the property. An applicant for a validity variance can establish the confiscatory nature of the zoning ordinance by proving that the land has no value or only distress value as a result of the regulation. Shohola Falls Trails End Property Owners Association Inc. v. Zoning Hearing Board of Shohola Township, 679 A.2d 1335 (Pa. Commw. 1996), alloc. denied, 548 Pa. 651, 695 A.2d 788 (1997); Hersh v. Zoning Hearing Board of Marlborough Township, 90 Pa. Commw. 15, 493 A.2d 807 (1985); Somerton Civic Association v. Zoning Board of Adjustment, 94 Pa. Commw. 271, 503 A.2d 500 (1986); East Torresdale Civic Association v. Zoning Board of Adjustment, 85 Pa. Commw. 12, 481 A.2d 976 (1984); In re Appeal of deBotton, 81 Pa. Commw. 513, 474 A.2d 706 (1984).

The party who seeks the validity variance, a declaration that an otherwise valid ordinance is confiscatory when applied to a particular tract of land, must also comply with the statutory requirements for a variance under the Pennsylvania Municipalities Planning Code (MPC). Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 81 Pa. Commw. 7, 473 A.2d 706 (1984), aff’d, 507 Pa. 481, 491 A.2d 86 (1985); Appeal of Walter C. Czop Inc., 43 Pa. Commw. 499, 403 A.2d 1006 (1979); A & D Inc. v. Zoning Hearing Board, 32 Pa. Commw. 367, 379 A.2d 654 (1977).

Section 10910.2 of the MPC, 53 P.S. §§10101-11202, requires proof that:

“(1) The property has unique physical characteristics;
“(2) There is no possibility of development under the ordinance;
“(3) The unnecessary hardship was not created by the applicant;
“(4) The variance will not alter the essential character of the area; and
“(5) The variance is the minimum necessary for relief.”

To the board’s credit, it engaged in the proper analysis. It first inquired whether the burden of proving a legal hardship, that is, whether the regulation confiscates property, was sustained. It then analyzed the traditional criteria for a variance. It found that a legal hardship has been proven. We quote from the board’s opinion to explain the decision that it reached.

“Over a seven-year period, despite repeated exposure to churches, no churches were in a position to make a bona fide offer for the property. Through the date of the hearing there was never a firm offer by any church to purchase the property. The board is placed in the position of determining whether or not because of the physical characteristics of this building it has become impossible for the owner of the building to sell the property as a church or to use the same for a permitted use.

“There is a difference between selling the property as a church and giving the property away. Grace Church should not have its property in effect confiscated because it cannot locate a church who will make a bona fide offer to purchase the property at a reasonable price. The board is of the opinion that after seven years, because of the unique configuration of this particular structure, a hardship has been established which would permit Grace Church to sell the property for a use other than a church use. To deny this application would be tantamount to confiscating this particular property. There has been more than ample time to sell the property as a church and there simply have been no bona fide offers for the purchase. A fair market value of the property value has been established at approximately $300,000 as indicated by the bid which was received. The cost to maintain the property is approximately $1,000 per month exclusive of debt service. It would be unjust to require the Grace Church congregation to continue to bear the cost of maintaining this building when there appears to be no bona fide offer from a church to purchase the building. In the absence of a bona fide offer, it is the board’s opinion, after weighing all the facts in this case, the applicants met the burden of proving a legal hardship.”

Would a firm offer with a down payment ever come from the Church of God? The board reasonably concluded that Grace Church did not have to wait any longer after all of those years of trying to sell the property for further church use. Besides, if the offer from Church of God materialized, it would have been a distress sale based upon the testimony pertaining to the value of the property. The board’s conclusion that enforcement of the zoning regulation without a variance would be confiscatory based upon substantial evidence and was not legally improper.

We move then to consideration of the statutory requirements for a variance under the MPC. Of those that we have listed, West Park only challenges the third of the five requirements, namely, that the unnecessary hardship was not created by the applicant. According to West Park, Grace Church created its own hardship, namely, the possibility of a distress sale. West Park argues that it is improper to consider the $238,000 outstanding mortgage on the property because that burden was unnecessarily created by Grace Church so it had collateral for the purchase of the property for the new church. Also, West Park points to the monthly expenses that Grace Church must pay to maintain the property as an aspect of the alleged self-created hardship. It argues that the failure to sell the property at an earlier date is a function of the listing price’s far exceeding the market value. Finally, it argues that the listing itself falsely advertises by stating that the property is “ready immediately for many purposes.”

It was a proper exercise of discretion for the board not to conclude that the hardship was self-imposed. The purchase price of the property was gradually reduced to the point that Grace Church is willing to sell for a price more than 50 percent less than the original asking price. While we do not have an appraisal of the property in evidence, we do know its replacement value and there is substantial evidence about the quality, appearance and artistic selling points of this building. There is no evidence that the property was marketed for more than its fair market value. Rather, there is substantial evidence before the board for it to conclude that market value was not exceeded by the asking price, particularly the $300,000 asking price. The evidence sets forth many factors to convey to the board the value of this property and to conclude, as it has done, that the rejection of the $300,000 offer, for zoning reasons, would be to place the property in jeopardy of an eventual distress sale. These points raised by West Park are trivial in comparison to the concern about a sale.

We parenthetically note that we do not understand how Grace Church’s meeting its monthly obligations by the payment of the expenses associated with the property could be classified as self-created hardship. Likewise, there is neither evidence nor convincing argument that a listing which read that the property is “ready immediately for many purposes” is misleading.

