               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennswood Manor Real Estate                     :
Associates, LLC,                                :
                 Appellant                      :
                                                :
               v.                               :
                                                :
Zoning Hearing Board of the                     :   No. 896 C.D. 2014
City of Scranton                                :   Argued: March 9, 2015

BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                   FILED: September 24, 2015
               Pennswood Manor Real Estate Associates, LLC (Pennswood) appeals
the order of the Court of Common Pleas of Lackawanna County (common pleas
court) that affirmed the denial by the City of Scranton Zoning Hearing Board
(Board) of Pennswood’s request for a variance to allow its tenant, Cedar
Residence, Inc. (Cedar) to operate a Treatment Center/Step Down Unit at 929
Cedar Avenue, Scranton, Pennsylvania (the Property).


               The Property is located in an R-2 zone-medium density residential
district.1 Under the City of Scranton Zoning Ordinance (Ordinance), neither a
personal care home nor a treatment center is a permitted use in an R-2 district.

       1
               The following uses are permitted in an R-2 district: crop farming; single family
detached dwelling; single family semi-detached dwelling; townhouse; group home within a
lawful dwelling unit; golf course; plant nursery restricted to sale of items; community center or
public library; place of worship; school; city-owned uses for a valid governmental, recycling,
public health, public safety, recreation, stormwater or public utility purpose; emergency services
(Footnote continued on next page…)
               On March 1, 2013, Pennswood applied2 for a variance to operate a
“Treatment Center/Step Down Unit” at the Property. Application for Variance,
March 1, 2013, (Application) at 1; Reproduced Record (R.R.) at RR15.                           A
treatment center is not a permitted use in the R-2 District. Pennswood believed
that it was entitled to a variance at the Property, which was originally an
elementary/middle school. Pennswood explained that in 1986, the Board granted a
variance for the operation of a personal care home at the Property.                        In its
justification for the variance, Pennswood explained its current use of the Property:

               The property presently is owned by Pennswood who [sic]
               leases one floor and basement of the three-story stone
               and brick building to . . . Cedar Residence, Inc. (‘Cedar’)
               for the operation of a ‘step down unit’, a voluntary,
               transitional, residential, non-medication, drug free, non-
               hospital, in patient center for males over 18 years of age,
               who recently and successfully underwent substance
               abuse treatment and counseling at facilities such as
               Marworth Alcohol Treatment, Clearbrook Treatment
               Center, and Choices, to name but a few. A resident’s
               length of stay is for a 30 to 90 day time period. While at
               Cedar, a resident receives counseling and training in life
               skills so as to encourage reintegration into the
               community, to foster employment and to build self-
               reliance, all designed to shape that person into a
               productive, responsible and sober member of society.




(continued…)

station; nature preserve; non-profit; publicly-owned recreation; U.S. Postal Service facility;
surface parking; day care center in a place of worship; home occupation, light; and unit for care
of relative.
         2
               This Court notes that though Pennswood applied for a variance to allow Cedar to
operate a treatment or “step down” facility on the Property, the treatment facility was already in
operation.



                                                2
            Cedar is licensed to operate 25 beds, and recently, upon
            learning of an opportunity to increase its service capacity,
            filed an application to increase its licensed bed allotment
            to 40. . . . (Citation omitted. Emphasis in original.)
Application at 4; R.R. at RR20.


            In the Application, Pennswood explained that it was entitled to a
variance:
            As to Pennswood’s present lease of one floor and
            basement of the property to Cedar for its operation of a
            residential step down unit, Pennswood’s use of its
            property is prohibited by the Zoning Ordinance and such
            a prohibition creates an unnecessary hardship on
            Pennswood in that compliance with the Zoning
            Ordinance would render the property practically useless.
            ....
            Absent the ZHB’s [Board] grant of Pennswood’s
            Application which would allow Pennswood to lease one
            floor and basement of the property to Cedar for its
            operation of a residential step down unit as so described
            herein, the property would be rendered almost valueless
            due to the restriction on the types of uses allowed by the
            Zoning Ordinance in an R-2 Zone. . . .

            Here, the physical characteristics of the property limits its
            use to that of either a personal care home in the case of
            Pennswood Manor or a residential step down unit in the
            case of Cedar; after all, the building was designed to be
            used as a school and not for the residential purposes so
            permitted in an R-2 Zone. The costs associated with
            converting the building into a permitted purpose as found
            in an R-2 Zone would be prohibitive. As such, the
            building would have no value or only distress value for
            any use approved by the Zoning Ordinance. . . . There is
            no possibility that the property can be developed in
            conformity with the Zoning Ordinance. . . . The property
            is subject to hardship, and the hardship is not self-
            inflicted. (Citations omitted.)
Application at 9-10; R.R. at RR 25-RR26.


