IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Diane M. Riccio, :

Appellant :

:

v. : No. 636 C.D. 2021

:

Newtown Township Zoning : Submitted: December 4, 2023

Hearing Board and Lawrence and :

Alicia Robinson :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION 

BY JUDGE McCULLOUGH FILED: January 12, 2024 

Diane M. Riccio (Riccio) appeals from the order of the Court of Common 

Pleas of Delaware County (trial court), dated May 11, 2021. The trial court’s order

affirmed the decision of the Newtown Township Zoning Hearing Board (ZHB), dated 

January 22, 2020, which granted Lawrence and Alicia Robinson’s (Robinsons) 

application for a dimensional variance. After review, we affirm.

I. Factual Background

Lawrence Robinson obtained title to the property (Property) from the 

Estate of James T. Kelly by Deed dated March 27, 2008, and recorded it with the 

Delaware County Recorder of Deeds at Deed Book 4329, Page 1941. (Trial Court’s 

Order May 11, 2021, Findings and Conclusions (Tr. Ct. F.) 3.) Pursuant to Section 

172-34(B)(1) of the Township’s Zoning Ordinance (Ordinance)1the Property is 

required to have a minimum lot area of 12,000 square feet to construct a building or 

1 Newtown Twp., Del. Cnty., Pa., Zoning Ordinance § 172-34(B)(1).
2

dwelling thereon. The Property has a minimum lot area of only 8,865 square feet. Id.

9.

Simultaneously with his acquisition of the Property, Lawrence Robinson 

obtained title to the contiguous parcel containing a residential dwelling, known and 

identified as 218 Fourth Avenue, Newtown Township, Delaware County Folio No. 30-

00-01029-00 (Contiguous Property) (collectively, the Property and Contiguous 

Property are sometimes hereinafter referred to as the Robinson Properties). Id. 3. The 

Contiguous Property was transferred to Lawrence Robinson by the Estate of James T. 

Kelly by Deed dated March 27, 2008, and recorded with the Delaware County Recorder 

of Deeds at Deed Book 4329, Page 1944. Id. 4. Lawrence Robinson then conveyed 

the Robinson Properties to himself and his wife, Alicia Robinson, by Deed dated 

August 11, 2008, and recorded with the Delaware Country Recorder of Deeds at Deed 

Book 4422, Page 0766. Id. Although the Robinson Properties were conveyed via a

single deed in this particular transaction, each of the parcels was described with

separate legal descriptions, maintained their individual Delaware County Tax Folio 

Numbers, and continued to be taxed as separate parcels. Id.

II. Procedural History

In August 2008, the Robinsons filed an application with the ZHB seeking 

a dimensional variance from the minimum lot area requirements of Ordinance Section 

172-34(B)(1) with respect to the Property for the construction of a single-family

dwelling. (Supplemental Reproduced Record (R.R.) at 95b.) The application was 

ultimately voluntarily withdrawn without prejudice, and no decision was ever rendered 

by the ZHB. Id.

On August 15, 2016, the Robinsons filed a new application with the ZHB, 

seeking a dimensional variance from the minimum lot area requirements of Section 
3

172-34(B)(1) of the Ordinance to permit the construction of a single-family dwelling 

on the Property. See Riccio v. Newtown Township Zoning Hearing Board (Pa. Cmwlth. 

No. 1788 C.D. 2017, filed September 10, 2019). 

On October 20, 2016, a quorum of the ZHB voted unanimously to approve 

the requested dimensional variance. Id. Riccio appealed the ZHB’s order to the trial 

court, which affirmed the ZHB’s order and denied Riccio’s appeal. Id. Subsequently, 

Riccio appealed the trial court’s decision to this Court. By Memorandum Opinion 

dated September 10, 2019, this Court reversed the trial court’s order and remanded the 

case to the trial court with instructions to vacate the ZHB’s October 20, 2016 decision 

on the basis that the ZHB’s appointment of a hearing officer for the September 15, 

2016 hearing was done without a quorum and, therefore, was invalid. Id. A decision 

on the underlying merits of the ZHB’s decision granting the Robinsons’ dimensional 

variance request was not reached. Id.

On December 19, 2019, a new hearing was held before a quorum of the 

ZHB. (R.R. at 31b-151b.) The Robinsons presented the testimony of Dennis O’Neill, 

P.E., and Lawrence Robinson, in support of the Application, and further submitted all

the documents which had been presented at the 2016 hearing plus a few additional 

documents. Id. After being accepted as an expert in the field of civil engineering as it 

relates to zoning, subdivision and land development, Mr. O’Neill gave a detailed 

history of the Property, going through the Robinsons’ chain of title and identifying the 

Property on the original 1924 Subdivision Plan. Id. at 46b-49b. As noted by O’Neill, 

the original 1924 subdivision resulted in the creation of predominately 20-foot-wide 

lots throughout the Property’s neighborhood, all of which are smaller than the 12,000-

foot minimum lot requirements now required under the Zoning Ordinance. Id. Mr. 

