            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kirk B. Burkley, Todd L. Kilgore               :
and Jeffrey Diurba                             :
                                               :
                    v.                         : No. 37 C.D. 2019
                                               : Argued: October 4, 2019
Council of the City of Pittsburgh,             :
                                               :
                               Appellant       :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                 FILED: October 24, 2019


                The Council of the City of Pittsburgh (City Council) appeals the order
of the Allegheny County Court of Common Pleas overruling City Council’s vote to
not enact a Resolution for the nomination submitted by Kirk B. Burkley, a member
of the Department of City Planning, and landowners Todd L. Kilgore and Jeffrey
Diurba (collectively, Nominators) to expand the boundaries of the Mexican War
Streets National Historic District (District) in the City and remanding the matter to
the City Council to approve the Resolution. We affirm.
                On October 2, 2012, Nominators submitted the required form to the
City’s Department of City Planning under the City’s Code of Ordinances (Code) to
expand the District.1 See Reproduced Record (R.R.) at 14a-59a. On October 15,

      1
          Section 1101.03(a)(1)(a)(3) and (6) of the Code states, in relevant part:
(Footnote continued on next page…)
2012, the Director of City Planning notified property owners within the proposed
expanded area of the District of the nomination and informed them of a public
hearing for comment regarding the nomination. Id. at 60a. On November 8, 2012,
the City’s Historical Review Commission (HRC) made a preliminary
determination of the validity of the proposed expansion in that it meets one of the


(continued…)

               Nomination of an area . . . for consideration and designation as a
               . . . Historic District . . . shall be submitted to the Historical
               Review Commission [(HRC)] on a form prepared by the [HRC],
               and may be submitted by any of the following:

                                               ***

               3. A member of the City Planning Commission.

                                               ***

               6. In the case of a nomination as a Historic District, by
               community-based organizations . . . accompanied by a petition
               signed by the owners of record of twenty-five (25) percent of the
               properties within the boundaries of the proposed District[.]”

R.R. at 2a. The form submitted herein states, in pertinent part:

               This nomination is being made by a member of the Department of
               City Planning. However, the two community groups, Central
               Northside Neighborhood Council and Mexican War Streets
               Society have a combined membership of over 300. Both CNNC
               and MWSS have championed this application.             With 750
               households in the National Historic District, a membership of 300
               supporting this application through their community based
               organizations would suggest that the 25% threshold has been
               met[.]

Id. at 19a. The nomination was signed by Burkley, Barbara Talerico, CNNC’s Treasurer, and
Paul Johnson, MWSS’s President. Id. at 20a.


                                                 2
historical criteria for approval and has “historical integrity,” and that the HRC
would take further public comment at their December 5, 2012 monthly public
hearing. Id. at 82a. At the conclusion of its December 5, 2012 public hearing, the
HRC issued the following: “Recommendation: The proposed Mexican War
Streets Historic District expansion with revised boundaries should be listed as
a City designated historic district under Section 1101.04(b)(3).[2]” Id. at 84a
(emphasis in original).
                 On December 10, 2012, the City’s Department of Planning sent the
HRC’s recommendation to the City’s Planning Commission and a copy to the
City’s Solicitor, Assistant Solicitor, and Councilman Daniel Lavelle, the
representative for Pittsburgh District 6. R.R. at 132a. On January 8, 2013, January
22, 2013, and February 5, 2013, the City’s Planning Commission held public
hearings on the HRC’s recommendation to expand the District. Id. at 133a-152a.
At the conclusion of the February 5, 2013 meeting, the City’s Planning
Commission unanimously approved a motion: “That the Planning Commission []
provides City Council with a positive recommendation that the proposed [District]
Expansion, with the original National Historic Registry boundaries and should be
listed as part of the Historic District.” Id. at 151a, 247a-249a.


       2
           Section 1101.01(b)(3) of the Code states, in relevant part:

                 The [HRC] shall limit its consideration to the following criteria in
                 making a determination on a nomination of an area . . . for
                 designation by ordinance as a . . . Historic District[.]

                 (3) Its exemplification of an architectural type, style or design
                 distinguished by innovation, rarity, uniqueness, or overall quality
                 of design, detail, materials, or craftsmanship[.]
R.R. at 6a.


                                                  3
                On February 7, 2013, the Director of City Planning sent Nominators a
letter informing them “that the City’s Planning Commission has made a
recommendation to City Council to expand the [] District.” R.R. at 155a. In
relevant part, the letter stated:

                [T]he [HRC], after considering historic criteria and
                hearing public testimony, decided to recommend to City
                Council that the district be expanded, but with a reduced
                boundary. . . . On February 5, 2013, the Planning
                Commission decided to recommend to City Council that
                the district be expanded using the original boundary that
                was submitted with the nomination[.]

                Since the HRC and the Planning Commission have made
                their recommendations, the matter will now be taken to
                City Council, who will vote on the expansion of the
                historic district within one hundred twenty (120) days.
                Before any vote is taken, Council is required to hold
                public hearings and take public comment as well. Please
                expect to receive further communications on the timing
                of these hearings directly from City Council.
Id. Again, a copy of the letter was sent to the City’s Solicitor, Assistant Solicitor,
and Councilman Lavelle, the representative for Pittsburgh District 6. Id.
                On March 5, 2013, at City Council’s Regular Meeting, a “Resolution
providing for the designation as an Historic District under Section 1101.03 of [the
Code] that certain district known as the Mexican War Streets Historic District
Expansion”3 was “[r]ead and referred” to the City Council’s Land Use and
Economic Development Committee. R.R. at 156a, 157a. On March 13, 2013, a
motion was passed for a hearing on the Resolution by the Committee on Land Use
and Economic Development, and on June 17, 2013, a public hearing was held on


       3
           See R.R. at 158a-178a.


                                           4
the Resolution. Id. at 156a, 157a, 251a, 264a, 265a. On June 19, 2013, City
Council approved a motion to read, receive, and file a Report of the Committee on
Land Use and Economic Development for a negative recommendation with respect
to the Resolution. Id. at 156a, 286a. On June 25, 2013, the City Council voted
unanimously to not enact the Resolution. Id. at 156a, 286a.
                 On July 24, 2013, Nominators filed a statutory appeal in the trial court
alleging, inter alia, that City Council failed to hold a public hearing on the
Resolution within 120 days of its receipt of the HRC’s December 5, 2012
recommendation and the City’s Planning Commission’s February 5, 2013
recommendation to expand the boundaries of the Historic District as required by
Section 1101.03(i)(4) of the Code.4 Nominators asserted that, as a result of City
Council’s failure to act within the requisite 120 days of receipt of the foregoing
recommendations, the Resolution was deemed approved by City Council pursuant
to Section 1101.03(j)(3) of the Code.5 Specifically, Nominators claimed that “[t]he
deadline for City Council to hold the required public hearing pursuant to [] Code


       4
          Section 1101.03(i)(4) of the Code states, in pertinent part, “City Council shall vote on
the designation of a nominated district . . . within one hundred twenty (120) days of Council’s
receipt of the recommendations of the [HRC] and the City Planning Commission.” R.R. at 6a.

       5
           Section 1101.03(j)(3) of the Code states:

                 Where Council fails to render its decision within the period
                 required by this subsection, or fails to hold the required public
                 hearing within one hundred twenty (120) days from the date of the
                 [HRC] and the Planning Commission’s recommendations, the
                 failure of Council to act shall be a deemed approval if both the
                 [HRC] and the Planning Commission gave affirmative
                 recommendations for the historic designation.

R.R. at 6a.


                                                  5
§1101.03(j)(3) was June 5, 2013, in that said date is 120 days from the later of the
affirmative recommendations,” and that “[t]he [R]esolution for expansion of the []
Historic District is deemed approved pursuant to [] Code §1101.03(i)(4) because
City Council failed to vote on the designation of [the] nominated district within
120 days of Council’s receipt of the recommendations of the [HRC] and the City
Planning Commission.” R.R. at 295a, 296a. Following the filing of briefs and oral
argument, the trial court issued an order that “overturned” City Council’s “decision
. . . to deny the Resolution” and remanded the matter “to City Council for approval
of the Resolution.” Id. at 409a.6 City Council then filed the instant appeal.7

      6
          The trial court explained the rationale for its order, in relevant part, as follows:

                        The Court interprets §1101.03(i)(4) to provide that the 120-
                day time limit begins when City Council receives actual notice that
                both the Planning Commission and the HRC have recommended a
                historic designation, not when a quorum of City Council
                acknowledges such notice. With respect to what constitutes
                effective notice, the City Code does not explicitly require that
                receipt be by a quorum of City Council, nor does it state that
                receipt by one Councilperson is sufficient. In the present case, it is
                clear that a Councilperson, as well as the City Solicitor and an
                Assistant City Solicitor[, attorneys who represent the City’s and
                City Council’s interests], received a copy of a February 7, 2013
                correspondence indicating that the Planning Commission had
                recommended the Nomination. This correspondence also advised
                that City Council would vote on the proposed expansion within
                120 days. The Court finds that a reasonable definition of “receipt”
                includes the present circumstances, where a Councilperson, as well
                as two attorneys who represent the City, were served with notice
                via a correspondence that both the HRC and the Planning
                Commission had rendered affirmative recommendations, and
                further where the correspondence expressly states that a decision
                would be rendered within 120 days. To accept City Council’s
                definition of “receipt” would open the door to absurd results,
                where City Council could let months pass without publicly
                acknowledging recommendations made by the HRC and the
(Footnote continued on next page…)
                                                   6
(continued…)

               Planning Commission, thus tolling, potentially indefinitely, the
               clear 120-day requirement imposed by §1101.03(j)(3) and
               §1101.03(i)(4). Accordingly, for the reasons discussed above, the
               Court holds that the date that City Council received affirmative
               recommendations from the HRC and the Planning Commission
               was February 7, 2013, the date that a copy of the correspondence
               regarding the Planning Commission’s recommendation was sent to
               a City Councilperson, the City Solicitor, and an Assistant City
               Solicitor.

                      City Council was in receipt of the affirmative
               recommendations of the HRC and the Planning Commission on
               February 7, 2013. Accordingly, the June 17, 2013 public hearing
               occurred 130 days after City Council’s receipt of the
               recommendations, City Council’s June 19, 2013 initial vote
               occurred 132 days after receipt, and City Council’s June 25, 2013
               decision was rendered 138 days after receipt. In any case, City
               Council failed to act within 120 days of receipt of the affirmative
               recommendations of the HRC and the Planning Commission.
               Therefore, City Council’s failure to act within the requisite 120
               days resulted in the deemed approval of the Resolution, and City
               Council’s decision to not approve the Resolution was in error.
               This Court will remand this matter to City Council for approval of
               the Resolution for Expansion of the [Historic District].

R.R. at 407a-408a.

       7
         As a preliminary matter, because the trial court’s order remands the matter to City
Council to approve the Resolution, by January 24, 2019 order, this Court directed the parties to
address the appealability of the trial court’s order in their principal briefs on the merits citing
Pa. R.A.P. 311(f). Pa. R.A.P. 311(f) states, in relevant part:

               An appeal may be taken as of right from: (1) an order of a
               common pleas court . . . remanding a matter to an administrative
               agency or hearing officer for execution of the adjudication of the
               reviewing tribunal in a manner that does not require the exercise of
               administrative discretion; or (2) an order of a common pleas court
               . . . remanding a matter to an administrative agency or hearing
(Footnote continued on next page…)
                                                7
               In this appeal,8 City Council claims that the trial court erred in
determining that City Council failed to act within 120 days of its receipt of the
recommendations of the HRC and the City’s Planning Commission as required by
Section 1101.03(i)(4) of the City’s Code and that the Resolution was deemed
approved under Section 1101.03(j)(3) of the Code. Specifically, City Council
asserts that the City Code directs that the City Clerk has custody of all of the
papers presented to the City Council, and that City Council’s Rules direct that the
first order of business of all of its regular meetings includes the presentation of
letters such as the Director of City Planning’s February 7, 2013 letter notifying the
parties of the approval of the nomination. Moreover, the Rules provide that a
quorum consists of a majority of the nine-member Council, which applies to
regular meetings, and case law requires that Council may only perform official acts
as a body, see, e.g., Edsall v. Jersey Shore Borough, 70 A. 429, 431 (Pa. 1908),

(continued…)

               officer that decides an issue that would ultimately evade appellate
               review if an immediate appeal is not allowed.

In this case, the trial court’s order is clearly appealable because it directs a non-discretionary act
on remand and the issue would evade appellate review if we were to deny the appeal. But cf.
Nine Penn Center Association v. City of Philadelphia Board of Revision of Taxes, 669 A.2d
1047, 1050 (Pa. Cmwlth. 1995) (holding that a trial court order remanding a case to the board of
revision of taxes to determine the amount of an exemption owed to taxpayers under the Local
Economic Revitalization Tax Assistance Act, Act of December 1, 1977, P.L. 237, as amended,
72 P.S. §§4722–4727, based upon the assessed value of improvements to property was not
appealable under Pa. R.A.P. 311(f) because the determination of the value of real estate involves
the exercise of discretion).

       8
         “Because th[e] issue is one of statutory construction, which is a pure question of law,
our standard of review is de novo and our scope of review is plenary.” Western Pennsylvania
Annual Conference of the United Methodist Church v. City of Pittsburgh, 188 A.3d 637, 640 n.1
(Pa. Cmwlth. 2018) (citation omitted).


                                                  8
and one single member cannot bind the whole. See, e.g., City of Scranton v.
Feffler, Radetick & Saitta, LLP, 871 A.2d 875 (Pa. Cmwlth. 2005). As a result, the
copying of the February 7, 2013 letter to a single Councilman cannot be construed
as Council being “in receipt” of the nomination until a quorum of Council received
the recommendation through the City Clerk under the Code.
             Additionally, City Council submits that there is a conflict between the
relevant Code provisions because under Section 1101.03(i)(4), Council must act
within 120 days of receipt of the HRC and Planning Commission
recommendations, while under Section 1101.03(j)(3), Council must act within 120
days from the date of the HRC and Planning Commission recommendations. The
most reasonable interpretation is that the 120 days begin to run after Council’s
receipt of the HRC’s and Planning Commission’s recommendations. Moreover,
Council’s interpretation of its own statutes and regulations is entitled to great
weight and deference when acting reasonably within its authority and this Court
should not substitute its own judgment for that of Council unless it is exceeding its
legal authority or it is clearly erroneous. See, e.g., Marcellus Shale Coalition v.
Department of Environmental Protection, 193 A.3d 447, 462-63 (Pa. Cmwlth.
2018).
             However, the trial court reasonably held that, pursuant to Section
1101.03(i)(4) and (j)(3) of the Code, the City must act within 120 days from the
date of the HRC’s and Planning Commission’s recommendations.                    That
interpretation is the only reasonable interpretation that prevents an irreconcilable
application of these subsections and promotes the legislative intent that City
Council take prompt action on an approved historic designation. Contrary to
Council’s assertions, the trial court did not hold that notice of the HRC’s and


                                         9
Planning Commission’s recommendations by one Councilman was sufficient to
confer notice on the entire City Council. Rather, the trial court noted that the Code
does not explicitly require receipt of notice by a quorum of Council and held that a
reasonable interpretation of “receipt” included the instant circumstances in which a
Councilman and two Council Attorneys were served with correspondence stating
that the HRC and Planning Commission had approved the designation and stated
that Council would render a decision within 120 days. R.R. at 407a-408a. The
trial court’s holding conforms to the common practice that notice to attorneys
constitutes notice to their clients.
              “[N]otice by a court, board or Commission given to the counsel of a
party is considered notice to the party. Yeager v. United Natural Gas Co., [176
A.2d 455 (Pa. Super. 1961)].           Cf. Beekhuis v. Zoning Hearing Board of
Middletown, [429 A.2d 1231 (Pa. Cmwlth. 1981)] (no valid issuance of notice of
board’s decision to dismiss appeal attacking the validity of the requirement of a
minimum of one acre for each single-family dwelling built on property zoned R–2
residential until appellants’ counsel notified).” Ozark v. Zoning Hearing Board of
Borough of West Pittston, 507 A.2d 932, 934 (Pa. Cmwlth. 1986).
              Under Section 213(a) of the City’s Home Rule Charter, the City
Solicitor “shall . . . act as attorney for the City as a municipal corporation [and] for
council . . except when council . . . authorized to do so by this charter chooses to
use its own counsel[.]” The Director of City Planning’s February 7, 2013 letter
states that it is “meant to inform [] that the City’s Planning Commission has made
a recommendation to City Council to expand the [] Historic District,” and that
“[p]reviously, the [HRC] . . . decided to recommend to City Council that the
district be expanded, but with a reduced boundary.” R.R. at 155a. The letter also


                                          10
states that “the matter will now be taken to City Council, who will vote on the
expansion of the historic district within one hundred twenty (120) days,” and
indicates that copies were sent to a specific Councilman and two of City Council’s
attorneys, i.e., the City Solicitor and an Assistant City Solicitor. Id. Under these
circumstances, the trial court did not err in determining that City Council failed to
act timely under Section 1101.03(i)(4) of the Code, and that the Resolution was,
therefore, deemed approved under Section 1101.03(j)(3) of the Code.
               Moreover, the City Council’s position that a notice is not “received”
by Council until filed with the City Clerk and presented to a quorum of Council
members is untenable. There are no such explicit requirements in Section 1101.03
of the Code and it is unreasonable for this Court to read them into that Section.9

      9
          As this Court has explained:

                       Pursuant to the Statutory Construction Act [of 1972], “[t]he
               object of all interpretation and construction of statutes is to
               ascertain and effectuate the intention of the [legislative body].
               Every statute shall be construed, if possible, to give effect to all its
               provisions.” 1 Pa. C.S. §1921(a). In pursuing that end, we are
               mindful that “when the words of a statute are clear and free from
               all ambiguity, the letter of it is not to be disregarded under the
               pretext of pursuing its spirit.” 1 Pa. C.S. §1921(b). Further, in
               ascertaining and effectuating legislative intent, “we do not
               interpret statutory words or phrases in isolation, but must read
               them with reference to the context in which they appear.”

                        “Often, the best indicator of legislative intent is the plain
               language of the statute.” It is only when “the words of the statute
               are not explicit” on the point at issue that resort to statutory
               construction is appropriate. 1 Pa. C.S. §1921(c). Additionally, in
               ascertaining legislative intent, the Statutory Construction Act
               “requires a presumption that the [legislative body] did not intend a
               result that is absurd or unreasonable.” 1 Pa. C.S. §1922(1).

(Footnote continued on next page…)
                                                 11
See Schaefer v. Commonwealth, 318 A.2d 365, 368 (Pa. Cmwlth. 1974) (“For us to
adopt the reasoning and reach the result urged by the plaintiff would be ‘to add to
the statute a requirement which the Legislature did not see fit to include.’
Olyphant Borough School District v. American Surety Co., [184 A. 758, 761 (Pa.
1936)].”).
             As explained by the trial court, Council’s interpretation would lead to
an absurd result because the 120-day limitation in Section 1101.03 would never be
triggered if the recommendations were never presented to a quorum of Council
thereby, potentially tolling indefinitely the requirements of Section 1101.03(i)(4)
and (j)(3). R.R. at 408a. Therefore, the trial court properly rejected Council’s
proposed interpretation of Code Section 1101.03 by adding requirements not
explicitly provided therein.
             Accordingly, the trial court’s order is affirmed.




                                           MICHAEL H. WOJCIK, Judge




(continued…)

                    In reading the plain language of a statute, “[w]ords and
             phrases shall be construed according to rules of grammar and
             according to their common and approved usage.” 1 Pa. C.S.
             §1903(a). Further, every statute shall be construed, if possible, to
             give effect to all its provisions so that no provision is “mere
             surplusage.” 1 Pa. C.S. §1921(a).

Western Pennsylvania Annual Conference of the United Methodist Church, 188 A.3d at 642-43
(citations omitted).


                                             12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kirk B. Burkley, Todd L. Kilgore       :
and Jeffrey Diurba                     :
                                       :
                v.                     : No. 37 C.D. 2019
                                       :
Council of the City of Pittsburgh,     :
                                       :
                          Appellant    :



                                      ORDER


             AND NOW, this 24th day of October, 2019, the order of the
Allegheny County Court of Common Pleas, dated December 12, 2018, is
AFFIRMED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