                                         3
             Pennswood reported that in 2011, Cedar appealed a notice of violation
letter issued by the Zoning Code Enforcement Officer, Michael Wallace, that
addressed the conversion of the Property from a personal care home to a treatment
center. Cedar also applied for a variance. Following a hearing, the Board denied
the appeal of the notice of violation and denied the requested variance. Cedar
appealed to the common pleas court which dismissed the appeal because Cedar’s
counsel failed to appear for the scheduled oral argument.


             On June 12, 2013, the Board conducted a hearing on Pennswood’s
variance application.    Dave Rabbico (Rabbico), a licensed real estate broker,
testified on behalf of Pennswood that he inspected and toured the Property and
found that the building was well maintained and very clean, though it had “seen
better days.” Notes of Testimony, June 12, 2013, (N.T.) at 11-12; R.R. at RR51.
Concerning the effect of the Property on the immediate neighborhood, Rabbico
testified, “From my observation and opinion, it has a very positive effect. It’s, like
I said, the outside is very presentable. It seems like more of a cornerstone. There
is a vacant business next to it but I think it’s a cornerstone of the area.” N.T. at 12-
13; R.R. at RR51. Rabbico also testified that if the variance was denied, then it
would not be feasible to renovate the Property for residential use as an upscale
project because of the cost, the lack of parking, and the fact that that area was
“more commercial than residential.” N.T. at 14-15; R.R. at RR51-RR52. He did
not believe that the Property was suitable for single or multi-family housing as
permitted in the R-2 district. He believed that the grant of the variance would
maintain the status quo in the neighborhood.         N.T. at 15-16; R.R. at RR52.
Rabbico did not think that the proposed use of the Property would have a negative



                                           4
effect on South Scranton Intermediate School which was located nearby on Maple
Street. N.T. at 22; R.R. at RR53.


               Robert Hughes (Hughes), a representative of Pennswood, was called
as a witness and stated that he testified previously at the 2011 variance hearing.
N.T. at 29; R.R. at RR55. When asked by Pennswood’s counsel whether he stood
by that testimony, Hughes replied, “Yes, I do.” N.T. at 30; R.R. at RR55. At that
point Pennswood’s counsel, Christopher P. Cullen (Attorney Cullen) moved the
transcript from the 2011 hearing into the record.3

       3
               At the time of the 2011 hearing, Hughes was a planning and development
consultant who specialized in regulatory compliance regarding personal care homes and inpatient
non-medication facilities. Hughes testified that Cedar’s treatment center was less intrusive than
a personal care home:

              The Cedar Residence is a . . . significantly less intrusive
              environment. An individual can be admitted to a personal care
              home who has a serious criminal conviction because a personal
              care home cannot do a criminal background check on residents
              before they’re admitted. So you can admit somebody who has a
              major capitol [sic] offense on their [sic] record. You can admit
              people who are being discharged from active substance abuse
              programs. Personal care home doesn’t [sic] have to adhere to the
              very strict guidelines set up by the Pennsylvania Department of
              Health for a step down unit such as Cedar Residence.
Notes of Testimony, September 14, 2011, (N.T. 9/14/11) at 52; R.R. at RR144.

                Hughes further testified that the residents at Cedar were not permitted to have
alcohol either on or off the property or to participate in the use of narcotics or other drugs. N.T.
9/14/11 at 55; R.R. at RR147. Hughes likened Cedar to a halfway house though the residents
had not been ordered by a court to stay there. N.T. 9/14/11 at 57; R.R. at RR149. Hughes
testified that Cedar was entitled to a variance:

               Because of the mutation and definitions. And what the definition
               for personal care and for an inpatient non-hospital center is, there
               has been a barring [sic] of lies [sic]. And we believe it strongly
(Footnote continued on next page…)

                                                 5
              The operator of the personal care home that previously was located at
the Property could not continue to operate at that location because it cost
approximately $1,500 per month per resident and the reimbursement from the
Commonwealth of Pennsylvania per month per resident was “only a little over a
$1,000 per month.”        N.T. at 31; R.R. at RR56.           Hughes explained that the
reimbursement rate at a step-down facility was close to $3,000 per month and the
individual residents were younger and were more likely to require counseling
services than physical care services.         N.T. at 32-33; R.R. at RR56.         Hughes
admitted that someone possibly could operate a personal care home at the
Property:
              [B]ut they would have to be able to come in and be able
              to attract private paid residents at a much higher rate than
              the state supplement and studies have indicated that it’s
              unlikely that individuals with assets who can afford to
              move in to a care center in suburbs would be willing to
              move into South Scranton when they have other options
              that are available to them.
N.T. at 34; R.R. at RR56.


