relaxed waiver in Pennsylvania

2017See generally Commonwealth v. Freeman, 573 Pa. 532, 560-61 , 827 A.2d 385, 402 (2003) (abolishing the doctrine of relaxed waiver in capital direct appeals).

2017See generally Commonwealth v. Freeman, 573 Pa. 532, 560-61 , 827 A.2d 385, 402 (2003) (abolishing the doctrine of relaxed waiver in capital direct appeals).

2019“We further note that, pursuant to Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the relaxed waiver rule is no longer applicable to PCRA appeals and therefore any claims that have been waived by Appellant are beyond the power of this Court to review under the terms of the PCRA.” Brown, 872 A.2d at 1144 .

2016See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260 , 322 A.2d 114, 117 (1974) (abolishing the plain or fundamental error doctrine in civil cases); Commonwealth v. Clair, 458 Pa. 418, 423 , 326 A.2d 272, 274 (1974) (same, for criminal cases); Commonwealth v. Freeman, 573 Pa, 532, 560, 827 A.2d 385, 402 (2003) (curtailing the relaxed waiver doctrine in capital direct appeals); Commonwealth v. Albrecht, 554 Pa. 31, 45 , 720 A.2d 693, 700 (1998) (abolishing relaxed waiver in capital post-conviction matters). .

2026Where no hardship is shown, or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth [by our Supreme Court] in Hertzberg[ v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998)].

2025Under this relaxed standard, when considering the element of unnecessary hardship, “[c]ourts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the 16 zoning requirements[,] and the characteristics of the surrounding neighborhood.” Hertzberg, 721 A.2d at 50 .

2024Despite 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).

2023And, “despite a more relaxed standard, it is still the case that ‘[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.’” Pequea Twp., 180 A.3d at 507 (quoting Singer, 29 A.3d at 149 ).

2022Although Hertzberg sets forth a more relaxed standard for a dimensional variance, it does not stand for the proposition that “a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner’s ability to employ his property exactly as he wishes, so long as the use itself is permitted.” Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (emphasis in original)[.] Pequea Township v. Zoning Hearing Board of Pequea Township, 180 A.3d 500, 507 (Pa. Cmwlth. 2018) (emphasis in original).

2020Further, although Hertzberg sets forth a more relaxed standard for a dimensional variance, it does not stand for the proposition that “a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted.” Yeager, 779 A.2d at 598 (emphasis in original).

2003See Zettlemoyer, 500 Pa. at 50 & n. 19, 454 A.2d at 955 & n. 19 (“[B]ecause this Court has an independent, statutory obligation to determine whether a sentence of death was the product of passion, prejudice or some other arbitrary factor, whether the sentence is excessive or disproportionate to that imposed in similar cases, and to review the record for sufficiency of the evidence to support aggravating circumstances, we will not adhere strictly to our normal rules of waiver.”); see also id. at 26 n. 3, 454 A.2d at 942 n. 3 (reviewing the sufficiency of the evidence pursuant to 42 Pa.C.S. § 97

2003See Zettlemoyer, 500 Pa. at 50 & n. 19, 454 A.2d at 955 & n. 19 (“[B]ecause this Court has an independent, statutory obligation to determine whether a sentence of death was the product of passion, prejudice or some other arbitrary factor, whether the sentence is excessive or disproportionate to that imposed in similar cases, and to review the record for sufficiency of the evidence to support aggravating circumstances, we will not adhere strictly to our normal rules of waiver.”); see also id. at 26 n. 3, 454 A.2d at 942 n. 3 (reviewing the sufficiency of the evidence pursuant to 42 Pa.C.S. § 97

2020Where no hardship is shown, or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg.” Soc’y Hill Civic Ass’n v. Philadelphia Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012).

2018Where no hardship is shown, or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg.” Soc’y Hill Civic Ass’n v. Philadelphia Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012).

2024Moreover, 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).

2022“Where no hardship is shown, or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary 9 hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg.” Id.

