IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Hartman and :

Ashley Hartman, : No. 650 C.D. 2015

: Argued: December 7, 2015

Appellants :

:

v. :

:

The Zoning Hearing Board :

of Cumru Township and :

St. Francis Home and :

Cumru Township :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION 

BY SENIOR JUDGE FRIEDMAN FILED: February 12, 2016

Joshua Hartman and Ashley Hartman appeal from the March 25, 2015, 

order of the Court of Common Pleas of Berks County (trial court), denying the 

Hartmans’ land use appeal and affirming the decision of the Zoning Hearing Board 

(ZHB) of Cumru Township (Township). We affirm.

On July 24, 2014, St. Francis Home filed an application for a residential 

building permit (building permit) with Township, seeking permission to build a 

single-family, detached dwelling on undeveloped property designated as Lot 1 of the 

Final and Minor Subdivision Plan of the Impink Subdivision located in the Township 

 

1

This case was assigned to the opinion writer on or before January 31, 2016, when Judge 

Leadbetter assumed the status of senior judge.
2

(Property). The Property is in the High Density Residential (HR) zoning district. 

The HR zoning district was established pursuant to the Cumru Township Zoning 

Ordinance of 2009 (Ordinance). (ZHB’s Findings of Fact, Nos. 4, 10, 12a, 13-14; 

Trial Ct. Op. at 1-2.) 

St. Francis Home planned to build the dwelling pursuant to a June 9, 

2014, agreement with Margaret J. Impink. The agreement provided that Impink 

would donate the Property to St. Francis Home for the purpose of providing care to 

terminally ill2individuals in a family-like environment in a residential dwelling

constructed on the Property.3 The proposed dwelling would house three terminally ill 

residents, and four members of St. Francis Home (volunteers) would come on a daily 

basis to provide comfort and care to the residents. There would be three individual 

bedrooms, three individual bathrooms, one common living room, one common 

kitchen, and one common dining area. The volunteers would provide cooking, 

cleaning, and maintenance services for the residents. However, the residents would 

contract for their own support services, such as nursing and healthcare services. On 

the building permit application, Impink was identified as the current owner of the 

Property. However, Impink had previously conveyed the Property to St. Francis 

Home. (ZHB’s Findings of Fact, Nos. 8, 12, 14; Trial Ct. Op. at 1-2.)

 

2

Individuals diagnosed by a physician with six months or less to live. (ZHB’s Findings of 

Fact, No. 12c.)

 

3

St. Francis Home is a non-profit corporation, and the dwelling will be maintained solely 

for a charitable purpose, not for a profit-based motive. (ZHB’s Findings of Fact, No. 8.)
3

On August 5, 2014, St. Francis Home filed an application for a permit to 

construct a curb, a sidewalk, and a driveway entrance (construction permit) on the 

Property. The construction permit also identified Impink as the current owner of the 

Property. Both the building and construction permits were approved by the 

Township zoning officer, Jeanne E. Johnston (zoning officer), in September 2014. 

(ZHB’s Findings of Fact, Nos. 13-15.) 

The Hartmans subsequently appealed the zoning officer’s issuance of the 

permits. The Hartmans are the owners of property at 136 Hillside Drive, Park Manor 

(Hartmans’ property), in the Township. The Hartmans’ property is adjacent to the 

Property and is also in the HR zoning district. (Id., Nos. 1-2, 7, 16; ZHB’s Decision, 

at 7.) 

On November 11, 2014, the ZHB held an evidentiary hearing and on 

December 9, 2014, denied the Hartmans’ appeal. The ZHB determined that the 

proposed dwelling constituted a single-family dwelling, which is a permitted use in 

the HR zoning district. The Hartmans appealed to the trial court, which dismissed 

their appeal and affirmed the ZHB. The Hartmans now appeal to this court.4 

Initially, the Hartmans argue that the ZHB erred and abused its 

discretion in denying their land use appeal because the evidence of record is 

 

4 Where the trial court takes no additional evidence our review is limited to determining 

whether the ZHB abused its discretion or committed an error of law. Servants Oasis v. Zoning 

Hearing Board of South Annville Township, 94 A.3d 457, 461 n.5 (Pa. Cmwlth. 2014).
4

insufficient to support the ZHB’s determination that the proposed dwelling

constitutes a single-family dwelling as defined in the Ordinance. 

