Under the prior law, the Court was required to consider the following 16 factors:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

Under the current law, the new custody factors that will be considered are as follows (with commentary in italics below each factor):

(1) Which party is more likely to ensure the safety of the child.

This factor remains unchanged.

(2) The present and past abuse committed by a party or member of the party’s household, which may include past or current protection from abuse or sexual violence protection orders where there has been a finding of abuse.

This factor remains unchanged.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

This factor remains unchanged.

(2.2) Violent or assaultive behavior committed by a party.

This factor remains unchanged.

(2.3) The level of cooperation and conflict between the parties, including:

(i)  which party is more likely to encourage and permit frequent and continuing contact between the child and the other party or parties if contact is consistent with the safety needs of the child; and

(ii)  the attempts by a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the safety of the child. A party’s good faith and reasonable effort to protect the safety of a child or self shall not be considered evidence of unwillingness or inability to cooperate with the other party. A party’s reasonable concerns for the safety of the child and the party’s reasonable efforts to protect the child shall not be considered attempts to turn the child against the other party. A child’s deficient or negative relationship with a party shall not be presumed to be caused by the other party.

This factor is a restatement of the prior law with consolidation of other factors and additional explanation and detail.

(3) A willingness and ability of a party to prioritize the needs of the child by providing appropriate care, stability and continuity for the child, considering the parental duties performed by the party on behalf of the child in the past and whether the party is willing and able to perform the duties in the future, and attend to the daily physical, emotional, developmental, educational and special needs of the child.

This factor is a restatement of the prior law with consolidation of other factors and additional explanation and detail.

(4) The need for stability and continuity in the child’s education, family life and community life, except if changes are necessary to protect the safety of the child or a party.

This factor remains unchanged.

(5) Deleted by amendment.

This factor is consolidated under factor 6 below.

(6) The child’s sibling and other familial relationships.

This factor is a restatement and consolidation (with the former factor 5) of the prior law.

(7) The well-reasoned preference of the child, based on the child’s developmental stage, maturity and judgment.

This factor remains unchanged.

(8) Deleted by amendment.

This factor is consolidated under factor 2.3 above.

(9) Deleted by amendment.

This factor is consolidated under factors 3 and 4 above.

(10) Deleted by amendment.

This factor is consolidated under factor 3 above.

(11) The proximity of the residences of the parties.

This factor remains unchanged.

(12) Each party’s employment schedule and availability to care for the child or ability to make appropriate child-care arrangements.

This factor is a restatement of the prior law with additional explanation and detail (notably the addition of child-care arrangements to the consideration).

(13) Deleted by amendment.

This factor is consolidated under factor 2.3 above.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

This factor remains unchanged.

(15) The mental and physical condition of a party or member of a party’s household.

This factor remains unchanged.

(16) Any other relevant factor.

This factor remains unchanged.

If you are, or are about to be, involved in child custody litigation in a Pennsylvania court, it is important to be familiar with the new custody factors so that you have an understanding of what evidence needs to be presented to ensure that the best interests of your child(ren) are considered.

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Generally, all court operations are open during the current iteration of the Judicial Emergency. All court offices and agencies are maintaining regular business hours, however members of the public are discouraged from unnecessary visits. All visitors must wear a protective face covering, maintain social distancing and comply with all safety directives while inside court buildings. The operation of certain court offices is altered by the Emergency Order 2020-24, which strongly encourages all filing attorneys and parties to utilize e-filing systems.

The Bucks County Family Court Prothonotary has administrative control over and responsibility for all official records and documents of the family division. With the exception of spousal and child support matters, which are filed with and maintained by the Bucks County Domestic Relations Office, all court filings regarding family court matters, such as divorce, equitable distribution, custody and Protection from Abuse petitions, are submitted to the Prothonotary’s Office for processing. Currently, the Prothonotary’s Office is strongly encouraging the use of e-filing to limit traffic in and out of the office. For those individuals unable to e-file, an appointment must be made to file in person in the office. The only exceptions to the appointment requirement are emergency petitions filed under the Protection from Abuse Act and Protection for Victims of Sexual Violence and Intimidation Act.

Court proceedings are being conducted in person and through remote means. Emergency Order 2020-24 specifically permits the use of Advance Communication Technology for court proceedings whenever practicable, and addresses the conditions under which in person proceedings should take place. Currently, custody and support conferences and hearings are being conducted in person, by video conference and by telephone. The presiding Judge, Master or Officer determines whether the proceeding will be in person or conducted remotely, by either video conference or telephone, and Scheduling Orders contain instructions for participating in proceedings, including contact information and submission/presentation of exhibits. Equitable Distribution hearings before the Master are all being held remotely. Regardless of the type of proceeding, the number of matters being scheduled is less than normal and proceedings scheduled to occur in person are being given time slots so as to reduce congregate settings.