              Thomas Lavelle (Lavelle), facility director for Cedar, testified that
residents receive counseling on drug and alcohol issues as well as life skills. N.T.


(continued…)

               that the variance would be a proper methodology because the
               current zoning definitions don’t match up with the current
               definitions in the Commonwealth of Pennsylvania, so there’s
               becoming a blurring there. And it seems to me and seems to others
               that there’s an overlapping of what’s defined in a personal care
               home and what’s allowed in a personal care home and what’s
               allowed with this type of center.
N.T. 9/14/11 at 62-63; R.R. at RR154 – RR155.



                                              6
at 40; R.R. at RR58. Lavelle testified that the doors of the facility were locked by
eleven p.m. The facility issued passes when a resident wanted to leave the facility.
N.T. at 42; R.R. at RR59.


             Paul Ludovici (Ludovici), a self-employed contractor who had
performed renovations, repairs, and roofing at the Property over approximately
eight years, testified that the Property was in good condition and submitted a letter
of support for the variance which was signed by neighbors of the Property. N.T. at
53-55; R.R. at RR61-RR62.


             James Talarico, a property owner across the street from the Property,
who signed the letter circulated by Ludovici, testified that he supported the grant of
the variance and stated that the Property was well maintained and he had not
observed any problems. N.T. at 56-58; R.R. at RR62.


             Vince Martino, a certified construction manager and principal owner
of BCM Construction Management, testified that it would cost Pennswood
between $3.5 million and $4.1 million to convert the Property to residential use
and that it would cost $40,000 per year to pay back a $3 million fifteen year loan.
N.T. at 62; R.R. at RR63.


             William King (King), the superintendent of the Scranton School
District, testified in opposition to the variance:

             My concern as many of you had discussed earlier is that
             the location of this facility would be a half a block from
             South Scranton Intermediate School in close proximity to


                                            7
            a bus stop where children would be boarding a bus,
            young children. The children that attend South Scranton
            Intermediate School are grades six through eight which
            are ages typically 11 to 14. I do have some concerns
            about the fact that it’s not a lock down facility in that the
            residents can come and go as they please. Recently I was
            involved with a cleanup project in South Scranton. My
            daughter is a member of the student council at South and
            one Saturday morning we did a cleanup of that whole
            area. As I was cleaning along with my daughter I did
            find a hyperdermic [sic] needle, not on the facility
            grounds, approximately I would say 60 to 70 meters in
            the back alley from the Pennswood Manor facility.
N.T. at 68-69; R.R. at RR65.


            King also stated that he had an incident analysis report which
indicated that the police had been called to the Property thirteen times since
January 6, 2012, for various reasons including drunkenness, disorderly conduct,
theft, and trespass. N.T. at 69; R.R. at RR65. He also referred to a report from the
Pennsylvania Department of Health which indicated there were 102 deficiencies at
the Property where the average for other facilities was thirty. N.T. at 72-73; R.R.
at RR66. King testified that the use of the Property as a treatment center would
alter the essential character of the neighborhood. N.T. at 74; R.R. at RR66.


            Andrea Wharton (Wharton), the president of the South Side
Neighborhood Watch, testified that she previously voiced her concerns about the
treatment center but was told by Pennswood’s counsel that if she persisted,
Pennswood would pursue her for any harm caused. N.T. at 108; R.R. at RR75.
Wharton testified that the facility has never been in compliance with the regulation
of the Pennsylvania Department of Health.        N.T. at 108-110; R.R. at RR75.
Wharton stated without objection that her daughter who attended the nearby school

                                         8
reported that men outside the Property would ask children if they “had lighters or
matches.” N.T. at 112; R.R. at RR76.


            Gail Craven, a neighboring property owner, spoke in opposition to the
variance because “it’s greatly impacted our neighborhood not to the good. I’m
concerned about my property values. I know we have the on street restoration in
swing. I don’t think that helps this project in South Scranton at all.” N.T. at 115;
R.R. at RR77.