O’Neill described a current Delaware County Tax Map. Id. He confirmed that other 
4

than the requested dimensional variance from the minimum lot size requirement, the 

Robinsons’ proposed development of the Property would meet all the Township zoning 

requirements. Id. at 51b-52b, 85b. Mr. O’Neill further opined that due to the 

Property’s size and shape, the lot could not be developed without the requested 

dimensional variance, that the variance requested represented the minimum relief 

necessary to permit a reasonable development of the Property, and that, if granted, the 

dimensional variance would not alter the essential character of the neighborhood, 

substantially impair the use or development of the adjacent property or be detrimental 

to the public’s welfare. Id. at 60b-61b. Mr. O’Neill concluded his testimony by 

describing a portion of a “block plan” maintained by and obtained from the Delaware 

County Assessor’s Office, showing the Property and the Contiguous Property, noting 

the dimensions of each lot, and referencing the original lot numbers from the 1924 

Subdivision Plan. Id. at 65b-69b. Mr. O’Neill testified that based upon his expertise 

in the field, the “Z” placed through the adjoining lot line of the Robinson Properties 

signified that the properties were “separate lots owned by the same individual.” Id. at 

66b-67b. Mr. O’Neill then described the process in the Township that a property owner

would have to undertake to merge two separate, adjoining tax parcels into one lot. Id.

at 68b-69b. Mr. O’Neill testified that in order to formally merge the Robinson 

Properties into a single property after the Township’s enactment of the minimum lot 

requirement in 1959, the property owner would have been required to obtain approval 

of a “reverse subdivision” plan from the Township in accordance with the Township’s 

Subdivision and Land Development Ordinance, and then record that approved plan 

with the Delaware County Recorder of Deeds. Id. at 69b. All future deeds would then 

reference that reverse subdivision plan in their description of the newly created merged 
5

lot. Id. In this case, Mr. O’Neill stated that no such lot consolidation or “reverse 

subdivision” plan was ever recorded. Id.

Lawrence Robinson testified next, discussing the acquisition of the 

Robinson Properties and the subsequent deed transfers. He testified that the Properties 

were advertised as two separate lots, that each maintained a separate “for sale” sign 

and was taxed separately, and that he received two separate deeds at settlement. Id. at

88b. After purchase of the Properties, the Robinsons rented the Contiguous Property 

to a tenant, who has since been notified of the Robinsons’ petition for variance and the

plans to develop the Property. Id. at 103b-104b.

Following the conclusion of the Robinsons’ case, Riccio presented her 

case in opposition to the Robinsons’ request for a dimensional variance. It was Riccio’s 

position that the Property and Contiguous Property (which already contained a singlefamily dwelling) are one single lot and, therefore, the single lot needed to be subdivided 

before the Robinsons could seek a dimensional variance. Riccio argued that the 

Robinsons were trying to circumvent this step by claiming that the Property and 

Contiguous Property are already two separate lots and to subdivide the one lot would 

create a hardship which is not permitted when seeking a variance. That is, the 

Robinsons would be creating their own hardship (one lot would only be 8,865 square 

feet) and would be denied any variance. Riccio first presented the testimony of John 

Schmidt, Executor for the Estate of John Kelly, who executed the deeds conveying the 

Robinson Properties to Lawrence Robinson. Schmidt confirmed that the Properties 

maintained two separate tax folio numbers and testified that he sold the Robinson 

Properties in a manner to maximize value. Id. at 111b. 

Next, Riccio testified on her own behalf, discussing her recollection of the 

use of the Robinson Properties during her time growing up in her home across the 
6

street. Id. at 113b-114b. Riccio described how her parents subdivided their own

property in 1976 to build on the lot upon which Riccio’s house now sits. Id. She 

presented a deed which confirmed that, unlike the Robinson Properties, which have 

always maintained two tax folio numbers, her parents’ property originally consisted of 

only one tax folio number prior to the approval of the subdivision. Id. at 126b-127b. 

Riccio further attempted to submit a 2008 letter from the prior ZHB Solicitor 

purportedly offering an opinion as to the Robinsons’ proposed development, first 

during cross-examination of Lawrence Robinson and then again during the

presentation of her own case. Id. at 97b, 120b. Objections to the prior ZHB Solicitor’s 

letter were sustained on the basis of hearsay and the Robinsons’ inability to crossexamine its drafter. Id. 

