          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Palmyra                         :
                                           :
             v.                            :
                                           :
Raymond U. Brandt,                         :   No. 1575 C.D. 2018
                Appellant                  :   Argued: September 10, 2019



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                        FILED: October 9, 2019


             Raymond U. Brandt (Brandt) appeals from an order of the Court of
Common Pleas of Lebanon County (trial court). On September 11, 2018, the trial
court granted judgment on the pleadings in favor of the Borough of Palmyra
(Borough) and issued an opinion finding Brandt was in violation of the Borough’s
zoning ordinance after he admitted that he did not appeal the Borough’s zoning
enforcement notice to the Borough’s zoning hearing board. Trial Court Order,
9/11/18 at 1, Reproduced Record (R.R.) at 60a; Original Record (O.R.), Trial Court
Opinion, 9/11/18 at 2 & 4-5; see also Amended Complaint at 5; R.R. at 15a; Answer
at 3, R.R. at 52a. Thereafter, by order dated October 25, 2018, the trial court assessed
fines, penalties and attorneys’ fees against Brandt. Trial Court Order, 10/25/18, R.R.
at 125a. Upon review, we affirm.
               By letter dated July 8, 2016, the Borough notified Brandt that his
property was in violation of three provisions of the Borough’s zoning ordinance, and
that the Borough would institute a civil enforcement proceeding against him if he
did not completely correct or remove the zoning violations by August 8, 2016.
Zoning Enforcement Notice at 1, R.R. at 1a. The zoning officer sent the zoning
enforcement notice to Brandt both by certified mail, return receipt requested, and
first-class mail. Zoning Enforcement Notice at 3, R.R. at 3a; see also Transcript of
Testimony (T.T.) at 8, R.R. at 70a. The copy of the zoning enforcement notice sent
by certified mail was returned as unclaimed, but the copy sent first class was not
returned as undeliverable. T.T. at 9, R.R. at 71a. The zoning enforcement notice
informed Brandt that he had 30 days to completely correct or remove the zoning
violations. Zoning Enforcement Notice at 1, R.R. at 1a. The zoning enforcement
notice further provided:

               Please be advised that you have the right to appeal this
               Enforcement Notice to the Palmyra Borough Zoning
               Hearing Board within thirty (30) days if you believe
               that I have misinterpreted or misapplied the [z]oning
               [o]rdinance. Failure to appeal this Enforcement Notice
               may constitute a waiver of certain rights and may
               result in a conclusive determination that the condition
               of the property violates the [z]oning [o]rdinance.

Id. (emphasis in original). Brandt did not appeal to the zoning hearing board.1
Zoning Enforcement Notice at 1, R.R. at 1a. The Borough filed a civil complaint
with the magisterial district court on November 30, 2016, seeking civil penalties,

       1
          After the 30-day window to come into compliance closed, Brandt filed an application for
a zoning permit to construct a shed and a fence. Civil Complaint at 2, R.R. at 6a. However, Brandt
did not follow up with the Borough’s requests for additional information regarding his application,
and the Borough proceeded with enforcement of the zoning ordinance. Civil Complaint at 3, R.R.
at 7a.
                                                2
filing costs and attorneys’ fees. Civil Complaint, R.R. at 4a-8a. On March 29, 2017,
the magisterial district judge entered judgment in favor of the Borough, including an
award of filing fees, costs and attorneys’ fees. Notice of Judgment, R.R. at 9a.
Brandt appealed this judgment to the trial court. Notice of Appeal, R.R. at 10a. The
Borough filed a complaint with the trial court, to which Brandt filed preliminary
objections. O.R., Trial Court Opinion, 9/11/18 at 2. The Borough opted to file an
amended complaint in lieu of an answer to Brandt’s preliminary objections pursuant
to Pennsylvania Rule of Civil No. Procedure 1028(c)(1). In its amended complaint,
the Borough alleged that Brandt failed to correct the zoning violations described in
the zoning enforcement notice. Amended Complaint at 5-6, R.R. at 15a-16a. The
Borough sought recovery of civil penalties for violations of its zoning ordinance,
equitable relief for correction of the violations and recovery of attorneys’ fees
incurred in the enforcement of the zoning ordinance. Amended Complaint at 6-10,
R.R. at 16a-20a. Brandt then filed preliminary objections to the amended complaint,
arguing that the trial court lacked jurisdiction due to defective service of the zoning
enforcement notice and that the Borough failed to properly allege a violation of its
zoning ordinance. Preliminary Objections at 1-5, R.R. at 35a-39a. On April 13,
2018, the trial court issued an order overruling Brandt’s preliminary objections.
O.R., Trial Court Order, 4/13/18. In an accompanying opinion, the trial court held
that the Borough complied with Section 616.1(b) of the Pennsylvania Municipalities
Planning Code (MPC)2, 53 P.S. § 10616.1(b), in mailing the zoning enforcement
notice to Brandt by both regular and certified mail. O.R, Trial Court Opinion,
4/13/18 at 6. The trial court also noted that “failure to appeal an enforcement notice
to the zoning hearing board renders the violations stated in the enforcement notice

       2
         Act of July 31, 1968, P.L. 805, as amended, added by Section 60 of the Act of Dec. 21,
1988, P.L. 1329.
                                              3
binding and precludes further review by the district justice and the trial court.” Id.
at 7. Thus, the trial court found that “in the present action [it was] limited to making
determinations with regard to the Borough’s request for penalties, [attorneys’] fees
and equitable relief pertaining to the violations described in the Enforcement
Notice.” Id. at 8.
             On May 9, 2018, Brandt filed an answer to the Borough’s amended
complaint admitting that he did not appeal the enforcement notice to the zoning
hearing board. See Amended Complaint at 5, R.R. at 15a; Answer at 3, R.R. at 52a.
On June 8, 2018, the Borough filed a motion for judgment on the pleadings, to which
Brandt filed a brief in opposition. Trial Court Docket, R.R. at iv, v & 55a. On
September 11, 2018, the trial court issued an opinion and order granting the
Borough’s motion for judgment on the pleadings, citing the same reasons set forth
in its prior opinion denying Brandt’s preliminary objections. Trial Court Order,
9/11/18 at 1; R.R. at 60a; O.R., Trial Court Opinion at 5. The trial court also ordered
Brandt to come into compliance with the Borough’s zoning ordinance and scheduled
a hearing on the amount of reasonable attorneys’ fees incurred by the Borough and
the amount of penalties to be assessed against Brandt. O.R., Trial Court Order,
9/11/18 at 1. On October 25, 2018, the trial court held a hearing on penalties and
attorneys’ fees. T.T. at 1 & 16-17, R.R. at 63a & 78a-79a. On October 26, 2018,
the trial court entered an order, dated October 25, 2018, finding that Brandt was still
in violation of the Borough’s zoning ordinance and ordering Brandt to pay the
Borough a fine of $938 and $2,500 in attorneys’ fees. Trial Court Order, 10/25/18,
R.R. at 125a.
             Brandt then appealed to this Court and subsequently filed a concise
statement of errors complained of on appeal, contending that the trial court erred by


                                           4
permitting the action to proceed in the absence of proof or acknowledgment of
service of the zoning enforcement notice or, in the alternative, by applying offensive
collateral estoppel, or giving preclusive effect, to a purported default before the
zoning hearing board in the absence of proof or acknowledgement of service of the
enforcement notice. O.R., Statement of Errors Complained of on Appeal at 1.
                Before this Court,3 Brandt argues that service by regular mail alone, or
by certified mail when returned as unclaimed, is not acceptable for serving initial
process in any form of action. Brandt’s Brief at 13. Brandt notes that the MPC does
not specify how a zoning enforcement notice shall be sent. Id. at 18. Brandt asserts
that the Borough unsuccessfully attempted service pursuant to Pennsylvania Rule of
Civil Procedure No. 403, because the copy of the zoning enforcement notice sent by
certified mail was returned as unclaimed. Id. at 18-19.4 Further, Brandt maintains
that the trial court erroneously relied upon Township of Bushkill v. Heater (Pa.
Cmwlth., No. 1536 C.D. 2007, filed July 10, 2008),5 because it is not clear from the
record in that case that the property owners actually received the zoning enforcement

       3
         “Our review of a trial court’s decision granting a motion for judgment on the pleadings
considers whether the court committed an error of law or whether unresolved questions of material
fact remain outstanding.” Pfister v. City of Philadelphia, 963 A.2d 593, 596 n.7 (Pa. Cmwlth.
2009) (citing Travelers Casualty & Surety Co. v. Castegnaro, 772 A.2d 456, 459 (Pa. 2001)).
“Our scope of review is plenary.” Id. (citing Lindstrom v. City of Corry, 763 A.2d 394, 396 (Pa.
2000)).
       4
           Pennsylvania Rule of Civil Procedure 403 provides, in part:

                If a rule of civil procedure authorizes original process to be served
                by mail, a copy of the process shall be mailed to the defendant by
                any form of mail requiring a receipt signed by the defendant or his
                authorized agent. Service is complete upon delivery of the mail.

Pa.R.C.P. No. 403.
       5
      This Court’s unreported memorandum opinions may be cited for persuasive value.
Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).
                                                 5
notice. Id. at 20. Brandt contends, “to the extent that [Heater] excuses deficient
service, it runs afoul of due process and should not be followed.” Id. at 21. Further,
Brandt posits that “it would be more than reasonable” to read the requirements
contained in either Pennsylvania Rule of Civil Procedure No. 403 or Pennsylvania
Rule of Criminal Procedure 451 into the MPC. Id. at 24. Brandt asserts that
legislation should be read in a way that ensures its constitutionality, if possible. Id.
Accordingly, Brandt proposes viewing the enforcement notice as the equivalent of a
complaint or citation. Id. Brandt requests that this Court dismiss this matter without
prejudice because the enforcement notice was not properly served, such that Brandt
was deprived of the opportunity to appeal to the zoning hearing board. Id. at 26.
Alternatively, Brandt requests that this Court remand the case to the trial court to
consider the alleged zoning violation on the merits. Id. at 27.
             The Borough counters that the trial court did not err in granting
judgment on the pleadings, because Brandt’s failure to appeal the Borough’s
enforcement notice to the zoning hearing board resulted in a conclusive
determination of the violations stated therein. Borough’s Brief at 12-13. The
Borough argues that it properly served Brandt, as it sent the enforcement notice to
Brandt in accordance with MPC Section 616.1, 53 P.S. § 10616.1. Id. at 19.
             MPC Section 616.1 provides, “[i]f it appears to the municipality that a
violation of any zoning ordinance enacted under this act or prior enabling laws has
occurred, the municipality shall initiate enforcement proceedings by sending an
enforcement notice . . . to the owner of record of the parcel on which the violation
has occurred[.]” 53 P.S. § 10616.1(a), (b). Notably, the MPC does not require that
the notice be sent by certified mail.       In Heater, the township sent a zoning
enforcement notice to property owners via both certified and regular mail. Heater,


                                           6
slip op. at 2. The certified letter was returned as unclaimed, and the property owners
did not appeal to the zoning hearing board. Id. The trial court entered a verdict in
favor of the township and the property owners appealed to this Court, claiming that
the township failed to comply with MPC Section 616.1, 53 P.S. § 10616.1, by failing
to ensure they received the zoning enforcement notice, as evidenced by the fact that
the certified letter was returned to the township as unclaimed. Heater, slip op. at 2-
4. We held as follows:

             [T]he township properly complied with [MPC] Section
             616.1(b) in that it sent the enforcement notice to the
             “owner of record of the parcel on which the violation has
             occurred. . . .” Specifically, the [t]ownship sent the
             enforcement notice via certified mail and regular mail to
             [the parcel owners of record] . . . . Although the certified
             mail was returned to the [t]ownship “unclaimed” such
             does not negate the fact that the [t]ownship sent the notice
             to the owner of record by both regular mail and certified
             mail. The MPC does not mandate that the owner accept
             or read the enforcement notice, only that the [t]ownship
             send it, as the [t]ownship did in this case.

Id. at 4 (emphasis added).
             Here, the zoning officer sent the zoning enforcement notice to Brandt
both by certified mail, return receipt requested, and first-class mail. As in Heater,
the copy sent by certified mail was returned as unclaimed. See id. at 2. However,
the fact that the certified copy was returned as unclaimed is of no consequence, as
the MPC only requires that a municipality send the zoning enforcement notice to the
property owner—it need not ensure that the notice is accepted or read. See id. at 4.
We are unpersuaded by Brandt’s assertion that Heater runs afoul of due process by
excusing deficient service of zoning enforcement notices. “Adequate notice of


                                          7
administrative action is notice which is ‘reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.’” Clark v. Dep’t of Pub. Welfare,
427 A.2d 712, 714 (Pa. Cmwlth. 1981) (quoting Mullane v. Cent. Hanover Bank and
Tr. Co., 339 U.S. 306, 314 (1950)). This Court has specifically held “that notice
sent to one’s last known place of residence is reasonably calculated to give that
individual actual notice of . . . administrative action.” Id. Brandt admitted that his
address is 50 West Main Street, Apartment A, Palmyra, Pennsylvania 17078, which
is the address to which the Borough sent the zoning enforcement notice. See
Amended Complaint at 1 & 4, ¶¶ 2 & 20, R.R. at 12a & 14a; Exhibit B to Complaint,
O.R.; Answer at 1-2, ¶¶ 1 & 14, R.R. at 50a-51a; Zoning Enforcement Notice at 1,
R.R. at 1a; see also T.T. at 41, R.R. at 103a. Thus, the Borough did not “excuse
deficient service” thereby violating Brandt’s due process rights. Further, we decline
Brandt’s invitation to read extraneous service requirements into the MPC, as “a court
may not graft additional provisions onto a statute which the General Assembly did
not see fit to include.” Township of Penn v. Seymour, 708 A.2d 861, 864 (Pa.
Cmwlth. 1998) (emphasis added) (holding that the township’s zoning enforcement
notice was sufficient under MPC Section 616.1, 53 P.S. § 10616.1, where it notified
the property owner of his right to appeal to the zoning hearing board but did not
further explain that right, because the MPC contains no such requirement). We
therefore agree with the trial court’s determination that the Borough complied with
MPC Section 616.1, 53 P.S. § 10616.1, in sending the zoning enforcement notice to
Brandt. See Trial Court Opinion, 9/11/18 at 5.
             Brandt further argues that this Court’s prior holdings that failure to
appeal to the zoning hearing board renders a zoning violation unassailable


                                          8
constitutes implicit application of the preclusion doctrines, even though this Court
did not use the terms “res judicata” or “collateral estoppel” in those cases. Id. at 17-
21. Brandt asserts that “if there has not in fact been service, there definitely has been
no full and fair opportunity to litigate, and there should be no claim preclusion.” Id.
at 23 (emphasis in original). More specifically, Brandt contends that this Court has
applied the concept of “offensive collateral estoppel” in certain cases, even though
it did not use that term, by claiming it was unable to review matters that should have
been appealed to a zoning hearing board. Id. at 17-18 n.12.
               Pursuant to MPC Section 909.1(a)(3), “[t]he zoning hearing board shall
have exclusive jurisdiction to hear and render final adjudications in . . . [a]ppeals
from the determination of the zoning officer, including, but not limited to, the
issuance of any cease and desist order[.]” 53 P.S. § 10909.1(a)(3).6 We have held
as follows:

               A landowner’s failure to appeal the notice of violation
               results in a final adjudication that the landowner violated
               the zoning ordinance. If the landowner fails to appeal, he
               may not later deny there was a violation. If after receiving
               an enforcement notice, the landowner continues to violate
               the zoning ordinance without appealing the enforcement
               notice, Section 616.1(c)(6) of the MPC, 53 P.S. §
               10616.1(c)(6), dictates a conclusive determination of
               violation, and entitles a municipality to either initiate
               district justice action for sanctions or file a complaint in
               equity to enjoin the landowner from further violations
               (independent of the MPC). . . . If the landowner does
               appeal to the zoning hearing board the MPC vests in the
               zoning hearing board exclusive jurisdiction to hear such
               an appeal.



      6
          Added by Section 87 of the Act of Dec. 21, 1988, P.L. 1329.
                                               9
Woll v. Monaghan Township, 948 A.2d 933, 937 (Pa. Cmwlth. 2008) (internal
citation omitted). Thus, “failure to appeal the enforcement notice to the zoning
hearing board render[s] the zoning officer’s determination of a violation unassailable
under Section 616.1(c)(6) of the MPC[, 53 P.S. § 10616.1(c)(6)].”7 Heater, slip op.
at 6 (citing Borough of Latrobe v. Pohland, 702 A.2d 1089 (Pa. Cmwlth. 1997)).
              We find meritless Brandt’s argument that this Court’s adherence to the
clear and explicit mandate in MPC Section 909.1(a)(3), 53 P.S. § 10909.1(a)(3), that
the zoning hearing board retain exclusive jurisdiction over appeals from zoning
officer determinations, constitutes an implicit and improper application of the
preclusion doctrines. We have held previously that “[t]he language of [MPC]
[S]ection 909.1(a)(3) could not be clearer,” as this “[S]ection expressly gives the
zoning hearing board exclusive jurisdiction to ‘hear and render final adjudications’
in cease-and-desist order cases[.]” Johnston v. Upper Macungie Township, 638
A.2d 408, 412 (Pa. Cmwlth. 1994) (emphasis in original). As this provision of the
MPC is devoid of ambiguity, we cannot attribute merit to Brandt’s preclusion
argument. Thus, we find that the trial court did not apply either res judicata or
collateral estoppel but, rather, correctly determined that Brandt’s failure to appeal
the zoning enforcement notice to the zoning hearing board rendered the zoning
violations stated therein conclusive. See Heater, slip op. at 6; see also Lower Mount
Bethel Township v. Gacki, 150 A.3d 575, 580 (Pa. Cmwlth. 2016) (affirming the trial
court’s decision to enter judgment on the pleadings, reasoning that the trial court’s
decision did not deprive the property owners of their due process right to a hearing

       7
         Pursuant to MPC Section 616.1(c)(6), “failure to comply with the notice within the time
specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with
possible sanctions clearly described.” 53 P.S. § 10616.1(c)(6)



                                              10
when they forfeited this right by failing to appeal the violation notice to the zoning
hearing board).
               Accordingly, we affirm the trial court.8




                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       8
          The Borough also contends that it is entitled to costs, reasonable counsel fees and damages
for delay, because Brandt’s appeal was frivolous, as he “failed to cite to a single authority holding
that statutory provisions allowing service of administrative notices by mail violate a party’s due
process.” Borough’s Brief at 20. Pennsylvania Rule of Appellate Procedure 2744 provides that
an appellate court may award reasonable counsel fees and damages for delay, as may be just, if it
determines that an appeal is frivolous or taken solely for delay. Pa.R.A.P. 2744. A “frivolous
appeal” for purposes of awarding counsel fees is one lacking any basis in law or fact. Simmons v.
Delaware Cty. Tax Claim Bureau, 796 A.2d 400, 405 (Pa. Cmwlth. 2002). Further, “[a]n appeal
is frivolous if it is devoid of merit with no likelihood of success, such as an argument running
counter to well-established rules of law.” Id. However, we do not find that Brandt filed a frivolous
appeal and, thus, decline to grant the Borough’s request.
                                                11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Palmyra                   :
                                     :
           v.                        :
                                     :
Raymond U. Brandt,                   :   No. 1575 C.D. 2018
                Appellant            :


                                ORDER


           AND NOW, this 9th day of October, 2019, the order of the Court of
Common Pleas of Lebanon County is AFFIRMED.




                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