Pursuant to section 701(A) of the Ordinance, a single-family, detached 

dwelling is a use permitted by right in the HR zoning district. Section 202 of the 

Ordinance defines “single-family detached dwelling” as “[a] building arranged, 

intended or designed to be occupied exclusively as a residence for one (1) family and 

having no common wall with an adjacent building.” Section 202 of the Ordinance 

defines “family” as:

[A] group of not more than four (4) persons unrelated by 

blood, marriage or adoption, living together in a single 

dwelling and maintaining it as a functional common 

household. The term “family” shall be deemed to include 

any domestic employees or gratuitous guests but shall not 

include any roomer, boarder, lodger or persons residing in a 

group home.

[5]

 

In Albert v. Zoning Hearing Board of North Abington Township, 854 

A.2d 401, 409 (Pa. 2004), the Pennsylvania Supreme Court stated that in determining 

whether a home meets the definition of “single-family dwelling,” the “relative 

stability and permanence in the composition of the familial unit” must be considered. 

 

5

Section 202 of the Ordinance defines “group home” as:

A household of not more than five (5) persons, not necessarily 

related by blood, marriage, adoption, or legal guardianship, who, 

because of their physical or emotional condition, or their social or 

interpretation skills, otherwise would limit, inhibit, or prevent their 

ability to function as useful or productive members of society. All 

such group homes shall be provided with supported services through a 

licensed social service agency.
5

“[T]he composition of the group must be sufficiently stable and permanent so as not 

to be fairly characterized as purely transient.”6 Id. at 410. 

The Albert Court determined that a halfway house with 15 women 

residents did not qualify as a “single[-family] housekeeping unit.” Id. The Court 

found that the halfway house was “[f]ar from being a relatively stable and permanent 

assemblage” because the residents could return to their families within two months of 

receiving rehabilitation at that house. Id.

The Hartmans contend that the terminally ill residents are transient 

because they will only reside at the dwelling for six months or less. However, unlike 

Albert, this is not a temporary housing situation. The residents will reside 

permanently at the dwelling until their death and do not have to leave if they live 

longer than six months. Thus, we agree with the ZHB that the arrangement is stable 

and permanent, not transient. 

Further, in determining whether the home is a single-family dwelling, 

we must consider whether the residents will maintain it as a functional common 

household. See In re Appeal of Miller, 515 A.2d 904, 908 (Pa. 1986). In Miller, the 

Pennsylvania Supreme Court found that Miller, who opened her home to boarders of 

various ages with physical or mental handicaps, established her home as a functional 

common household. Id. at 905, 909. The Court stated that:

 

6

“Transient” is defined as “[a] person or thing whose presence is temporary or fleeting.” 

Black’s Law Dictionary 1637 (9th ed. 2009).
6

The individuals lived and cooked together as a single 

housekeeping unit. The same furnishings were throughout 

the house and the activities of the home were shared in by 

all occupants. Each occupant had access to all areas of the 

premises. There was only one kitchen, the meals were 

taken by all as a group at one sitting. The group attended 

social and religious functions together and celebrated 

holidays jointly. 

Id. at 908. 

The proposed dwelling will have three bedrooms, one common kitchen, 

a dining room, a living room, a laundry room, a foyer, an office, and a chapel. All of 

the meals will be made in the kitchen and served to the three residents, who will eat 

together in the dining room, socialize in the living room, and go to the chapel for 

religious services. Further, the residents will have access to all areas of the home. 

Thus, the ZHB was correct in determining that the residents will maintain the home 

as a functional common household. 

