HomeMy WebLinkAbout1546 Lucas
In Re: Gary Lucas, : File Docket: 07-045
Respondent : X-ref: Order No. 1546
: Date Decided: 12/15/09
: Date Mailed: 12/29/09
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Raquel K. Bergen
Nicholas A. Colafella
Mark Volk
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission conducted
an investigation regarding possible violation(s) of the Public Official and Employee Ethics
Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the
commencement of its investigation, the Investigative Division served upon Respondent
written notice of the specific allegation(s). Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an “Investigative Complaint.” An Amended Investigative Complaint was subsequently filed
by the Investigative Division. An Answer was filed and a hearing was held. The record is
complete.
This adjudication of the State Ethics Commission is issued under the Ethics Act and
will be made available as a public document thirty days after the mailing date noted above.
However, reconsideration may be requested. Any reconsideration request must be
received at this Commission within thirty days of the mailing date and must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the
finality of this adjudication but will defer its public release pending action on the request by
the Commission.
The files in this case will remain confidential in accordance with the Ethics Act.
Lucas, 07-045
Page 2
I. ALLEGATIONS:
That Gary Lucas, a (public official/public employee) in his capacity as a Member of
Chalfont Borough Council, Bucks County violated the following provisions of the State
Ethics Act (Act 93 of 1998) when he used the authority of his office for private pecuniary
gain including but not limited to participating in actions of council to approve land
development plans for a project where a business with which he is associated was serving
as the general contractor and/or when he had a reasonable expectation that he would be
providing services relating to the construction of the project; where he used the authority of
his office to obtain payments to either himself or a business with which he is associated,
from a person who had a project being reviewed for approval by the borough; and when he
solicited and/or received something of monetary value in the form of payments, from the
owner of property who had land development plans pending approval [by] Chalfont
Borough Council based on his understanding that his vote, official action or judgment
relating to the land development plan approval would be influenced thereby.
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
§ 1103. Restricted activities
(c) Accepting improper influence.—
No public official,
public employee or nominee or candidate for public office shall
solicit or accept anything of monetary value, including a gift,
loan, political contribution, reward or promise of future
employment, based on any understanding of that public
official, public employee or nominee that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
65 Pa.C.S. § 1103(c).
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Lucas, 07-045
Page 3
II. FINDINGS:
A. Pleadings & Stipulations
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that Gary Lucas violated provisions of the State Ethics Act (Act
93 of 1998).
2. Upon review of the complaint, the Investigative Division initiated a preliminary
inquiry on March 13, 2007.
3. The preliminary inquiry was completed within sixty days.
4. On May 7, 2007, a letter was forwarded to Gary Lucas by the Investigative Division
of the State Ethics Commission, informing him that a complaint against him was
received by the Investigative Division and that a full investigation was being
commenced.
a. Said letter was forwarded by certified mail, no. 7006 2150 0000 8771 6444.
b. The domestic return receipt bore the signature of Gary K. Lucas, Sr., with a
delivery date of May 12, 2007.
5. On September 14, 2007, the Investigative Division of the State Ethics Commission
filed an application for a ninety day extension of time to complete the investigation.
6. The Commission issued an Order on October 23, 2007, granting the ninety day
extension.
7. On January 3, 2008, the Investigative Division of the State Ethics Commission filed
an application for a second ninety day extension of time to complete the
investigation.
8. The Commission issued an Order on January 28, 2008, granting the ninety day
extension.
9. On April 2, 2008, an amended Notice of Investigation was forwarded to Gary Lucas,
c/o Colin M. Jenei, Esquire, by the Investigative Division of the State Ethics
Commission informing him that the allegations contained in the May 7, 2007, Notice
of Investigation were being amended.
a. Said letter was forwarded by certified mail, no. 7006 0100 0006 4924 9886.
b. The domestic return receipt bore the signature of Elizabeth Scheck, with an
undated delivery date.
10. Periodic notice letters were forwarded to Gary Lucas in accordance with the
provisions of the Ethics Law advising him of the general status of the investigation.
11. The Investigative Complaint/Findings Report was mailed to the Respondent on April
30, 2008.
12. An amended Investigative Complaint/Findings Report was mailed to the
Respondent on May 13, 2008.
13. Gary Lucas has served as a member of Chalfont Borough Council, Bucks County,
from approximately April 15, 2003, through December 2007.
Lucas, 07-045
Page 4
a. Lucas was initially appointed to council and won election to a four year term
in November 2003.
b. Chalfont Borough Council consists of seven members.
14. Gary Lucas has served as a member of the Chalfont Borough Planning Commission
since approximately January 10, 2000.
a. The Chalfont Borough Planning Commission is an advisory board consisting
of five members.
b. Planning Commission rulings are advisory and not binding on the borough
council.
15. Chalfont Borough also has a three (3) member Zoning Hearing Board.
a. The Borough’s Zoning Hearing Board is a quasi-judicial board operating
independent of council.
b. Lucas did not serve on the Zoning Hearing Board.
16. Professionally, Lucas is the President of Lucas Construction Inc.
a. Lucas disclosed his position of President of Lucas Construction Inc. on
Statement of Financial Interests forms for calendar years 2003 through
2006.
17. Lucas Construction Inc. is a general construction company providing services
including but not limited to residential home construction, repairs and renovations.
a. Lucas Construction, Inc. typically does not do commercial construction
projects.
18. Articles of Incorporation on file with the Pennsylvania Department of State include
corporate filings for Lucas Construction Inc.
a. The Department of State assigned entity number 1031591 to Lucas
Construction Inc.
b. Lucas Construction Inc. was incorporated on or about April 14, 1988.
c. The principal office location is [office and residence address].
1. This address is Gary Lucas’ primary residence.
19. Gary Lucas individually and/or d/b/a Lucas Construction Inc. has had an ongoing
business relationship with Prime Properties/Prime Building Group, 1630
Meetinghouse Road, Hartsville, PA 18974 at all times relevant to this investigation.
20. Prime Properties, Inc./Prime Building Group specializes in residential construction
with limited commercial construction activities.
a. Prime Properties Inc./Prime Building Group conducts business primarily in
Bucks and Montgomery Counties.
21. Articles of Incorporation on file with the Pennsylvania Department of State include
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Page 5
corporate filings for Prime Properties Inc. and Prime Building Group.
a. Articles of Incorporation for Prime Properties Inc. were filed with the
Pennsylvania Department of State on June 30, 1997.
1. Entity number 2763010 was assigned by the Department of State to
Prime Properties Inc.
2. George G. Kiriakidi is the listed President and Treasurer.
3. George G. Kiriakidi is the only listed corporate officer.
b. A fictitious name registry was filed with the Pennsylvania Department of
State for Prime Building Group on March 2, 1999.
1. Entity number 2863997 was assigned by the Department of State to
Prime Building Group.
2. Prime Properties Inc. is identified as the fictitious name owner of
Prime Building Group.
22. Prime Properties [Inc. and Prime Properties Inc. d/b/a] Prime Building Group under
the direction of George Kiriakidi ... enters into agreements with contractors on jobs
developed under the business name Prime Properties Inc.
a. These contractors do not have an ownership interest in Prime
Properties/Prime Building Group.
b. [For at least some projects of Prime,] George Kiriakidi … handles contracts
and project documents as well as provides any required funding for the
project while contractors are responsible for the actual construction work.
c. Prime Properties/Prime Building Group has approximately five employees
consisting of Kiriakidi, clerical and administrative staff.
d. Kiriakidi and his staff do not perform any physical labor on Prime projects.
23. Kiriakidi will determine if the project makes sense financially prior to negotiating
with the prospective client.
a. Kiriakidi or the contractor will arrange for subcontractors to do the actual
work based on these negotiations.
24. Articles of Incorporation on file with the Pennsylvania Department of State include
corporate filings for the Tolomello Corporation.
a. The Tolomello Corporation was incorporated on or about March 20, 2001.
b. The Department of State assigned entity number 2995014 to this business
entity.
c. Corporate officers are identified as Anna Maria Tolomello, President and
Phillip John Gallina, Secretary/Treasurer.
25. 205-215 East Butler Avenue, Chalfont is an irregular and triangular shaped
property….
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26. Tolomello hired architect Robert Showalter and Attorney Edward Wild to advance
her site development application before Chalfont Borough.
a. Showalter did the site development drawings.
b. Wild addressed zoning issues.
27. [In] July 2002, Gary Lucas was a … customer of … Pina’s Pizza, [located at] 230
East Butler Avenue….
a. …Lucas was [a member] of the Borough’s Planning Commission at the time.
b. Lucas had not yet been appointed to Borough Council.
28. Chalfont Borough utilized the following process for the review and approval of site
development plans at all times relevant to the Pina’s Pizza application.
a. Site development plans are submitted to the Borough’s Planning
Commission for consideration.
b. The plans are reviewed by Borough Engineer Patrick DiGangi, CKS
Engineers and Richard O’Brien, Building Inspector/Zoning Officer for
compliance with applicable codes.
c. DiGangi and/or O’Brien will provide comments on the application to the
Planning Commission and applicant.
d. Non-conforming applications are forwarded to the Zoning Hearing Board for
consideration and binding official action.
e. Conforming applications are forwarded to Borough Council with a
recommendation for approval.
f. Zoning Hearing Appeals are also forwarded to Borough Council for
settlement consideration.
g. After Council approval, the issuance of building permits and site inspections
are handled by DiGangi and O’Brien independent of Borough Council.
29. The Chalfont Borough Planning Commission serves in an advisory capacity.
a. Rulings made by the Planning Commission are not binding on the borough
council.
b. Final plan approval must be granted by Chalfont Borough Council.
30. …Gary Lucas [was appointed] to council on April 15, 2003.
31. Tolomello’s plans were reviewed by Patrick DiGangi, PE, the Borough Engineer,
and Richard O’Brien, Borough Code Enforcement Officer and Building Inspector,
upon submission to the Borough’s Planning Commission.
a. This initial review was to identify any potential building issues for the
Planning Commission to consider.
b. The initial review determined numerous potential non-conforming issues
including setbacks, proposed building sizes and the required number of
Lucas, 07-045
Page 7
parking spaces for the proposed use.
32. CKS Engineers Inc., 88 South Main Street, Doylestown, PA 18901 was the engineer
who reviewed project documents on behalf of Chalfont Borough.
a. Patrick P. DiGangi, PE was the CKS engineer who reviewed Tolomello’s
plans.
b. CKS Engineers Inc. provided correspondence to Chalfont Borough outlining
[its] review of plans throughout the process.
c. DiGangi coordinated the review of plans and plan revisions throughout the
entire process.
d. DiGangi also received comments on project revisions from Building Inspector
Richard O’Brien.
33. Throughout the review process from 2002 until 2005, approximately five (5) different
plan revisions were submitted by Tolomello to comply with Borough regulations.
a. Tolomello’s plan revisions were prepared by Robert Showalter, PE.
b. Tolomello’s plan revisions were presented to the Planning Commission by
Showalter and/or Edward Wild, Esquire.
c. Revisions were made to the number of proposed buildings, their respective
locations and intended use.
d. Revisions were reviewed by Patrick DiGangi and Richard O’Brien on behalf
of Chalfont Borough.
34. Lucas was serving both on the Planning Commission and Borough Council at the
time [the plans for the Tolomello project were revised].
35. The following chronology is a summary of events relating to the Tolomello project
before the Chalfont Borough Planning Commission.
Date Event
07/19/02 Plans submitted, job# 2001-196 assigned to project
08/05/02 Plans will need zoning approval
10/07/02 Tolomello appeared before planning commission
11/04/02 Sketch plans discussed [Lucas Absent]
12/30/02 Review and correspondence from CKS Engineer
01/06/03 Application to be made to Zoning Hearing Board
04/15/03 LUCAS APPOINTED TO BOROUGH COUNCIL
08/04/03 Application withdrawn for the night, CKS correspondence
09/08/03 Sketch plan presented, Lucas commented on sidewalks
12/01/03 Land development plan tabled
01/12/04 Plans to ZHB on 01/26/04 Linda Antonio & Gary Lucas will attend in
support of variances submitted to planning commission
03/01/04 Plans to go to ZHB on 03/16/04, discussion on parking issues
04/05/04 Application tabled until zoning hearing scheduled for 04/28/04
05/03/04 Report on ZHB approved all variances except parking [Lucas Absent]
06/07/04 land development application tabled, plans need to be revised in
accordance with ZHB decision
07/12/04 Land development application tabled. [Lucas Absent]
12/06/04 Linda Antonio made a motion to recommend to Council acceptance of
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Page 8
the land development application of Anna Maria Tolomello as a
preliminary and final application with the changes discussed.
Seconded by Alvin Moyer Jr., with all in favor, the motion carried.
36. Minutes from Chalfont Borough Planning Commission Meetings confirm the project
was first discussed on August 5, 2002, and include the following recorded
discussions including participation by Gary Lucas on the project.
a. August 5, 2002
Mr. Ed Wild, Esquire was present with Anna Maria Tolomello with sketch
plans to expand the existing facility and place two (2) additional retail stores
at 215 E Butler Avenue. Two sketch plans were presented, one showed the
new buildings straight across and the other one having the two buildings
staggered. Parking would be a problem with one plan and no problem with
the other. Mr. Wild explained that with the one plan, the property could be
developed as is, but they wanted to work with the Borough for the best one.
Due to the dimensions of the property, they will need to apply for a zoning
hearing. Depending on which plan they pursue would decide what is to be
included in the zoning hearing. There was some discussion on storm water
management as to where it would go, back to Route 202, the ditch along the
railroad tracks, or go underground, and discharge into SEPTA property. The
parking problems would be if they had two restaurants and one retail store.
If they go with two (2) retail stores and Pina’s as the restaurant, they would
have enough parking. Showalter and Associates prepared their plans, Mr.
Showalter is going to show the best design even with the zoning violations,
and if necessary, they will seek zoning relief. Peter Chadwick and Alvin
Moyer felt the single usage as it is now would be the best solution and that
the additional buildings would be too much for the property. Gary Lucas and
Brian Wallace felt the two new building [sic] should be set back.
Present: Brian Wallace, Pete Chadwick, Gary Lucas, Alvin Moyer
Absent: Jeff Munchak
b. October 7, 2002
ANNA MARIA TOLOMELLO: Mr. Ed Wild, Esquire was present with Anna
Maria Tolomello and Robert Showalter from Showalter and Associates to ask
if the Planning Commission would look at another Sketch Plan for the
property owned by Anna Maria Tolomello, located at 215 E. Butler Avenue.
Brian Wallace stated that since we did not have any plans before the
meeting, they could not make any comments on them but would be happy to
look at the sketch plan. The sketch plan Mr. Wild presented showed the
additional building to be on either side of the existing building. This plan as
shown would need variances. Mr. Wild stated the one plan he showed last
month was a plan by right, but felt that with some tweaking and without
variances, can comply. He stated that the plans might not be desirable
because of the shape of the lot: it is less than 4,000 feet, almost an acre.
By appearing before the Planning Commission, the applicant was requesting
a direction to proceed or which option the Planning Commission would look
favorable on. The three options could house either one or two restaurants
with the third tenant being a retail use or only one restaurant and two retail
uses. If two restaurants were placed on the property they would need a
variance from the parking requirements no matter which option they chose.
Their interest was in what direction to proceed. The three building [sic]
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Page 9
could house either one or two restaurants and the third one a retail, or only
one restaurant and two retails. If they go for two restaurants, they would
need variances. The uses placed at the property would dictate the required
parking.
Present: Brian Wallace, Alvin Moyer, Pete Chadwick, Jeff Munchak
Absent: Gary Lucas
c. November 4, 2002
There was no one from CBT Inc. to review the three sketch plans submitted
for expanding the existing facility and placing two additional retail stores on
the property located at 215 East Butler Avenue. The members of the
Commission discussed the differences in each sketch plan. Their concerns
for the development of this project were parking; with limited space for
parking and the number of spaces for [sic] required for either restaurants or
retail stores. Storm water management; with the storm water problems in
that area now it would be important to have a system that would function
efficiently. Traffic flow; the concerns for traffic safety considering the size of
the property and the amount of improvements request [sic]. Planning
Commission members also felt that it should be considered that the
structures be located closer to the rear of the property and the square
footage of the new tenant spaces be as indicated on Sketches 2 & 3.
Present: Brian Wallace, Pete Chadwick, Alvin Moyer, Jeff Munchak
Absent: Gary Lucas
d. January 6, 2003
Mr. Ed Wild, Esquire was present representing Ms. Anna Maria Tolomello
who is applying to expand the existing facility and place two additional retail
stores on the property located at 215 E. Butler Avenue. Since there are
several waivers needed, Mr. Wild stated they would be making application to
the Zoning Hearing Board. Mr. Wild stated they would like the Planning
Commission’s support for the plan presented showing two new buildings on
either side of the existing building. Mr. Wild went over the engineer’s letter
dated December 30, 2002 with the Commission. After some discussion, the
Planning Commission members all agreed they did not favor three (3) uses
on this property. They would endorse one (1) additional use.
Present: Gary Lucas, Alvin Moyer, Pete Chadwick, Jeff Munchak
e. August 4, 2003
Old Business: The following old business applications have been
withdrawn tonight by request of the applicant and will be continued at the
September meeting: Sketch Plan revised-original submission July 2002;
Applicant: Anna Maria Tolomello, 2510 Cedarfield Lane, Quakertown, PA
18951; Location 215 Butler Avenue, BCTMP No. 07-012-002.
Present: Gary Lucas, Mark Roberts, Alvin Moyer
Absent: Jeff Munchak
f. September 8, 2003
ANNA MARIA TOLOMELLO:
Mr. Ed Wild, Esquire was present with Anna Maria Tolomello, located at 215
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Page 10
E. Butler Avenue. Presented sketch plan, questions were brought up over
joint use parking with the bank next door. Mr. O’Brien brought up the point
that 67 parking spots are required and they can obtain 37 spaces on site and
will need 30 off site spaces. Mr. Lucas requested that the sidewalk extend
the length of the property. Proposed access from the bank parking lot so
people don’t need to walk out on Rt 202, Mr. O’Brien was also looking for
ADA access.
Present: Gary Lucas, Alvin Moyer, Mark Roberts, Linda Antonio, Jeff Munchak
g. December 1, 2003
New Business “Anna Maria Tolomello land development application plan
tabled for this meeting”.
Present: Gary Lucas, Jeff Munchak, Alvin Moyer, Mark Roberts, Linda Antonio
h. January 12, 2004
Anna Maria Tolomello land development application plan is going to Zoning
Hearing Board on January 26, 2004. Linda Antonio and Gary Lucas will
attend in support of variances submitted to Planning Commission.
Richard O’Brien stated need to see written agreement with Univest Bank
regarding after-hours parking before issuing approval.
Present: Gary Lucas, Alvin Moyer, Linda Antonio, Jeff Munchak
Absent: Mark Roberts
i. March 1, 2004
Land Development application for 215 Butler Ave.; applicant Anna Maria
Tolomello
This application has already received an extension. The revised plans,
which at this time had not been submitted, must go in front of the Zoning
Hearing Board on March 16, 2004. There is a request for a variance for
parking since the applicant is not able to combine the parking with the bank
next door. There are currently 23-25 parking spaces on the existing site and
the applicant is asking for variance for 32 off street parking spaces. They
are also asking for a parking variance for 38 spaces with 5 in reserve on the
side. Mr. Showalter pointed out that many of the spaces were up against the
curb. Also that much of the business here is take-out and Mr. Showalter feels
that the parking will not be a problem, but if they could reduce the island
buffer there would be ample parking. There was some concern, by the
Planning Commission, that the parking will not be adequate for the business
and the council will support the application if the parking issue can be
resolved. Linda Antonio will be a representative at the Zoning Hearing
Board Meeting on March 16, 2004. Support will be given for a parking
buffer. Rich O’Brien will also attend.
Present: Gary Lucas, Mark Roberts, Linda Antonio, Alvin Moyer
Absent: Jeff Munchak
j. April 5, 2004
Old Business:
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Page 11
Land Development, Applicant Anna Maria Tolomello 215 Butler Avenue
This application has been tabled at this time until the May 3, 2004 Planning
Commission meeting pending a hearing by the Zoning Hearing Board on
April 28, 2004.
Zoning Hearing, Applicant Anna Maria Tolomello 215 Butler Avenue
This application has been tabled pending the Zoning Hearing Board meeting
on April 28, 2004.
Present: Gary Lucas, Mark Roberts, Linda Antonio, Alvin Moyer, Jeff Munchak
k. May 3, 2004
Old Business
Land Development, Applicant Anna Maria Tolomello 215 Butler Avenue
This application has been tabled until the applicant submits new plans
incorporating the Zoning Hearing Boards [sic] decision to adjust the size of
the building to meet the required number of parking spaces.
Zoning Hearing, Applicant Anna Tolomello 215 Butler Ave
At the April 28, 2004 Zoning Hearing Board meeting the applicant was
granted all variances with the exception of the parking variance.
Present: Mark Roberts, Linda Antonio, Alvin Moyer, Jeff Munchak
Absent: Gary Lucas
l. June 7, 2004
Old Business
The land development application for Anna Maria Tolomello was tabled.
The applicant needs to revise the plans in accordance with the Zoning
Hearing Board’s decision.
Present: Gary Lucas, Mark Roberts, Linda Antonio
Absent: Alvin Moyer, Jeff Munchak
m. July 12, 2004
Old Business
Land Development Application
Applicant: Anna Maria Tolomello
Location: 215 Butler Avenue, BCTMP No. 07-012-002
Decision: Tabled
Present: Linda Antonio, Alvin Moyer, Jeff Munchak, Mark Robert
Absent: Gary Lucas
n. December 6, 2004
Land Development Application
Applicant: Anna Maria Tolomello
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Page 12
2510 Cedarfield Lane
Quakertown, PA 18951
Location: 215 Butler Avenue, BCTMP No. 07-012-002
Plans: Prepared by Showalter and Associates
Sheet 1 of 13 Cover Sheet Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 2 of 13 Land Development Plan Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 3 of 13 Exist Features & Demolition Plan Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 4 of 13 Aerial Photograph Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 5 of 13 Grading and Facility Plan Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 6 of 13 Lighting Plan Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 7 of 13 Erosion & Sedimentation Control Plan Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 8 of 13 Landscape Plan Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 9 of 13 Plan & Profile Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 10 of 13 Construction Details Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 11 of 13 Construction Details Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 12 of 13 Erosion & Sedimentation Details Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Sheet 13 of 13 Erosion & Sedimentation Details Dated 10/31/03, Job No. 2001-196, revised 10/21/04
Attorney Ed Wild, of Benner & Wild, was present to represent the applicant. Mr.
Wild informed Planning Commission that this application commenced in 2002 and
summarized the proposed project as follows: Pina’s Pizza proposes to relocate
across the street and to add 1400 square feet to the Spice Grill building. The
zoning issues were resolved in a Zoning Hearing appeal and subsequent court
order. The applicant is here to review the zoning and SALSO issues in the
November 17, 2004 CKS letter #4324.
A short discussion ensued with Planning Commission on the letter review process.
Richard O’Brien stated that #1 in the letter addresses an outstanding zoning issue,
the 15’ required setback without a planting strip. Mr. Wild replied that the required
planting strip would be located at the entrance to the building if measured from the
right-of-way and was sure this was not the intention of the requirement. He
reiterated that he believes all zoning issues have been resolved. Mr. Wild
addressed the questions as follows:
Zoning, Subdivision & Land Development
#4 – Rear buffer: the applicant is not willing to provide a rear buffer but will provide
landscaping and trees. Pat DiGangi and Gary Lucas prefer front enhancements.
#7 – The loading dock parking spaces will be reserved for employees. The seven
future parking spaces (in addition to the approved 32) are for future expansion, if
needed. They will not be included with the current project, but will be added at the
applicant’s expense if required at a future time by the Borough.
#8 – All signage will comply with the Ordinance. No changes are proposed to
entrances and egress.
#9 – Planning Commission grants a waiver for the plant scale.
#10 – Two step land development process: Gary Lucas stated that this will not be
required.
#11 – Will comply
Grading, Drainage & Storm water Management
#13, 16, 17, 18 – Will comply
#19 – Mr. Wild proposes a declaration that the Borough can enforce storm water
management.
#21, 22 – Will comply
#12 – Not necessary
#14 – The applicant will correct this problem by installing the full-size M inlet.
#20 – Pat DiGangi stated that the Borough wants the ability to field-verify whether
this pipe is capped at the time #14 is addressed. Mr. Wild agreed to this.
Lucas, 07-045
Page 13
#24 – 10’ wide planted island buffering entranceways from parking for safety: Mr.
Wild stated that the applicant will not comply. A short discussion ensued on
parking spaces and curbing. Mr. Brad Aurand of Showalter & Associates confirmed
that small islands could be put in and will work with Pat DiGangi on this item.
Mr. Wild stated that the rest of the issues addressed in the CKS letter will be
complied with. Mr. Lucas asked for any questions from Planning Commission and
subsequently, the audience. There were no additional questions.
Linda Antonio made a motion to recommend to Council acceptance of the Land
Development Application of Anna Maria Tolomello as a Preliminary and Final
Application, with the changes discussed, seconded by Alvin Moyer Jr. with all in
favor, the motion carried.
Present: Gary Lucas, Linda Antonio, Alvin Moyer, Jeff Manchak, Mark Roberts
37. During the approval process, CKS Engineers, the Borough Engineer, submitted
frequent correspondence to the Borough outlining problems, changes and
approvals required for plan approval. The following correspondence highlights the
more significant issues:
a. CKS correspondence dated December 30, 2002, related to the receipt and
review of conceptual/sketch plans for the Tolomello project. Patrick P.
DiGangi, PE was the CKS engineer who performed the review. Review
comments included the following problems:
1) The existing building on the site is non-conforming with regard to the
rear setback.
2) The proposed side yard setback of 10.57 ft. does not comply with the
zoning ordinance.
3) Use of the existing right-of-way and parking setback fails to comply
with the ordinance although the amount of proposed parking does
comply with ordinance requirements.
4) The sketch plan does not fully address Borough requirements with
regard to drainage and storm water management.
5) The Borough may want to require a traffic impact study to evaluate
the traffic impact of the proposed land development.
6) The plan does not address the method intended to physically define
parking areas: concrete curbing, concrete bollards, railroad ties or
concrete tire stops.
7) Grading of the grass strip between the sidewalk and parking lot must
be flush with the proposed parking.
b. CKS correspondence dated August 4, 2003, related to the receipt and
review of sketch plan number four on the project. This review included the
same concerns and engineering comments with respect to rear setback,
parking areas, drainage/storm water management, traffic impact and defined
parking areas. Also included was a question regarding a proposed change
to the plans eliminating the proposed sidewalk along the frontage of the
property.
Lucas, 07-045
Page 14
c. CKS correspondence dated November 25, 2003, included a more
comprehensive review of the project. Numerous zoning and project issues
are again identified including: rear yard setback, variance for a walk-in
freezer concrete pad, parking area setback, ultimate right-of-way, proof of
soil erosion and sedimentation plans submitted to the Bucks County
Conservation District, proof of existing capacity being available at the
Chalfont-New Britain Township Joint Sewage Authority, buffer along the rear
of the property which borders the railroad, street lighting conforming to the
Borough’s Historic Street Light standards, underground utilities, appropriate
number of parking spaces, proper grading, drainage and storm water
management.
Plans must be submitted to all applicable utilities and outside reviewing
agencies for review and approval. These entities may include, but not be
limited to the following:
1) Bucks County Planning Commission
2) Bucks County Conservation District
3) Pennsylvania Department of Transportation
4) Chalfont-New Britain Township Joint Sewage Authority
5) Philadelphia Suburban Water Company
6) PECO Energy
d. CKS correspondence dated November 17, 2004, references Zoning Hearing
Board variances and special exceptions granted at its April 28, 2004,
meeting. Special exceptions were granted relating to rear yard setbacks, the
construction of a 10 x 20 pad for walk-in freezer, 10 x 10 pad for dumpster,
parking and variance on the right-of-way measurement. Additionally, a
stipulation and settlement agreement between Anna Maria Tolomello and
Chalfont Borough Council specifically allows for the property to contain
2,580 square feet of restaurant use serviced by 2 parking spaces.
38. At the same time Tolomello’s plans were being reviewed by the Planning
Commission, Tolomello’s plans were subject to approval by the Chalfont Zoning
Hearing Board (ZHB).
a. Variances were required to be approved by the Zoning Hearing Board due
mainly to parking restrictions.
39. As a result of the non-conforming uses involving Tolomello’s site development plan,
application was made to the Zoning Hearing Board for variances.
a. Tolomello notified the Zoning Hearing Board of her desire for a zoning
hearing on or about January 22, 2004.
b. On February 17, 2004, the Zoning Hearing Board established a hearing date
of March 16, 2004.
40. The Chalfont Borough Zoning Hearing Board held two (2) Zoning Hearings on the
Tolomello site development plans.
a. Zoning hearings were held on March 16, 2004, and continued until April 28,
2004.
b. Testimony was provided by representatives of the applicant, the Borough
and the Zoning Hearing Board.
Lucas, 07-045
Page 15
c. Gary Lucas attended the March 16, 2004, hearing as a member of the
Planning Commission.
d. Lucas did not provide any testimony before the Zoning Hearing Board.
41. Tolomello’s land development plans were received by the Borough’s Zoning
Hearing Board for consideration regarding approximately seven items inconsistent
with Borough codes. Specifically, Tolomello was seeking “relief from Borough of
Chalfont Zoning Ordinance”:
Zoning Ordinance: special exception or, in the alternative, a variance from Article
16, Section 114-142 (A)(Extension of Nonconforming Use and Structures)-rear yard
building setback requirements or, in the alternative, a variance from Article 10,
Section 114-91 (F)(Area and Dimensional Requirements); special exception or, in
the alternative, a variance from Article 5, Section 114-35 (J)(Design Standards)-
parking area setback; interpretation of or, in the alternative, variance from Article 2,
Section 114-7 (Definition of “right of way”); variance or interpretation of Article 5,
Section 114-33(E) and (F) or, in the alternative, a special exception from Section
114-33(E); and variance from Article 4, Section 114-16(E4) to reduce the required
parking spaces from 59 to 32 provided spaces.
42. The Zoning Hearing Board granted all of the variances sought by Tolomello with the
exception of relief from parking requirements in a decision issued on May 25, 2004.
43. The Zoning Hearing Board issued its decision on May 25, 2004, approving and
denying the items considered as follows:
a. ORDER
The Applicant’s request for a special exception to Article 16, Section
114-142(A) relating to required rear yard setbacks to allow any addition to
the existing building to be a continuation of the existing rear building line,
acknowledging that the addition will further encroach on the rear yard
setback, is GRANTED.
The Applicant’s request for a special exception to Article 16, Section
114-42(A) to allow the construction and/or installation of a ten (10) foot by
twenty (20) foot pad to accommodate a walk-in freezer in the rear of the
building, in the setback area, is GRANTED. The location of the concrete
pad shall be as indicated on Applicant’s Plan.
The Applicant’s request for a special exception to Article 16, Section
114-42(A) to allow the construction and/or installation of a ten (10) foot by
ten(10) concrete pad for a dumpster in the rear yard setback area is
GRANTED. The location of the concrete pad shall be as indicated on
Applicant’s Plan.
The Applicant’s request for a special exception to Article 16, Section
114-42(A) to allow the positioning of five (5) parking spaces within the buffer
zone in the rear yard setback as recommended by the representative of the
Chalfont Borough Planning Commission, is GRANTED.
The Applicant’s request for a special exception to Article 5, Section
114-35(J) to measure parking spaces from the legal right of way as depicted
on the Land Development Plan identified as Applicant’s Exhibit 4, is
GRANTED, and the “legal” and “existing” right of way, as shown on
Applicant’s Exhibit 4, are deemed to be one and the same line.
The Applicant’s request for a variance from Article 2, Section 114-7 to
the extent needed to measure distances from the “existing” and “legal” right
of way, as depicted on the Land Development Plan identified as Applicant’s
Exhibit 4 is GRANTED, since the “legal” and “existing” right of way are one
and the same line.
Lucas, 07-045
Page 16
The Applicant’s request for relief from the parking requirements of
Article 5, Section 114-33(E) and (F) involving the joint use of a common
parking lot and the use of off-site parking is DENIED based upon the record
currently before the Board.
The Applicant’s request for a variance and/or other relief from Article
4, Section 114-16(E4) that requires there be one off-street parking space for
every fifty (50) square feet of gross floor area or one off-street parking space
for every three (3) seats, whichever requires the greater number of spaces,
plus one space for every employee on the largest shift is DENIED.
44. On June 11, 2004, Tolomello through her legal Counsel, Edward Wild, Esquire,
appealed the Zoning Hearing Board decision to the Bucks County Court of Common
Pleas.
a. Case number 04-03793-26-5 was assigned to this matter.
b. The major issue for the appeal was the number of required parking spaces
and allowable building size.
45. Between July 14, 2004, and September 10, 2004, Chalfont Borough Solicitor
Gregory Sturn, Esquire negotiated a settlement of Tolomello’s Zoning Appeal with
Edward Wild, Esquire representing Tolomello.
a. Solicitor Sturn would report to Manager David Drye on the progress of the
negotiations.
b. During these negotiations, Edward Wild, Esquire would also consult with
Codes Officer Richard O’Brien.
c. Council did not participate in the actual settlement negotiations.
46. Billing records of Solicitor Sturn confirm calls and correspondence on the settlement
agreement on the following days.
Date Calls to Event
07/07/04 Edward Wild Extension of time
07/07/04 David Drye Correspondence
07/14/04 N/A Prepare notice of intervention
07/14/04 N/A Letter Bucks County Prothonotary
08/09/04 Edward Wild Settlement proposal
08/20/04 Edward Wild Settlement proposal status
09/09/04 N/A Review settlement proposal
09/10/04 N/A Fax settlement agreement to Council
09/22/04 N/A Letter to David Drye
09/27/04 N/A Transmit signed stipulations
47. Solicitor Sturn explained the settlement agreement to Council as part of an
executive session of Council held on September 14, 2004.
a. Lucas was present for the executive session.
b. Council took action on the settlement during the public portion of the
September 14, 2004, meeting.
48. Minutes from [the] Chalfont Borough Council Meeting held on September 14, 2004,
include the following recorded discussions and actions on the Tolomello Zoning
Appeal at the council level.
Lucas, 07-045
Page 17
a. Solicitors report: Tolomello zoning appeal- A motion was made by Maria
Loecker, seconded by Ron Ridolfo to approve the Tolomello zoning appeal
settlement. Marilyn Jacobson voiced her objections to overturning the
decision of the zoning hearing board and potential future parking problems.
The motion carried with a four to two vote with Marilyn Jacobson and John
Abbott voting no.
Present: Lucas, Ridolfo, Abbott, Jacobson, Liberatore, Loecker
Absent: Vacant Council position.
b. Lucas voted to enter into the settlement which overturned the Zoning
Hearing Board.
49. A settlement and stipulation agreement between the Borough and Tolomello was
approved by the court on October 12, 2004.
a. The settlement agreement was signed by Anna Tolomello (Applicant) and
Gary Lucas (Council President).
b. The stated settlement agreement relates to the number of parking spaces
required for the square footage of the property.
50. Gary Lucas signed the stipulation and settlement agreement in his official capacity
as Chalfont Borough Council President.
a. The significant part of the agreement included that “the property may contain
2,580 square feet of restaurant use serviced by 32 parking spaces.”
51. The settlement agreement permitted Tolomello to proceed with the site
development plan.
a. Without the settlement, approved by council, Tolomello would have had to
modify the plans, which would have further delayed the project.
1. Tolomello would have had to reduce the size of the building in order
to comply with the Zoning Hearing Board requirements.
52. The Tolomello project went back before the Planning Commission for final approval
after Council ratified the Zoning Settlement Agreement on December 6, 2004.
a. During that meeting, Lucas participated in action of the planning commission
approving the project with a recommendation for Council acceptance, which
passed by a 5-0 vote.
53. After approval was received from the Borough’s Planning Commission, the project
went before Council for final approval during Council’s December 14, 2004 meeting.
a. Gary Lucas participated in Council’s decision to approve Tolomello’s Land
Development Application.
54. Minutes from the Chalfont Borough Council meeting held on December 14, 2004,
include the following discussion and official action taken on the Land Development
Application for Anna Maria Tolomello:
a. Attorney Gavin Labolski of Benner & Wild was present to represent the
applicant (Tolomello) along with Brad Aaron from Showalter Associates. Mr.
Lucas, 07-045
Page 18
Labolski opened his presentation by stating that the applicant was here to
obtain the final approval recommended by the Planning Commission on
November 6, 2004. He summarized the project: Pina’s Pizza proposes to
relocate across Butler Avenue and add 1400 square feet to the Spice Grill
building with additional parking. The issues raised in the November 17,
2004 CKS letter #4324, which were reviewed by Planning Commission, were
re-reviewed with Council. Mr. Labolski stated that most of the parking issues
had been resolved by the Stipulation and Settlement Agreement between the
Applicant and the Borough including the setback referred to in item 1 and
that the plantings will be relocated as discussed at Planning. Ms. Tolomello
would prefer to place plantings where they would be most visible rather that
[sic] at the rear buffer indicated in item 4, Mr. Lucas stated that he
understands this will be worked out with CKS and Mr. Labolski agreed. Item
7a: the future parking spaces proposed – will be removed from the plan if the
Borough prefers. It was decided to leave them in for potential future needs.
Item 7b: these 2 parking spaces will be reserved for employee use only.
Item 7c: the driveway openings – are pre-existing non-conforming and will
remain. Mr. Aurand discussed grading, drainage and stormwater
management issues with Mr. DiGangi and will resolve those issues with Mr.
DiGangi. Mr. Aurand stated that the applicant would improve the inlet in
Butler Avenue, as suggested in Item 14, upon obtaining all permits required.
Item 19: Mr. Labolski stated that the applicant will own and maintain all
onsite stormwater management facilities, including the proposed detention
basin. The Borough will obtain an easement as a third party beneficiary and
the plan will be revised. Item 20: capped stormwater sewer pipe – a repair
easement note will be put on the plan. Item 24: As discussed with Pat
DiGangi, a 4-6’ wide island buffer will be installed at each end of the parking
spaces. The PennDOT review letter discussed in item 33 is no longer an
issue.
Mr. Lucas confirmed with Mr. Labolski that all permits from Bucks County
Planning Commission will be obtained before proceeding. Mrs. Jacobson
asked if a discussion with SEPTA was necessary. A short discussion
ensued and the applicant agreed to check with SEPTA. Mr. DiGangi asked
if the Borough would require an easement for the sign. Mrs. Tolomello gave
a verbal agreement, but Mr. Sturn will prepare a written agreement. Mrs.
Jacobson asked if any plans of the building have been seen as she is
concerned with the visual impact of this project at the gateway to the
Borough. Mr. DiGangi reported that no elevation has been submitted, nor is
it required, at this time in the application process.
Maria Loecker made a motion, seconded by Linda Liberatore, to accept the
Land Development Application of Anna Maria Tolomello as a Preliminary
and Final Application, with the conditions discussed.
Mr. Sturn reviewed all issues, stated that the application was subject to all
the usual standard conditions and will submit a letter (see attached).
Marilyn Jacobson objected that this item was not on the agenda she
received on Thursday; she just received the plans tonight and feels the
decision has been rushed through. Gary Lucas requested public comment
with no response.
A roll call was taken and the motion carried five to two, with Marilyn
Jacobson and John Abbott voting no. Gary Lucas voted in favor of the
motion to approve Tolomello’s land development application.
Lucas, 07-045
Page 19
55. Gary Lucas participated in Council action taken during Council’s December 14,
2004, meeting to approve Tolomello’s land development plan….
56. On December 29, 2004, Tolomello was sent correspondence from Borough Solicitor
Gregory L. Sturn advising her that final plan approval for 205 Butler Avenue,
Chalfont was granted by Borough Council on December 14, 2004.
a. Tolomello signed a letter dated January 4, 2005, accepting the conditions as
outlined in the approval.
57. As of January 18, 2005, final plans had not been signed by borough officials.
58. Lucas’ official actions after January 4, 2005, included signing final plan drawings on
June 2, 2005, and the site improvement agreement on June 14, 2005.
59. Lucas in his official capacity as Chalfont Borough Council President signed the final
project blue print drawings on June 2, 2005.
a. Gary Lucas signed the drawings indicating approval by both the Planning
Commission and Borough Council.
b. Anna Maria Tolomello signed the drawing as owner on June 2, 2005.
c. The drawings also had the approval of the Borough Engineer on June 6,
2005, and Bucks County Planning Commission on June 7, 2005.
d. This document was required to be signed prior to any construction work or
permits being issued.
60. Chalfont Borough requires all contractors who intend to perform work within the
geographical limits of the Borough to file registration documents with the Borough.
a. The Borough charges a fifty dollar registration fee per year.
b. The Borough has required contractors intending to work within the Borough
to register since at least 2005.
c. Contractor registrations are checked and verified prior to the issuance of a
building permit.
61. …Edward Mortimer was contacted by Lucas to oversee the Pina’s Pizza project.
a. [Respondent admits that Mortimer had previously worked for both Prime
Building Group and Lucas Construction, Inc., and asserts that such work was
performed in the capacity of a subcontractor, not an employee.]
b. Lucas also directed that Mortimer utilize Joseph Hallman to assist with the
project.
c. Lucas later replaced Mortimer with Hallman as the project manager.
62. As of March 25, 2005, neither Lucas nor Prime had an executed construction
agreement with Tolomello d/b/a Tolomello Corporation.
a. By March 2005 Tolomello advised Lucas she would be using his company
for the project.
Lucas, 07-045
Page 20
63. On March 25, 2005, Prime Building Group filed a contractor/subcontractor
registration application with the Borough.
a. George Kiriakidi is identified as President with Edward Mortimer signing the
document as applicant.
b. Registration number 05-46 was assigned to Prime Building Group.
c. Prime Building Group did not have an executed construction agreement with
Tolomello at the time the registration was filed with the borough.
64. Page two of the contractor/subcontractor registration application identifies
contractors and subcontractors intended to be used on the project as follows:
a. General Contractor: Prime Building Group, Ed Mortimer contact person 215-
768-2035
Concrete: Form Technology
Plumbing: Ventresca Plumbing
HVAC: C & C Heating and Air Conditioning
Roofing: Exteriors Warminster
b. No contractors were identified for framing or electrical.
c. This registration did not include the names of all contractors intended to be
used on the project.
65. Mortimer filed the March 25, 2005, contractor/subcontractor registration form based
on information provided by Gary Lucas that he had reached an agreement with
Tolomello.
66. On April 13, 2005, Borough Solicitor Dean Ibrahim sent correspondence to Edward
Wild, Esquire advising Wild that final plans need to be provided along with a signed
development agreement.
a. These documents needed to be signed prior to a building permit being
issued.
*
67. On April 15, 2005 [sic], Edward Mortimer submitted a building permit application on
behalf of Prime Building Group for 205-215 East Butler Avenue, Chalfont.
*
[The building permit application was received by the Borough on March 30, 2005
(ID-11, pages 1-2)).
a. This application was denied by Building Inspector Richard O’Brien in
correspondence dated April 15, 2005.
1. Ed Mortimer was identified as the contact person on O’Brien’s
correspondence dated April 15, 2005, addressed to Prime Building
Group.
68. Anna Maria Tolomello did not have a signed contract with Gary Lucas, Lucas
Construction, Inc. or Prime Building Group at the time Edward Mortimer applied for
a building permit for the project.
69. A pre-construction meeting for the Tolomello project was held on July 7, 2005.
a. Present at the meeting was Ed Mortimer, Prime Building Group; Scott
Lucas, 07-045
Page 21
Passerini, Passerini Construction; Jim Ryan and Butch Rosenfeld, CKS
Engineers.
1. Mortimer and Passerini were present on behalf of Prime Building
Group.
2. Jim Ryan and Butch Rosenfeld attended on behalf of Borough
Engineer Patrick DiGangi, CKS Engineer.
b. A total of thirteen (13) items were identified as being discussed during the
pre-construction meeting. Items discussed included the following:
1) This pre-construction meeting is for the Tolomello property, including
interior, paving and a detention basin.
2) CKS Engineers requested three sets of site plans.
3) CKS Engineers requires a minimum of 48 hours notice prior to
construction.
4) CKS will provide full-time inspection for storm sewer construction. All
other escrowed items will be inspected as necessary to assure plan
compliance.
5) All tree protection fencing is to be placed prior to construction.
6) Two “Construction Entrance Ahead” signs are to be placed on East
Butler Avenue.
7) East Butler Avenue is to be kept clean.
8) Storm sewer submittals (six copies) are required for all materials to be
used.
9) Cut/grade sheets are required, in advance, of all storm sewer
construction.
10) Submittals are to be provided for the street lights to be used. All
lights must be placed as per plan.
11) All concrete, both curb and sidewalk, is to be Class A, air entrained
concrete, with a maximum 4-inch slump. No water may be added to
the mix or finish. All concrete must be cure sealed.
12) The developer was reminded that the Bucks County Conservation
District must be notified prior to the start of the construction.
13) The construction sequence, on Plan Sheet 12, must be followed.
70. Without the building permit the construction could not begin.
71. Univest National Bank cashiers check number 048608354 in the amount of
$25,000.00 dated July 27, 2005, was made payable to Lucas Construction, Inc.
72. The reverse side of Univest National Bank & Trust Co. cashier check number
048608354 contained the name Lucas Construction, Inc. followed by the numbers
[Account Number 1].
Lucas, 07-045
Page 22
73. Lucas deposited the entire $25,000.00 into Lucas Construction Incorporated
account at Wachovia Bank, account number [Account Number 1] on July 29, 2005.
74. Project permit files maintained by Chalfont Borough include a building permit issued
to Ed Mortimer, Prime Properties, 1630 Meetinghouse Road, Hartsville, PA 18974
on August 8, 2005.
a. Project permit number 5086 was issued to Mortimer on August 8, 2005, on
behalf of Prime.
75. Lucas provided Tolomello with two undated contracts to sign sometime after July
27, 2005.
a. This contract was in the name of Prime Building Group.
b. The contract included … costs Tolomello [discussed] with Gary Lucas.
c. Tolomello and Giovanni Gallina signed one of the contracts and gave it back
to Lucas.
d. Tolomello requested Lucas provided [sic] a signed copy.
76. The Prime Properties Inc. DBA Prime Building Group contract that Lucas provided
Anna Maria Tolomello and Giovanni Gallina had a contracted price of $486,000.00.
a. Contained on page two of the contract is the following payment schedule.
The payment schedule is as follows: Site work estimated $119,681.16:
5% Of the Contract Price simultaneously with Owner’s execution
of the agreement
35% Excavation, basin
35% Curbing and sidewalk
15% Paving completed
10% Finish
The payment schedule is as follows: Building cost estimated $366,818.84:
10% At the signing of Contract
30% Excavation, footings, basement walls
25% 1 st floor decking, trusses, balance of walls, roof rafters,
sheathing, shingles
25% Rough electric, plumbing, heating, sprinklers
10% Interior, exterior, sprinkler system, finish
b. The cost estimates specified above are $500.00 higher than the
contractually identified total of $486,000.00.
c. Site work estimated $119,681.16, actual $119,681.14.
d. Building cost estimate $366,818.84, actual $366,818.61.
77. The payments issued by [Antonio] Bova were provided by Tolomello to either Lucas
Lucas, 07-045
Page 23
or Joseph Hallman and forwarded to Prime Properties staff for processing.
78. Kiriakidi’s staff would process payments Lucas received from Tolomello.
a. Tolomello would have payments made payable to Prime and give the checks
to Lucas.
1. Lucas directed Tolomello to have payments made payable to Prime.
b. Lucas would give the payments to someone from Kiriakidi’s staff who would
deposit the payment in a Prime Properties account at First Service Bank.
79. Lucas would also submit or direct Hallman to submit invoices from contractors to be
paid from the Prime account.
80. No payments were issued to Kiriakidi as partner share for the Tolomello project.
81. [Respondent admits that the following payments were issued to Lucas through
Prime but states that it is unknown when monies were received by Prime (Amended
Investigative Complaint/Findings Report, at paragraphs 122-122b; Answer to
Amended Investigative Complaint, at paragraphs 122-122b)]:
a. …
Date Deposit Amount Prime Check # Amount Payee
09/19/05 $60,000.00 85143 $13,000.00 Lucas Construction
11/09/05 $104,599.78 85560 $25,000.00 Lucas Construction
01/09/06 $126,741.34 85804 $50,000.00 Lucas Construction
07/26/06 $80,000.00 86295 $48,317.50 Lucas Construction
b. …
Deposit Prime
Date Amount Check # Date Amount Payee
04/24/06 $74,845.06 86142 04/25/06 $5,000.00 Gary K. Lucas
08/01/06 $20,000.00 86303 08/02/06 $15,000.00 Lucas Construction
86304 08/02/06 $5,000.00 Gary K. Lucas
82. Payments received by Lucas and/or Lucas Construction through Prime were
deposited into the following accounts for which Lucas has signature authority:
Account No. Account Identity Bank
[Account No. 2] Lucas Construction Wachovia
D/B/A Remax Elite
[Account No. 1] Lucas Construction Wachovia
[Account No. 3] Gary Lucas Harleysville
83. The actual construction work lasted from approximately August 8, 2005, to August
1, 2006.
84. Tolomello did not have any conversations with Kiriakidi regarding the construction.
85. Joseph Hallman directed subcontractors to meet with Tolomello about color
schemes, roofing colors and window tinting.
a. These meetings typically would occur at Pina’s Pizza or on site.
Lucas, 07-045
Page 24
86. Lucas periodically would stop by the job site during the construction phase to
monitor progress.
a. Lucas met with Hallman two or three (3) times to discuss building issues.
b. Lucas met Mortimer and Hallman several times inquiring about which
subcontractors were being used and project progress.
87. Council did not have any responsibility in performing any site inspections or
reviewing unforeseen project issues.
a. Engineer DiGangi and/or Codes Inspector O’Brien were responsible for
addressing these issues.
88. Lucas contacted manager David Drye regarding the status of permits inspections
required for the project.
89. Issues/concerns related to the construction were handled mainly by Mortimer or
Hallman as job supervisors.
a. Project subcontractors brought any issues to Mortimer or Hallman’s attention.
b. Any major project problems with the Tolomello project were brought to Lucas’
attention by Mortimer and Hallman.
90. As part of required project documents submitted to the Borough for review was a
quotation for the sprinkler system to be installed in the Pizza Shop.
a. The specifications were provided in order to ensure that the sprinkler system
met Borough code requirements.
91. On July 20, 2005, CMI Sprinkler Corporation, 7696 Easton Road, Ottsville, PA
18942 provided Prime Properties Inc., 1630 Meetinghouse Road, Hartsville, PA
18974 with specifications to “furnish and install a (whited out) fire sprinkler system
in accordance with NFPA 13 standards and local township requirements Chalfont
Township.”
a. The specification and quote sheet is regarding Pina’s Pizza.
b. The specifications and quote were directed to Gary Lucas.
c. The sprinkler quotation was signed by Joe Hallman.
1. Joe Hallman met with representatives of CMI Sprinkler Corporation to
get the proposal.
d. The actual sprinkler system was installed by employees of CMI Sprinkler
Corporation.
e. The quote identified that it was being sent to the attention of Gary Lucas.
92. Upon receipt of [a State Ethics Commission] subpoena, Tolomello attempted to
contact Lucas via his cellular telephone.
a. Tolomello met with Lucas the following day at Lucas’s residence.
93. Lucas also had a conversation with Giovanni Gallina regarding the State Ethics
Lucas, 07-045
Page 25
Commission investigation.
94. Lucas in his official capacity as a Chalfont Borough Councilman was annually
required to file a Statement of Financial Interests form by May 1 containing
information for the prior calendar year.
95. Statement of Financial Interest (SFI) forms filed by Lucas with Chalfont Borough
include the following filings:
Calendar Year: 2006
Filed: 01/09/07 on SEC form 01/07
Position: Councilman, Planning Commission Member
Creditors: None
Direct/indirect income: None
Office, Directorship or Employment in any business: Lucas Construction Inc.,
President
All other financial interests: None
Calendar Year: 2005
Filed: 02/14/06 on SEC form 01/06
Position: Councilman, Planning Commission Member
Creditors: None
Direct/indirect income: Lucas Construction, ReMax Elite
Office, Directorship or Employment in any business: Lucas Construction Inc.,
President
Financial Interest in any business: Lucas Construction, 100%
All other financial interests: None
Calendar Year: 2004
Filed: 03/05/05 on SEC form 1/00
Position: Councilman
Creditors: None
Direct/indirect income: Chalfont Borough, Lucas Construction
Office, Directorship or Employment in any business: Lucas Construction Inc.
Financial Interest in any business: Lucas Construction Inc., 100%
All other financial interests: None
Calendar Year: 2003
Filed: 01/06/04 on SEC form 1/04
Position: Councilman
Creditors: Lexis 6%, GMAC 0%
Direct/indirect income: Lucas Construction, ReMax Elite
Office, Directorship or Employment in any business: Lucas Construction, President
Financial Interest in any business: Lucas Construction, 100%
All other financial interests: None
96. Lucas personally received Prime Properties Inc. check number 85707 dated
December 21, 2005, in the amount of $5,000.00.
a. This check was made payable directly to Gary Lucas, not Lucas
Construction.
97. Payments from Tolomello issued to Lucas through Prime included:
Date Amount
03/23/06 $5,000.00
Lucas, 07-045
Page 26
04/25/06 $5,000.00
05/11/06 $5,000.00
05/16/06 $10,000.00
08/02/06 $5,000.00
98. The following chart highlights project events ...
a. Before Planning Commission
Date Event
07/19/02 Plans submitted, job #2001-196 assigned to project
08/05/02 Plans will need zoning approval
10/07/02 Tolomello appeared before planning commission
11/04/02 Sketch plans discussed [Lucas Absent]
12/30/02 Review and correspondence from CKS Engineer
01/06/03 Application to be made to Zoning Hearing Board
04/15/03 LUCAS APPOINTED TO BOROUGH COUNCIL
08/04/03 Application withdrawn for the night, CKS correspondence
09/08/03 Sketch plan presented, Lucas commented on sidewalks
12/01/03 Land development plan tabled
01/12/04 Plans to ZHB on 01/26/04 Linda Antonio & Gary Lucas will
attend in support of variances submitted to planning
commission
03/01/04 Plans to go to ZHB on 03/16/04, discussion on parking issues
04/05/04 Application tabled until zoning hearing scheduled for 04/28/04
05/03/04 Report on ZHB approved all variances except parking [Lucas
Absent]
06/07/04 Land development application tabled, plans need to be revised
in accordance with ZHB decision
07/12/04 Application tabled [Lucas Absent]
12/06/04 Linda Antonio made a motion to recommend to Council
acceptance of the land development application of Anna Maria
Tolomello as a preliminary and final application with the
changes discussed. Seconded by Alvin Moyer Jr., with all in
favor, the motion carried.
b. Before Zoning Hearing Board
Date Event
01/06/04 ZHB notification
01/22/04 Variance request
02/17/04 Hearing date set
03/16/04 Hearing Lucas present
04/28/04 Hearing continued
05/19/04 Decision
06/11/04 Land use appeal filed Bucks Co.
c. Before Borough Council
Date Event
09/14/04 Council approves Tolomello Zoning Hearing Appeal settlement
4-2, 1 vacant position.
12/14/04 Council approves Tolomello land development application as a
preliminary and final application 5-2.
d. Site Development
Lucas, 07-045
Page 27
Date Event
…
09/14/02 Council approves stipulated settlement 4-2 Abbott/Jacobson no
10/05/04 Zoning Settlement
12/14/04 Council Approval 5-2 Preliminary/final plans
12/29/04 Notification letter to Tolomello
01/04/05 Tolomello signs acceptance
…
03/25/05 Contractor registration filed by Mortimer for Prime
04/13/05 Solicitor notification to Tolomello
04/15/05 Building Permit denied plans not approved
06/02/05 Final plan approval Lucas Chair Planning & Council
06/14/05 Improvement Agreement signed Lucas
07/07/05 Pre-construction meeting
07/20/05 CMI Sprinkler Contract
07/20/05 Lucas solicits payment from Tolomello
to
07/25/05
07/27/05 $25,000.00 payment from Tolomello to Lucas Construction
07/2005 Lucas approaches borough manager about issuance of
permits for the project
08/01/05 Conditional Building permit issued
08/08/05 Building permit issued
08/16/05 Contractor registration Hallman for Prime
09/19/05 $60,000.00 to Prime from Bova
08/01/06 Last payment to Prime
09/14/06 Pre/final site inspection
99. Lucas did not want his involvement [in the project] known …. [A]ll applications to the
borough [were] submitted in the name of Prime Properties.
a. George Kiriakidi of Prime Properties did not negotiate the contract with
Tolomello.
b. The only payment made directly to Lucas by Tolomello was the $25,000.00
payment … from Tolomello prior to the start of the project.
B. Testimony
100. Edward Wild, Esquire (“Wild”) is an attorney who practices law at the law firm of
“Bender and Wild” in Doylestown, Pennsylvania.
a. Bender and Wild represented Anna Maria Tolomello (“Tolomello”) and/or an
entity that she controlled in a land use application in Chalfont Borough
(“Borough”) in relation to her pizza parlor, “Pina’s Pizzeria.”
b. The Tolomello land use application related to the relocation and construction
of Pina’s Pizzeria at a new location (such land use application and
construction are referred to herein as the “Project”).
Lucas, 07-045
Page 28
c. The property (“Property”) that was the subject of the land use application
was an oddly shaped triangle, and the existing building (“Building”) was
nonconforming and located within one or more setbacks.
d. The Project presented issues as to the number of uses (two or three), the
number of parking spaces, and layout.
e. There were multiple ways the Property could be developed, and Wild
believed that the Property could be developed without zoning relief “by right”
in a way that might be less desirable than if zoning relief would be granted.
f. The Project engineer was Robert Showalter of the firm of “R.L. Showalter &
Associates.”
g. There are three Borough entities that are involved with land development
projects, specifically: (1) the Chalfont Borough Planning Commission
(“Planning Commission”), which is an advisory body that makes
recommendations; (2) the Chalfont Borough Council (“Borough Council”),
which is the governing body that ultimately withholds or grants approval for
land development applications; and (3) the Chalfont Borough Zoning
Hearing Board (“Zoning Hearing Board”), which is a quasi-judicial body that
can adjust or grant relief from the Borough Zoning Ordinance.
h. The Project was reviewed by the Planning Commission, Borough Council,
and the Zoning Hearing Board.
i. Wild’s first effort with respect to seeking approval of the Project occurred in
or about the summer of 2002.
j. At the August 5, 2002, meeting of the Planning Commission, Wild and
Tolomello appeared before the Planning Commission with various sketch
plans for the Project in order to obtain the recommendation of the Planning
Commission as to the development.
1. Gary Lucas (“Lucas”) was present at this meeting as a Member of the
Planning Commission.
2. Per the meeting minutes, Lucas and another Planning Commission
Member, Brian Wallace, expressed a viewpoint as to where two new
buildings should be located at the Property.
3. Wild testified that at least as of August 5, 2002, Lucas was in favor of
the Tolomello plan.
k. Wild sought to appear before Borough Council at its October 15, 2002,
meeting, in order to present a sketch plan for the Project and to gain input
from Borough Council prior to submitting a plan for formal review.
1. Wild’s efforts to appear before Borough Council prior to submitting a
plan for formal review were unsuccessful.
2. Wild testified that it was unusual for a borough council to not want to
have input in the planning stage of a development.
3. By letter dated October 15, 2002, Wild cautioned Tolomello to
anticipate that any land development of the Property would be
lengthy, confrontational and hostile. (ID-1, page 2).
Lucas, 07-045
Page 29
4. By letter dated November 6, 2002, Wild advised Tolomello that if she
wished to proceed with the Project, she would need to have the “by
right” plan for development of the Property prepared and submitted
for review formally. (ID-2, page 1).
l. ID-3, pages 1-2 consist of a memorandum dated December 13, 2002, from
Robert Showalter that was copied to Tolomello and Wild.
1. The memorandum describes a meeting among the Tolomellos, Robert
Showalter and Lucas to discuss the Project.
2. The memorandum indicates that Robert Showalter reviewed the 3
sketch plans, and that Lucas thought “SK-3” was the best of the 3
plans, but that it would need variances.
3. The memorandum indicates that Lucas suggested that the Tolomellos
revise the plans to show the changes and then submit the plans for
the Planning Commission to review.
m. Tolomello frequently spoke with municipal officials who frequented her
restaurant, including Lucas.
1. Wild initially testified that Tolomello spoke with such officials
regarding the Project (3/3/09 Tr. at 83), but subsequently testified that
he was unaware of the nature of the conversations (3/3/09 Tr. at 84,
110).
n. The proposed expansion of the Building required interpretations and/or
zoning relief by the Zoning Hearing Board.
o. Following multiple hearings, the Zoning Hearing Board issued a decision
that Wild considered to be unfavorable.
p. Tolomello filed an appeal from the Zoning Hearing Board’s decision with the
Bucks County Court of Common Pleas, under Docket Number 04-03793-26-
5.
q. Tolomello’s appeal from the Zoning Hearing Board’s decision was resolved
in the fall of 2004 by a Stipulation and Settlement Agreement between
Borough Council and Tolomello.
1. Wild negotiated the terms of the Stipulation and Settlement
Agreement with Borough Solicitor Gregory L. Sturn.
2. Wild did not discuss settlement terms with Lucas or any other
Members of the Borough Council or Planning Commission.
r. In negotiating the terms of the Stipulation and Settlement Agreement, Wild
requested that Borough Council waive the land development process for the
Project, which request was refused.
s. ID-6, pages 1-3 consist of the Stipulation and Settlement Agreement
between Borough Council and Tolomello, which settled Tolomello’s appeal
from the May 25, 2004, decision of the Zoning Hearing Board as to the
Project.
Lucas, 07-045
Page 30
1. Per the agreement, the Property was permitted to contain 2,580
square feet of restaurant use serviced by 32 parking spaces.
2. The agreement required Tolomello to otherwise process land
development plans to be reviewed by the Borough in accordance with
the requirements of the Municipalities Planning Code.
3. The agreement was executed by Lucas for the Borough, in his
capacity as Borough Council President, and by Tolomello.
t. The Stipulation and Settlement Agreement between Borough Council and
Tolomello was approved by Borough Council at its September 14, 2004,
meeting by a vote of 4-2.
1. Lucas voted in favor of approving the Stipulation and Settlement
Agreement.
u. The Stipulation and Settlement Agreement was filed with the Bucks County
Court of Common Pleas in September-October 2004.
v. On December 6, 2004, the Planning Commission voted unanimously to
recommend to Borough Council to approve the land development plan for
the Project.
w. At a December 14, 2004, Borough Council meeting, Borough Council
approved the preliminary/final land development plans for the Project subject
to conditions of approval.
1. The effect of this approval was that it granted Tolomello “entitlement,”
such that as long as the conditions of approval were satisfied,
Borough Council would be required to perform the remaining steps for
processing the land development plan.
x. ID-8, pages 1-4 consist of a letter dated December 29, 2004, from Gregory
L. Sturn, Esquire, Borough Solicitor, to Tolomello, providing Tolomello with
formal written notice of Borough Council’s approval of the preliminary/final
plan for the Project, subject to the conditions detailed in the letter.
1. Tolomello affixed her signature at the bottom of the letter, indicating
her acceptance of the conditions set forth in the letter.
2. Tolomello’s signature is dated January 4, 2005.
y. ID-10, pages 1-2 consist of a letter dated April 13, 2005, from Dean W.
Ibrahim, Esquire, Borough Solicitor, to Wild, alerting Wild to conditions that
had not yet been satisfied by Tolomello for the Project.
1. The conditions noted in the letter as remaining unsatisfied were: (a)
submission of revised plans meeting the requirements detailed in
prior correspondence from CKS Engineers, Inc., Borough Engineers,
as well as the December 29, 2004, letter of Gregory L. Sturn, Esquire,
former Borough Solicitor; (b) execution of a development agreement;
and (c) execution of a financial security agreement and deposit into
escrow of $26,845.00.
z. A development agreement provides that the applicant will secure all permits,
build according to municipal requirements, allow the inspections of the
Lucas, 07-045
Page 31
municipal engineer, and otherwise complete the project in accordance with
the plans.
aa. Per the conditions of approval for the Project, Tolomello was required to
enter into a development agreement with the Borough prior to the recording
of the final plan for the Project.
1. Wild testified that such an agreement is also required by the
Municipalities Planning Code.
bb. ID-13, pages 1-2 consist of a letter dated May 24, 2005, from Patrick P.
DiGangi, P.E. of CKS Engineers, Inc., Borough Engineers, to David E. Drye,
Borough Manager, acknowledging receipt of revised land development plans
for the Project.
1. The letter set forth eight conditions that had to be satisfied before the
“mylars” for the Project could be recorded.
2. A mylar is a plastic version of the final approved plan.
cc. ID-14, pages 1-29 consist of the development agreement between Chalfont
Borough and Tolomello for the Project.
1. The agreement is styled an “Improvement Agreement.”
2. The agreement is dated June 14, 2005.
3. The agreement was signed by Tolomello and by Lucas for Borough
Council, in his capacity as Borough Council President.
4. The agreement provided for Tolomello to post financial security in the
amount of $26,845.00 to guarantee the Borough that she would
comply with the terms and provisions of the agreement.
dd. The development agreement/Improvement Agreement was necessary
because, together with the requisite arrangements for financial security, it
provided a guarantee to the Borough that the construction would be built
according to the applicable requirements and that funds would exist to
ensure that the improvements required on the plan would be built.
1. Wild negotiated a few minor changes to the agreement with the
Borough Solicitor prior to execution of the agreement.
2. Wild did not negotiate or discuss the agreement with Lucas.
ee. Before being recorded, a plan is required by law to have indications of
approval from the county planning commission, the municipal planning
commission, the municipal engineer, the governing body, and the owner.
ff. ID-26 consists of a paper copy of the recorded plans for the Project as they
appeared on the mylar.
1. The final revisions to the plans were made on May 26, 2005.
2. The plans contain a note indicating that the final revisions were made
pursuant to the engineering reviews.
Lucas, 07-045
Page 32
gg. The mylar for the Project was signed by Lucas twice, in his capacities as
Chairman of the Planning Commission and as Borough Council President.
1. The approvals of the Planning Commission and Borough Council as
signed by Lucas are both dated June 2, 2005.
2. Wild testified that the date of June 2, 2005, appeared to be the date
of the signatures rather than the dates of action by the Planning
Commission and Borough Council.
hh. Lucas’ signatures approving the mylar were affixed after final revisions were
made to the plans on May 26, 2005.
1. The conditions of approval as to the December 14, 2004, approval by
Borough Council of the preliminary/final plan for the Project included
revising the plan to address comments in the engineering reviews.
2. The final plan revisions per engineering reviews did not require
subsequent action by Borough Council.
ii. Wild testified that the 2 ½ years that it took to for the Project to go through
the Borough process was “an extraordinarily long period of time,” and that
the Project underwent “a tremendously dense review process.” (3/3/09 Tr. at
122).
1. Wild testified that the magnitude of the Project was very minor, and
that Borough Council could have waived the land development
process. (3/3/09 Tr. at 98-99).
101. Robert Showalter (“Showalter”) is a civil engineer and surveyor and the owner of a
consulting, engineering, and surveying business named “R.L. Showalter &
Associates, Inc.”
a. Showalter performed professional services for Tolomello for the Project
commencing in approximately June 2002.
b. Showalter developed alternative sketches and concepts for Tolomello for
additions to the Property.
c. ID-3, pages 1-2 consist of a memorandum dated December 13, 2002, from
Showalter copied to Tolomello and Wild, regarding a meeting among the
Tolomellos, Showalter and Lucas to discuss the Project.
1. During the meeting, the Tolomellos, Showalter and Lucas reviewed
three alternative sketch plans that Showalter had prepared for the
Project.
2. The memorandum states that Lucas thought SK-3 was the better of
the 3; however, it would need variances.
(a) SK-3 referred to one of the three alternative sketch plans that
Showalter had prepared.
3. The memorandum indicates that Lucas suggested that the plans be
revised and then submitted for the Planning Commission to review.
Lucas, 07-045
Page 33
d. ID-9, pages 1-3 consist of a review letter dated February 2, 2005, from
Patrick P. DiGangi, P.E. of CKS Engineers, Inc., Borough Engineers, to
David Drye, Borough Manager, regarding the Project.
1. The letter responded to a submission by Showalter of revised land
development plans for the Project with a revision date of January 21,
2005.
2. The letter indicated that CKS Engineers, Inc., had reviewed the
revised land development plans to determine whether the plans met
the conditions for approval as to the December 14, 2004, approval
granted by Borough Council.
3. The letter detailed those conditions that still needed to be addressed.
e. ID-9, pages 1-3 documented an administrative review by the Borough
Engineers with respect to compliance with the action taken by Borough
Council on December 14, 2004.
f. No formal action was required by Borough Council with respect to the
administrative review performed by the Borough Engineers.
g. When Showalter was interviewed by Special Investigator Daniel Bender
(“Bender”) in 2007, Showalter told Bender that he (Showalter) had no
dealings with Lucas on the Project beyond Lucas’ role as a Borough official.
102. Richard T. O’Brien (“O’Brien”) is the owner of Keystone Municipal Services, located
at 606 Rose Lane, Morton, PA 19070.
a. Keystone Municipal Services serves as the building inspector, zoning officer,
and fire marshal for the Borough.
b. Borough Council is the ultimate authority in the Borough with respect to the
approval of land development applications and is responsible for signing the
“linens”/mylars.
c. At a December 14, 2004, Borough Council meeting, Borough Council voted
to accept the land development application for the Project as a preliminary
and final application, subject to conditions of approval (ID-29, pages 20-21).
1. It is appropriate to grant preliminary and final approval at the same
time for a project that is not complex.
d. The guarantee that Tolomello received as a result of the December 14,
2004, approval of Borough Council with conditions was that if the conditions
for approval were satisfied, the mylar plan for the Project would be filed.
e. The Borough administrative professionals including the Borough Engineers
and Solicitor conducted reviews to ensure compliance with the conditions for
approval for the Project.
1. Borough Council as a body was not required to conduct a review to
determine that the conditions for approval had been satisfied.
f. According to ID-13, pages 1-2, as of May 24, 2005, some of the conditions
for approval for the Project remained unsatisfied.
Lucas, 07-045
Page 34
g. ID-11, pages 1-2 consist of the building permit application (“Building Permit
Application”) for the Project.
1. The Building Permit Application was received by the Borough on
March 30, 2005.
2. The Building Permit Application listed the new Pina’s Pizzeria location
at 205 East Butler Pike.
3. The Building Permit Application listed the owner as Tolomello, the
contractor as “Prime Blding Group,” and the applicant as Ed Mortimer.
h. The Building Permit Application was initially denied by a letter dated April
15, 2005, from O’Brien to Mortimer (ID-12, pages 1-2).
1. The Building Permit could not be issued prior to the execution of a
development agreement or prior to the recording of the plans for the
Project.
2. In April 2005, the plans for the Project had not been recorded.
3. The letter identified additional information that the applicant would be
required to submit in order for the Building Permit Application to be
approved.
i. The construction of the Project could not proceed without the issuance of a
building permit.
j. ID-14, pages 1-29 consist of the development agreement for the Project.
1. This agreement is representative of the standard development
agreement that the Borough uses for land development applications.
2. Development agreements are drafted by the Borough Solicitor and
forwarded to the applicant’s attorney for review.
k. ID-26 is the ultimate approval for the land development application for the
Project.
1. The plans for the Project had to be recorded with the Recorder of
Deeds Office in Bucks County.
2. The plans for the Project could not be recorded without the signatures
on the mylar indicating approval by the Planning Commission and
Borough Council.
l. Lucas’ June 2, 2005, signatures on the mylar indicated the date Lucas
signed the mylar and did not indicate that the Planning Commission and
Borough Council met on June 2, 2005, and granted approvals.
m. Lucas’ signature on the mylar indicating approval by Borough Council
indicated that all conditions for approval had been met.
1. O’Brien testified that when Lucas signed the mylar for the Project, he
was not exercising any discretion but was merely indicating that the
plan had gone through the Borough process and that this was the
final mylar to be filed in the courthouse.
Lucas, 07-045
Page 35
n. ID-15, pages 1-3, consist of a letter dated August 1, 2005, from O’Brien to
Mortimer, issuing a zoning permit and a conditional building permit for the
foundation only, for the Project.
1. The letter stated that the remainder of the building permit would be
released when certain specified conditions were met and required
information was submitted, reviewed and approved.
2. The required information was submitted and the remainder of the
building permit was released on August 8, 2005.
o. The conditions for issuance of a building permit or certificate of occupancy
are handled administratively and are not the subject of review and approval
by Borough Council.
p. ID-30, page 1 consists of the application for a zoning certificate for the
Project.
1. The application listed Tolomello as the owner and Prime Building
Group as the applicant, with Mortimer signing for the applicant.
2. No action by Borough Council was required to issue the zoning
certificate for the Project.
3. O’Brien approved the application on August 1, 2005, in his capacity
as the zoning officer for the Borough.
q. ID-31, pages 1-2 consist of the Contractor/Subcontractor Registration
Application filed with the Borough by Prime Building Group on March 25,
2005, indicating that Prime Building Group would be the contractor on the
Project.
1. Contractors and subcontractors performing construction in the
Borough must file one of these forms with the Borough.
2. This Registration Application did not list Lucas Construction,
Incorporated in the subcontractor information portion of the form.
3. The form solicited information for subcontractors performing particular
types of work.
r. The first day that O’Brien can confirm that Prime Building Group was
involved in the Project is March 25, 2005, when the application was filed for
Prime Building Group to register as the contractor for the Project.
s. O’Brien does not feel that Lucas took any more interest in the Project than
any others that were before the Planning Commission or Borough Council.
t. It is not unusual for a decision of a zoning hearing board to be appealed and
for the parties to then reach a settlement.
u. O’Brien did not hear any complaints regarding Lucas soliciting anything of
value from any applicants who had plans before the Borough.
103. Edward Robert Mortimer (“Mortimer”) is a contractor.
Lucas, 07-045
Page 36
a. Mortimer has performed work for Lucas.
b. Mortimer has performed work for George Kiriakidi, who is the owner of Prime
Properties Group.
c. Mortimer testified that Lucas runs many jobs through Prime.
d. Mortimer performed work on the Project.
e. Mortimer testified that he is not good with dates, but that Lucas approached
Mortimer about working on the Project a couple of weeks prior to March 30,
2005 (the date the Building Permit Application was filed for the Project).
f. Mortimer testified that at or about the time Mortimer filed the
Contractor/Subcontractor Registration Application (ID-31, pages 1-2) in
March of 2005, Lucas told Mortimer that he did not want Mortimer to tell
anybody that he (Lucas) was involved in the Project.
g. Mortimer testified that he initially gave false information to Special
Investigator Bender by denying that Lucas was involved with the Project.
(3/3/09 Tr. at 213).
1. Mortimer testified that he gave false information to Special
Investigator Bender to protect George Kiriakidi. (3/3/09 Tr. at 213).
2. Mortimer initially told Special Investigator Bender that Mortimer
became involved in the Project as a result of receiving a call from
George Kiriakidi, and that Mortimer’s communication with respect to
the Project came through George Kiriakidi and not Lucas. (3/3/09 Tr.
at 217-219).
h. At the hearing on March 3, 2009, Mortimer testified that it was Lucas who got
Mortimer involved in the Project, not George Kiriakidi, and that Mortimer
performed work on the Project for Lucas, not George Kiriakidi. (3/3/09 Tr. at
204-206, 210, 214).
i. There is animosity between Mortimer and Lucas. (3/3/09 Tr. at 232).
104. Anna Maria Tolomello (“Tolomello”) is the owner of a pizzeria restaurant named
“Pina’s Pizzeria” (also referred to herein as “Pina’s Pizza”), which is currently
located at 215 East Butler Avenue, Chalfont, PA 18914.
a. Pina’s Pizzeria was previously located at 230 East Butler Avenue, Chalfont,
PA 18914, which was across the street from its current location.
b. Showalter was the engineer for the Project, and Wild was Tolomello’s
attorney in relation to the Project.
c. Tolomello first had interaction with the Planning Commission regarding the
Project in 2002.
d. Tolomello, Showalter, and Lucas met in 2002 to discuss sketch plans for the
Project.
1. The reference to SK-3 at ID-3, page 1 is to “Sketch Plan Number
Three,” which Showalter had prepared.
Lucas, 07-045
Page 37
e. ID-6, pages 1-3 consist of the Stipulation and Settlement Agreement
between Tolomello and Borough Council, settling Tolomello’s appeal from
the decision of the Zoning Hearing Board as to the Project.
f. Tolomello initially testified that Borough Council gave final approval to her
land development plan in the summer of 2004, but when shown the minutes
of the December 14, 2004, Borough Council meeting reflecting the approval
of Tolomello’s land development application as a preliminary and final
application, Tolomello stated, “I can’t remember the exact date because it’s
been so long. But if that’s what it indicates in this letter, then yes.” (3/4/09
Tr. at 17, 19-20).
g. Tolomello testified that the dates are hazy for her as to the events that
occurred four or five years ago, but subsequently stated: “Most of the dates,
at least 98 percent of the dates I know because, you know, it’s something
that I will never forget because it was such a heartache.” (3/4/09 Tr. at 52).
1. Tolomello testified that the mylar was signed in June 2004. (3/4/09
Tr. at 53).
h. Prior to December 2004 Tolomello asked Lucas questions about what to do
or not to do to go forward with the Project.
1. Tolomello initiated these conversations with Lucas.
i. Tolomello provided the following testimony about the timeframe when she
discussed with Lucas having Lucas bid on or do the construction work on the
Project.
1. On direct examination, Tolomello provided the following testimony.
(a) Tolomello testified that her conversations with Lucas about
any interest he might have in doing the construction work on
the Project began before the Borough Council gave final
approval to her land development application. (3/4/09 Tr. at
31).
(b) Tolomello testified that Lucas expressed an interest in doing
the work on the Project toward the end of 2004 (3/4/09 Tr. at
23-24).
(c) Tolomello testified that prior to December 2004, she had a
conversation with Lucas as to whether he would be willing to
do commercial construction, and that Lucas told her he had
never done commercial construction but “it wouldn’t be that
much difficult.” (3/4/09 Tr. at 23).
(d) Tolomello testified that her discussions with Lucas regarding
Lucas doing the Project became more serious after she signed
the Stipulation and Settlement Agreement (ID-6, pages 1-3),
which she believed was in the summer of 2004 (3/4/09 Tr. at
25).
(e) Tolomello testified that Lucas agreed to do the construction
work for the Project in 2004 (3/4/09 Tr. at 25).
Lucas, 07-045
Page 38
(f) Tolomello testified that Lucas brought her two construction
contracts (ID-19, pages 1-23 and ID-20, pages 1-10) at the
end of 2004 (3/4/09 Tr. at 26-29).
2. On cross examination, Tolomello provided the following testimony.
(a) Tolomello told Special Investigator Bender, in an April 3, 2008,
statement, that her discussions with Lucas about doing work
on the project became serious--as opposed to Lucas just
giving Tolomello advice on her plans--in 2005; that if she had
to guess, she would say April 2005; that the serious
discussions were around the area of March 25, 2005; and that
to the best of her knowledge, the serious discussions were in
May of 2005. (3/4/09 Tr. at 54, 58, 64).
(b) Tolomello told Special Investigator Bender, in an April 3, 2008,
statement, that Lucas never gave her estimates for the Project
until after the mylar was signed. (3/4/09 Tr. at 60).
(c) Tolomello told Special Investigator Bender, in an April 3, 2008,
statement, that she may have had a verbal agreement with
Lucas in March 2005 that Prime was going to do the work on
the Project but that there was no written agreement. (3/4/09
Tr. at 61).
(d) Tolomello told Deputy Executive Director Robert Caruso and
Special Investigator Bender, in an April 22, 2008, statement,
that she never promised Lucas that he would do the work on
the Project until after everything was approved. (3/4/09 Tr. at
67-68).
(e) Tolomello received a bid on the Project from another
contractor named “B&D” around the time that the mylars were
being signed, and the B&D bid was received before she
received the bid from Lucas. (3/4/09 Tr. at 80-81).
(f) Tolomello testified that she told Lucas that he had the job to do
the work on the Project when she compared the B&D bid and
the Lucas bid. (3/4/09 Tr. at 81-82).
(g) Tolomello testified that the construction contract for the Project
was presented to her in the summer of 2005. (3/4/09 Tr. at
78).
3. On redirect examination, Tolomello provided the following testimony.
(a) Tolomello testified that she hired a contractor to do the work
on the Project prior to March 30, 2005. (3/4/09 Tr. at 87).
(b) Tolomello testified that prior to her serious conversations with
Lucas about Lucas doing the work on the Project, she and
Lucas had less serious conversations about Lucas potentially
being the contractor on the Project. (3/4/09 Tr. at 91).
(1) Tolomello testified that these less serious
conversations with Lucas never involved a promise for
him to do the work on the Project. (3/4/09 Tr. at 91).
Lucas, 07-045
Page 39
j. ID-8, pages 1-4 consist of a letter dated December 29, 2004, from Gregory
L. Sturn, Esquire, Borough Solicitor, to Tolomello, providing Tolomello with
formal written notice of Borough Council’s approval of the preliminary/final
plan for the Project, subject to the conditions detailed in the letter.
1. Tolomello affixed her signature at the bottom of the letter, indicating
her acceptance of the conditions set forth in the letter.
2. Tolomello’s signature is dated January 4, 2005.
k. Tolomello dealt with Lucas but Prime’s name was on the construction
contract.
1. Financial dealings and checks for the Project were run through Prime.
l. ID-19, pages 1-23 and ID-20, pages 1-10 consist of two construction
agreements that were provided to Tolomello by Lucas.
1. These agreements provided different amounts for the contract price
for the Project.
2. Tolomello testified that Lucas did not bring these contracts to her until
after she had promised him that he would get the job to do the
Project.
m. ID-19, page 6 has signatures in the signature spaces for George G. Kiriakidi
and for the President of Prime Properties, Inc.
n. ID-20, page 6 has signatures of Tolomello and her fiancé, Giovanni Gallina.
1. Tolomello used the contract identified as ID-20 for use in trying to get
a bank loan.
o. Tolomello secured financing from “Bova Food Distributors” for the entire
amount for construction of the Project except for the initial down payment.
p. Tolomello provided the initial down payment in the amount of $25,000.00 to
Lucas Construction Inc.
1. Lucas told Tolomello he needed the down payment to order steel for
the Project.
2. Lucas told Tolomello the amount that was needed for the down
payment.
3. ID-16, page 1 consists of a copy of the cashier’s check in the amount
of $25,000.00 by which Tolomello paid the down payment for the
Project to Lucas Construction Inc.
(a) The check was made payable to Lucas Construction Inc.
(b) The check was provided to Lucas in the summer of 2005.
4. When Tolomello gave this check to Lucas, Lucas was upset that the
check was made payable to Lucas Construction, Inc.
Lucas, 07-045
Page 40
(a) Lucas told Tolomello that her deal was with Prime Builders and
not Lucas.
q. Tolomello testified that Lucas never asked Tolomello for any money in
connection with any approvals and Tolomello never offered any money in
exchange for getting any approvals. (3/4/09 Tr. at 72-73).
r. Tolomello testified that she never promised Lucas that he would get the job
on the Project in exchange for any approvals of either the Planning
Commission or Borough Council. (3/4/09 Tr. at 75).
s. ID-23, pages 1-7 consist of copies of seven checks from Antonio Bova/Bova
Food Distributors, Inc., to Prime Building Group for the Project.
t. Lucas told Tolomello estimated amounts of what was due, and Tolomello
obtained checks in those amounts from Mr. Bova’s secretary and provided
them to Lucas.
1. Lucas told Tolomello to make the checks payable to Prime Building
Group.
u. Tolomello did not have any conversations with George Kiriakidi regarding
doing the work on the Project.
1. Tolomello has never met George Kiriakidi.
v. Lucas did not want people in the Borough to know that he was a contractor
on the Project.
1. Lucas told Tolomello that if anyone asked her who she was dealing
with on the Project, it was George Kiriakidi.
w. Tolomello testified that before she asked Lucas to build the Project for her,
she asked him whether it would be a conflict of interest for him to build it.
1. Tolomello testified that Lucas responded that he believed it would not
be a conflict of interest.
x. Tolomello testified that when she received a Commission subpoena from
Special Investigator Bender, she contacted Lucas to make him aware of the
situation.
1. Tolomello testified that Lucas said there was nothing for them to
worry about because they did not do anything wrong.
2. Tolomello testified that Lucas again told her that if anybody asked,
she was to tell them that George Kiriakidi did the Project.
y. English is not Tolomello’s first language.
105. George G. Kiriakidi (“Kiriakidi”) is the President and sole shareholder of a
subchapter S corporation named “Prime Properties, Inc.”
a. Lucas has never had an ownership interest in Prime Properties, Inc.
b. Prime Properties, Inc. is in the business of building and developing
properties.
Lucas, 07-045
Page 41
c. “Prime Building Group” is a fictitious name of Prime Properties, Inc.
d. Prime Properties, Inc./Prime Building Group (also referred to herein as
“Prime”) has been involved in business transactions with Lucas/Lucas
Construction, Inc.
1. Kiriakidi/Prime and Lucas/Lucas Construction Inc. have cooperated
on approximately 15 jobs as joint ventures, with Kiriakidi/Prime and
Lucas/Lucas Construction Inc. equally sharing the profits or losses.
2. Approximately three or four jobs belonging solely to Lucas/Lucas
Construction Inc. have been run through Prime.
e. Lucas asked Kiriakidi if he (Lucas) could do the Project in the name of
Prime. (3/4/09 Tr. at 103).
1. Lucas indicated that he (Lucas) wanted to do the Project through
Prime because he was a Borough Council Member and he did not
want any suggestion of impropriety or for anyone to know his
business there. (3/4/09 Tr. at 103).
f. Kiriakidi allowed Lucas to do the Project in the name of Prime.
g. Under the arrangement between Lucas and Kiriakidi, Prime entered into a
construction contract with Tolomello for the Project but Lucas/Lucas
Construction Inc. received the financial benefit from the transaction.
1. Except for having the money for the Project flow through Prime,
Kiriakidi’s company did not play any other role in the Project.
h. Prime did not profit from the Project in any way.
i. Kiriakidi did not concern himself with the Project.
1. Someone other than Kiriakidi signed Kiriakidi’s name on the
construction contract with Tolomello. (ID-19, page 6).
2. Kiriakidi was not involved in the hiring of subcontractors or project
managers for the Project.
3. Kiriakidi did not play any role in the submission of the plans or
acquisition of the building permit for the Project.
4. Kiriakidi did not know how much profit was being made on the Project.
j. Under the arrangement between Lucas and Kiriakidi, payments were made
to Prime by Tolomello or her lender, and from those payments, certain
expenses were paid to subcontractors and the remainder was given to
Lucas/Lucas Construction, Inc.
k. Prime received the payments that are in evidence as ID-23, pages 1-7.
l. Prime issued disbursements for the Project by check.
m. ID-27, pages 1-3 consist of a transaction report maintained by Prime for the
Project.
Lucas, 07-045
Page 42
1. A transaction report documents payments received and disbursed for
a job.
n. ID-27, page 1 lists deposits of the seven checks totaling $541,031.23 from
Antonio Bova/Bova Food Distributors, Inc. to Prime Building Group for the
Project. (ID-23, pages 1-7; ID-27, page 1; see, Fact Finding 121 a).
o. ID-27, pages 2-3 list the following disbursements to Lucas/Lucas
Construction:
DATEAMOUNT
9/19/05 $13,000.00
11/9/05 $25,000.00
1/9/06 $50,000.00
2/27/06 $10,000.00
3/23/06 $5,000.00
4/25/06 $5,000.00
5/11/06 $20,000.00
5/11/06 $5,000.00
5/16/06 $10,000.00
7/26/06 $48,317.50
8/2/06 $15,000.00
8/2/06 $5,000.00
8/16/06 $10,000.00
11/2/06 $4,668.97
(ID-27, pages 2-3; see, Fact Finding 121 b).
p. ID-28, pages 1-2 and 4-14 consist of checks issued by Prime Properties, Inc.
q. The disbursements to Lucas/Lucas Construction that are listed on ID-27,
pages 2-3 correspond to the following Prime checks contained within ID-28:
CHECK NO. DATE AMOUNT
85143 9/19/05 $13,000.00
85560 11/9/05 $25,000.00
85804 1/9/06 $50,000.00
85930 2/27/06 $10,000.00
85988 3/23/06 $5,000.00
86142 4/25/06 $5,000.00
86181 5/11/06 $20,000.00
86182 5/11/06 $5,000.00
86190 5/16/06 $10,000.00
86295 7/26/06 $48,317.50
86303 8/2/06 $15,000.00
86304 8/2/06 $5,000.00
86318 8/16/06 $10,000.00
86381 11/2/06 $4,668.97
(See, Fact Finding 123).
r. The $25,000.00 down payment for the Project was not processed through
Prime. (ID-16, page 1).
Lucas, 07-045
Page 43
s. Kiriakidi testified that from his records, he could tell what monies were
received for the Project and what monies were disbursed for the Project, but
he had no knowledge of whether Lucas Construction, Inc. paid additional
expenses from the monies it received. (3/4/09 Tr. at 141-142).
t. Kiriakidi testified that ID-27, pages 1-3 consist of a reconstruction of what
originally would have been maintained in Prime’s regular files in the normal
course of business. (3/4/09 Tr. at 144-148).
1. Kiriakidi testified that he had previously changed some records to
protect Lucas, but that he had subsequently changed the records
back to what they were supposed to have been. (3/4/09 Tr. at 144-
148).
2. Kiriakidi testified that he believes ID-27, pages 1-3 are accurate.
(3/4/09 Tr. at 144-146, 148).
u. Kiriakidi acknowledged that when Special Investigator Bender interviewed
him, Kiriakidi initially lied and told Special Investigator Bender that Lucas
had nothing to do with the Project. (3/4/09 Tr. at 126).
v. Kiriakidi testified that Lucas did not tell Kiriakidi to lie or fabricate anything
with respect to the investigation of the State Ethics Commission. (3/4/09 Tr.
at 152).
w. Kiriakidi testified that Lucas told Kiriakidi to tell the truth to the State Ethics
Commission. (3/4/09 Tr. at 152-153).
x. Kiriakidi testified that Lucas told Kiriakidi that he (Lucas) had done nothing
wrong. (3/4/09 Tr. at 153).
106. Robert P. Caruso is the Deputy Executive Director/Director of Investigations for the
State Ethics Commission.
a. The following five Prime checks described on ID-27, page 2 as “Lucas
Constr…” were made payable to Gary K. Lucas: check number 85988;
check number 86142; check number 86182; check number 86190; and
check number 86304.
b. During the course of the investigation of this matter, Respondent d/b/a Lucas
Construction was subpoenaed to provide records related to Tolomello,
Tolomello Corporation, Prime Properties or Prime Building Group for site
development and construction work at 205-215 East Butler Street, Chalfont,
PA, and for records of all projects involving Prime Properties/Prime Building
Group for any project within the geographical boundaries of the Borough.
1. In response to the subpoena, Respondent’s attorney indicated that
Lucas Construction had one document with regard to Prime
Properties within the geographical boundary of the Borough,
consisting of a letter pertaining to a sprinkler system estimate that
was mistakenly sent to Respondent.
2. Respondent/Respondent’s attorney did not provide any other
document pursuant to the subpoena related to work by Lucas
Construction on the Project.
C. Documents
Lucas, 07-045
Page 44
107. ID-3, pages 1-2 consist of a memorandum dated December 13, 2002, from
Showalter copied to Tolomello and Wild, regarding a meeting among the
Tolomellos, Showalter and Lucas to discuss the Project.
a. The memorandum states in part:
RLS and the Tolomello’s met with Gary Lucas to discuss the
project. RLS reviewed the 3 sketch plans. Gary thought SK-3
was the better of the 3; however, it would need variances.
…
5. Proposed uses of site discussed. Borough does not
like the idea of 2 restaurants….Gary seemed emphatic
about the Borough not wanting two restaurants.
…
1. Gary suggested we revise the plans to show the
changes and submit it for the Planning Commission
meeting in January. The Planning Commission would
then review it.
…
ID-3, pages 1-2.
108. ID-6, pages 1-3 consist of the Stipulation and Settlement Agreement between
Borough Council and Tolomello, which settled Tolomello’s appeal from the May 25,
2004, decision of the Zoning Hearing Board as to the Project.
a. Per the agreement, Tolomello had sought to add a second restaurant use of
1400 square feet in addition to the existing restaurant use containing 1,180
square feet, and had also sought to provide a total of 32 parking spaces for
the combined two restaurant uses.
b. Per the agreement, the Property was permitted to contain 2,580 square feet
of restaurant use serviced by 32 parking spaces.
c. The agreement required Tolomello to otherwise process land development
plans to be reviewed by the Borough in accordance with the requirements of
the Municipalities Planning Code.
d. The agreement was executed by Lucas for the Borough, in his capacity as
Borough Council President, and by Tolomello.
109. ID-8, pages 1-4 consist of a letter dated December 29, 2004, from Gregory L. Sturn,
Esquire, Borough Solicitor, to Tolomello, providing Tolomello with formal written
notice of Borough Council’s approval of the preliminary/final plan for the Project,
subject to the conditions detailed in the letter.
a. Tolomello affixed her signature at the bottom of the letter, indicating her
acceptance of the conditions set forth in the letter.
b. Tolomello’s signature is dated January 4, 2005.
Lucas, 07-045
Page 45
110. ID-9, pages 1-3 consist of a review letter dated February 2, 2005, from Patrick P.
DiGangi, P.E. of CKS Engineers, Inc., Borough Engineers, to David Drye, Borough
Manager, regarding the Project.
a. The letter responded to a submission by Showalter of revised land
development plans for the Project with a revision date of January 21, 2005.
b. The letter indicated that CKS Engineers, Inc., had reviewed the revised land
development plans to determine whether the plans met the conditions for
approval as to the December 14, 2004, approval granted by Borough
Council.
c. The letter detailed those conditions that still needed to be addressed.
111. ID-10, pages 1-2 consist of a letter dated April 13, 2005, from Dean W. Ibrahim,
Esquire, Borough Solicitor, to Wild, alerting Wild to conditions that had not yet been
satisfied by Tolomello for the Project.
a. The conditions noted in the letter as remaining unsatisfied were: (1)
submission of revised plans meeting the requirements detailed in prior
correspondence from CKS Engineers, Inc., Borough Engineers, as well as
the December 29, 2004, letter of Gregory L. Sturn, Esquire, former Borough
Solicitor; (2) execution of a development agreement; and (3) execution of a
financial security agreement and deposit into escrow of $26,845.00.
112. ID-11, pages 1-2 consist of the building permit application (“Building Permit
Application”) for the Project.
a. The Building Permit Application was received by the Borough on March 30,
2005.
b. The Building Permit Application listed the new Pina’s Pizzeria location at 205
East Butler Pike.
c. The Building Permit Application listed the owner as Tolomello, the contractor
as “Prime Blding Group,” and the applicant as Ed Mortimer.
113. ID-12, pages 1-2, consist of a letter dated April 15, 2005, from O’Brien to Mortimer,
denying the Building Permit Application for the Project.
a. The letter stated that the denial was based upon correspondence dated April
13, 2005, from the Borough Solicitor indicating that additional steps needed
to be taken to finalize the land development approval for the Project.
b. The letter also identified additional information that would be required in
order for the Building Permit Application to be approved.
114. ID-13, pages 1-2 consist of a letter dated May 24, 2005, from Patrick P. DiGangi,
P.E. of CKS Engineers, Inc., Borough Engineers, to David E. Drye, Borough
Manager, acknowledging receipt of revised land development plans for the Project.
a. The letter set forth eight conditions that had to be satisfied before the mylars
for the Project could be recorded.
115. ID-14, pages 1-29 consist of the development agreement between Chalfont
Borough and Tolomello for the Project.
Lucas, 07-045
Page 46
a. The agreement is styled an “Improvement Agreement.”
b. The agreement is dated June 14, 2005.
c. The agreement was signed by Tolomello and by Lucas for Borough Council,
in his capacity as Borough Council President.
d. The agreement provided for Tolomello to post financial security in the
amount of $26,845.00 to guarantee the Borough that she would comply with
the terms and provisions of the agreement.
e. The agreement set forth requirements for the nature and quality of the
construction work to be performed.
116. ID-15, pages 1-3, consist of a letter dated August 1, 2005, from O’Brien to Mortimer,
issuing a zoning permit and a conditional building permit for the foundation only, for
the Project.
a. The letter stated that the remainder of the building permit would be released
when certain specified conditions were met and required information was
submitted, reviewed and approved.
117. ID-16, page 1 consists of a copy of the cashier’s check in the amount of $25,000.00
by which Tolomello paid the down payment for the Project to Lucas Construction
Inc.
a. The check was made payable to Lucas Construction Inc.
b. The check was dated July 27, 2005.
c. The check is check number 048608354.
118. ID-19, pages 1-23 and ID-20, pages 1-10 consist of two construction agreements
that were provided to Tolomello by Lucas.
a. ID-19, page 6 has signatures in the signature spaces for George G. Kiriakidi
and for the President of Prime Properties, Inc.
b. ID-20, page 6 has signatures of Tolomello and her fiancé, Giovanni Gallina.
c. ID-19, page 1 lists the “contract price” as $543,500.00.
d. ID-20, page 1 lists the “contract price” as $486,000.00.
119. ID-23, pages 1-7 consist of copies of seven checks from Antonio Bova/Bova Food
Distributors, Inc., to Prime Building Group for the Project.
a. The payments consist of the following checks:
1. Check number 452 dated September 19, 2005, in the amount of
$60,000.00;
2. Check number 506 dated November 3, 2005, in the amount of
$104,599.78;
3. Check number 525 dated January 6, 2006, in the amount of
$126,741.34;
Lucas, 07-045
Page 47
4. Check number 581 dated April 13, 2006, in the amount of $74,845.05;
5. Check number 582 dated April 13, 2006, in the amount of $74,845.06;
6. Check number 69335 dated July 25, 2006, in the amount of
$80,000.00; and
7. Check number 69340 dated July 25, 2006, in the amount of
$20,000.00.
b. The total amount of the checks is $541,031.23.
120. ID-26 consists of a paper copy of the recorded plans for the Project as they
appeared on the mylar.
121. ID-27, pages 1-3 consist of a transaction report maintained by Prime for the Project.
(See, Fact Finding 105 m).
a. The transaction report for the Project lists deposits of the seven checks
totaling $541,031.23 from Antonio Bova/Bova Food Distributors, Inc. to
Prime Building Group for the Project. (ID-23, pages 1-7; ID-27, page 1).
b. ID-27, pages 2-3 list the following disbursements totaling $225,986.47 to
Lucas/Lucas Construction:
DATEAMOUNT
9/19/05 $13,000.00
11/9/05 $25,000.00
1/9/06 $50,000.00
2/27/06 $10,000.00
3/23/06 $5,000.00
4/25/06 $5,000.00
5/11/06 $20,000.00
5/11/06 $5,000.00
5/16/06 $10,000.00
7/26/06 $48,317.50
8/2/06 $15,000.00
8/2/06 $5,000.00
8/16/06 $10,000.00
11/2/06 $4,668.97
(ID-27, pages 2-3).
c. The following five Prime checks described on ID-27, page 2 as “Lucas
Constr…” were made payable to Gary K. Lucas: check number 85988;
check number 86142; check number 86182; check number 86190; and
check number 86304.
d. Prime check number 86181 is erroneously listed as check number 86180 on
ID-27, page 2. (ID-28, page 9).
e. Prime check number 86182 is erroneously listed as check number 86181 on
ID-27, page 2. (ID-28, pages 8-9).
122. ID-28, pages 1-2 and 4-14 consist of checks issued by Prime Properties, Inc.
Lucas, 07-045
Page 48
123. The disbursements to Lucas/Lucas Construction that are listed on ID-27, pages 2-3
correspond to the following Prime checks contained within ID-28:
CHECK NO. DATE AMOUNT
85143 9/19/05 $13,000.00
85560 11/9/05 $25,000.00
85804 1/9/06 $50,000.00
85930 2/27/06 $10,000.00
85988 3/23/06 $5,000.00
86142 4/25/06 $5,000.00
86181 5/11/06 $20,000.00
86182 5/11/06 $5,000.00
86190 5/16/06 $10,000.00
86295 7/26/06 $48,317.50
86303 8/2/06 $15,000.00
86304 8/2/06 $5,000.00
86318 8/16/06 $10,000.00
86381 11/2/06 $4,668.97
(See, Fact Finding 105 q).
a. These checks total $225,986.47.
b. These checks do not include the $25,000 down payment for the Project that
was paid directly by Tolomello to Lucas Construction Inc. (See, Fact Finding
105 r; ID-16, page 1).
124. ID-30, page 1 consists of the application for a zoning certificate for the Project.
a. The application listed Tolomello as the owner and Prime Building Group as
the applicant, with Mortimer signing for the applicant.
b. O’Brien approved the application on August 1, 2005, in his capacity as the
zoning officer for the Borough.
125. ID-31, pages 1-2 consist of the Contractor/Subcontractor Registration Application
filed with the Borough by Prime Building Group on March 25, 2005, indicating that
Prime Building Group would be the contractor on the Project.
a. The application was signed by Mortimer.
D. Other Findings
126. The point in time at which Tolomello and Respondent began to have serious
discussions regarding whether Respondent would be interested in doing the
construction work for the Project cannot be identified from the evidence of record.
a. Tolomello’s testimony was conflicting and unreliable as to dates, and
particularly, the timeframe when these discussions occurred. (See, Fact
Findings 104 f-g(1), i-i(3)(b)(1)).
127. Respondent acknowledges that only a Member of Borough Council could sign the
mylars for the Project on behalf of Borough Council. (Closing Statement, 7/7/09 Tr.
at 67-68).
Lucas, 07-045
Page 49
III. DISCUSSION:
At all times relevant to this matter, Respondent Gary Lucas (also referred to herein
as “Respondent,” “Respondent Lucas,” and “Lucas”) was a public official subject to the
provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101
et seq.
The allegations are that Respondent Lucas as a Chalfont Borough (“Borough”)
Council Member violated Sections 1103(a) and 1103(c) of the Ethics Act: (1) when he
used the authority of his office for private pecuniary gain including but not limited to
participating in actions of Borough Council to approve land development plans for a project
where a business with which he is associated was serving as the general contractor and/or
when he had a reasonable expectation that he would be providing services relating to the
construction of the project; (2) where he used the authority of his office to obtain payments
to either himself or a business with which he is associated from a person who had a project
being reviewed for approval by the Borough; and (3) when he solicited and/or received
something of monetary value in the form of payments from the owner of property who had
land development plans pending approval by Borough Council based on his understanding
that his vote, official action or judgment relating to the land development plan approval
would be influenced thereby.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.—
No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The term "conflict of interest" is defined in the Ethics Act as follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate family
or a business with which he or a member of his immediate
family is associated. The term does not include an action
having a de minimis economic impact or which affects to the
same degree a class consisting of the general public or a
subclass consisting of an industry, occupation or other group
which includes the public official or public employee, a
member of his immediate family or a business with which he or
a member of his immediate family is associated.
65 Pa.C.S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official/public employee from
using the authority of public office/employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official/public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
Lucas, 07-045
Page 50
Section 1103(c) of the Ethics Act provides in part that a public official/public
employee shall not solicit or accept anything of monetary value based upon any
understanding that his vote, official action or judgment would be influenced thereby:
§ 1103. Restricted activities
(c) Accepting improper influence.—
No public official,
public employee or nominee or candidate for public office shall
solicit or accept anything of monetary value, including a gift,
loan, political contribution, reward or promise of future
employment, based on any understanding of that public
official, public employee or nominee that the vote, official
action or judgment of the public official or public employee or
nominee or candidate for public office would be influenced
thereby.
65 Pa.C.S. § 1103(c).
We shall now summarize the relevant facts.
Respondent served as a Borough Council Member from approximately April 15,
2003, through December 2007. Respondent has served as a Member of the Chalfont
Borough Planning Commission (“Planning Commission”) since approximately January 10,
2000.
In a private capacity, Respondent is President of a corporation named “Lucas
Construction Inc.” (also referred to herein as “Lucas Construction”). Lucas Construction is
a general construction company that provides services including residential home
construction, repairs and renovations. Lucas Construction typically does not do
commercial construction projects.
Respondent and Lucas Construction have had an ongoing business relationship
with a corporation named “Prime Properties, Inc.” and its President and sole shareholder,
George G. Kiriakidi (“Kiriakidi”). Prime Properties, Inc. is in the business of building and
developing properties. “Prime Building Group” is a fictitious name of Prime Properties, Inc.
Prime Properties, Inc./Prime Building Group is also referred to herein as “Prime.”
Respondent/Lucas Construction and Kiriakidi/Prime have cooperated on some jobs
as joint ventures, with Respondent/Lucas Construction and Kiriakidi/Prime equally sharing
the profits or losses. Additionally, some other jobs belonging solely to Respondent/Lucas
Construction have been run through Prime.
In the Borough, there is a pizzeria restaurant named “Pina’s Pizzeria” (also referred
to herein as “Pina’s Pizza”). Anna Maria Tolomello (“Tolomello”) is the owner of Pina’s
Pizza. This case pertains to the relocation of Pina’s Pizza from its former location at 230
East Butler Avenue to its current location at 215 East Butler Avenue. The relocation of
Pina’s Pizza involved a land use application as well as construction at the new location.
Such land use application and construction are referred to herein as “the Project.”
The property (“Property”) that was the subject of the land use application was an
oddly shaped triangle, and an existing building on the Property was nonconforming and
located within one or more setbacks. The Project presented issues as to the number of
uses (two or three), the number of parking spaces, and layout. There were multiple ways
the Property could be developed. Attorney Edward Wild (“Wild”), who represented
Tolomello in the land use application portion of the Project, believed that the Property
Lucas, 07-045
Page 51
could be developed without zoning relief “by right” in a way that might be less desirable
than if zoning relief would be granted.
There are three Borough entities that are involved with land development projects,
specifically: (1) the Planning Commission, which is an advisory body that makes
recommendations that are not binding on Borough Council; (2) the Borough Council, which
ultimately withholds or grants approval for land development applications; and (3) the
Chalfont Borough Zoning Hearing Board (“Zoning Hearing Board”), which is a quasi-
judicial body that can adjust or grant relief from the Borough Zoning Ordinance. The
Project was reviewed by the Planning Commission, Borough Council, and the Zoning
Hearing Board.
Wild’s first effort with respect to seeking approval of the Project occurred in or about
the summer of 2002. At the August 5, 2002, Planning Commission meeting, Wild and
Tolomello appeared before the Planning Commission with various sketch plans for the
Project in order to obtain the recommendation of the Planning Commission as to the
development. Respondent was present at the meeting and expressed a viewpoint as to
where two new buildings should be located at the Property. Wild testified that at least as
of August 5, 2002, Respondent was in favor of the Tolomello plan.
Wild sought, unsuccessfully, to appear before Borough Council at its October 15,
2002, meeting, in order to gain input from Borough Council prior to submitting a plan for
formal review. By letter dated October 15, 2002, Wild cautioned Tolomello to anticipate
that any land development of the Property would be lengthy, confrontational and hostile.
(ID-1, page 2). By letter dated November 6, 2002, Wild advised Tolomello that if she
wished to proceed with the Project, she would need to have the “by right” plan for
development of the Property prepared and submitted for review formally. (ID-2, page 1).
Tolomello’s engineer for the Project was Robert Showalter (“Showalter”) of the firm
“R.L. Showalter & Associates, Inc.” On or before December 13, 2002, Tolomello,
Showalter and Respondent met to discuss the Project. Respondent identified one of three
sketch plans as the best, and indicated that it would need variances. (ID-3, pages 1-2).
Respondent suggested that the plans be revised and submitted for the Planning
Commission to review. Respondent was a Member of the Planning Commission at that
time but had not yet been appointed to Borough Council.
Upon submission to the Planning Commission, Tolomello’s plans were reviewed by
Patrick P. DiGangi (“DiGangi”), PE of CKS Engineers, Inc. (the Borough Engineer) and
Richard O’Brien (“O’Brien”), Borough Code Enforcement Officer and Building Inspector.
The review identified numerous potential issues involving setbacks, proposed building
sizes and the required number of parking spaces for the proposed use.
As a result of the non-conforming uses involved in Tolomello’s site development
plan, application was made to the Zoning Hearing Board for variances. On May 25, 2004,
the Zoning Hearing Board issued a decision granting all of the variances sought by
Tolomello with the exception of relief from parking requirements.
On June 11, 2004, Tolomello appealed the Zoning Hearing Board decision to the
Bucks County Court of Common Pleas. The appeal was resolved in the fall of 2004 by a
Stipulation and Settlement Agreement between Borough Council and Tolomello. (ID-6,
pages 1-3). Per the Stipulation and Settlement Agreement, the Property was permitted to
contain 2,580 square feet of restaurant use serviced by 32 parking spaces. Wild and
Borough Solicitor Gregory Sturn (“Sturn”) negotiated the settlement. As part of the
negotiations, Wild requested that Borough Council waive the land development process for
the Project, but that request was refused. The Stipulation and Settlement Agreement
expressly required Tolomello to otherwise process land development plans to be reviewed
by the Borough in accordance with the requirements of the Municipalities Planning Code.
Lucas, 07-045
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The Stipulation and Settlement Agreement was approved by Borough Council at its
September 14, 2004, public meeting, by a vote of 4-2. Respondent voted in favor of
approving the Stipulation and Settlement Agreement. The agreement was executed by
Respondent for the Borough, in his capacity as Borough Council President. The
Stipulation and Settlement Agreement was approved by the Bucks County Court of
Common Pleas on October 12, 2004.
On December 6, 2004, the Planning Commission voted unanimously to recommend
to Borough Council to accept the land development application for the Project as a
preliminary and final application, with certain changes discussed. Respondent participated
in the vote.
At the December 14, 2004, Borough Council meeting, Borough Council voted to
accept the land development application for the Project as a preliminary and final
application, subject to “conditions of approval.” During the meeting, Respondent
participated in Borough Council’s discussions regarding Tolomello’s land development
application. Respondent also participated in Borough Council’s vote to approve
Tolomello’s land development application. The effect of this approval was that as long as
the “conditions of approval” were satisfied, Borough Council would be required to perform
the remaining steps for processing the land development plan, including filing the “mylar”
plan for the Project. (A mylar is a plastic version of the final approved plan.)
By letter dated December 29, 2004, Sturn provided Tolomello with formal written
notice of Borough Council’s approval of the preliminary/final plan for the Project, subject to
the conditions detailed in the letter. (ID-8, pages 1-4). Tolomello affixed her signature at
the bottom of the letter, indicating her acceptance of the conditions. Tolomello’s signature
is dated January 4, 2005.
Commencing at some point in time that cannot be identified from the evidence of
record, Tolomello and Respondent began to have serious discussions regarding whether
Respondent would be interested in doing the construction work for the Project. Tolomello’s
testimony was conflicting and unreliable as to dates, and particularly, the timeframe when
these discussions occurred. (See, Fact Findings 104 f-g(1), i-i(3)(b)(1)). It is clear that by
March 2005 Tolomello advised Respondent she would be using his company for the
Project. Fact Finding 62 a. There is insufficient evidence in the record to establish that
prior to March 2005, Respondent/Lucas Construction had a contract or reasonable
expectation of performing work for the Project.
Respondent did not want his involvement in the Project to be known. At
Respondent’s request, Kiriakidi permitted Respondent to do the Project in the name of
Prime. Respondent indicated to Kiriakidi that he wanted to do the Project through Prime
because he was a Borough Council Member and he did not want any suggestion of
impropriety or for anyone to know his business there. Respondent told Tolomello that if
anyone asked her who she was dealing with on the Project, it was Kiriakidi.
Respondent contacted Edward Mortimer (“Mortimer”) to oversee the Project.
Mortimer testified that Respondent approached him about working on the Project a couple
of weeks prior to March 30, 2005.
On March 25, 2005, Mortimer filed with the Borough a Contractor/Subcontractor
Registration Application indicating that Prime Building Group would be the contractor on
the Project. (ID-31, pages 1-2). Mortimer testified that at or about the time Mortimer filed
the Contractor/Subcontractor Registration Application, Respondent told Mortimer that he
did not want Mortimer to tell anybody that he (Respondent) was involved in the Project.
Neither Respondent nor Prime had an executed construction agreement for the
Lucas, 07-045
Page 53
Project as of March 25, 2005. Mortimer filed the Contractor/Subcontractor Registration
form based upon information provided by Respondent that he had reached an agreement
with Tolomello.
The construction of the Project could not proceed without the issuance of a building
permit. The building permit could not be issued prior to the execution of a “development
agreement” or prior to the recording of the plans for the Project.
The Borough received a building permit application for the Project on March 30,
2005. (ID-11, pages 1-2). The building permit application listed the owner as Tolomello,
the contractor as “Prime Blding Group,” and the applicant as Mortimer. Tolomello did not
have a signed contract with Respondent, Lucas Construction, or Prime at the time
Mortimer applied for a building permit for the Project.
Borough administrative professionals including the Borough Engineers and Solicitor
conducted reviews to ensure compliance with Borough Council’s conditions for approval
for the Project.
By letter dated April 13, 2005, Dean W. Ibrahim, Esquire, Borough Solicitor, alerted
Wild to conditions that had not yet been satisfied by Tolomello for the Project. (ID-10,
pages 1-2). The conditions noted in the letter as remaining unsatisfied were: (1)
submission of revised plans meeting the requirements detailed in prior correspondence
from CKS Engineers, Inc., Borough Engineers, as well as the December 29, 2004, letter of
Sturn, former Borough Solicitor; (2) execution of a development agreement; and (3)
execution of a financial security agreement and deposit into escrow of $26,845.00.
By letter dated April 15, 2005, from O’Brien to Mortimer, O’Brien denied the building
permit application based upon Ibrahim’s April 13, 2005, letter indicating that additional
steps needed to be taken to finalize the land development approval for the Project. (ID-12,
pages 1-2). O’Brien’s letter also identified additional information that would be required in
order for the building permit application to be approved. Without the building permit the
construction could not begin.
As of May 24, 2005, some of the conditions of approval still needed to be satisfied
before the mylar for the Project could be recorded (ID-13, pages 1-2). The final revisions
to the plans were made on May 26, 2005.
The mylar was required to bear certain signatures of approval prior to being
recorded and prior to any permits being issued. Additionally, per the conditions of
approval for the Project, Tolomello was required to enter into a development agreement
with the Borough prior to the recording of the mylar for the Project. A development
agreement provides that the applicant will secure all permits, build according to municipal
requirements, allow the inspections of the municipal engineer, and otherwise complete the
project in accordance with the plans.
In his official capacity as President of Borough Council, Respondent signed the
mylar on June 2, 2005, indicating approval by Borough Council, and signed the
development agreement for the Project on June 14, 2005. These actions were taken by
Respondent as a public official acting on behalf of Borough Council at a time when
Respondent knew that Lucas Construction would be performing contractual services for
the construction work for the Project.
We parenthetically note that Respondent also signed the mylar as Chairman of the
Planning Commission. However, because the Planning Commission was only an advisory
body (Fact Findings 29-29b), Respondent’s actions as a Planning Commission Member
were not in the capacity of a public official. (See, 65 Pa.C.S. § 1102 (definition of “public
official”)).
Lucas, 07-045
Page 54
Respondent’s signature on the mylar indicating approval by Borough Council
signified that all conditions for approval had been met. O’Brien testified that when
Respondent signed the mylar for the Project, he was not exercising any discretion but was
merely indicating that the plan had gone through the Borough process and that this was
the final mylar to be filed in the courthouse. The signed mylar for the Project was the
ultimate approval for the land development application for the Project.