Parties to Family Court proceedings should familiarize themselves with the terms of Emergency Order 2020-24 by either discussing the Order with their attorney or reviewing the Order themselves. A copy of the Order can be found here on the Bucks County Bar Association website.

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Janice Yager owns a house on Hamilton Street in Philadelphia and also owns a vacant lot next door. Yager applied for permits to use the vacant lot as non-accessory private parking with a six foot fence and gate. The City denied the request as not in compliance with the Zoning Code. Yager appealed to the Zoning Board of Adjustment. At the hearing, Yager testified that she wanted to park on the vacant lot due to the difficulty finding street parking and her husband’s recent Parkinson’s diagnosis.

Adams was the sole objector to the variance request and testified that she and other neighbors, including Yager’s husband, negotiated a neighborhood development agreement (NDA) that restricted the vacant lot to a landscaped area until it was developed for a single family use. Adams also raised safety concerns about a bus stop at the corner near the property, utility poles, parked cars and heavy traffic in the vicinity of the property.

The ZBA granted the variance but limited the fence to 4 feet in height, required that parking be only for the residents of the adjacent home and the approval was only good for a 5 year term. Adams appealed the decision to the Court of Common Pleas. Yager intervened and filed a motion to quash arguing that Adams was not an aggrieved person and therefore did not have standing. The trial court did not rule on the motion to quash but instead affirmed the ZBA’s grant of a variance. The trial court also found that Adam’s involvement in the NDA did not grant her aggrieved party standing but did not make a determination regarding her standing based on her home’s proximity to the vacant lot or her participation in the hearing. On remand, the trial court granted the motion to quash finding that Adams lacked standing.

Before the Commonwealth Court, Adams argued that she had standing because her home was only 250 feet away from the vacant lot. Yager argued that Adams was not an “aggrieved person” because she did not suffer direct, immediate or substantial impact by the variance being granted. The Court held that Adam’s home, which was located between 250 feet and 350 feet away but on the opposite side of the street, was not sufficiently close to the vacant lot to confer standing based on proximity alone. Adams did not set forth a particular harm that she will suffer due to the use of the vacant lot. Her general concerns about safety are abstract interests of all citizens. Therefore, Adams lacked standing to appeal the ZBA decision.

Judge Fizzano Cannon filed a dissenting opinion stating that Adams established adequate close proximity to the vacant lot to confer standing. Additionally, Adams was involved in negotiating the NDA that specifically restricted the use of the vacant lot. While a zoning board cannot enforce the NDA, it demonstrates Adams’s substantial, direct and immediate interest that is beyond an abstract interest in the proceedings. Taken together, these items represent a particular harm that would confer standing upon Adams.

If this case is appealed it will be interesting to see whether the Supreme Court agrees to hear it, as both the majority and dissenting opinions present compelling arguments. Although it is an unreported decision, it could change the way Zoning Hearing Board’s consider the issue of standing and could lead to more challenges to standing at the trial court level.

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Wawa proposed to develop a 4,736 square foot convenience store with 10 fueling stations and 58 parking spaces. The Zoning Ordinance indicates that a Retail Store that provides for gasoline or fuel sales is a G22 Automobile Gasoline Station Use. In addition, a Convenience Store that provides for the sale of gasoline or fuel is only permitted in the zoning districts that permit a G22 Motor Vehicle Gasoline Station. The G22 Use indicates that the sale of gasoline or fuel is the principal function of the use and the convenience commercial component is limited to 2,000 square feet. Wawa challenged the Ordinance as de facto exclusionary.

Before the Zoning Hearing Board, competing expert testimony was presented. Wawa presented testimony from Charles Schmehl who is a zoning and land planning researcher and vice president of Urban Research & Development Corp. Mr. Schmehl opined that although 80% of nationwide gas sales are at convenience stores, the retail goods actually outsell gas at convenience stores. Mr. Schmehl also opined that the 2,000 square foot restriction was outdated and arbitrary and that most convenience stores range in size from 4,000 to 8,000 square feet.

The Township presented the testimony of Roshanee Bindra who owns five independent convenience stores and provides consulting services to similar convenience store retailers to turn around and grow their business. Ms. Bindra testified that based on her experience and that of her clients, retail stores of up to 2,000 square feet with gasoline sales are economically viable and profitable. The Zoning Hearing Board found Ms. Bindra’s testimony credible and found that the ordinance was not de facto exclusionary. On appeal, the Bucks County Court of Common Pleas reversed the Zoning Hearing Board and sustained the validity challenge and found that Wawa was entitled to site specific relief.