Riccio then closed her case by submitting letters from various neighbors,

who purportedly supported her opposition to the dimensional variance. Id. at 133b134b. Three other neighbors then provided comments in opposition to the dimensional 

variance, offering statements generally in line with Riccio’s statements that the 

proposed new construction on the Property would not be compatible with the existing

development of the neighborhood. Id. at 143b-145b.

On January 15, 2020, Riccio emailed the ZHB Solicitor asking to reopen 

the matter, stating that she believed there were procedural deficiencies in relation to 

the variance approval process by the ZHB. On January 16, 2020, the ZHB voted 

unanimously to approve the grant of a dimensional variance and denied Riccio’s 

request to reopen the matter. Id. at 27b-28b. Riccio appealed to the trial court. 

On April 19, 2021, the trial court held a hearing in which Riccio

participated remotely at her request and wherein there was no additional testimony 

provided, and the parties relied on the record from the December 19, 2019 hearing, and 
7

provided the trial court arguments as to their respective positions. On May 11, 2021, 

the trial court issued its order denying Riccio’s Land Use Appeal. Riccio filed a Notice 

of Appeal, and the trial court ordered Riccio to file a Concise Statement of Errors 

Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 

(Pa.R.A.P.) 1925(b). After Riccio complied, the trial court issued its 1925(a) Opinion 

on July 6, 2021. In its opinion, the trial court concluded that the ZHB had not abused 

its discretion or committed an error of law in granting the dimensional variance. 

This appeal followed.

III. Issues

On appeal,

2 Riccio presents eight issues.3 We summarize the issues as

follows: (1) whether Riccio’s right to due process was violated; (2) whether the 

Property is a separate lot or a portion of a larger property, inclusive of the Contiguous

Property, thus rendering a dimensional variance impossible to obtain since the hardship 

would have been self-created by the Robinsons in subdividing and creating an 

undersized and nonconforming lot; (3) whether approval of the dimensional variance 

was supported by substantial evidence; and (4) whether the trial court erred by allowing 

the Robinsons to supplement the record with a copy of their timely acceptance of the 

ZHB’s decision during the oral argument.

2 Because the trial court took no additional evidence, our standard of review is restricted to 

determining whether the ZHB committed an abuse of discretion or an error of law. Valley View Civic 

Association v. Zoning Board of Adjustment, 462 A.2d 637, 639-40 (Pa. 1983). “We may conclude 

that the [ZHB] abused its discretion only if its findings are not supported by substantial evidence . . . 

. By ‘substantial evidence’ we mean such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Id. at 640 (citations omitted).

3 The issues raised by Riccio are identical to the issues she raised in the trial court. The trial 

court summarized the issues in four separate categories to avoid redundancy and we do the same. 
8

IV. Discussion

A. Due Process

In her first issue, Riccio argues that the trial court erred in determining 

that her due process rights were not violated and that the ZHB did not commit an abuse 

of discretion when it lost several of her exhibits and showed clear bias throughout the

hearing. Riccio also contends that her due process rights were denied when the trial 

court granted her request to participate in the April 19, 2021 hearing remotely while 

failing to notify Riccio that the Robinsons would be attending in person. Riccio further 

asserts that her right to due process was violated by the trial court when it refused to 

rule on the issue of variance expiration.

4

 Riccio also contends that the trial court 

violated her right to due process in determining there were no procedural defects during 

the December 19, 2019 hearing before the ZHB.

5

4 One of the issues Riccio argued before the trial court was variance expiration. She argued 

that the Robinsons did not seek a building permit or an extension of their initially approved zoning 

variance within six months of the decision of the ZHB as per a Newtown Township Ordinance

requirement, thus rendering the approval moot. However, the trial court stated:

This question is outside the scope of review of the trial court, which 

may only consider whether the ZHB abused its discretion or committed 

an error of law. New evidence may not be introduced. The alleged 

expiration was not an issue of record before the ZHB at the time of 

December 19, 2019 hearing and is not a part of the ZHB’s decision on 

appeal in this case.

(Tr. Ct. F. 44-45.)

5 On appeal to the trial court, Riccio asserted the violation of her due process rights by alleging 

that the ZHB violated provisions of the Sunshine Act. 65 Pa. C.S. §§ 701-716. On appeal to this 

Court, Riccio raises an entirely different issue, namely that the ZHB did not have to strictly comply 

with the Pennsylvania Rules of Civil Procedure, and her hearsay evidence should have been accepted. 