The next argument by West Park is that the board committed an error of law in not specifically addressing article 1321.03 of the zoning ordinances of the City of Allentown. Article 1321.03A reads:

“Every building or structure having over 4,000 square feet of building area used for business, trade or industry and other uses involved in large volume receipt and distribution by vehicles of materials and merchandise shall provide space as herein indicated below for the loading and unloading of vehicles off the street or public alley. Such space shall be located to minimize conflicts with traffic along public streets and with dwellings.”

Article 1321.03E reads:

“Off-street loading and unloading space shall be in addition to and not considered as meeting a part of the requirements for off-street parking space.”

Although the board did not specifically refer to article 1321.03, it is undisputed that there was extensive testimony about the concerns addressed in that article. The board knew the volume and nature of the proposed drop-off and pick-up of materials to be done at this site. The board knew of the space designated on 15th Street which is available for this purpose as well as the past use and proposed use of Newton Street for these purposes. Thus, the record supports compliance with article 1321.03, without the need for a variance from that article.

The concerns of article 1321.03 were addressed through the testimony. That the article is not specifically mentioned in the order or opinion of the board is not reason to invalidate this authorized discretionary action by the board.

Although West Park did not brief the MPC’s fourth requirement that the variance will not alter the essential character of the area and although this argument is therefore waived by West Park, the board’s views on this subject are noteworthy.

“The board is of the opinion that this proposed use with conditions is an extremely minimal commercial use of this particular property. The exterior of the building will remain the same and in fact be improved. The interior of the building will remain the same or in fact be improved. There is little or no vehicular traffic involved with this proposed activity. The activity is not open to the general public. When comparing the impact that the proposed use has on traffic, parking and congestion in the area, it is clear that the new use will be no more detrimental to the public health, safety and welfare than the previous use of this building. While the use is a business use, it is a minimal business use. The use is the minimum variance which would afford relief and represents the least modification possible in the granting of this application.”

On several points, West Park relied heavily upon the dissenting view of the chairman of the board, Attorney Paul Laubner. The position of Attorney Laubner does not appear in the order or opinion, but he made an extensive statement on July 23, 2001, when the board met to reach its decision. Included in his comments was this:

“Quite frankly, I think probably the antique business would be less burdensome on the neighborhood than a church because of the number of people who will be using that facility compared to the number of people that will be using the church.” Notes of testimony, 7/23/01, p. 11.

West Park’s last challenge is to the notice of public hearing which West Park argues is deficient for failure to indicate that Grace Church and Bayham are requesting a variance from article 1321.03. For several reasons, the action of the board will not be set aside for alleged failure to provide a proper notice.

First, as we have indicated, under the evidence, there was no requirement for a variance from article 1321.03 because there is space for the loading and unloading of vehicles.

Next, “the purpose of a zoning board hearing notice is to inform potential protestants of the general nature of the application.” In re Appeal of Booz, 111 Pa. Commw. 330, 335, 533 A.2d 1096, 1098 (1987) (emphasis in original); Holmes v. Board of Zoning Appeals, 130 Pa. Commw. 349, 568 A.2d 301 (1990), alloc. denied, 527 Pa. 620, 590 A.2d 760 (1990).

Our review of the notice indicates that it provided potential protestants of the general nature of the application. Forty-five objectors were present at the June 4,2001 hearing and 26 objectors were present at the June 25, 2001 hearing. Information was given that Grace Church and Bayham were requesting permission to change the use of the property from a church to a fine art antique business and that a further variance from off-street parking requirements was necessary. Thus, potential protestants were advised of the general nature of the application with this notice.

Finally, we have the appeal by Bayham. There is merit to this appeal on the two points that are raised. However, we do not provide the exact relief that is requested.

Included in Bayham’s proposed use of the property was up to four “cultural events” per year and up to four “receptions” per year. The board decision addresses the cultural events by allowing up to four per year by invitation only. There is no comment by the board about “receptions.” As pointed out by counsel for Bayham, there is the possibility that the board believed receptions were the same as cultural events. Accordingly, we remand only this issue to the board for further hearing or deliberation as it sees fit to address whether Bayham should also be permitted receptions in addition to the four cultural events that are authorized each year. Of course, the board should take into consideration the extensive testimony about the impact, whatever that may be, that this business will have on the neighborhood and the conclusions already reached by the board in that regard.

Bayham is correct that the sixth condition placed on the variance by the board is ambiguous. It reads: “The number of individuals who will come by appointment to the premises shall not exceed three to five per week.” We remove the ambiguity by restating this condition as follows: “The number of individuals who will come by appointment to the premises shall not exceed five per week.”

ORDER

Now, June 27, 2002, after consideration of the record developed before the Zoning Hearing Board of the City of Allentown in these consolidated appeals, the briefs and arguments of the attorneys, and for the reasons set forth in the accompanying opinion, it is hereby ordered as follows:

(1) The appeal of West Park Civic Association in case 2001-C-2399 is denied in its entirety.

(2) The appeal of Bayham Antiques Ltd. in case 2001-C-2406 is granted in part and denied in part as follows:

(A) This matter is remanded to the Zoning Hearing Board of the City of Allentown for further deliberations to determine whether the variance granted to Bayham Antiques Ltd. includes authorization to conduct up to four receptions per year in addition to the already authorized four cultural events per year.

(B) Condition six stated in the zoning hearing board’s order of August 8, 2001, is stricken and is replaced by the following: “(6) The number of individuals who will come by appointment to the premises shall not exceed five per week.”