The Commonwealth Court noted that in analyzing a de facto exclusion claim, the Court focuses on whether the ordinance practically prevents the proposed use in the municipality. “If an ordinance, through its particular requirements, makes the development of a use permitted by the ordinance economically impossible, the ordinance is unconstitutional, because the municipality has essentially precluded a legitimate use by an indirect means.” (citation omitted). The Court has previously said that the question is not whether one use is more profitable but whether the proposed use is so unprofitable that it is effectively excluded. The Court then held that although there was conflicting testimony, the Zoning Hearing Board’s decision was supported by substantial evidence and therefore the Board did not abuse its discretion.

This case was a 2-1 panel decision with President Judge Leavitt filing a Dissenting Opinion in which she opined that the problem with the ordinance is the requirement that a G22 use involve primarily the sale of gasoline. This requirement means that a convenience store in which the sale of gasoline is accessory to the retail component is not provided for anywhere in the Township.

The interesting issue not addressed by the Court was the Township’s alternative argument that the ordinance was not exclusionary because it contains a “catch all” provision. Specifically, the ordinance says that “Any lawful use that is required to be permitted by the [MPC] and is not otherwise permitted in other use categories of this Chapter may be permitted as a conditional use…” A number of municipalities have a similar provision in their zoning ordinance and the issue of whether this provision will defeat a claim of exclusionary zoning will have to wait for another case.

We will continue to monitor this case to see if there is an appeal to the Pennsylvania Supreme Court. Once the appeal period expires, we will be able to advise our municipal clients regarding any potential zoning amendments that should be considered.

The post Plumstead Township Zoning Ordinance Not Exclusionary appeared first on Clemons Richter & Reiss, PC.

At the preliminary hearing stage of a criminal prosecution, the prosecutor must present a “prima facie” case that criminal charges should proceed to trial. The system is designed to ensure that an independent magistrate determines whether a criminal prosecution should proceed, and the preliminary hearing acts as a safeguard against someone being charged with a crime with insufficient evidence.

Prior to the Ricker decision, hearsay testimony alone was insufficient for the prosecution to sustain its burden. Therefore, witnesses were required to provide testimony and be subject to cross examination. The Pennsylvania Superior Court’s ruling in Ricker allowed hearsay evidence to be the sole basis of a prima facie case, thereby making preliminary hearings almost meaningless.

The Pennsylvania Supreme Court’s ruling in McClelland overturns the “Ricker Rule” and restores rights to individuals who are charged with a crime.

“Upon careful review, we hold the Superior court erred to the extent it concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing. Accordingly, we reverse the Superior Court’s decision in this matter and disapprove the Superior Court’s prior decision in Ricker, which similarly concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing,” the Supreme Court announced in McClelland.

While hearsay evidence remains admissible at preliminary hearings, it now cannot serve as the sole basis of a prima facie case. The McClelland decision re-establishes the purpose of a preliminary hearing and safeguards the rights of individuals charged with a crime.

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Distributed antennae systems (DAS) are wireless facilities that are also often referred to as mini-cell towers. Simply put, DAS facilities use small antenna and a hub to relay and amplify cellular and data signals. The antenna are often placed in public rights-of-way on lampposts, street lights and telephone poles and are designed as a system of mini-towers “distributed” throughout the coverage area.

From 2005 until 2015, the Pennsylvania Public Utility Commission issued Certificates of Public Convenience to DAS providers and operators. This Certificate of Public Convenience provided DAS operators and providers with exemption from local zoning ordinances and also the power of eminent domain. A Certificate of Public Convenience pre-empts virtually all local control over the siting of mini-cell towers. In 2015, the Commission decided to review this practice to determine whether DAS operators and providers actually meet the definition of a “public utility”. If they do not meet that definition, then DAS operators and providers are not entitled to Certificates of Public Convenience. The Commission ultimately determined that providers and operators of DAS do not meet the definition of a “public utility” and, therefore are not entitled to obtain Certificates of Public Convenience. Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Pennsylvania Public Utility Commission Docket No. M-2016-2517831.

The Decision of the Public Utility Commission was appealed to the Pennsylvania Commonwealth Court. Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission, 697 CD 2017. The Commonwealth Court reversed the PUC and found that DAS providers were not exempt from PUC regulation and could continue to seek Certificates of Public Convenience.

On appeal, the Supreme Court upheld the Commonwealth Court’s decision holding that because the statute was not ambiguous, no deference was required to be given to the PUC’s interpretation of the same.

The bottom line, DAS providers meet the definition of a “public utility” and are entitled to seek Certificates of Public Convenience. Once issued a Certificate of Public Convenience, DAS providers have access to public utility poles, public rights of way, exemptions from local zoning codes and the right to exercise the power of eminent domain. The Decision opens the door for

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Governor Wolf requested that the Pennsylvania Supreme Court exercise its jurisdiction pursuant to its King’s Bench Powers and/or Powers to Grant Extraordinary Relief to declare H.R. 836 null and void. The Governor argued that the language in Section 7301(c) of the Code requires that the concurrent resolution be presented to him for approval in order for it to be effective. The Legislature argued that the language in Section 7301(c) compels the Governor to issue an executive order or proclamation ending the state of disaster emergency.

The Pennsylvania Supreme Court issued a split decision with the majority finding that the language in Section 7301(c) required presentment to the Governor for his approval or veto and without that presentment, H.R. 836 is a legal nullity. Justice Dougherty issued a concurring and dissenting opinion siding with the majority but finding that the language in Section 7301(c) could not be severed and therefore the statute was not salvageable. Justice Saylor issued a dissenting opinion, joined by Justice Mundy, in which he held that the Constitution does not require presentment of the resolution at issue here.

On July 8th, H.R. 836 was formally presented to Governor Wolf. Governor Wolf has indicated he will veto the Resolution. It would take a vote by a two-thirds majority of each House to override the veto and that is unlikely.

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“Covid-19 Disaster Emergency” is defined as: The duration of the proclamation of disaster emergency issued by the Governor on March 6, 2020 … and any renewal of the state of disaster emergency.

“Authorized telecommunications device” is defined as: Any device which permits, at a minimum, audio communication between individuals.

As a result of this Act, many municipalities began holding meetings by conference call and on-line platforms such as Zoom and Skype. Now that almost all Pennsylvania Counties are moving to the Green Phase, municipalities are wondering when they must resume in-person meetings.

The Governor’s Disaster Emergency Declaration was set to expire on June 4th but was renewed by the Governor on June 3rd for another 90 days. The new expiration date for the disaster emergency is September 2nd. So, municipalities can continue to use authorized telecommunications devices to conduct meetings until September 2nd, unless the Governor terminates the disaster emergency sooner.

However, termination of the Disaster Emergency is currently the subject of litigation before the Pennsylvania Supreme Court. The Legislature passed a resolution in both houses to terminate the disaster emergency. Governor Wolf says that the resolution is not effective unless he signs it, which he did not. The Legislature does not have enough votes to override his veto. The Legislature argues that the resolution does not have to be signed by the Governor in order for it to become effective. The Supreme Court could rule on this issue before the end of the week.

Our office will provide updated information on the Supreme Court case when it becomes available.

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The standard for obtaining a Temporary Restraining Order or a Preliminary Injunction is a showing by the Plaintiff “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” The Court found that Petitioners could not show that they were likely to succeed on the merits of the following claims: Procedural Due Process, Substantive Due Process, Unjust Taking, Payment for Use of Petitioner’s Property, Equal Protection, First Amendment violations, the Guarantee Clause, Freedom of Religion and the Right to a Public Education.

The Court sympathized with the Petitioners but had to consider the circumstances under which the Governor’s orders were issued. “When faced with the real possibility that thousands of Pennsylvanians could lose their lives to COVID-19, the Governor took swift, reasonable action to prevent more widespread destruction – that the Pennsylvania death rate is not higher is a sign of the Orders’ efficacy, not their irrelevance.” It is not up to the Court to question the reasonable motives of elected officials and a Temporary Restraining Order cannot be granted based on political disagreements with the Orders. There are plenty of reasons for residents to disagree with the Governor’s means for fighting the pandemic but there is no legal basis for enjoining them. The Temporary Restraining Order was therefore denied.

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Apparently, some NHs and ALFs are claiming that because the funds recipients are on Medicaid, the facilities are entitled to the economic stimulus payments, and are requiring the residents to turn those funds over. This is not lawful. According to the CARES Act, the economic stimulus payments are tax credits, and tax law says that tax credits do not count as “resources” for federal benefits programs like Medicaid. The government may not seize these payments; nor can nursing homes or ALFs.

If your loved one lives in a nursing facility and you are not sure what happened to their stimulus payment, talk with them soon, and consider having a talk with the facility’s management to investigate. If you suspect that the facility has taken the payment, get in touch with the state’s Attorney General’s office and ask them to help you get it back.

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