            Rosemary Ferrise, another resident of the neighborhood, did not want
the treatment center in the neighborhood because she was concerned with safety.
N.T. at 118; R.R. at RR77.


            Michael Caswell (Caswell), a resident in the neighborhood, testified
in opposition to the variance because “our [property] values would go down.”
N.T. at 119; R.R. at RR78. Caswell also testified “we’ve been there for years,
people have been there for years, they like their neighborhood, they don’t need this
type of a business there. They are afraid.” N.T. at 120; R.R. at RR78.


            Christina Turnbull, a resident of South Scranton and a teacher at
South Scranton Intermediate School, testified:

            My concerns are many with regards to this rehab facility
            being placed or . . . currently running in a residential
            neighborhood. As I [sic] teacher it concerns me that my
            students have to walk by this facility everyday [sic].
            Some students may not be aware of what this facility is,
            others are however. Were you also aware that this was a
            bus stop for McNichols Elementary students[?]

                                         9
            Everyday [sic] I drive past and amongst smiling children
            there are patients sitting outside smoking cigarettes.
            What message are we sending to our city’s impressible
            [sic] children. . . .
N.T. at 121-122; R.R. at RR78.


            Steve Wallace, vice president and commander of the South Side
Neighborhood Watch, opposed the variance and testified that Pennswood’s counsel
threatened to sue residents for defamation if they spoke out regarding the variance.
N.T. at 124-125; R.R. at RR79.


            The Board denied the request for a variance on the basis that the
proposed variance would alter the essential character of the neighborhood and
would not represent the minimum variance that would afford relief.


            Pennswood appealed to the common pleas court which affirmed after
the submission of briefs and oral argument. The common pleas court reasoned:

            Firstly, the law of Pennsylvania is clear that a zoning
            board need only grant a variance when all the factors of
            53 Pa. Stat. Ann. [sic] §10910.2 [Pennsylvania
            Municipalities Planning Code (MPC), Act of July 31,
            1968, P.L. 805, as amended, 53 P.S. § 10910.2. This
            section was added by the Act of December 21, 1988, P.L.
            1329.] apply. One such required finding in such a matter
            is that the ‘unnecessary hardship’ cited by the party
            seeking the variance, was not caused by the same party.
            In the case at hand, the hardship was created by the party
            seeking the variance, and therefore the variance cannot
            be granted. PMR [Pennswood] sought this variance only
            after permitting Cedar House to function and rent at their
            [sic] location in an R-2 Zone, and before seeking a
            variance, a variance that would clearly be required for
            such a treatment center to function at PMR’s


                                        10
[Pennswood] property in question. Thus, the economic
hardship that PMR [Pennswood] would suffer by the
ZB’s [Board] decision being enforced is of their [sic]
own creation. If PMR [Pennswood] had sought a
variance prior to allowing Cedar House to rent at the
location, there would be no hardship to them [sic], since
either such would have been granted or such would not
have been permitted, and PMR [Pennswood] then could
have sought another rentor [sic] whose use of the
residence would have been permissible under the
Scranton Zoning Ordinances. Furthermore, if PMR
[Pennswood] had originally not rented to Cedar House,
but had instead found a rentor [sic] whose use of the
property would fit within the parameters of the applicable
zoning ordinances, there would be no potential hardship
suffered by PMR [Pennswood]. Thus, it is clearly the
fault of the moving party for the variance, PMR
[Pennswood] that they [sic] will suffer a hardship if the
variance is not granted.

In addition, an economic hardship alone is not enough to
grant a zoning ordinance [sic], and that is purely the core
of the argument PMR [Pennswood] presented to this
court. To not allow Cedar House to function at this
location. . . PMR [Pennswood] would suffer an economic
hardship. However, such is solely the fault of PMR
[Pennswood] for not properly seeking the required
variance prior to renting to Cedar House, and an
economic hardship alone is not enough for this court to
go against the laws and ordinances clearly adverse to
such a variance being granted.

Also, under the zoning Ordinances of the City of
Scranton, an R-2 Zone, which the property in question is
located in, does not permit a Treatment Center to
function there, without a variance. A Treatment Center,
as defined by Scranton’s Zoning Ordinance clearly falls
in line with the functions of PMR’s [Pennswood] rentor
[sic], Cedar House. Cedar House provides specialized
housing and counseling to individuals for a non-
permanent period of time after they have gone to
extended drug and/or alcohol treatment programs. The
functions of Cedar House fall clearly and directly in line

                            11
              with the definition under Scranton Zoning Ordinances for
              what they deem a Treatment Center to be, and such is not
              permitted in the zone for which PMR’s [Pennswood]
              property exists without a variance, which as discussed
              above, PMR [Pennswood] is not entitled to said variance.

              Thus, in consideration of the aforementioned laws,
              ordinances, and reasoning this court, in its appropriate
              scope of review in such a matter, finds that the Appellant
              [Pennswood] did not meet their [sic] burden in this
              matter, and therefore did not show that the Appellee
              [Board] manifestly abused its discretion or committed an
              error of law in not granting the Appellant’s [Pennswood]
              Application for Relief through Variance. . . .

              Therefore, this court finds that the granting of the
              variance, as requested by the Appellant [Pennswood]
              would have sufficiently altered the essential character of
              the neighborhood and the Appellee [Board] did apply the
              appropriate and applicable standards set forth in
              Pennsylvania Law and the City of Scranton Zoning
              Ordinances in denying the Appellant’s [Pennswood]
              application for Relief through Variance without any
              manifest abuse of discretion or error of law by the
              Appellee [Board]. (Citations omitted. Emphasis in
              original.)
Common Pleas Court Opinion, August 22, 2014, at 4-6.


              Pennswood argues that the Board’s claim of a self-created hardship on
the part of Pennswood was first raised before the common pleas court and was not
in the Board’s findings of fact and conclusions of law. Pennswood also asserts
that the Board’s role as factfinder and neutral arbitrator was compromised due to
bias and prejudice expressed on the record by the Board.4

       4
               In an appeal from the grant or denial of a zoning variance where, as here, the
common pleas court has not taken any additional evidence, this Court's scope of review is
limited to a determination of whether the Zoning Hearing Board committed an error of law or
(Footnote continued on next page…)

                                             12
              Pennswood is correct that self-created hardship was not mentioned in
the Board’s decision.5 However, in order to obtain a variance, it was Pennswood’s
burden to prove that the City of Scranton Zoning Ordinance (Ordinance) created an
unnecessary hardship upon its use of the Property.


              Pennsylvania law requires that the party seeking a variance establish
that the applicable zoning ordinance creates an unnecessary hardship upon the
applicant. Section 910.2(a) of the MPC provides:

              (a) The board shall hear requests for variances where it is
              alleged that the provisions of the zoning ordinance inflict
              unnecessary hardship upon the applicant. The board may
              by rule prescribe the form of application and may require
              preliminary application to the zoning officer. The board
              may grant a variance provided that all of the following
              findings are made where relevant in a given case:

              1) there are unique physical circumstances or conditions,
                 including irregularity, narrowness, or shallowness of
                 lot size or shape, or exceptional topographical or
                 other physical conditions peculiar to the particular
                 property and that the unnecessary hardship is due to
                 such conditions and not the circumstances or
                 conditions generally created by the provisions of the
                 zoning ordinance in the neighborhood or district in
                 which the property is located;

              2) because of such physical circumstances or conditions,


(continued…)

abused its discretion. Great Valley School District v. Zoning Hearing Board of East Whiteland
Township, 863 A.2d 74 n.1 (Pa. Cmwlth. 2004). An abuse of discretion will only be found
where the Zoning Board's findings are not supported by substantial evidence – i.e., relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
       5
               This Court has foregone the sequence of Pennswood’s arguments.



                                             13
               there is no possibility that the property can be
               developed in strict conformity with the provisions of
               the zoning ordinance and that the authorization of a
               variance is therefore necessary to enable the
               reasonable use of the property;

            3) such unnecessary hardship has not been created by
               the appellant;

            4) the variance, if authorized, will not alter the
               essential character of the neighborhood or district in
               which the property is located, nor substantially or
               permanently      impair     the     appropriate   use
               or development of adjacent property, nor be
               detrimental to the public welfare; and

            5) the variance, if authorized, will represent the
               minimum variance that will afford relief and will
               represent the least modification possible of the
               regulation in issue.
53 P.S. § 10910.2(a) (emphasis added).


            Further, Section 111.E.3.c. of the Ordinance provides:

            Additional standards.

            i) Mere showing of economic hardship, shall not by itself
            justify a zoning variance.

            ii) A variance may be granted where the applicant proves
            that the property can only be used for a permitted use at
            prohibitive expense.

            iii) A variance may be granted where clearly necessary to
            comply with the Federal Americans with Disabilities Act.


