        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Scott R. Monger and Howard S. Morris, :
                       Appellants     :
                                      :
                  v.                  : No. 690 C.D. 2015
                                      : Argued: October 5, 2015
Upper Leacock Township                :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                   FILED: January 7, 2016


            Before this Court is the appeal of Scott R. Monger (Developer
Monger) and Howard S. Morris (Developer Morris), (collectively, Developers),
from the August 28, 2014 Order of the Court of Common Pleas of Lancaster
County (trial court) granting Upper Leacock Township’s (Township) Motion for
Summary Judgment and dismissing with prejudice the complaint filed by the
Developers. We affirm.
            Developers’ complaint was filed in June 2012 and asserted counts for
breach of express and implied contract and promissory estoppel, premised upon an
allegation that the Township breached its implied duty of good faith and fair
dealing during its review of Developers’ 2007 land use application for a proposed
development. (Complaint, Reproduced Record (R.R.) at 1a-12a.) The Township
filed preliminary objections in July 2012, which were denied without prejudice.
(R.R. at 27a-30a, 64a.)           Following discovery, Township filed a Motion for
Summary Judgment, in March 2014. (R.R. at 85a-86a.) Following oral argument
held on May 19, 2014, the Trial Court granted the Township’s motion. (R.R. at
352a.)      In September 2014, the Developers appealed to Superior Court; the
Township argued that the appeal should be transferred to this Court due to its
jurisdiction and expertise with matters involving land use appeals and the
Municipalities Planning Code (MPC),1 and Superior Court transferred the case to
this Court.2
                In August 2007, Developers, along with another individual, became
party to an agreement of sale to purchase real estate consisting of 71 acres of land
in the Township. Their obligation to purchase was contingent upon obtaining land
use approval by the Township for their intended use plan of development.
Subdivision and land development procedures, requirements and standards are set
forth in the Township’s Subdivision and Land Development Ordinance (SALDO),
and Sections 301 to 304 of the SALDO set forth three stages in the procedure for
approval of land development plans: (1) pre-application review; (2) preliminary
plan application; and (3) final plan application. (R.R. at 135a-141a.)          Pursuant to
Section 303.05 of the SALDO, compliance with conditions of preliminary plan
approval must be attained within six months of the Board of Supervisors’ (Board)
action, or the Township’s action on the plan shall be a disapproval, unless the
Board grants a waiver by extending the effective time period. (R.R. at 138a.)

1
    Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
2
  The Superior Court found that Developers’ claims lay in the exclusive jurisdiction of the
Commonwealth Court, as they were “inextricably intertwined with the land use application
process, which is governed by Pennsylvania statute and local ordinance.” (Pa.Super., No. 1623
MDA 2014, filed April 28, 2015, Supplemental Reproduced Record (SRR) at 101b.)

                                                2
             In August 2007, Developers first met with Township Manager
Michael Morris (Township Manager) to discuss the proposed project. Township
Manager informed Developers of an informal process whereby prospective
developers would attend a “pre-application” meeting with Township Manager, the
department heads and other staff. (Complaint, R.R. at 2a-3a.) Section 302 of the
SALDO indicates that applicants are “urged, but not required, to discuss possible
development sites and plans with the Planning Commission prior to the submission
of the Preliminary or Final Plans” and states that the purpose of the pre-application
meeting process is to give applicants an opportunity to receive the advice and
assistance of the Planning Commission. (SALDO, R.R. at 136a.) Developers
attended a series of meetings with Township Manager, Water and Sewer
Department heads, an engineer, and a zoning officer and allege that they spent
substantial time and financial resources to address concerns articulated by
Township staff during these meetings.
             Developers’ land use application was submitted in November 2007
and included a request for a waiver from Section 602.14 of SALDO, which
establishes the maximum length of the cul-de-sac streets.           (Application for
Consideration of a Waiver, R.R. at 19a-21a.) On January 7, 2008, the Board voted
to approve the request for waiver with respect to Developers’ proposed industrial
tract, but denied the request for waiver with respect to the maximum length of the
cul-de-sac street for the proposed residential tract, due to its concerns with traffic
issues. (R. Exhibit 5, R.R. at 147a-148a.) Developers revised the land use plans to
change the design of the access road for the residential tract from a cul-de-sac to a
circle, purportedly upon the advice of the Township Manager. The revised plans
were submitted on January 16, 2008, and on April 3, 2008, Developers requested


                                          3
and were granted an extension until May 1, 2008, to comply with the conditions of
plan approval. (R. Exhibits 7, 8.) To meet the May 1 deadline, Developers had
until April 23, 2008 to submit the revisions or to request another extension for
compliance; however, Developers failed to submit revisions and on April 24, 2008
they informed the Township that they would not be applying for an extension on
the project. (R. Exhibits 10, 11.) The Board thereupon voted to disapprove the
project pursuant to Section 303.05 of SALDO, as Developers had neither
submitted a revision nor requested an extension and had advised the Board that
they would not be applying for another extension; on May 2, 2008, a written
decision denying the land use application was mailed to Developers.               (Id.)
Developers had 30 days from May 2, 2008, to appeal the adverse land use decision
to the court of common pleas under Section 1002-A(a) of the MPC, added by the
Act of December 21, 1988, P.L. 1329, 53 P.S. §11002-A(a), and did not appeal.
              On June 27, 2012, Developers filed their complaint.            As aptly
described by the Superior Court in its decision to transfer the case to this Court:

             The land use application process undisputedly was
             governed by the Township’s Subdivision and Land
             Development Ordinance (SALDO). In connection with
             their November 5, 2007 application, Appellants sought
             waivers of certain SALDO requirements. The Township
             issued a conditional approval of the plan granting one
             waiver but denying another, which had the effect of
             requiring Appellants to revise their plan to satisfy the
             relevant ordinance. Thereafter, Appellants submitted a
             revised plan and requested an extension from the
             SALDO-prescribed time period for complying with the
             Township’s conditions. The extension was granted, but
             Appellants failed to satisfy the conditions before the
             expiration of the extended deadline and did not request a
             second extension. Thus, on May 1, 2008, after the
             expiration of the time limit for establishing compliance,
                                          4
             the Township voted to disapprove the plan…Appellants
             took no other action in furtherance of seeking review of
             the Township’s decision.
(Pa.Super., No. 1623 MDA 2014, filed April 28, 2015, Supplemental Reproduced
Record at 102b-103b.)
             Before the Trial Court, Developers asserted that their claims were
based upon the proposition that the parties entered into a contract when they
submitted their application, obligating the Township to act in good faith in
reviewing that application. The Trial Court entered summary judgment on the
basis that Developers had failed to appeal the Township’s land use decision to the
Court of Common Pleas within thirty days of the Township’s adverse decision,
further noting that the “procedures for a land use appeal in the MPC are ‘the
exclusive mode for securing review of any decision rendered pursuant to Article IX
of the MPC.’” (Trial Ct. Op. at 7 (quoting Section 1001-A of the MPC, added by
the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11001-A, emphasis added by
the Trial Court).) Citing this Court’s decision in Koresko v. Farley, 844 A.2d 607,
615 (Pa. Cmwlth. 2004), the Trial Court determined that subdivision review is
included in Article IX of the MPC and accordingly, the MPC is the exclusive
vehicle for challenging the validity of a subdivision or land development plan. The
Trial Court noted Developers’ contention that their claims were not appeals of the
land use decisions but rather related to the Township’s conduct during the time
before and after the Developers had submitted their land use applications, but
stated that the Developers had failed to cite “even one case that has held that
submitting a land use application creates either an express or implied contract with
the reviewing municipality, which takes it out of the realm of the MPC.” (Trial Ct.
Op. at 8.)


                                         5
             Pursuant to Section 501 of the MPC, 53 P.S. §10501, the governing
body (here, the Board) of each municipality is granted the power to regulate
subdivisions and land development within the municipality by enacting a SALDO.
The MPC expressly governs appeals of land use decisions, as follows:

             All appeals from all land use decisions rendered
             pursuant to Article IX shall be taken to the court of
             common pleas of the judicial district wherein the land
             is located and shall be filed within 30 days after entry
             of the decision as provided in 42 Pa. C.S. §5572 (relating
             to time of entry of order) or, in the case of a deemed
             decision, within 30 days after the date upon which notice
             of said deemed decision is given as set forth in section
             908(9) of this act. It is the express intent of the General
             Assembly that, except in cases in which an
             unconstitutional deprivation of due process would
             result from its application, the 30-day limitation in
             this section should be applied in all appeals from
             decisions.

53 P.S. §11002-A(a) (emphasis supplied). In Koresko, our Court found the MPC
to be the exclusive vehicle for challenging the validity of actions concerning a
subdivision, stating:

             Section 1001-A of the MPC, added by the Act of
             December 21, 1998, P.L. 1329 provides “the procedures
             set forth in this article shall constitute the exclusive mode
             for securing review of any decision rendered pursuant to
             Article IX or deemed to have been made under this act.”
             53 P.S. §11001-A (emphasis added.) Subdivision review
             is included in Article IX. See, 53 P.S. §10909.1(b)(2),
             added by the Act of December 1988, P.L. 1329.
             Accordingly, the trial court did not err in holding that the
             MPC provided the exclusive vehicle for challenging
             the validity of the subdivision.
Koresko, 844 A.2d at 615 (emphasis supplied).

                                          6
              Before this Court,3 Developers assert that they suffered losses as a
result of the conduct, representations, and assurances of the Township both before
and during the application process. Nevertheless, Developers acknowledged that
during the pre-application process they were informed and understood that the
project may not be favorably received by neighboring property owners, special
interest groups or by the government agencies involved in the approval process,
and that the authority to approve or deny a land use application rested solely with
the Board and not with the Township Manager, the Planning Commission or any
other Township official. (R.R. at 107a, 119a.) Developers contend that their
appeal is not an appeal of the Board’s land use decision but rather relates to the
conduct of Township personnel before and after their land use application was
submitted; they assert that their claims of breach of both express and implied
contract and promissory estoppel should lie regardless of the outcome of the
Township’s land use decisions. Developers seek damages because, they assert, the
Township breached its implied contractual duties of good faith and fair dealing in
the relationship that arose by virtue of the course of events, and because the
Township made promises that induced them to take actions ultimately to their
detriment.



3
  Our standard of review of a trial court’s order granting summary judgment is de novo, and our
scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Summary
judgment is appropriate where there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.2(1); Pyeritz, 32 A.3d at 692;
Royal v. Southeastern Pennsylvania Transportation Authority, 10 A.3d 927, 929 n.2 (Pa.
Cmwlth. 2010). We review the record in the light most favorable to the nonmoving party, and
any doubt as to the existence of a genuine issue of material fact must be resolved against the
moving party. LJL Transportation, Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa.
2009); Royal, 10 A.3d at 929 n.2.

                                              7
             Here, it is undisputed that Developers were aware that they had the
right to immediately appeal the Board’s decision based on their claim that the
Township failed to consider the application in good faith. (R.R. at 112a, 125a.)
Moreover, Developers concede that their claims are based on the Board’s decision
denying their plan. While Developer Morris testified that Developers’ claims were
based upon their having proceeded in good faith to spend a substantial amount of
money relying upon things said to Developers by Township Manager, he also
stated that the Board itself did not act in good faith – he indicated his belief that the
Board did not want the project to go through, and that this was “not necessarily
related to anything we submitted.” (R.R. at 113a.) Developer Morris was asked
whether Developers were not bringing the lawsuit because of the denial of their
land use application and he replied, “I don’t think that’s correct. I mean, it is
because of the denial. If the project had been approved after we listened to the
[Township Manager] and spent our money, we wouldn’t be here with a lawsuit.”
(Id.) Developer Morris was questioned as to why Developers did not appeal the
denial of the land use application and he testified, “it was obvious…it wasn’t going
to go anyplace” and indicated that Developers did not evaluate whether there was
any basis for appealing the land use application denial and did not know whether
they would have had a basis for it or not. (Id.) Developer Monger indicated that
he was aware that Developers could have appealed the Board’s decision on the
basis that the Board was not acting in good faith, but did not do so. (R.R. at 125a.)
              Before this Court, Developers contend that they attempted, during the
initial pre-application meeting and at a subsequent meeting, to alert the Township
as to their concerns about the financial impact on profitability of off-site
improvements that may be required by the Township; Developers point to a letter


                                           8
to Township Manager submitted by their engineer, which addresses their concerns
about possible Township demands for expensive off-site improvements, traffic
study issues, and water line funding. (R.R. at 14a.) This letter requests, inter alia,
that the Township consider assisting with the funding of required water lines for
the proposed project; however, the letter also acknowledges that Developers
“understand the [Township] staff’s concerns expressed at our meeting about
burdening the taxpayers in the Township with the cost of bringing water to the [ ]
site.” (R.R. at 15a.)
             We find that Developers’ claims are inherently intertwined with the
land development procedures established by the Township’s SALDO, and as such,
Developers were required to bring any claims arising therefrom within thirty (30)
days of the denial of their application as required by the MPC.          Clearly, the
Township has a duty of good faith in the review and processing of Developers’
land use application. See Highway Materials v. Board of Supervisors, 974 A.2d
539 (Pa. Cmwlth. 2009); Raum v. Board of Supervisors of Tredyffrin Township,
370 A.2d 777 (Pa. Cmwlth. 1977).        However, in each of these cases, a timely
appeal to the court of common pleas was made, pursuant to the MPC, for a
determination of whether good faith and fair dealing had been exercised by the
municipality during the application process. As noted by the Trial Court, no court
in this Commonwealth has permitted such claims independent of the land use
appeal process, and we decline to do so here. Accordingly, we affirm.



                                     _______________ ______________________
                                     JAMES GARDNER COLINS, Senior Judge



                                          9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Scott R. Monger and Howard S. Morris, :
                       Appellants     :
                                      :
                  v.                  : No. 690 C.D. 2015
                                      :
Upper Leacock Township                :




                                 ORDER


           AND NOW, this 7th day of January, 2016, the order of the Court of
Common Pleas of Lancaster County in the above-captioned matter is AFFIRMED.



                                 _______________ ______________________
                                 JAMES GARDNER COLINS, Senior Judge
