         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


222 Development Group, LLC,          :
                Appellant            :
                                     :
            v.                       : No. 1541 C.D. 2016
                                     : ARGUED: March 6, 2017
Maxatawny Township and               :
Maxatawny Township Municipal         :
Authority                            :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                        FILED: May 12, 2017


            222 Development Group, LLC (222 Development Group) appeals
from the July 15, 2016 order of the Court of Common Pleas of Berks County (trial
court) which dismissed 222 Development Group’s second petition to appoint a
board of view. We affirm.


            On January 17, 2013, 222 Development Group commenced an action
against Maxatawny Township and Maxatawny Township Municipal Authority
(together, Maxatawny), by way of a four count complaint. 222 Development
Group entitled the counts as follows: Count I Trespass; Count II Ejectment; Count
III Declaratory Judgment; and Count IV Appointment of Board of View.
(Reproduced Record (R.R.) at 3a-7a.)1 222 Development Group alleged damages
as a result of Maxatawny’s construction of a sewage sanitation system on 222
Development Group’s property (Property), pursuant to an alleged invalid and
incomplete grant of easement, which was granted prior to 222 Development
Group’s ownership of the Property. (See R.R. at 3a-4a.) Subsequently, on June 6,
2013, 222 Development Group filed, in the same case, a Petition to Appoint a
Board of View (Petition I) under the Eminent Domain Code.2 (R.R. at 59a.) On
June 10, 2013, Judge Schmehl, sitting on the trial court, issued an order granting
222 Development Group’s Petition I and appointed a board of view. (R.R. at
113a.)


              On June 20, 2013, Maxatawny filed a Motion for Reconsideration and
Stay (Motion), seeking reconsideration of the trial court’s June 10, 2013, order and
a stay of the appointment of the board of view.               (R.R. at 115a-17a, 119a.)
Maxatawny argued that the trial court must first make a determination as to
whether a taking occurred prior to appointing a board of view, and that the trial
court decided Petition I without giving Maxatawny an opportunity to respond.
(R.R. at 115a, 118a.) On June 24, 2013, Maxatawny filed timely preliminary
objections to Petition I. (R.R. at 123a.) Also on June 24, 2013, Judge Schmehl of
the trial court issued a Reassignment Order transferring the case from himself to
Judge Sprecher on the trial court. (R.R. at 145a.)

         1
        222 Development Group did not number the pages in the Reproduced Record in the
manner required by Pa. R.A.P. 2173, which states Arabic figures are to be followed by a small
“a.” We will cite to the page numbers of the Reproduced Record in the proper format.
      2
        26 Pa. C.S. §§ 101 – 1106.


                                             2
                On August 20, 2013, a proceeding was held in the trial court before
Judge Sprecher.          (Supplemental Reproduced Record (S.R.R.) at 1b.)         On
September 30, 2013, the trial court (Sprecher, J.) issued an order stating the
“preliminary objections under the Eminent Domain Code are hereby Granted and
this court’s Order to Appoint a Board of View is hereby vacated.” (R.R. at 276a.)


                On January 6, 2016, the trial court reassigned the case from Judge
Sprecher to Judge Lillis. (R.R. at 277a.) On January 13, 2016, 222 Development
Group filed a second Petition to Appoint a Board of View (Petition II) in the case.
(R.R. at 279a.) On July 15, 2016, Judge Lillis of the trial court issued an opinion
and order dismissing Petition II under the law of the case doctrine, in particular the
coordinate jurisdiction rule, which states that a judge of coordinate jurisdiction
sitting in the same case should not overrule an earlier judge’s decision. (R.R. at
330a-32a.) Judge Lillis stated that the trial court’s prior order clearly granted
Maxatawny’s preliminary objections and that the issue in controversy was already
adjudicated by the previous judge sitting in the case. (R.R. at 332a.) Judge Lillis
noted that 222 Development Group did not appeal that order or otherwise take any
action until filing Petition II, and deemed Petition II to be an attempt to “take a
second bite at the apple ….” (R.R. at 332a.)


                On August 10, 2016, 222 Development Group filed a petition,
pursuant to Pa. R.A.P. 341, to determine the finality of the trial court’s July 15,
2016 order for the purpose of appealing to this Court.3 (R.R. at 323a.) The trial

      3
          Pa. R.A.P. 341(c) provides, in relevant part:
(Footnote continued on next page…)
                                                  3
court (Lillis, J.) entered an order granting the petition, stating that an appeal of the
trial court’s July 15, 2016 order would facilitate resolution of entire case. (R.R. at
328a.) 222 Development Group now appeals to this Court from the trial court’s
July 15, 2016 order.4


              222 Development Group raises one question for our review, namely,
whether the trial court erred in finding that Judge Sprecher’s September 30, 2013
order adjudicated the issue in question, and therefore, the law of the case doctrine
precluded the reappointment of a board of view. 222 Development Group points
out that before a trial court can rule on preliminary objections which raise a
question of fact, it must conduct an evidentiary hearing. 222 Development Group
argues that the September 30, 2013 order did not adjudicate the issue in question
because the trial court did not conduct an evidentiary hearing5 and because the

(continued…)

              When more than one claim for relief is presented in an action,
              whether as a claim, counterclaim, cross-claim, or third-party claim
              or when multiple parties are involved, the trial court or other
              government unit may enter a final order as to one or more but
              fewer than all of the claims and parties only upon an express
              determination that an immediate appeal would facilitate resolution
              of the entire case. Such an order becomes appealable when
              entered.

       4
          This Court’s scope of review in an eminent domain matter is limited to determining
whether the trial court abused its discretion or committed an error of law and whether the
findings of the trial court are supported by substantial evidence. Linde Enterprises, Inc. v.
Lackawanna River Basin Sewer Authority, 911 A.2d 658 (Pa. Cmwlth. 2006).
        5
          In support of its argument that the August 20, 2013 proceeding was not an evidentiary
hearing, 222 Development Group contends there was no record of the proceeding. While the
transcript of that proceeding was not available when 222 Development Group filed its brief with
this Court, subsequently, on February 9, 2017, this Court received a supplemental certified
(Footnote continued on next page…)
                                              4
September 30, 2013 order did nothing more than vacate the appointment of the
board of view to afford Maxatawny more time to conduct discovery.


               “[U]nder the coordinate jurisdiction rule, judges of coordinate
jurisdiction sitting in the same case should not overrule each other's decisions.”
Riccio v. American Republic Insurance Company, 705 A.2d 422, 425 (Pa. 1997).
This rule falls within the law of the case doctrine, which embodies the concept
that--
               [a] court involved in the later phases of a litigated matter
               should not reopen questions decided by another judge of
               the same court or by a higher court in the earlier phases
               of the matter. Among the related but distinct rules which
               make up the law of the case doctrine are that: ... upon
               transfer of a matter between trial judges of coordinate
               jurisdiction, the transferee trial court may not alter the
               resolution of a legal question previously decided by the
               transferor trial court.
Id. (quoting Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)).
“‘Departure [from this legal principle] is allowed only in exceptional
circumstances such as where there has been an intervening change in the
controlling law, a substantial change in the facts or evidence giving rise to the
dispute in the matter, or where the prior holding was clearly erroneous and would
create a manifest injustice if followed.’” Shaw v. Thomas Jefferson University, 80
A.3d 540, 545 (Pa. Cmwlth. 2013) (quoting Starr, 664 A.2d at 1332).



(continued…)

record from the trial court which contained the transcript, as well as the trial court’s January 31,
2017 order granting Maxatawny’s motion to certify that transcript as part of the supplemental
record.


                                                 5
              In the September 30, 2013 order, Judge Sprecher stated that the
“preliminary objections under the Eminent Domain Code are hereby Granted and
this court’s Order to Appoint a Board of View is hereby vacated.” After reviewing
the transcript of the August 20, 2013 proceeding, it is clear this was an evidentiary
hearing.6 Thus, contrary to 222 Development Group’s assertion, the September 30,
2013 order was issued after the requisite hearing.7


              222 Development Group focuses only on that portion of the trial
Court’s order stating that the board of view is vacated, and ignores the remainder
of the order, which by its plain language, granted Maxatawny’s preliminary
objections to Petition I. Like Petition I, Petition II sought the appointment of a
board of view, and therefore, involved the same legal question. 222 Development
Group does not allege any intervening change in the controlling law, or a
substantial change in the facts or evidence giving rise to the dispute, nor could the
trial court or this Court discern any such change. Although 222 Development
Group argues the September 30, 2013 order was in error, the trial court concluded
that the order was not clearly erroneous and would not create a manifest injustice if
followed. We cannot say that the trial court abused its discretion or erred as a
matter of law in reaching that conclusion. Thus, under the coordinate jurisdiction
rule, the trial court did not err in declining to overrule Judge Sprecher’s September
30, 2013 order, and in dismissing Petition II.


       6
          We note that 222 Development Group and Maxatawny each presented a witness and
entered exhibits into evidence.
        7
          See Section 504(d) of the Eminent Domain Code, 26 Pa. C.S. § 504(d) (requiring the
trial court to conduct an evidentiary hearing or otherwise take evidence if the preliminary
objections raise an issue of fact).


                                             6
            Accordingly, we affirm the trial court’s order dismissing 222
Development Group’s Petition II.



                                   __________________________________
                                   JULIA K. HEARTHWAY, Judge




                                     7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


222 Development Group, LLC,         :
                Appellant           :
                                    :
            v.                      : No. 1541 C.D. 2016
                                    :
Maxatawny Township and              :
Maxatawny Township Municipal        :
Authority                           :


                                  ORDER


            AND NOW, this 12th day of May, 2017, the order of Berks County
Court of Common Pleas in the above-captioned matter is hereby affirmed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