            Therefore, Pennswood had the burden to prove that it met all of the
requirements for a variance.   Pennswood did present testimony regarding the


                                         14
difficulty of using the Property in conformity with the permitted uses in an R-2
district because the building on the Property was originally a school. However, it
is not clear whether Pennswood explored any other options. Further, a personal
care home operated at the Property pursuant to an earlier variance. The prior
tenant could not continue to operate due to the lower reimbursement rate from the
State of Pennsylvania, according to Hughes. However, it is unclear from the
record whether Pennswood sought another personal care home to operate at the
Property. Hughes testified that the operation of a step down facility was more
profitable. The Ordinance provides that a mere showing of economic hardship is
not sufficient justification for the grant of a variance.     The only hardship
Pennswood established was economic.


            “One applying for a variance must demonstrate that the zoning
regulations complained of uniquely burden his property; and mere economic
hardship resulting from the necessity for complying with the regulations shared in
common with all other landowners is not unnecessary hardship.” Kar Kingdom,
Inc. v. Zoning Hearing Board of Middletown Township, 489 A.2d 972
(Pa.Cmwlth. 1985) (citing Appeal of Buckingham Developers, Inc., 433 A.2d 931,
933 (Pa.Cmwlth. 1981)). Under the MPC, the standard requires that the hardship
be imposed by the unique physical circumstances or conditions of the property, not
the circumstances or conditions created by the provisions of the zoning ordinance.
Section 910.2(a)(1) of the MPC, 53 P.S. § 10910.2(a)(1). Further, there must be no
possibility that the property may be developed in strict compliance with the
provisions of the zoning ordinance. Section 910.2(a)(1) of the MPC, 53 P.S. §
10910.2(a)(2).



                                       15
              This Court agrees with the common pleas court that Pennswood failed
to establish an unnecessary hardship based on the physical circumstances of the
Property and alleged a hardship solely on economic grounds. This Court also
agrees with the common pleas court that Pennswood exacerbated any economic
hardship when it chose to lease to Cedar even though it was clear that the use of
the Property by Cedar was not in conformity with the Ordinance.


              Pennswood next contends that the Board’s role as factfinder and
neutral arbiter was compromised because the Board, specifically one of its
members, Ms. Wardell, made an injudicious statement regarding the facility which
emboldened the “tone, and content” of the objectors’ subjective statements which
led the Board to disregard the evidence presented by Pennswood.


              Ms. Wardell commented that while step-down facilities were
necessary, she did not believe that they belonged in a residential area. N.T. at 24;
R.R. at RR54. While this comment might have been imprudent, Pennswood’s
argument is speculative and it is not clear from the record that this statement
constituted bias such that the Board abused its discretion. Additionally, there is
nothing to indicate that Ms. Wardell’s statement emboldened the objectors.6

       6
               Pennswood also contends that the Board’s findings that the grant of the requested
variance would alter the essential character of the Property’s immediate neighborhood and would
not represent the minimum variance to afford relief were unsupported by substantial evidence
and constituted an abuse of discretion; and that the Board erred when it overruled Pennswood’s
objections to the admission of the incident analysis report from the Scranton Police Department
and the report from the Pennsylvania Department of Health which indicated the deficiencies at
the facility. Because this Court has determined that Pennswood failed to prove that there was an
unnecessary hardship which required a variance, the Court need not address these issues.
Finally, Pennswood argues that the grant of the variance was clearly necessary to comply with
(Footnote continued on next page…)

                                              16
              Accordingly, this Court affirms.



                                           ____________________________
                                           BERNARD L. McGINLEY, Judge


Judge McCullough dissents and wishes merely to be so noted.




(continued…)

the Americans with Disabilities Act, 42 U.S.C. §§12101-12213. A review of the record reveals
that Pennswood did not raise this issue before either the Board or the common pleas court. Pa.
R.A.P. 302(a) provides that “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Therefore, this Court will not address this issue.



                                             17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennswood Manor Real Estate            :
Associates, LLC,                       :
                 Appellant             :
                                       :
             v.                        :
                                       :
Zoning Hearing Board of the            :   No. 896 C.D. 2014
City of Scranton                       :

                                  ORDER

             AND NOW, this 24th day of September, 2015, the order of the Court
of Common Pleas of Lackawanna County in the above-captioned matter is
affirmed.


                                       ____________________________
                                       BERNARD L. McGINLEY, Judge