This issue has been waived. Issues not raised in the trial court are waived and cannot be raised on 

appeal. Commonwealth v. Piper, 328 A.2d 845 (Pa. 1974); Dilliplaine v. Lehigh Valley Trust Co., 

322 A.2d 114 (Pa. 1974); Appeal of Lawrence Township, 544 A.2d 1070 (Pa. Cmwlth. 1988).
9

A zoning hearing board is a quasi-judicial entity. Pennsylvania case law 

has determined that a ZHB serves in a quasi-judicial manner by engaging in factfinding and deliberative functions in a manner similar to a court. Baribault v. Zoning 

Hearing Board of Haverford, 236 A.3d 112, 120 (Pa. Cmwlth. 2020) (quotations 

omitted). A fair trial before a fair tribunal is a basic and fundamental due process 

requirement. Atherton Development Company v. Township of Ferguson, 29 A.3d 1197, 

1212 (Pa. Cmwlth. 2011) (quotations omitted). Thus, where a municipal tribunal is

acting in an adjudicatory role it must abide by due process standards and avoid the 

appearance of impropriety. Id.

Fundamentally, due process affords a party notice and an opportunity to 

be heard. Weaver v. Franklin County, 918 A.2d 194, 203 (Pa. Cmwlth. 2007). Due 

process principles require an opportunity, among other things, to hear evidence 

adduced by an opposing party, cross-examine witnesses, introduce evidence on one’s 

own behalf, and present argument. See Panzone v. Fayette County Zoning Hearing 

Board, 944 A.2d 817, 821 (Pa. Cmwlth. 2008). The key factor in determining whether 

procedural due process is denied is whether the party asserting the denial of due process

suffered demonstrable prejudice. Smith v. City of Philadelphia, 147 A.3d 25, 32 (Pa. 

Cmwlth. 2016) (quotations omitted).

The Court recognizes that due process requires a local governing body in 

the performance of its quasi-judicial functions to avoid even the appearance of bias or 

impropriety. Kuszyk v. Zoning Hearing Board of Amity Township, 834 A.2d 661, 665 

(Pa. Cmwlth. 2003). A showing of actual bias on the part of a zoning hearing board is 

unnecessary in order to assert a cognizable due process claim; the mere potential for 

bias or the appearance of non-objectivity may be sufficient to constitute a violation of 

that right. Id.
10

Missing Exhibits

Riccio alleges that the ZHB misplaced her exhibits and that, therefore, the 

record before the trial court was incomplete, rendering it unable to make a fair and 

impartial decision on appeal. The exhibits that Riccio alleged were misplaced included 

a copy of the Deed to the Property from 2008 and several letters from neighbors. These

exhibits were originally entered into the record during the December 19, 2019 hearing. 

At some point between that hearing and the April 19, 2021 hearing before the trial 

court, the ZHB was unable to locate them. The trial court found that the absence of the 

exhibits had no bearing on the case because the Deed to the Property was already part 

of the ZHB’s record as part of the Robinsons’ evidence. Additionally, it concluded 

that the opinions of neighbors expressing concerns about a new home on the Property

at the December 19, 2019 hearing were consistent with those allegedly contained in the 

missing exhibits. 

We discern no error on the part of the trial court. First, with respect to the 

Deed, the trial court was provided a copy of the Deed. The Robinsons testified and 

offered exhibits of official deeds and real estate transfer reports detailing the chain of 

ownership. So, the loss of the deed exhibit was inconsequential. With respect to the 

neighbors’ letters, the trial court found that they were merely cumulative of other 

evidence and did not contain any information that was not available elsewhere on the 

record.

6 As noted by the trial court, “[t]here is no reason to believe the position of the 

neighbors in the three letters allegedly lost differed substantially from the testimony of 

neighbors at the hearing.” (Trial Court Op. at 10.)

6

It is unclear why Riccio did not seek to supplement the record with the missing exhibits on 

appeal to the trial court. 
11

To demonstrate prejudice resulting from the lost evidence necessary to 

rise to the level of a due process violation, an appellant must demonstrate actual harm 

or prejudice resulting from the loss of the evidence. See Zevallos v. Obama, 793 F.3d 

106 (3d Cir. 2015); see also J.C. v. Department of Public Welfare (Pa. Cmwlth., No. 

178 C.D. 2009, filed Dec. 17, 2009), slip op. at *4.7(A claimant must show “in what 

specific manner the missing witnesses would have aided the defense . . . [and/or] that 

the lost testimony or information is not available through other means”) (internal 

citations omitted). “It is not sufficient . . . to make speculative or conclusory claims of 

possible prejudice,” the [a]ppellant must “show in what specific manner missing 

[evidence] would have aided the [case].” Commonwealth v. Scher, 803 A.2d 1204, 

1222 (Pa. 2002); Smith, 147 A.3d at 32 (“key factor in determining whether procedural 

due process is denied is whether the party asserting the denial of due process suffered 

demonstrable prejudice”).