2021However, the distinction is relevant because a dimensional variance involves a more relaxed standard for proving unnecessary hardship than a use variance.5 Demko v. City of Pittsburgh Zoning Bd. of Adjustment, 155 A.3d 1163, 1168 (Pa. Cmwlth. 2017).

2017Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC).3 Additionally, “[w]here, as here, we are faced with a dimensional variance, our Supreme Court has articulated a more relaxed standard for granting a variance.” Demko v. City of Pittsburgh Zoning Board of Adjustment, 155 A.3d 1163, 1168 (Pa. Cmwlth. 2017).

2020Indeed, “[a] variance, whether labeled dimensional or use, is appropriate 17 ‘only where the property, not the person, is subject to hardship.’” Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (quoting Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972)) (emphasis in original).

2020However, “[a] variance, whether labeled dimensional or use, is appropriate only where the property, not the person, is subject to hardship.” Yeager v. Zoning Hearing Bd. of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (quoting Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972)) (emphasis in original).

2011In Commonwealth v. Duffey, 585 Pa. 493 , 889 A.2d 56, 64 (2005), we refused to grant relief on a claim of appellate counsel ineffectiveness for failing to raise a waived claim of trial court error under the relaxed waiver doctrine, noting that this doctrine was discretionary, and thus there was no guarantee that we would have reviewed the issue.

2011In Commonwealth v. Duffey, 585 Pa. 493 , 889 A.2d 56, 64 (2005), we refused to grant relief on a claim of appellate counsel ineffectiveness for failing to raise a waived claim of trial court error under the relaxed waiver doctrine, noting that this doctrine was discretionary, and thus there was no guarantee that we would have reviewed the issue.

2000We will address them however, based on the relaxed waiver standard applicable to capital case direct appeals as elucidated in Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert. denied, 461 U.S. 970 , 103 S.Ct. 2444 , 77 L.Ed.2d 1327 , reh’g denied, 463 U.S. 1236 , 104 S.Ct. 31 , 77 L.Ed.2d 1452 (1983). .

2000We will address them however, based on the relaxed waiver standard applicable to capital case direct appeals as elucidated in Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert. denied, 461 U.S. 970 , 103 S.Ct. 2444 , 77 L.Ed.2d 1327 , reh’g denied, 463 U.S. 1236 , 104 S.Ct. 31 , 77 L.Ed.2d 1452 (1983). .

2023See, e.g., Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of [the] City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010).

2017See Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011); see, e.g., Lamar Advantage GP Co. v. Zoning Hearing Board of Adjustment of City of Pittsburgh, 997 A.2d 423, 445 (Pa. Cmwlth. 2010) (rejecting applicant’s request for dimensional variance for proposed sign where only asserted hardship involved alleged benefit to community and increase in income).

2025The requisite economic hardship can be shown by “demonstrating either that physical characteristics of the property are such that the property cannot be used for the permitted purpose or can only be conformed to such purpose at a prohibitive expense, or that the property has either no value or only a distress value for any permitted purpose.” Bernotas v. Zoning Hearing Board of City of Bethlehem, 68 A.3d 1042, 1049 (Pa. Cmwlth. 2013).

2013The Hertzberg standard has been described as “a lesser burden of proof,” Kennedy v. Upper Milford Township Zoning Hearing Board, 575 Pa. 105 , 117 n. 16, 834 A.2d 1104 , 1111 n. 16 (2003), and “a more relaxed standard for a dimensional variance.” Bernotas, supra. The less stringent test set forth in Hertzberg is not limited to cases where a dimensional variance is being sought for a building of the same size as the existing structure, and to the contrary, applies equally to variance requests seeking to add space to the present building.

2023And, “despite a more relaxed standard, it is still the case that ‘[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.’” Pequea Twp., 180 A.3d at 507 (quoting Singer, 29 A.3d at 149 ).

2022Although Hertzberg sets forth a more relaxed standard for a dimensional variance, it does not stand for the proposition that “a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner’s ability to employ his property exactly as he wishes, so long as the use itself is permitted.” Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (emphasis in original)[.] Pequea Township v. Zoning Hearing Board of Pequea Township, 180 A.3d 500, 507 (Pa. Cmwlth. 2018) (emphasis in original).

2010See, e.g., Commonwealth v. Ford, 570 Pa. 378 , 809 A.2d 325 (2002) (plurality). .

2009This Court later abrogated the relaxed waiver doctrine in the direct capital appeal context in Commonwealth v. Freeman, 573 Pa. 532 , 827 A.2d 385, 403 (2003). [3] Commonwealth v. Huffman, 536 Pa. 196 , 638 A.2d 961 (1994). [4] Although there was no Majority Opinion in Ford , former Justice Newman authored a concurring opinion, which Justice Saylor joined, in which she specifically expressed her agreement "that appellate counsel acted ineffectively by neglecting to raise trial counsel's ineffectiveness for failing to investigate and present evidence during the penalty phase of Appellant's hist

1999Because it was not, the issue is waived.” Commonwealth v. Miller, 541 Pa. 531 , 557 n.22, 664 A.2d 1310 , 1323 n.22 (1995) (the court, nevertheless, went on to consider the issue because of the relaxed waiver rules for capital cases applicable in that case). 4 The Wertelet court avoided the basic common-law principle of waiver by reasoning that for purposes of appellate review it is only necessary for a lower court to be able to address an issue, rather than being able to dispose of an issue.

1999Because it was not, the issue is waived.” Commonwealth v. Miller, 541 Pa. 531 , 557 n.22, 664 A.2d 1310 , 1323 n.22 (1995) (the court, nevertheless, went on to consider the issue because of the relaxed waiver rules for capital cases applicable in that case). 4 The Wertelet court avoided the basic common-law principle of waiver by reasoning that for purposes of appellate review it is only necessary for a lower court to be able to address an issue, rather than being able to dispose of an issue.

2014“Hence, Ulatoski did not create an exception to the hearsay rule; nor did it contemplate that testimony regarding marital relationships in cases such as this would be subject to a relaxed standard of admissibility.” Commonwealth v. Myers, 609 A.2d 162, 165 (Pa. 1992).

1994Hence, Ulatoski did not create an exception to the hearsay rule; nor did it contemplate that testimony regarding marital relationships in cases such as this would be subject to a relaxed standard of admissibility.” Commonwealth of Pennsylvania v. Myers, 530 Pa. 396, 401 , 609 A.2d 162, 164-165 (1992).

2007(James) Jones, 876 A.2d at 384 (declining to apply relaxed waiver to a PCRA appeal), Commonwealth v. Kemp, 562 Pa. 154 , 753 A.2d 1278, 1285 (2000) (same).

2007(James) Jones, 876 A.2d at 384 (declining to apply relaxed waiver to a PCRA appeal), Commonwealth v. Kemp, 562 Pa. 154 , 753 A.2d 1278, 1285 (2000) (same).

2022For one thing, Larsen predates our guidance in Hertzberg—holding that dimensional variances are “of lesser moment” than use variances, requiring a lesser “quantum of proof” to support findings in their favor, and thereby establishing a “relaxed” standard for determinations of hardship—by two years. [J-80-2021] [OISA: Mundy, J.] - 5 721 A.2d at 47; see also Township of Northampton v. Zoning Hearing Bd. of Northampton Twp., 969 A.2d 24, 28 (Pa. Cmwlth. 2009) (“Hertzberg directs that a more relaxed standard should be employed when analyzing the hardship”).

2016See, e.g., Singer v. Zoning Bd. of Adjustment of City of Phila., 29 A.3d 144 (Pa. Cmwlth. 2011) (rejecting applicant’s request for dimensional variances from [z]oning [c]ode’s parking, floor area ratio and loading dock requirements where asserted hardship amounted to applicant’s desire to maximize development potential of property); Lamar Advantage GP Co. v. Zoning Bd. of Adjustment of City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010) (rejecting applicant’s request for dimensional variance for proposed sign where only asserted hardship involved alleged benefit to community and increase in in

2016Williams II, 936 A.2d at 25 .

2016Williams II, 936 A.2d at 25 .

2025“Where no hardship is shown, or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the necessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg.” Dunn v. Middletown Township Zoning Hearing Board, 143 A.3d 494, 501 (Pa. Cmwlth. 2016).

2017We concluded that “where no hardship is shown, or where the asserted hardship amounts to a landowner’s mere desire to increase profitability, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth by the Supreme Court in Hertzberg.” Dunn, 143 A.3d at 506 (collecting cases).

2013The circumstances produced landmark decisions such as Commonwealth v. Grant, 572 Pa. 48, 67 , 813 A.2d 726, 738 (2002) (implementing a general rule favoring deferment of claims of ineffective assistance of counsel to post-conviction review); Freeman, 573 Pa. at 560-61 , 827 A.2d at 402 (abolishing the general application of the relaxed waiver doctrine in capital cases); and Commonwealth v. McGill, 574 Pa. 574, 587-90 , 832 A.2d 1014, 1022-23 (2003) (tightening the requirements for issue presentation relative to claims of deficient stewardship).

2013The circumstances produced landmark decisions such as Commonwealth v. Grant, 572 Pa. 48, 67 , 813 A.2d 726, 738 (2002) (implementing a general rule favoring deferment of claims of ineffective assistance of counsel to post-conviction review); Freeman, 573 Pa. at 560-61 , 827 A.2d at 402 (abolishing the general application of the relaxed waiver doctrine in capital cases); and Commonwealth v. McGill, 574 Pa. 574, 587-90 , 832 A.2d 1014, 1022-23 (2003) (tightening the requirements for issue presentation relative to claims of deficient stewardship).

2007(James) Jones, 876 A.2d at 384 (declining to apply relaxed waiver to a PCRA appeal), Commonwealth v. Kemp, 562 Pa. 154 , 753 A.2d 1278, 1285 (2000) (same).

2007(James) Jones, 876 A.2d at 384 (declining to apply relaxed waiver to a PCRA appeal), Commonwealth v. Kemp, 562 Pa. 154 , 753 A.2d 1278, 1285 (2000) (same).

2003Id. at 176-79, 383 A.2d 174 . [9] The relaxed waiver practice, however, was not absolute, but discretionary.

2003Id. at 176-79, 383 A.2d 174 . [9] The relaxed waiver practice, however, was not absolute, but discretionary.

2025When an applicant has not shown hardship, “or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg.” Id. (citation omitted); accord Singer v. Phila.

2025When an applicant has not shown hardship, “or where the asserted hardship amounts to a landowner’s desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg.” Id. (citation omitted); accord Singer v. Phila.

2000We will address them however, based on the relaxed waiver standard applicable to capital case direct appeals as elucidated in Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert. denied, 461 U.S. 970 , 103 S.Ct. 2444 , 77 L.Ed.2d 1327 , reh'g denied, 463 U.S. 1236 , 104 S.Ct. 31 , 77 L.Ed.2d 1452 (1983). [17] Rule 3.7,"Lawyer as Witness," of the Rules of Professional Conduct provides that generally a lawyer should not act as an advocate at a trial in which he or she is likely to be a necessary witness. [18] We note for the record that defense counsel at no time objected to this

2000We will address them however, based on the relaxed waiver standard applicable to capital case direct appeals as elucidated in Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert. denied, 461 U.S. 970 , 103 S.Ct. 2444 , 77 L.Ed.2d 1327 , reh’g denied, 463 U.S. 1236 , 104 S.Ct. 31 , 77 L.Ed.2d 1452 (1983). .