Further, the Hartmans contend that the ZHB erred in considering both 

the residents and the volunteers together as the “family.” The Hartmans assert that 

the sole issue is whether the residents alone constitute a “family.” See Lantos v. 

Zoning Hearing Board of Haverford Township, 621 A.2d 1208, 1211 (Pa. Cmwlth. 

1993) (finding that there was no evidence presented that students maintained a 

common household, operating in such a manner akin to a family unit or the functional 

equivalent thereof and, thus, did not constitute a “family”).

Section 701(A) of the Ordinance provides in pertinent part that “[t]he 

term ‘family’ shall be deemed to include any domestic employees.” Here, the 
7

“family” would consist of the three terminally ill residents and four volunteers, one of 

which will stay overnight at the dwelling each night. Nancy Schwartz, President of 

the St. Francis Home Board of Directors, testified that the purpose of the proposed 

dwelling is to provide a family-like environment for the three terminally ill residents 

where the volunteers provide them support and care. (N.T., 11/11/14, at 29.) The 

ZHB did not err in including the four volunteers as part of the “family.” See JALC 

Real Estate Corporation v. Zoning Hearing Board of Lower Salford Township, 522 

A.2d 710, 711-13 (Pa. Cmwlth. 1987) (holding that four unrelated mentally retarded 

adult women and a ten-person support staff constituted a family); Philadelphia 

Center for Developmental Services, Inc. v. Zoning Hearing Board of Plymouth 

Township, 492 A.2d 1191, 1193 (Pa. Cmwlth. 1985) (holding that three mentally 

retarded residents in a supervised, residential home atmosphere with one resident 

staff member constituted a family).7 

Next, the Hartmans argue that the ZHB erred and abused its discretion in 

determining that the volunteers are “the equivalent to domestic employees and/or 

gratuitous guests” because neither of these terms is defined in the Ordinance.

 

 

7

The Hartmans also assert that the ZHB should have considered whether the proposed use 

was a group home, a convalescent home, a hospice home, or something other than a “single-family” 

home. The Hartmans contend that the ZHB’s failure to consider these other options violated the 

fundamental rule that the interpretation, administration, or enforcement of a zoning ordinance must 

be uniform and cannot be left to the unbridled discretion or arbitrary action of the municipal body or 

officials. See Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 971 (Pa. 

Cmwlth. 2015). However, the record reflects that the ZHB did address whether the proposed use 

was a group home, convalescent home, or hospice home. The ZHB found that none of these 

applied. (See ZHB’s Findings of Fact, Nos. 26-35.) 
8

When a term is undefined in an ordinance, we look at the term’s 

common meaning “and any doubt is resolved in favor of the landowner and the least 

restrictive use of the land.” Caln Nether Company, L.P. v. Board of Supervisors of 

Thornbury Township, 840 A.2d 484, 491 (Pa. Cmwlth. 2004). When defining a term, 

we may look at statutes, regulations, or dictionaries for assistance. Id. 

Black’s Law Dictionary defines “domestic” as “[o]f or relating to the 

family or the household.” Black’s Law Dictionary 557-58 (9th ed. 2009). 

“[E]mployee” is defined as “[a] person who works in the service of another . . . .” 

Black’s Law Dictionary 602 (9th ed. 2009). The volunteers at St. Francis Home will 

be going to the dwelling on a daily basis to cook, serve, assist, and care for the 

residents. Thus, the ZHB correctly determined that the volunteers met the definition 

of a domestic employee. 

Next, the Hartmans argue that the ZHB erred and abused its discretion in 

denying their land use appeal because section 1302(A) of the Ordinance “specifically 

requires all permit applications to be filed by or on behalf of the correct, current 

property owner.” (Hartmans’ Br. at 20.) We disagree. 

Section 1302(A) of the Ordinance provides:

The following general requirements shall apply to 

zoning permits, certificates of occupancy, as reviewed and 

issued by Cumru Township:

(1) Persons desiring to undertake any new 

construction, structural or site alteration, or changes in the 

use of a building or lot shall apply for a permit by filling out 

the appropriate application form and by submitting the 

required fee.
9

The record reflects that the building and construction permit applications 

were submitted by Berks Homes, the contractor hired by St. Francis Home to 

construct the proposed dwelling. Although the applications listed Impink as the 

Property owner, Impink transferred the Property to St. Francis Home on July 9, 2014, 

before the permits were requested. The ZHB found that the 2014 permit applications 

listing Impink as the owner did not prejudice any party in this proceeding. As the 

ZHB determined, “‘[b]ased upon the fact that Ms. Impink and the St. Francis Home 

had commonality and were in agreement as to the purpose of the permits, there is no 

prejudice to anybody.’” (Trial Ct. Op., 12/9/14, at 9 (citing ZHB’s Findings of Fact,

No. 44).) We agree.8

Next, the Hartmans argue that the ZHB erred and abused its discretion in 

denying their land use appeal because the Township Solicitor (Solicitor) acted as an 

advocate for the Township and St. Francis Home at the hearing, thereby creating an 

appearance of bias and/or impropriety. The Hartmans contend that the solicitor for a 

ZHB may act as an advisor to the ZHB, see 813 Associates v. Zoning Hearing Board 

of Springfield Township, 479 A.2d 677, 680-81 (Pa. Cmwlth. 1984), but may not 

assume the position of advocate for a particular position. Further, a tribunal charged 

with hearing matters must not only be unbiased but also must avoid the appearance of 

bias and/or impropriety. Horn v. Township of Hilltown, 337 A.2d 858, 859-60 (Pa. 

1975). 

 

8

The ZHB stated that Township and the Hartmans were aware in 2012 that Impink intended 

to transfer the Property to St. Francis Home for the purpose of constructing the proposed dwelling.
10

The Hartmans complain that the Solicitor, during questioning, spoke of 

his own experiences. However, the Hartmans did not object to the Solicitor’s

statements at the hearing, so this argument is waived. See D.Z. v. Bethlehem Area 

School District, 2 A.3d 712, 725 (Pa. Cmwlth. 2010). 

Further, the ZHB’s refusal to admit testimony and evidence regarding 

traffic congestion and decreased property values did not amount to bias and was not 

improper. This case involves the issuance of building and construction permits and, 

as such, testimony on traffic congestion and decreased property values was not

relevant. The only issue before the ZHB was whether the permits were correctly 

issued pursuant to the provisions of the Ordinance.9 

Finally, the Hartmans contend that the ZHB erred and abused its 

discretion in denying their land use appeal because the ZHB’s Findings of Fact 

Number 22 is not supported by the evidence.

10

 Although the record indicates that the 

Hartmans did not make an offer of proof, the Hartmans did attempt to offer an expert 

to present evidence as to traffic congestion. Such testimony was not allowed by the 

 

9

If St. Francis Home was denied the permits because the proposed dwelling was not a 

permitted use under the Ordinance, then St. Francis Home would have to apply for a special 

exception or a variance. In either of those proceedings, testimony regarding increased traffic and 

decreased property values would be relevant. 

10 The ZHB’s Findings of Fact Number 22 provides:

[The Hartmans] made an offer of proof to introduce a vehicular and/or 

traffic engineer to demonstrate the increase in vehicular traffic which 

would be caused by constructing the St. Francis Home residence.
11

ZHB, and the Hartmans requested that their objection be noted. The ZHB’s Findings

of Fact Number 22 was not relevant to the outcome of the case, as it related to an 

issue that was not before the ZHB. Therefore, we agree with the trial court that the 

error did not have any affect on the outcome of the case. 

Accordingly, we affirm.

_______________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joshua Hartman and :

Ashley Hartman, : No. 650 C.D. 2015

: 

Appellants :

:

v. :

:

The Zoning Hearing Board :

of Cumru Township and :

St. Francis Home and :

Cumru Township :

O R D E R

AND NOW, this 12th day of February, 2016, we hereby affirm the 

March 25, 2015, order of the Court of Common Pleas of Berks County.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge