Pennsylvania Commonwealth Reports
DAVIDOW v. DOMINIC ASPITE, 817 C.D. 2005 (Pa.Commw.
12-19-2006) Rittenhouse Row and Don Davidow v. Dominic
Aspite, 1420-22 Chestnut Street Associates and the Zoning
Board of Adjustment of the City of Philadelphia. No. 817
C.D. 2005. Commonwealth Court of Pennsylvania. Submitted:
June 7, 2006. Filed: December 19, 2006.
Appeal of Dominic Aspite and 1420-22 Chestnut Street
Associates.
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A.
SMITH-RIBNER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE
ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge.
OPINION BY
JAMES GARDNER COLINS, President Judge.
Dominic Aspite and 1420 Chestnut Street Associates
(collectively, Aspite) appeals from an order of the Court
of Common Pleas of Philadelphia County (trial court), which
reversed a decision of the Philadelphia Zoning Board of
Adjustment (ZBA) granting his application for a use
variance. Aspite questions whether the trial court erred in
concluding that he failed to establish a hardship.
Discerning no error, we affirm the trial court’s order
reversing the ZBA.
At issue is the permitted use of the first floor of a
multi-story structure located at 1420-22 Chestnut Street
(property). The property is located within a C-4 commercial
use area in the City of Philadelphia and falls under the
protective umbrella of the Center City Overlay.[fn1] The
Overlay is a creature of an Ordinance that when first
enacted in 2000 pertained exclusively to the Rittenhouse
Row area, and through subsequent amendment has been widened
to include Chestnut Street between Broad and Twentieth
Streets. Philadelphia City Council enacted the Overlay to
maintain the existing character of a designated area, to
attract and promote certain specialty retailers, and to
encourage the retailers to locate within a designated area.
Philadelphia Zoning Code § 14-1607.1(1)(a). The
Overlay regulates the use of a building.
Section 14-1601.1 of the Philadelphia Zoning Code
[Rittenhouse Overlay] provides in pertinent part:
(2) Uses Prohibited on the Ground Floor
. . . .
(c) Manicure/nail salon;
(d) Retail sales of drugs;
(e) Retail sales of general merchandise;
(f) Retail sales of groceries;
. . . .
(j) Retail sales of variety store merchandise.
Section 14-1607 of the Philadelphia Zoning Code [Center
City Overlay] states in pertinent part:
(3) Prohibited Uses. In any building or upon any land
abutting Chestnut Street or Walnut Street between Front
Street and the Schuylkill River and Broad Street between
South Penn Square and Washington Avenue and Market Street
between Front Street and Fifth Street, the following uses
shall be prohibited:
(a) Amusement arcades;
(b) Any use regulated by Section 14-1605, Regulated Uses;
(c) Car wash;
(d) Hand laundry;
(e) Non-accessory or outdoor advertising signs;
(f) Open air parking lots;
(g) Outdoor sales or storage including outdoor use of
coin operated machines which dispense food or drink, but
not including open air cafes within the property line and
not including any open air cafes on Broad Street between
South Penn Square and Washington Avenue;
(h) Parking as the sole use of a property;
(i) Repair of motor vehicles;
(j) Restaurants, cafes, coffee shops and other similar
establishments for the sale and consumption of food and/or
beverages, with drive-in or take-out service (sale of food
and/or beverages to be consumed outside the confines of
the premises); provided that take-out restaurants with a
minimum of 20 seats for indoor dining of patrons shall not
be prohibited along Market Street between Front Street and
Fifth Street. . . .
In early 2004 Aspite applied to Philadelphia’s Department
of Licenses and Inspections (L & I) for a use variance
seeking to lease the first floor of the property to
7-Eleven. L&I denied the request based on its determination
that 7- Eleven was a convenience store and was not a
permitted use within the Overlay district. Aspite appealed
that decision to the ZBA contending that the application of
the above two sections to the 1420-22 Chestnut Street
property (property) precluded the opening of a convenience
store such as 7-Eleven within the Overlay. That preclusion,
argued Aspite, was so restrictive that when applied, it
rendered the first floor of the property unmarketable and
caused Aspite to suffer a hardship.
In support of that position, before the ZBA Aspite
introduced evidence that prior to enactment of the Chestnut
Street Overlay the property had been vacant for several
years. Aspite explained that over the years,[fn2] the only
businesses that had expressed an interest in leasing the
space were businesses that under the current Code would be
prohibited uses. Aspite testified that since the enactment
of the Center City Overlay in 2004, 7-Eleven had expressed
a desire to lease the space. Aspite submitted evidence that
if 7-Eleven were permitted to operate, there would be no
cooking on the premises, trash would be stored inside and
taken out by 7-Eleven employees, and trash pick-up would
occur at least three times a week between midnight and 6AM.
There was also general testimonial evidence that 7-Eleven
would be beneficial to the area. Finally, it was argued
that applicable use prohibitions were a hardship and that
the property was not otherwise marketable.
Objecting to Aspite’s request for a use variance was Don
Davidow, individually and on behalf of Rittenhouse Row
Associates. In addition, area neighbors voiced their
objections which echoed the sentiments of Davidow and
Rittenhouse Row Associates that the proposed use would not
compliment the neighborhood. The ZBA was not persuaded by
the testimony of Objectors and granted the use variance.
Rittenhouse Row Associates appealed to the trial court.
Before the trial court, Rittenhouse Row Associates argued
that the ZBA’s finding of hardship was not supported by
substantial evidence. In response, Aspite argued that
substantial evidence of record supported the ZBA’s finding
of hardship, and further, even if hardship had not been
proven, the variance should be permitted as the Overlay is
unconstitutional, in that it is exclusionary and violative
of equal protection, because it is not rationally related
to a valid governmental purpose.
The trial court, without taking additional evidence,
reversed the ZBA, concluding that Aspite had not
established an unnecessary hardship. The trial court
further concluded that there was no constitutional
violation as the Overlay was not unreasonable and was
neither arbitrary nor exclusionary. Aspite took an appeal
of the trial court’s decision to this Court.
Initially we note that because the trial court took no
additional evidence, this Court’s review is limited to a
determination of whether the Board abused its discretion or
committed an error of law. Hitz v. Zoning Hearing Board of
South Annville Township, 734 A.2d 60, 65 n. 9 (Pa.Cmwlth.
1999), petition for allowance of appeal denied, 753 A.2d
821 (Pa. 2000). “The ZHB [Board] abuses its discretion if
its findings are not supported by substantial evidence.”
Id. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Valley View Civic Association v. Zoning Board
of Adjustment, 462 A.2d 637 (Pa. 1983).
First we address the constitutional claim. Aspite contends
that the Overlay is unconstitutional in that it violates
equal protection and due process of law. Aspite also
contends that the Ordinance is not rationally related to a
valid governmental purpose. As explained by our Supreme
Court in In Re Realen Valley Forge Greenes, 838 A.2d 718,
728 (2003):
“[W]hen determining the validity of zoning ordinances, a
zoning ordinance must be presumed constitutionally valid
unless a challenging party shows that it is unreasonable,
arbitrary, or not substantially related to the police
power interest that the ordinance purports to serve” . .
.
Among other reasons, an ordinance will be found to be
unreasonable and not substantially related to a police
power purpose if it is shown to be unduly restrictive or
exclusionary. Similarly, an ordinance will be deemed to
be arbitrary where it is shown that it results in
disparate treatment of similar landowners without a
reasonable basis for such disparate treatment. Moreover,
in reviewing an ordinance to determine its validity,
courts must generally employ a “substantive due process
inquiry, involving a balancing of landowners’ rights
against the public interest sought to be protected by an
exercise of the police power.
Moreover,
[t]he substantive due process inquiry, . . . must accord
substantial deference to the preservation of rights of
property owners, within constraints of the ancient maxim
of our common law, sic utere tuo ut alienum non laedas.
9 Coke 59-So use your property as not to injure your
neighbors.
(quoting Hopewell Township Board of Supervisors v. Golla,
452 A.2d 1337, 1341- 42 (Pa. 1982)); and, C & M Developers,
Inc. v. Bedminster Township Zoning Hearing Board, 820 A.2d
143 (Pa. 2002).
This Court agrees with the trial court’s analysis that the
prohibitions set forth in the Rittenhouse Overlay/Center
City Overlay are for the purpose of preserving the historic
and artistic value of the Center City Arts District.
Additionally, the Overlay benefits the business owners, the
visitors, and the citizens of Philadelphia. Contrary to
Aspite’s argument, the Overlay does not promote high-end
stores to the exclusion of convenience stores. Rather, the
Overlay attempts to control the overall commercial
development of the Center City area, and that is a
permissible government function. Likewise, the Overlay does
not apply exclusively to Aspite’s property. Instead, the
Overlay is applicable to all properties within the
designated area. We agree with the trial court that Aspite
has not put forth evidence establishing that the Ordinance
is unreasonable and not substantially related to a police
power purpose because Aspite has not shown the Ordinance to
be unduly restrictive or exclusionary. Furthermore, the
Ordinance treats all landowners equally thus there is no
disparate treatment and the Ordinance cannot be found to be
arbitrary. We therefore conclude that Aspite did not
substantiate his challenge to the constitutionality of the
Ordinance.
Aspite next contends that he met all criteria required for
the granting of a variance. To establish entitlement to a
variance, an applicant must prove, inter alia, the
following: (1) the zoning Ordinance imposes unnecessary
hardship resulting from the unique physical characteristics
of the property, as distinguished from hardship arising
from the impact of the zoning regulation on the entire
district; (2) the alleged hardship is not self-inflicted;
and (3) the required variance will not destroy the
character of the neighborhood, nor be detrimental to the
public welfare. Section 910.2 of the Pennsylvania
Municipalities Planning Code;[fn3] Valley View. An
applicant’s burden is a heavy one, and a variance should be
granted sparingly and only under exceptional circumstances.
Appeal of Lester M. Prange, Inc., 647 A.2d 279 (Pa.Cmwlth.
1994).
To establish unnecessary hardship, the applicant must
demonstrate that due to its physical characteristics, the
property cannot be used for the permitted purpose or could
only conform to such purpose at a prohibitive expense, or,
that the property has either no value or only a distress
value for any permitted purpose. Isaacs v. Wilkes-Barre City
Zoning Hearing Board, 612 A.2d 559 (Pa.Cmwlth. 1992).
In this matter, Aspite failed to present any evidence of
unique physical conditions that prevented a reasonable use
of the property. While Aspite may suffer a reduction of
income upon denial of a variance, economic hardship is
insufficient to establish unnecessary hardship justifying a
grant of a variance. Valley View. Unnecessary hardship is
shown only where the evidence establishes that compliance
with the zoning ordinance could render the property
practically useless. Smith v. Zoning Hearing Board of
Borough of Bellevue and Suburban General Hospital, 619 A.2d
399 (Pa.Cmwlth. 1992). Aspite failed to present such
evidence.
However, assuming arguendo, Aspite had established a
hardship, Aspite still had to establish that the proposed
use was not contrary to the public interest. The
preservation of the existing character of the designated
area and the promotion of specialty retailers in the
designated area is a stated goal of the Ordinance. The
Overlay allows for the growth of businesses that support
the historic and cultural character of the surrounding
area. Code § 14-1670.1(1)(f). Herein, the evidence
of record is testimonial evidence to the effect that Aspite,
if granted a variance, would comply with all City
ordinances and regulations. However, there is no evidence
that the opening of a 7-Eleven compliments the public
interest or supports the historic and cultural character of
the designated area. Again, Aspite has failed to sustain
his evidentiary burden.
Accordingly, the order of the trial court is AFFIRMED.
Judge Smith-Ribner dissents.
ORDER
AND NOW, this 19th day of December 2006, the Order of the
Court of Common Pleas of Philadelphia County entered in the
above-captioned matter is
AFFIRMED.
JAMES GARDNER COLINS, President Judge
[fn1] Philadelphia Zoning Code § 14-1607.1.
[fn2] It is undisputed that the property at issue had been
vacant for several years prior to the enactment of the
Overlay. Aspite explained the vacancy as being the result
of unsuitable tenants.
[fn3] Act of July 31, 1968, P.L. 805, as amended, added by
Section 89 of the Act of December 21, 1988, P.L. 1329, 53
P.S. § 10910.2.
DISSENTING OPINION BY JUDGE MCGINLEY
I respectfully dissent to the majority’s conclusion that
“Aspite failed to present any evidence of unique physical
conditions that prevented a reasonable use of the property
. . . [w]hile Aspite may suffer a reduction of income upon
denial of a variance, economic hardship is insufficient to
establish unnecessary hardship justifying a grant of a
variance.”
The Board made the following pertinent findings of fact
and conclusions of law:
8. Mr. Beller further represented that the Applicant
[Aspite] is committed to abiding by all seven (7) provisos
contained in the Center City Residents’ Association’s
(CCRA) March 29, 2004 letter, including trash pickup to
occur a minimum of three times a week, between the hours
of midnight and 6:00 A.M. (N.T. 6-8; CCRA letter dated
March 29, 2004).
9. Mr. [Joseph] Beller represented that the subject
premises have been vacant for three (3) years, and the
only other uses that came to the owners of the building
during that time were objectionable pursuant to the
Rittenhouse Row overlay list and the owners did not deem
those uses appropriate. Mr. Beller argued that the
proposed 7-Eleven operations would be beneficial to the
area. Further, there is hardship to the subject premises
not to be able to use it for a commercial use in C-4.
(N.T. 12-13).
10. The Zoning Board of Adjustment also heard and
considered the testimony from Don Davidow, in charge of
governmental affairs for Rittenhouse Row . . . who noted
that Rittenhouse Row strongly objects to the proposed use
because it is contrary to the overlay which was passed by
City Council, which states that no convenience stores
shall be operated from 14th Street to 21st Street. The
purpose of the overlay is to upgrade the area and bring
customers from all over the City to shop on Chestnut
Street. The proposed use is contrary to this purpose.
(N.T. 15-16).
CONCLUSIONS OF LAW
4. The Applicant [Aspite] has met its burden to
demonstrate that an unnecessary hardship will result if
the use variance is not granted. . . . (emphasis added).
5. The Applicant [Aspite] has also met its burden of
proof to demonstrate that the proposed use is not contrary
to the public interest. . . . (emphasis added).
6. The proposed use meets the applicable requirements for
granting a variance. . . . [fn1]
The Decision of the Board, October 15, 2004, Findings of
Fact (F.F.) Nos. 8-10 and Conclusions of Law (C.L.) Nos.
4-6 at 3-4 and 7-8; R.R. at 76a-77a and 80a 81a. On appeal
the, the common pleas court heard legal argument from the
parties and reversed.
In Valley View Civic Association v. Zoning Board of
Adjustment, 501 Pa. 550, 462 A.2d 637 (1983), our
Pennsylvania Supreme Court enunciated the criteria
necessary to establish a variance:
The standards governing the grant of a variance are
equally well settled. The reasons for granting a variance
must be substantial, serious and compelling. . . . The
party seeking the variance bears the burden of proving
that (1) unnecessary hardship will result if the
variance is denied, and (2) the proposed use will not be
contrary to the public interest. . . . The hardship must
be shown to be unique or peculiar to the property as
distinguished from a hardship arising from the impact of
zoning regulations on the entire district. . . . Moreover,
mere evidence that the zoned use is less financially
rewarding than the proposed use is insufficient to justify
a variance. . . . In evaluating hardship the use of
adjacent and surrounding land is unquestionably relevant.
. . . (citations omitted and emphasis added).
Id. at 555-57, 462 A.2d at 640-41. Finally, “[i]t is the
function of the zoning board to determine whether the
evidence satisfies the test and the courts will not disturb
that determination unless it is not supported by
substantial evidence, i.e., such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. at 559, 462 A.2d at 642.
A. Hardship
At the hearing, Joseph Beller (Beller), attorney for
Aspite, represented to the Board:
The store has been vacant for three years. . . . The only
other uses that came to the owners of the building are all
on the list in the Rittenhouse Row overlay, which, as this
Board knows, only was for Walnut Street until last
October when they switched it to Chestnut Street.[fn2]
Whether it should or shouldn’t be on Chestnut Street, I
suggest to you kindly that it is not — doesn’t have
the same feeling that it would have had to have on Walnut
Street.
But in any rate, every one of those uses, which the
management did not deem to be appropriate because the
people either had no track record, no business plan, and
in some cases no credit, would have been a Dollar Store, a
manicure store. And every one of those is listed.
My suggestion is that this is the kind of use that will
be beneficial to the area. . . .
To leave it remain vacant and to have one after another
uses turned down because they’re on this overlay . . .
[w]e feel that there’s a hardship to this building not to
beable to use it for a commercial use in C-4[fn3] . . . I
heard the Board say more than a hundred times, is not to
leave a place open and vacant. (emphasis added).
N.T. at 12-14; R.R. at 21a-23a. See Board’s F.F. No. 9 at 3;
R.R. at 76a.
Although Rittenhouse Row asserts that any hardship suffered
by Aspite was self-imposed because Aspite refused to rent
the property to a dollar store and a manicure salon, the
evidence established that these uses were also prohibited
under the Rittenhouse Row Overlay.[fn4] In fact, if Aspite
sought to lease the property presently to either the dollar
store or the manicure store, he still had to apply for a
use variance because the uses were nonconforming. See
Section 14 1601.1(2)(c)(e) and (j) of the Philadelphia
Zoning Code.[fn5]
Therefore, I would conclude that there was substantial
evidence of record to establish that Aspite suffered an
unnecessary hardship in his attempts to lease the property.
As the Board correctly concluded from the evidence, the
main opposition to Aspite’s requested use variance was not
directed at the proposed use, rather it was the desire to
find a more upscale use for the commercial district. See
Board’s C.L. No. 5 at 8; R.R. at 81a. The Board’s finding
of hardship was supported by the evidence.
B. The Public Interest
Section 14-1802 of the Philadelphia Zoning Code provides:
(1) The Zoning Board of Adjustment shall consider the
following criteria in granting a variance under §
14-1801(1):
. . . .
(c) that the variance will not substantially or
permanently injure the appropriate use of adjacent
conforming property;
. . . .
(e) that the grant of the variance will not substantially
increase congestion in the public streets;
(f) that the grant of the variance will not increase the
danger of fire, or otherwise endanger the public safety;
(g) that the grant of the variance will not overcrowd the
land or create an undue concentration of population;
(h) that the grant of the variance will not impair an
adequate supply of light and air to adjacent property;
(i) that the grant of variance will not adversely affect
transportation or unduly burden water, sewer, school, park
or other public facilities;
(j) that the grant of variance will not adversely affect
the public health, safety or general welfare;
(k) that the grant of variance will be in harmony with
the spirit and purpose of this Title. . . .
Beller stated that “[t]he operation is . . . a normal
operation . . . sales . . . a number of convenience things,
cereals, milk, bread, eggs, juice, bakery items. The
operation will have the trash completely stored inside and
it will be taken out.” N.T. at 4-5; R.R. at 13a-14a.
Janice Tancredi (Tancredi), market manager for Philadelphia
7-Eleven, testified the trash will “be in plastic trash
cans that are wheeled out to the front of the store for
disposal. So there will be no dumpster on the premises.”
N.T. at 34; R.R. at 43a. Tancredi stated that 7-Eleven has
“a consolidated delivery . . . [that] we order in a computer
and it’s all delivered to a spot in New Jersey and then
packed on one truck. But there are some thirty vendors that
we order from that goes onto a truck. It’s a small truck.
It’s not a large truck.” N.T. at 41; R.R. at 50a. Tancredi
concluded that fresh food items are delivered once a day,
“the next delivery is the goods that the CVS gets as well .
. . [b]ut we do a twice-a-week delivery which would happen
in the evening . . . [and] [t]he other deliveries are
Pepsi, Canada Dry and Coke.” N.T. at 42; R.R. at 51a.
Tancredi had not received any complaints concerning the
operation and cleanliness of the other three 7- Eleven
stores located in Center City. N.T. at 14; R.R. at 23a.
Finally, Beller also stated that Aspite agreed to follow
the provisos outlined by the Center City Residents’
Association:
1. All trash is to be internally stored and removed from
this storage location by the trash hauler; trash is not to
be placed on the street whether or not in a dumpster,
cans, or bagged;
2. No sale or consumption of beer or alcoholic beverages on
premises;
3. Trash is to be removed at a minimum of 3 times per week
and shall be picked-up between the hours of 12 am
(midnight) and 6 am;
4. Deliveries from their commissary shall be between the
hours of 12 am (midnight) and 6 am;
5. No tables, chairs, benches, planters, bike racks, pay
phones, signage or any other object placed on sidewalk;
6. No cooking on premises that requires mechanical
ventilation;
7. Non opposition with provisos is contingent upon
confirmation that proposed project will comply with any
facade easement that may exist.
Letter from Center City Residents’ Association, March 29,
2004, at 1; R.R. at 9a. See also N.T. at 6-8; R.R. at
15a-17a.
Again, I believe there is substantial evidence of record to
support the Board’s conclusion that the proposed use as a
7-Eleven convenience store was not contrary to the public
interest.[fn6]
Accordingly, I would reverse the order of the common pleas
court
BERNARD L. McGINLEY, Judge
Judge Smith-Ribner joins in this dissent. Judge Simpson
joins in this dissent.
[fn1] The Board issued a use variance based upon hardship
and never addressed the constitutionality of Section 14-606
of the Philadelphia Zoning Code (“the Center City Overlay”)
and Section 14-607.1 of the Philadelphia Zoning Code (“the
Rittenhouse Overlay”) raised by Aspite.
In Zoning Board of Adjustment v. Willits Woods Associates,
532 A.2d 862, 863 (Pa.Cmwlth. 1987), the City of
Philadelphia Zoning Board of Adjustment (ZBA) only
addressed the non-constitutional issue that “mobile home
parks were prohibited on the land parcel as zoned.” With
regard to the “de jure exclusionary zoning challenge, the
ZBA stated that as an administrative agency established
under the Philadelphia Home Rule Charter, it did not have
the authority to determine the constitutional validity of
the Zoning Code.” Id. at 863.
[fn2] Jack Levin, of Philadelphia Management, verified that
the property was vacant for three years and that he turned
down two possible tenants, a dollar store and a manicure
salon.
[fn3] Levin’s testimony corroborated Beller’s statements to
the Board. See N.T. at 23 and 36-38; R.R. at 32a and
45a-47a.
[fn4] Section 14-1601.1 of the Philadelphia Zoning Code
[Rittenhouse Overlay] provides:
(2) Uses Prohibited on the Ground Floor. . . . . . . .
(c) Manicure/nail salon; (emphasis added)
(d) Retail sales of drugs;
(e) Retail sales of general merchandise; (emphasis added)
(f) Retail sales of groceries;
. . . .
(j) Retail sales of variety store merchandise (emphasis
added). . . .
[fn5] Also, Section 14-1607 of the Philadelphia Zoning Code
(Center City Overlay) provides:
(3) Prohibited Uses. In any building or upon any land
abutting Chestnut Street or Walnut Street between Front
Street and the Schuylkill River and Broad Street between
South Penn Square and Washington Avenue and Market Street
between Front Street and Fifth Street, the following uses
shall be prohibited:
(a) Amusement arcades;
(b) Any use regulated by Section 14-1605, Regulated Uses;
(c) Car wash;
(d) Hand laundry;
(e) Non-accessory or outdoor advertising signs;
(f) Open air parking lots;
(g) Outdoor sales or storage including outdoor use of
coin operated machines which dispense food or drink, but
not including open air cafes within the property line and
not including any open air cafes on Broad Street between
South Penn Square and Washington Avenue;
(h) Parking as the sole use of a property;
(i) Repair of motor vehicles;
(j) Restaurants, cafes, coffee shops and other similar
establishments for the sale and consumption of food and/or
beverages, with drive-in or take-out service (sale of food
and/or beverages to be consumed outside the confines of
the premises); provided that take-out restaurants with a
minimum of 20 seats for indoor dining of patrons shall not
be prohibited along Market Street between Front Street and
Fifth Street. . . .
[fn6] Because I would determine that there was substantial
evidence to support the Board’s conclusion that there was
unnecessary hardship and that the proposed use was not
contrary to the public interest, I would not address
Aspite’s constitutional challenges to Section 14-1607.1 of
the Philadelphia Zoning Code (the Rittenhouse Overlay).
In C.B. Ex Rel. v. Pennsylvania Department of
Transportation, 567 Pa. 141, 786 A.2d 177 (2001), our
Pennsylvania Supreme Court noted:
It is well-settled, of course, that, ‘[w]hen a case
raises both a constitutional and a non-constitutional
issue, a court should not reach the constitutional issue
if the case can properly be decided on non-constitutional
grounds.’ P.J.S. v. Pennsylvania State Ethics Commission,
555 Pa. 149, 723 A.2d 174, 176 (1999). See also Wertz v.
Chapman Twshp., 559 Pa. 630, 741 A.2d 1272, 1274 (1999)
(‘It is axiomatic that if an issue can be resolved on a
non-constitutional basis, that is the more
jurisprudentially sound path to follow.’).
[FL]Id. at 153, 786 A.2d at 183.