Here, Riccio has failed to demonstrate how any of the missing evidence 

resulted in prejudice, would have changed the outcome of the trial court’s decision, or 

is not contained elsewhere in the record. As noted, the Property’s historical deeds and 

the neighbor opinion letters purportedly contain information available elsewhere in the 

record, as the Robinsons submitted a complete chain of title of the Property’s deed 

dating back to 1924, and three neighbors testified at the hearing with regard to their 

objections to the development of the Property. In sum, Riccio did not show she was 

harmed by the missing exhibits. Accordingly, we decline to reverse the trial court on 

this basis.

7 We may cite an unreported case for its persuasive value in accordance with Section 414(a) 

of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
12

Bias

Riccio next argues that during the December 19, 2019 hearing before the 

ZHB, she “found herself experiencing . . . antagonism, unfair treatment and clear bias 

toward [her] and favoritism of [the Robinsons].” (Appellant’s Brief at 12.) She alleges 

that the ZHB’s bias prevented it from “equally weigh[ing] the testimony of [Riccio] 

and the neighbors who provided testimony or public comment” and prohibited her from 

having a “meaningful opportunity to be heard.” Id. Riccio presents the following 

excerpt from the ZHB’s December 19, 2019 hearing as evidence of bias by the 

Chairman:

Ms. Riccio: First of all, you shouldn’t be sustaining before 

he objects. That is not fair.

The Chairman: But you keep doing the same thing over and 

over again.

[Robinsons’ Counsel]: Your whole last ten minutes has been 

objectionable.

(Notes of Testimony (N.T.) Hearing 12/19/19, p. 99; R.R. at 126b.)

“Judicial remarks during the course of a trial that are critical or 

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not 

support a bias or partiality challenge. They may do so if they reveal an opinion that 

derives from an extrajudicial source; and they will do so if they reveal such a high 

degree of favoritism or antagonism as to make fair judgment impossible.” Penn Street, 

L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114, 1147 (Pa. 

Cmwlth. 2014) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). 

Furthermore, “expressions of impatience, dissatisfaction, annoyance, and even anger . 

. . remain immune” from establishing improper bias or partiality. Commonwealth v. 

Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (quoting Liteky, 510 U.S. at 555-56).
13

Here, the above quoted excerpt refers to objections by the Robinsons’ 

counsel to Riccio when she attempted to present hearsay testimony. There is nothing 

in the excerpt which leads this Court to believe that the Chairman was necessarily 

biased against Riccio. Rather, it appears that the Chairman was pointing out to Riccio 

that she kept making the same mistake. While the Chairman’s comment may have 

expressed impatience and annoyance with Riccio’s continued attempts to introduce 

improper hearsay evidence and her general unpreparedness for the hearing, the record 

demonstrates that the Chairman ultimately allowed her evidence to be admitted as part 

of the record over the Robinsons’ counsel’s objection. Also, as noted by the trial court, 

the ZHB, on occasion, even accommodated Riccio, thus, negating any claims of overt 

bias on the part of the ZHB which could even possibly rise to the level required under 

the law to support a due process violation. In addition, there is no evidence that Riccio 

was not given the opportunity to present evidence and make her case. She was 

permitted to enter items into the record, to provide testimony and cross-examine 

witnesses, to file her Land Use Appeal and be heard in the trial court, and to file an 

appeal to the trial court’s decision. 

To the extent Riccio relies on Haines v. Kerner, 404 U.S. 519 (1972), to 

argue that the ZHB was biased for failing to give her extended leeway as a pro se

litigant, she misinterprets the holding of that case. Haines stands for the proposition 

that a pro se litigant should not be prohibited from having her day in court due to a 

mere technical deficiency in a legal pleading. Id. Haines does not preclude a zoning 

hearing board from forbidding a pro se litigant to present clearly inadmissible hearsay 

and other evidence over the objection of another party – in this case, the Robinsons –

simply because the Robinsons were represented by counsel and Riccio was not. 
14

The ZHB’s decision to limit the introduction of Riccio’s hearsay evidence 

was necessary to protect the Robinsons’ right inherent under the Pennsylvania 

Municipalities Planning Code (MPC) “to respond and present evidence and argument 

and cross-examine adverse witnesses on all relevant issues.” Section 908(5) of the 

MPC, 53 P.S. § 10908(5);

8 Walker v. Unemployment Compensation Board of Review, 

367 A.2d 366, 370 370 (Pa. Cmwlth. 1976) (The law is well established that “[h]earsay 

evidence, properly objected to, is not competent evidence to support a finding of the 

[zoning hearing board].”) The law does not require that the Robinsons’ right to a fair 

proceeding be usurped by Riccio’s desire to discount basic rules of evidence and 

present incompetent evidence due to her pro se litigant status. The record before the 

ZHB and trial court clearly demonstrates that Riccio’s claims of improper bias and 

procedural errors are unfounded. Accordingly, we will not reverse the trial court’s 

opinion on this basis. 

Remote Hearing

For the first time in this appeal, Riccio raises an objection to the trial 

court’s accommodation of her own request to participate in oral argument on her Land 

Use Appeal by remote technology due to her concerns related to the COVID-19 

pandemic. Without any explanation as to how she may have been disadvantaged, 

Riccio takes the position that she was not given “a meaningful opportunity to be heard” 

by her remote participation while other parties in the hearing were allowed to 

participate in-person. See Appellant’s Brief at 17. Riccio argues that the trial court 

violated her due process right when it held its April 19, 2019 hearing in person despite 

granting Riccio’s request to appear virtually. In other words, Riccio asserts that when 

she requested to appear virtually to ensure personal health and safety due to the

8 Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 

P.S. §§ 10101-11202.
15

pandemic, the trial court disadvantaged her by failing to notify her that the Robinsons 

would be attending in person. 

As an initial matter, Riccio has waived this claim by failing to raise any 

objection before the trial court. As noted in the trial court’s opinion, Riccio did not 

raise any objections to the hearing procedure during or after oral argument even after 

she became aware that other parties were present in the courtroom. She cannot raise 

the issue for the first time in this Court. Issues not raised in the trial court are waived 

and cannot be raised on appeal. Commonwealth v. Piper, 328 A.2d 845, 874 (Pa. 1974); 

Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 117 (Pa. 1974); Appeal of 

Lawrence Township, 544 A.2d 1070, 1074 (Pa. Cmwlth. 1988). 

Even if the claim was not waived, we would conclude that the trial court

did not err or abuse its discretion in the manner it conducted the hearing. First, Riccio’s 

brief is devoid of any explanation of how the trial court’s accommodation of her request 

negatively impacted her ability to participate in the argument or prejudiced her in any

way. Nor does she convey how such procedure would be disadvantageous or unfair to 

her interest in the case. Again, Riccio received a notice that oral argument before the 

trial court would be held on April 19, 2021, in person. She requested to appear 

virtually, and her request was approved. Riccio was not precluded from participating 

in the hearing. She did not raise any objections during that hearing related to the 

presence of other parties in the courtroom or explain how that might have 

disadvantaged her. At the time of the hearing, pursuant to local and the Center for

Disease Control’s health regulations, in-person hearings were being permitted in

Delaware County. Riccio did not present any evidence to show that those in the

courtroom had any specific advantages related particularly to being in person.
16

Moreover, despite the fact that she was not present in person, Riccio was 

afforded an opportunity to be heard during a fair trial before a fair tribunal. Atherton 

Development Co., 29 A.3d at 1212 (Pa. Cmwlth. 2011). Riccio participated in the 

hearing, submitted briefs on the issues, and was able to make her arguments to the trial 

court. There was no evidence that, by appearing remotely during the trial court’s 

hearing, she was at any legal disadvantage or suffered any bias. Accordingly, we find 

this issue to be wholly without merit.

B. Separate Lots

In her next issue, Riccio argues that the ZHB’s conclusion that the 

Property was a distinct and separate lot from the Contiguous Property was not 

supported by substantial evidence. Riccio asserts that the Property and Contiguous 

Property should have been considered one single lot. She contends that the Property is 

a portion of a larger property inclusive of the Contiguous Property and therefore subject 

to subdivision before it can be built upon, thus rendering a variance impossible to 

obtain since the hardship would have been created by the Robinsons in subdividing and 

creating an undersized and nonconforming lot. Riccio asserts, because the Property 

and Contiguous Property were previously used as one parcel, with one tenant and in 

single ownership with one address, subdivision was required before a house can be 

constructed on the Property. Riccio provides evidence such as the presence of a 

trampoline on the Property, and a car being parked there in support of her argument.

Riccio also relies on DiCicco v. City of Philadelphia (Pa. Cmwlth., No. 

2625 C.D. 2015, filed May 10, 2017), for the proposition that two separately deeded

and legally described parcels may be considered one lot for zoning purposes. We find 

DeCicco to be inapposite. 
17

In DiCicco, two lots were created by a subdivision in 1923. In 1952, the 

then-owners of the properties constructed a single-family home directly in the center 

of the combined lot line. Id., Slip op. at 2. In 2014, the landowners filed two 

applications for zoning/use registration permit proposing a single-family house at 9613 

Evans Street and a single-family house at the adjacent parcel at 9615 Evans Street. Id. 

The Philadelphia Department of Licenses and Inspections (L&I) denied the landowners 

permission to build the two houses on two lots. The landowners appealed to the Zoning 

Board of Adjustment in Philadelphia (ZBA), arguing that the parcels were separate tax 

parcels and were never formally consolidated, they bought the property in 2013, and 

the property was conveyed to them under a single deed that included separate legal 

descriptions for the two parcels. Id., Slip op. at 4. They argued that, therefore, the 

property should be treated as two individual, nonconforming lots. The ZBA found that 

L&I did not err by recognizing the property was a single lot. Id., Slip op. at 10. There 

was a single-family home that straddled both parcels. The property also had a single 

postal address and a single tax account number with the City’s assessment office, which 

the property continued to maintain up until the time the landowners sought to develop 

the smaller lot. Id.

Here, unlike the property in DiCicco, no building or other improvements 

are shared between the Property and the Contiguous Property or maintained at or near 

the shared boundary line. Most importantly, however, is the undisputed fact that the 

Property has always maintained a single tax folio number separate from the 

Contiguous Property. Finally, here, the Township’s Zoning Ordinance, defines a “lot” 

as “a single tax parcel, notwithstanding that a deed may contain reference to several 

lots.” (Newtown Township Ordinance § 172-2.) 
18

Riccio further cites West Goshen Township v. Crater, 538 A.2d 952 (Pa. 

Cmwlth. 1988), in support of her position, where this Court held that the subjective 

intent of the owner was insufficient to prove that an adjoining lot was held in single 

and separate ownership from the owner’s neighboring lot. We find Riccio’s reliance 

on West Goshen is also misplaced. In that case, the Court ultimately concluded that 

the owner’s lot was not held in a single and separate ownership as a result of the various 

provisions of the ordinance, which defined a “lot” as “a tract or parcel of land held in 

single and separate ownership,” and noted the lack of objective evidence that the lot in 

question was separate and distinct. Id. at 955-56. The Court did not provide examples 

of objective evidence, but rather stated, “trial courts have found the lack of single and 

separate ownership in cases where lots have been fenced together as one integrated unit 

and maintained as a unified parcel of residential property; where a lot has been used as 

an appurtenance to the residence as if the same were on an integrated tract of land; and 

where lots were incorporated into one larger building lot which was utilized for the 

purpose of erecting a single family dwelling. Id. at 955. Unlike West Goshen, the 

Newtown Township’s Ordinance defines a “lot” as “a single tax parcel, 

notwithstanding that a deed may contain reference to several lots,” and substantial 

objective evidence was presented by the Robinsons to establish that the Property was

maintained as a separate lot. Additionally, the Robinson Properties were not subject 

to a similar merger ordinance as applied in West Goshen.

The evidence of record supports the ZHB’s conclusion that the Robinson

Properties were separate lots for which no subdivision was required, and the trial court 

did not err in affirming that decision. The Properties have maintained separate tax folio 

numbers for as long as investigation could reveal and the expert testimony by civil 

engineer Dennis O’Neill supports the fact that the past conveyance of the Robinson
19

Properties by a single deed could not have resulted in a merging of the lots, as it can 

only occur through a formal “reverse subdivision” process, no evidence of which 

exists. (R.R. at 68b-69b.) Accordingly, we find this issue without merit. 

C. Dimensional Variance 

Next, Riccio argues that the ZHB’s decision to grant the dimensional 

variance was not supported by substantial evidence. Specifically, she argues that the 

ZHB erred by granting the variance in absence of a finding of unique hardship. 

“It is the function of the [ZHB] to determine whether the evidence satisfies 

the criteria for granting a variance.” Marshall v. City of Philadelphia, 97 A.3d 323, 

331 (Pa. 2014); see also 53 P.S. § 10910.2.9 The Pennsylvania Supreme Court declared 

in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 

1998):

When seeking a dimensional variance within a permitted use, 

the owner is asking only for a reasonable adjustment of the 

zoning regulations in order to utilize the property in a manner 

consistent with the applicable regulations. Thus, the grant of 

a dimensional variance is of lesser moment than the grant of 

a use variance, since the latter involves a proposal to use the 

property in a manner that is wholly outside the zoning 

regulation.

Id. at 47. This Court explained:

[I]n Hertzberg, our Supreme Court set forth a more relaxed 

standard for establishing unnecessary hardship for a 

dimensional variance, as opposed to a use variance.

Under Hertzberg, courts may consider multiple factors in 

determining whether the applicant established unnecessary 

hardship for a dimensional variance. These factors include 

the cost of the strict compliance with the zoning ordinance, 

the economic hardship that will result from denial of a 

9 Section 910.2 of the MPC, added by the Act of December 21, 1988, P.L., 1329.
20

variance, and the characteristics and conditions of the 

surrounding neighborhood. 

Tri-County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 A.3d 488, 520 

(Pa. Cmwlth. 2014).

Despite the relaxed standard, “[t]he burden on an applicant seeking a 

variance is a heavy one, and the reasons for granting the variance must be substantial, 

serious and compelling.” Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 

144, 149 (Pa. Cmwlth. 2011). Moreover, notwithstanding that an application is for a 

dimensional variance, “[t]he same criteria apply to use and dimensional variances,” 

meaning that “[a]n applicant must still present evidence as to each of the conditions 

listed in the zoning ordinance, including unnecessary hardship.” Tidd v. Lower Saucon 

Township Zoning Hearing Board, 118 A.3d 1, 8 (Pa. Cmwlth. 2015). 

Here, the lot size of the Property is less than that required by the 

Ordinance, making compliance with the Ordinance impossible. The lot therefore 

constitutes a non-conforming lot. An undersized lot constitutes the physical 

circumstances which may entitle one to a variance provided the other variance criteria 

are met. N. Pugliese, Inc. v. Palmer Township Zoning Hearing Board, 592 A.2d 118, 

121 (Pa. Cmwlth. 1991); Jacquelin v. Zoning Hearing Board of Hatboro Borough, 558 

A.2d 189 (Pa. Cmwlth. 1989). As we noted in West Goshen, “[w]here a lot is too small 

to conform with the minimum lot area requirements, and cannot be made to conform 

by merging lots or by re-subdividing a larger tract, enforcement of the ordinance would 

sterilize the land, creating the necessary hardship which will justify the granting of a 

variance.” 538 A.2d at 955.

The Robinsons established that the development of the Property will not 

alter the essential character of the neighborhood or district since they propose to build 

a single-family dwelling on the Property in an area of other similar homes. At the ZHB 
21

hearing, the Robinsons’ expert, Mr. O’Neill, testified credibly that the Property met all 

other setback requirements, except the minimum lot area. Regarding minimum square 

footage, Mr. O’Neill testified that the Property came very close to minimum lot area 

requirements and can meet stormwater management requirements. He testified that of 

41 parcels that border Fourth Avenue, 28 parcels, not including the Property, do not 

comply with the regulations of the Zoning Ordinance. He further testified that the 

average lot area for the properties bordering Fourth Avenue is 9,805 square feet. He 

stated that the proposed lot, at 8,865 square feet, is 90.4% of the average lot area. Mr. 

O’Neill testified that the dimensional variance would not alter the essential character 

of the neighborhood, impair the appropriate use or development of adjacent property,

or be detrimental to public welfare because it will meet all other setback requirements

and all the impervious and building coverage; if the variance is authorized it will 

represent the minimum variance that will afford relief and the least modification of 

regulation. Mr. O’Neill testified as to the history of the neighborhood, in which many 

existing homes sit on lots that under zoning ordinance standards enacted in 1959, would 

not meet minimum square footage criteria. Riccio did not provide any expert testimony 

to contradict the testimony of Mr. O’Neill.

Based upon the substantial evidence presented, the trial court did not err 

by concluding that the Robinsons established their entitlement to a dimensional 

variance. 

D. Acceptance Provision

In her final argument, Riccio contends that the Robinsons did not satisfy 

a condition of approval of the variance by failing to accept the ZHB’s decision within

ten days, as mandated by the ZHB, thereby resulting in the deemed denial of the 

Robinsons’ request. 
22

However, as the trial court pointed out, the Zoning Officer testified before 

the trial court at the April 19, 2021 hearing that the signed acceptance letter was timely 

received via email by both, the ZHB’s counsel and the Township office. (Tr. Ct. Order 

5/11/2019, F. 49.) Additionally, the Robinsons’ counsel provided a copy of a letter 

dated January 22, 2020, signed by the Robinsons’ counsel indicating both approval and 

acceptance of the ZHB’s decision. Id. at 50. Therefore, contrary to Riccio’s assertions, 

the Robinsons did comply with the requirement. We discern no error.

V. Conclusion

For the foregoing reasons, this Court affirms the May 11, 2021 order of 

the trial court denying Riccio’s Land Use Appeal.

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Fizzano Cannon did not participate in the decision for this case. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Diane M. Riccio, :

Appellant :

:

v. : No. 636 C.D. 2021 

:

Newtown Township Zoning :

Hearing Board and Lawrence and :

Alicia Robinson :

ORDER

AND NOW, this 12th day of January, 2024, the order of the Delaware

County Court of Common Pleas entered May 11, 2021, hereby is AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge