          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John J. Miravich and Patricia J.             :
Miravich, Sue Davis-Haas, Richard H.         :
Haas, Ida C. Smith, Zildia Perez, Leon      :
Perez, Donna Galczynski, Kevin               :
Galczynski, Alan Ganas, Renee                :
Froelich and Scott Matthews,                 :
                          Appellants         :
                                             :
                     v.                      :   No. 2066 C.D. 2013
                                             :   Argued: June 16, 2014
Township of Exeter and                       :
Metrodev V, LP                               :


BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                                FILED: July 24, 2014


               This is an appeal from an order of the Court of Common Pleas of
Berks County (trial court) remanding a land use appeal of a preliminary
subdivision plan to the Exeter Township Zoning Hearing Board (ZHB). We affirm
as modified.
               A comprehensive recitation of the facts and procedural history of this
dispute can be found in Metro Dev V, LP v. Exeter Township Zoning Hearing
Board, (Pa. Cmwlth., No. 1367 C.D. 2013, filed __). For the purposes of this
appeal, the following facts are relevant.
               Appellants are owners of properties adjacent to the proposed
residential development of Metro Dev V LP.                           The subject property is
approximately 47.294 acres in an area where the boundary lines of the Township
of Exeter, Berks County, Pennsylvania and two surrounding municipalities, Lower
Alsace Township and Alsace Township, meet.
               On September 2, 2005, a preliminary subdivision plan (Plan) was
submitted to the Board of Supervisors of Exeter Township (Township) for a
residential development on the property called “Windy Willows,” comprising
thirty-four residential lots, twenty-six of which are located within Exeter
Township. Waivers were sought from the Township’s Subdivision and Land
Development Ordinance No. 550 (SALDO). On July 14, 2008, the Township
approved the Plan, subject to certain conditions. The Township also granted
waivers from certain sections of the SALDO, but expressly reserved its
determination of other waiver requests until the final plan approval stage.
               On August 13, 2008, Appellants filed a land use appeal with the trial
court and, in response, Metro Dev intervened. The trial court denied Appellants’
land use appeal, determining that the Township did not err in granting waivers
from sections of the SALDO. From this decision, Appellants further appealed to
this court, asserting that the Township considered the Plan under the wrong
ordinance and that the Township’s approval of the Plan was defective.1 The court
agreed with Appellants that the Township considered the Plan under the wrong
zoning ordinance. Miravich v. Twp. of Exeter, 54 A.3d 106, 113 (Pa. Cmwlth.

    1
       Appellants assert that the Township’s approval of the Plan was defective for (1) failure to
require sewage certification at the initial stage; (2) the lack of substantial evidence to support the
grant of the SALDO waivers; and (3) having postponed a decision on the grant of certain waivers
until review of the final plan.



                                                  2
2012) (Miravich II). The court also concluded that because the Township had
failed to explain the nature of the hardship for the waivers granted, it had failed to
provide a proper basis for this court to determine whether the Township had erred
or abused its discretion in granting the waivers. Id at 114. The court concluded by
stating, “we affirm in part, reverse in part and remand the matter for
reconsideration in accordance with the foregoing opinion.” Id at 115.
             Both parties filed petitions for allowance of appeal to the
Pennsylvania Supreme Court. Following the Supreme Court’s denial of these
petitions, the trial court sua sponte entered an order remanding the appeal from the
approval of the Plan to the ZHB. On February 24, 2014, the trial court issued an
opinion in which it stated that it was appropriate to remand to the ZHB to apply the
correct ordinance to the land use application.         Trial Court’s Opinion at 1-2.
Appellants filed an appeal with this Court.
             Appellants assert that their appeal of the trial court’s remand order is
appealable under the collateral order doctrine. Additionally, Appellants argue that
the ZHB does not have jurisdiction to review their land use appeal because
jurisdiction over such matters lies with the board of supervisors. Section
909.1(b)(2) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §
10909.1(b)(2).2
             Pennsylvania Rule of Appellate Procedure 313(a), Pa. R.A.P. 313(a),
states that “[a]n appeal may be taken as of right from a collateral order of an
administrative agency or lower court.” An order is defined as a “collateral order”
if all three of the following requirements are met: (1) the order is separable from,

    2
     Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended.



                                           3
and collateral to, the main cause of action; (2) the right involved is too important to
be denied review; and (3) the question presented is such that if review is postponed
until final judgment in the case, the claim will be irreparably lost. Pa. R.A.P.
313(b); Adams v. Dep’t of Health, 967 A.2d 1082 (Pa. Cmwlth. 2009).                 In
reviewing these criteria, we have held that an order is separable if it does not affect
the merits of the main cause of action. Pittsburgh Water and Sewer Auth. v.
Gladstone, 999 A.2d 1248 (Pa. Cmwlth. 2010).            With respect to the second
requirement, our Supreme Court has held that the issue must involve rights that are
“deeply rooted in public policy going beyond the particular litigation at hand.”
Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999).
             The order remanding this matter to the ZHB meets the requirements
of the collateral order doctrine. This matter started out as a land use appeal from
approval of a preliminary subdivision and land development plan. This court
affirmed in part, reversed in part and remanded for further consideration of the
plan submitted by Metro Dev consistent with our opinion. The main cause of
action is review of the plan but the issue of which tribunal should do so is
separable therefrom. Further, remand to the appropriate tribunal involves the
parties’ due process right to have the case heard before a tribunal having
jurisdiction over the matter. Lewis v. Sch. Dist. of Phila., 690 A.2d 814 (Pa.
Cmwlth. 1997) (stating that the essential elements of due process are notice and
opportunity to be heard in a proceeding before a tribunal having jurisdiction over
the matter). Finally, if the remand order is not reviewed now, Appellants will be
forced to participate in a hearing before a tribunal without jurisdiction over the
matter. Accordingly, we conclude that this Court has jurisdiction over the matter
as a collateral order. Gilyard v. Redev. Auth. of Phila., 780 A.2d 793, 794 (Pa.



                                          4
Cmwlth. 2001) (noting that an appeal from a trial court order remanding an
eminent domain matter to an arbitrator was an appealable collateral order because
the Eminent Domain Code required that all appeals from a board of viewers be
heard only in a trial court).
                We turn now to the merits of this appeal. Appellants argue that
pursuant to Section 909.1(b)(2) of the MPC, the governing body has exclusive
jurisdiction over land use appeals concerning subdivision and land development
plans. Section 909.1(b)(2) provides in relevant part:

                (b) The governing body or, except as to clauses (3), (4)
                and (5), the planning agency, if designated, shall have
                exclusive jurisdiction to hear and render final
                adjudications in the following matters:
                ****
                (2) All applications pursuant to section 508 for
                approval of subdivisions or land developments under
                Article V.

                The Appellants are correct. The MPC squarely places jurisdiction over
approval of subdivision and land use plans with the governing body and not the
ZHB.3 The trial court, therefore, erred in remanding the Plan to the ZHB rather
than to the governing body.
                Accordingly, the order of the trial court is affirmed as modified. The
trial court shall remand this matter for further proceedings before the Township.

    3
        Additionally, Section 501 of the MPC, 53 P.S. § 10501, provides in relevant part:
                The governing body of each municipality may regulate
                subdivisions and land development within the municipality by
                enacting a subdivision and land development ordinance. The
                ordinance shall require that all subdivision and land development
                plats of land situated within the municipality shall be submitted
                for approval to the governing body….



                                                 5
The remand order is stayed pending resolution of Metro Dev’s procedural validity
challenge at issue in Metro Dev V, LP v. Exeter Township Zoning Hearing Board,
being filed concurrently with this opinion.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                         6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John J. Miravich and Patricia J.        :
Miravich, Sue Davis-Haas, Richard H. :
Haas, Ida C. Smith, Zildia Perez, Leon :
Perez, Donna Galczynski, Kevin          :
Galczynski, Alan Ganas, Renee           :
Froelich and Scott Matthews,            :
                          Appellants    :
                                        :
                   v.                   :    No. 2066 C.D. 2013
                                        :
Township of Exeter and                  :
Metro Dev V, LP                         :


                                  ORDER


            AND NOW, this 24th day of July, 2014, the order of the Court of
Common Pleas of Berks County is hereby affirmed as modified. The above-
captioned matter shall be remanded to the Board of Supervisors of the Township of
Exeter. Further proceedings shall be stayed pending disposition of Metro Dev V,
LP’s procedural validity challenge to Exeter Township Zoning Ordinance No. 596.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