ID-14, pages 1-29 consist of the development agreement between the Borough and
Tolomello for the Project. The agreement is dated June 14, 2005, and is styled an
“Improvement Agreement.” The agreement provided for Tolomello to post financial
security in the amount of $26,845.00 to guarantee the Borough that Tolomello would
comply with the terms and provisions of the agreement. The agreement set forth
requirements for the nature and quality of the construction work to be performed. The
agreement is representative of the standard development agreement that the Borough
uses for land development applications. Wild negotiated a few minor changes to the
agreement with the Borough Solicitor prior to execution of the agreement. Wild did not
negotiate or discuss the agreement with Respondent.
By letter dated August 1, 2005, from O’Brien to Mortimer, O’Brien issued a zoning
permit and a conditional building permit for the foundation only, for the Project. (ID-15,
pages 1-3). The letter stated that the remainder of the building permit would be released
when certain specified conditions were met and required information was submitted,
reviewed and approved. The required information was submitted, and the remainder of the
building permit was released on August 8, 2005.
Sometime after July 27, 2005, Respondent provided Tolomello with two undated
construction contracts to sign. (ID-19, pages 1-23 and ID-20, pages 1-10). These
contracts provided different amounts for the contract price for the Project. Tolomello and
her fiancé, Giovanni Gallina, signed the contract at ID-20, which listed the contract price
as $486,000.00.
Although Prime’s name appeared on the contract, and all of the money for the
Project except for the down payment flowed through Prime, Prime did not play any other
role in the Project. Prime did not profit from the Project in any way. Kiriakidi did not know
how much profit was being made on the Project. Under the arrangement between
Respondent and Kiriakidi, Respondent/Lucas Construction received the financial benefit
from the transaction. Respondent describes the role of Lucas Construction in the Project
as a subcontractor (Respondent’s Opening Statement, 3/3/09 Tr. at 29-30; Respondent’s
7/17/09 Brief, at 5).
Tolomello secured financing from “Bova Food Distributors” for the entire amount for
construction of the Project except for the initial down payment of $25,000.00.
Respondent told Tolomello the amount that was needed for the down payment.
Respondent told Tolomello he needed the down payment to order steel for the Project.
ID-16, page 1 consists of a copy of the cashier’s check in the amount of $25,000.00
by which Tolomello paid the down payment for the Project. The check was made payable
to Lucas Construction Inc. The check was dated July 27, 2005. Tolomello gave this check
to Respondent. Respondent was upset that the check was made payable to Lucas
Construction, Inc. Respondent told Tolomello that her deal was with Prime Builders and
not Respondent/Lucas Construction. However, Respondent deposited the entire
$25,000.00 into a Lucas Construction Inc. bank account on July 29, 2005. The $25,000.00
down payment for the Project was not processed through Prime.
Other than the aforesaid down payment, the financial dealings and checks for the
Lucas, 07-045
Page 55
Project were run through Prime. Respondent directed Tolomello to have the checks made
payable to Prime Building Group. Respondent told Tolomello estimated amounts of what
was due, and Tolomello obtained checks in those amounts from Mr. Bova’s secretary and
provided them to Respondent. Respondent gave the payments to a member of Kiriakidi’s
staff who deposited the payments in a Prime bank account. From those payments, certain
expenses were paid to subcontractors, and the remainder was given to Respondent/Lucas
Construction, Inc.
ID-23, pages 1-7 consist of copies of seven checks from Antonio Bova/Bova Food
Distributors, Inc., to Prime Building Group for the Project. Prime received these payments,
which totaled $541,031.23.
ID-27, pages 1-3 consist of a transaction report maintained by Prime for the Project.
A transaction report documents payments received and disbursed for a job. Kiriakidi
testified that ID-27, pages 1-3 consist of a reconstruction of what originally would have
been maintained in Prime’s regular files in the normal course of business. (3/4/09 Tr. at
144-148). Kiriakidi testified that he had previously changed some records to protect
Respondent, but that he had subsequently changed the records back to what they were
supposed to have been. (3/4/09 Tr. at 144-148). Kiriakidi testified that he believes ID-27,
pages 1-3 are accurate. (3/4/09 Tr. at 144-146, 148). Fact Findings 121 c-e note minor
discrepancies in ID-27.
ID-27, page 1 lists deposits of the seven checks totaling $541,031.23 from Antonio
Bova/Bova Food Distributors, Inc. to Prime Building Group for the Project. (ID-23, pages
1-7; ID-27, page 1; see, Fact Findings 105 n, 121 a).
ID-27, pages 2-3 list disbursements totaling $225,986.47 to Respondent/Lucas
Construction. (ID-27, pages 2-3; see, Fact Finding 121 b). The disbursements to
Respondent/Lucas Construction that are listed on ID-27, pages 2-3 correspond to Prime
checks contained within ID-28. (See, Fact Findings 105q, 123). As noted above, these
checks do not include the $25,000 down payment for the Project, which was paid directly
by Tolomello to Lucas Construction Inc. (See, Fact Finding 105 r; ID-16, page 1).
Kiriakidi testified that from his records, he could tell what monies were received for
the Project and what monies were disbursed for the Project, but he had no knowledge of
whether Lucas Construction, Inc. paid additional expenses from the monies it received.
During the course of the investigation of this matter, Respondent d/b/a Lucas
Construction was subpoenaed to provide records related to Tolomello, Tolomello
Corporation, Prime Properties or Prime Building Group for site development and
construction work at 205-215 East Butler Street, Chalfont, PA, and for records of all
projects involving Prime Properties/Prime Building Group for any project within the
geographical boundaries of the Borough. In response to the subpoena, Respondent’s
attorney indicated that Lucas Construction had one document with regard to Prime
Properties within the geographical boundary of the Borough, consisting of a letter
pertaining to a sprinkler system estimate that was mistakenly sent to Respondent.
Respondent/Lucas Construction did not produce any records indicating that there were
any expenses for the Project beyond those paid through Prime.
Although Kiriakidi acknowledged that he initially lied to Special Investigator Bender
and told Special Investigator Bender that Respondent had nothing to do with the Project,
Kiriakidi testified that Respondent did not tell Kiriakidi to lie or fabricate anything with
respect to the investigation of this Commission. Kiriakidi testified that Respondent told
Kiriakidi to tell the truth to this Commission. Kiriakidi testified that Respondent told
Kiriakidi that he (Respondent) had done nothing wrong.
Tolomello also testified that Respondent told her they did not do anything wrong.
Lucas, 07-045
Page 56
With regard to the allegation involving Section 1103(c) of the Ethics Act, O’Brien
testified that he did not hear any complaints regarding Respondent soliciting anything of
value from any applicants who had plans before the Borough. Tolomello testified that
Respondent never asked Tolomello for any money in connection with any approvals and
Tolomello never offered any money in exchange for getting any approvals. (3/4/09 Tr. at
72-73). Tolomello testified that she never promised Respondent that he would get the job
on the Project in exchange for any approvals of either the Planning Commission or
Borough Council. (3/4/09 Tr. at 75).
Having summarized the above relevant facts, we must now determine whether the
actions of Respondent violated Section 1103(a) and Section 1103(c) of the Ethics Act. As
we apply the facts to the allegations, due process requires that we not depart from the
allegations. Pennsy v. Department of State, 594 A.2d 845 (Pa. Commw. Ct. 1991). A
violation of the Ethics Act must be based upon clear and convincing proof. 65 Pa.C.S. §
1108(g). Clear and convincing proof is “so ‘clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the
precise facts in issue.’” In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)
(Citation omitted).
We initially determine that Respondent did not violate Section 1103(a) of the Ethics
Act when, prior to March 2005, he engaged in actions as a Borough Council Member in
matters relating to the Project. As noted above, there is insufficient evidence in the record
to establish that prior to March 2005, Respondent/Lucas Construction had a contract or
reasonable expectation of performing work for the Project.
Accordingly, we hold that Respondent did not violate Section 1103(a) of the Ethics
Act when, prior to March 2005, he engaged in actions as a Borough Council Member in
matters relating to the Project, based upon a lack of sufficient evidence to establish that
prior to March 2005, Respondent or Lucas Construction, a business with which
Respondent is associated, had a contract or reasonable expectation of performing work for
the Project.
We determine that Respondent violated Section 1103(a) of the Ethics Act when he
signed the mylar and the development agreement for the Project. This violation is based
upon undisputed evidence that in his official capacity as President of Borough Council,
Respondent signed the mylar for the Project on June 2, 2005, indicating approval by
Borough Council, and signed the development agreement for the Project on June 14,
2005. These actions were taken by Respondent as a public official acting on behalf of
Borough Council at a time when Respondent knew that Lucas Construction would be
performing contractual services for the construction work for the Project.
The effect of Respondent’s actions in signing the mylar and the development
agreement was to enable the Project to move forward so that Lucas Construction could
generate a profit. The evidence establishes that without these actions being taken, no
building permit would have been issued for the Project, and construction would not have
commenced. Additionally, the development agreement established requirements for the
nature and quality of the construction work that Respondent’s company, Lucas
Construction, would be providing.
Respondent does not dispute that he was involved with the Project and ultimately
derived a pecuniary benefit from it. (Respondent’s 7/17/09 Brief, at 34). However,
Respondent argues that his pecuniary benefit did not come as a result of his signature on
the mylar and development agreement, which actions he contends were ministerial and
obligatory. (Respondent’s New Matter, at paragraph 6; Respondent’s 7/17/09 Brief, at 35-
36). Respondent asserts that once the land development application for the Project was
approved on December 14, 2004, subject to conditions of approval, Borough Council had
Lucas, 07-045
Page 57
no choice but to sign the development agreement and mylar as long as the conditions for
approval were met. Respondent further argues that if he had not signed these documents,
another Borough Council Member would have done so or Tolomello could have compelled
such actions by receiving mandamus relief from a court. Id.
Based upon the decision of the Commonwealth Court of Pennsylvania in Snyder v.
State Ethics Commission, 686 A.2d 843 (Pa. Commw. Ct. 1996), allocatur denied, 1997
Pa. LEXIS 2719 (Pa. Dec. 22, 1997), Respondent’s aforesaid arguments fail.
In Snyder, a township supervisor (“Snyder”) made comparable arguments that were
rejected by Commonwealth Court. First, Snyder maintained that his votes after preliminary
project approval were irrelevant because, once the board of supervisors had approved a
preliminary plan, it was required to approve a conforming final plan. Snyder also argued
that his vote was never needed for a quorum or majority.
In rejecting Snyder’s first argument, the Court stated, inter alia, “Moreover, although
the Board must approve a final plan which conforms to the preliminary plan, the Board
must first determine whether the final plan does, indeed, conform.” Synder, 686 A.2d at
849. Similarly, in the instant case, Respondent’s signature on the mylar constituted the
ultimate approval on behalf of Borough Council for the land development application for
the Project, signifying that all of Borough Council’s conditions of approval had been met.
In rejecting Snyder’s second argument, the Court stated:
We are likewise unconvinced by the fact that Snyder’s
vote was never controlling or necessary for a quorum. Snyder
violated the Ethics Law by discussing and voting on issues in
which he had a private pecuniary interest, not by affecting the
outcome of those votes. . . . [A]s a Supervisor, he should not
have considered and voted on issues involving his personal
business dealings.
Id. Similarly, in the instant case, Respondent violated Section 1103(a) of the Ethics Act by
taking official actions in a matter in which he had a private pecuniary interest, regardless of
whether another Borough Council Member would have taken the same actions. As a
Borough Council Member, Respondent should not have taken official actions as to the
Project at a time when he knew that Lucas Construction would be performing contractual
services for the Project.
As noted above, Respondent does not dispute that he was involved with the Project
and ultimately derived a pecuniary benefit from it. (Respondent’s 7/17/09 Brief, at 34).
The total amount of Respondent’s/Lucas Constructions’ profit on the Project cannot be
adequately quantified based upon the record. This is because: (1) Kiriakidi altered and
then “reconstructed” the transaction report maintained by Prime for the Project, such that
the accuracy of the transaction report is questionable (indeed, the transaction report
contains at least minor discrepancies as set forth at Fact Findings 121 c-e); and (2) without
a reliable transaction report, the identification of particular checks as having been issued
by Prime to Respondent/Lucas Construction for the Project, as opposed to other jobs, is
also questionable.
However, we determine that the $25,000.00 down payment paid by Tolomello to
Lucas Construction in July 2005 constituted quantifiable profit to Respondent/Lucas
Construction. This is because: (1) the check was received by Respondent/Lucas
Construction and was not processed through Prime; and (2) in response to a subpoena to
Respondent d/b/a Lucas Construction to provide records related to Tolomello, Tolomello
Corporation, Prime Properties or Prime Building Group for site development and
construction work at 205-215 East Butler Street, Chalfont, PA, and for records of all
Lucas, 07-045
Page 58
projects involving Prime Properties/Prime Building Group for any project within the
geographical boundaries of the Borough, Respondent/Lucas Construction did not produce
any records indicating that there were any expenses for the Project beyond those paid
through Prime. The necessary conclusion is that the $25,000.00 down payment
constituted pure profit to Respondent/Lucas Construction for the Project, and any
expenses for which the down payment might originally have been intended were paid
through Prime from other funds.
Based upon the above, we hold that Respondent violated Section 1103(a) of the
Ethics Act when as Borough Council President, he signed the mylar and the development
agreement for the Project in June 2005, at a time when he knew that Lucas Construction, a
business with which he is associated, would be performing contractual services for the
Project.
As for the alleged violation of Section 1103(c) of the Ethics Act, there is no evidence
in the record to support that allegation. Accordingly, we hold that Respondent did not
violate Section 1103(c) of the Ethics Act as alleged, based upon a lack of evidence to
support the alleged violation.
Section 1107(13) of the Ethics Act empowers this Commission to direct payment of
restitution in instances where a public official/public employee has obtained a financial
gain in violation of the Ethics Act. We determine that restitution in the amount of
$25,000.00 is warranted in this case. Accordingly, Respondent Lucas is directed to make
payment of restitution in the amount of $25,000.00 payable to the Commonwealth of
th
Pennsylvania and forwarded to this Commission by no later than the thirtieth (30) day
after the mailing date of this adjudication and Order, for deposit in the State Treasury.
Non-compliance will result in the institution of an order enforcement action.
IV.CONCLUSIONS OF LAW:
1. As a Council Member of Chalfont Borough (“Borough”) from approximately April 15,
2003, through December 2007, Respondent Gary Lucas (“Lucas”) was a public
official subject to the provisions of the Public Official and Employee Ethics Act
(“Ethics Act”), 65 Pa.C.S. § 1101 et seq.
2. Lucas did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when,
prior to March 2005, he engaged in actions as a Borough Council Member in
matters relating to the Tolomello land use application/construction of Pina’s Pizzeria
at 215 East Butler Avenue in the Borough (“the Project”), based upon a lack of
sufficient evidence to establish that prior to March 2005, Lucas or Lucas
Construction Inc. (“Lucas Construction”), a business with which Lucas is
associated, had a contract or reasonable expectation of performing work for the
Project.
3. Lucas violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when as
Borough Council President, he signed the mylar and the development agreement
for the Project in June 2005, at a time when he knew that Lucas Construction, a
business with which he is associated, would be performing contractual services for
the Project.
4. Lucas did not violate Section 1103(c) of the Ethics Act, 65 Pa.C.S. § 1103(c), as
alleged, based upon a lack of evidence to support the alleged violation.
In Re: Gary Lucas, : File Docket: 07-045
Respondent : Date Decided: 12/15/09
: Date Mailed: 12/29/09
ORDER NO. 1546
1. Gary Lucas (“Lucas”), a public official in his capacity as a Council Member of
Chalfont Borough (“Borough”) from approximately April 15, 2003, through
December 2007, did not violate Section 1103(a) of the Public Official and Employee
Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when, prior to March 2005, he
engaged in actions as a Borough Council Member in matters relating to the
Tolomello land use application/construction of Pina’s Pizzeria at 215 East Butler
Avenue in the Borough (“the Project”), based upon a lack of sufficient evidence to
establish that prior to March 2005, Lucas or Lucas Construction Inc. (“Lucas
Construction”), a business with which Lucas is associated, had a contract or
reasonable expectation of performing work for the Project.
2. Lucas violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when as
Borough Council President, he signed the mylar and the development agreement
for the Project in June 2005, at a time when he knew that Lucas Construction, a
business with which he is associated, would be performing contractual services for
the Project.
3. Lucas did not violate Section 1103(c) of the Ethics Act, 65 Pa.C.S. § 1103(c), as
alleged, based upon a lack of evidence to support the alleged violation.
4. Lucas is directed to make payment of restitution in the amount of $25,000.00
payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania
th
State Ethics Commission by no later than the thirtieth (30) day after the mailing
date of this Order, for deposit in the State Treasury.
a. Non-compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
___________________________
Louis W. Fryman, Chair