          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Big Bear Management Fund,                       :
                                                :
                              Appellant         :
                                                :
               v.                               :   No. 802 C.D. 2015
                                                :
Lower Macungie Township                         :   Argued: December 7, 2015


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                      FILED: March 10, 2016

      Big Bear Management Fund (Developer) appeals from the Order of the
Court of Common Pleas of Lehigh County (common pleas) that granted the
Motion for Judgment on the Pleadings (Motion) filed by Lower Macungie
Township (Township) and denied Developer’s request for certain attorney’s fees.
Developer filed a Complaint in Mandamus (Complaint) seeking to require
Township to alter and execute three pending agreements (Agreements) related to
Developer’s land development plan (Plan) because, Developer avers, the
Agreements as written are contrary to or are not authorized by the Pennsylvania
Municipalities Planning Code1 (MPC). In granting the Motion, common pleas held
that there was no basis upon which to grant Developer mandamus relief. On

      1
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.
appeal, Developer argues that common pleas erred: (1) in finding that Developer
failed to show that the Agreements violate the MPC or that Township is obligated
to perform a ministerial act or mandatory duty; and (2) by not holding a hearing on
damages and attorney’s fees Developer incurred as a result of filing and litigating
its Complaint in order to get Township to remove, at a minimum, the provision
from the Agreements that Township conceded was invalid. Discerning no error,
we affirm.
       Developer sought approval from Township of its Plan that would add 29
mobile homes to its existing mobile home park. Township determined that the
Plan would require certain improvements, and Developer agreed to provide
financial security for the required improvements pursuant to Section 509(a) of the
MPC.2        Following negotiations, Township presented Developer with the
Agreements:      a Land Development Agreement, a Maintenance Agreement for
Land Development (Maintenance Agreement), and a Stormwater Facilities
Operation and Maintenance Agreement (Stormwater Management Agreement).

       2
        Section 509(a) of the MPC, 53 P.S. § 10509(a), provides, in relevant part:
               No plat shall be finally approved unless the streets shown on such plat
      have been improved to a mud-free or otherwise permanently passable condition,
      or improved as may be required by the subdivision and land development
      ordinance and any walkways, curbs, gutters, street lights, fire hydrants, shade
      trees, water mains, sanitary sewers, storm sewers and other improvements as may
      be required by the subdivision and land development ordinance have been
      installed in accordance with such ordinance. In lieu of the completion of any
      improvements required as a condition for the final approval of a plat . . . the
      subdivision and land development ordinance shall provide for the deposit with the
      municipality of financial security in an amount sufficient to cover the costs of
      such improvements or common amenities including, but not limited to, roads,
      storm water detention and/or retention basins and other related drainage
      facilities, recreational facilities, open space improvements, or buffer or screen
      plantings which may be required.
(Emphasis added.)

                                              2
Developer disagreed with several provisions contained within the Agreements, but
Township refused to negotiate further. Developer, unable to proceed with its Plan
without Township’s approval, filed the Complaint asserting that the challenged
provisions were contrary to or not authorized by the MPC and, therefore,
Township did not have the legal authority “to condition the Developer’s right to
secure the Required Improvements on” those provisions. (Compl. ¶¶ 18, 21, 24,
R.R. at 7a-9a.) Developer maintains that it “has a clear right to financially secure
the Required Improvements,” “Township has a clear obligation to allow the
Developer to financially secure the Required Improvements,” it “has suffered, and
continues to suffer, financial damage” because of Township’s actions, and it “is
without an adequate remedy at law to compel the Township to allow the Developer
to financially secure the Required Improvements in accordance with law.”
(Compl. ¶¶ 32-35, R.R. at 10a.) Developer requested that common pleas strike
those provisions from the Agreements and direct Township to execute them in
order for Developer to move forward with its land development plans. It also
requested certain damages and attorney’s fees.
      Township filed its Answer and New Matter, noting that many of
Developer’s allegations were legal conclusions to which no answer was required
and asserting that the Agreements comply with the MPC. Township then filed the
Motion, in which it conceded that one of the challenged provisions, which required
Developer to maintain the improvements for two years rather than the eighteen
months permitted by the MPC, was invalid and agreed to remove that provision
from the Maintenance Agreement. (Motion ¶¶ 14-15, R.R. at 124a.) However,
Township argued that Developer failed to state a claim for mandamus relief on the



                                         3
other provisions because it did not establish that the challenged provisions violated
any provision of or were otherwise prohibited by the MPC.
        Upon considering the pleadings and the parties’ briefs on the Motion,
common pleas struck the provision the Township had conceded was invalid, but
agreed with Township regarding the others and granted the Motion. Common
pleas did not award Developer any damages or attorney’s fees. Developer
appealed, and common pleas directed Developer to submit a Concise Statement of
Errors Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure, Pa. R.A.P. 1925(b). In its 1925(a) Opinion in
support of its order, common pleas explained that, to the extent Developer was
challenging its decision not to award damages based on Township’s concession,
Developer had not requested “a determination of such damages.” (1925(a) Op. at
4.) Common pleas then went through each challenged provision3 and concluded
that:

        3
          Specifically, common pleas addressed Developer’s assertions as follows. Developer
challenged Part I(B)(8) of the Land Development Agreement because it requires Developer to
pay the actual cost of connecting to the Lehigh County Water Authority’s (Authority) water
system when the Authority is ready to provide such service and Section 509(l) specifically
excludes the imposition of financial security related to water mains or sewer lines beyond that
which is required by the rules and regulations of the controlling utility. 53 P.S. § 10509(l).
Common pleas concluded that the purpose of this provision is to require Developer to connect to
the Authority’s water supply and pay the costs required to do so and Section 509(l), which
addresses posting financial security, “does not preclude the Township from requiring the
Developer to pay the actual cost of connecting to the . . . Authority’s water supply when applying
for such service.” (1925(a) Op. at 4-5.) Developer asserted that Parts II(A) and III(D)(3) of the
Land Development Agreement violated the MPC because they alter the relationship between
Township and Developer without legal justification by requiring Developer to create an escrow
account to cover counsel fees and litigation expenses which Township may incur in connection
with the Agreements, and to allow Township to take money from that account for any
engineering or legal invoices. Developer asserted that, pursuant to Section 509(g) of the MPC,
the only legal expenses that can be charged are those related to reviewing the plan and inspecting
                                                                                 (Continued…)
                                                4
              Aside from that portion of the Agreements to which the
       Township acknowledged at the outset that it overreached, Developer
       has failed to identify any portion of the Agreements that is in violation
       of the MPC or other law, or to provide any foundation for their [sic]

the improvements. 53 P.S. § 10509(g). Common pleas held that “[t]he legal and engineering
escrow fund referenced to in [these sections] is a separate fund from the financial security
referred to in [Section 509] for required improvements, and is not prohibited by the MPC.”
(1925(a) Op. at 5.) Developer next challenged Part V(H) of the Land Development Agreement
because it requires Developer to agree that the sale of any lots to the public before the
completion of the improvements constitutes a release of Township from its duties and
obligations under the MPC and to inform the purchaser of this release and there is no MPC
provision authorizing such condition. Common pleas concluded that “Developer provided no
basis upon which to conclude [that this provision] of the Land Development Agreement violated
the MPC.” (1925(a) Op. at 5.) Developer argued that Part III(C) of the Maintenance Agreement
is inconsistent with Section 510 of the MPC, 53 P.S. § 10510 (relating to requiring a developer to
pay for reasonable and necessary expenses related to inspecting the improvements), because it
allows Township to apply Developer’s financial security to invoices for engineering and attorney
fees and imposes administrative fees and interest on the invoiced amounts where Township
accepts dedication of some or all of the improvements. Common pleas held that Section 510
does not apply to this situation because it involves inspection of the required improvements.
(1925(a) Op. at 5-6.) We note that Developer now asserts, for the first time, that this provision
also violates Section 509 of the MPC; however, this argument is waived pursuant to
Pennsylvania Rule of Appellate Procedure 302(a), Pa. R.A.P. 302(a). Next, Developer argued
that Part IV(B) of the Maintenance Agreement violated the MPC because it requires Developer
to maintain insurance coverage on the required improvements for two years after the expiration
of the 18-month maintenance period and nothing in the MPC authorizes Township to demand
such insurance. Common pleas held that nothing in the MPC prohibited “Township from
requiring that insurance be maintained for a period of time after the maintenance period.”
(1925(a) Op. at 6.) Developer further challenged Paragraph 17 of the Stormwater Agreement
because it provides that if an invoice presented under that agreement is not paid within 30 days,
Township can enter a lien against the property or may proceed to recover the costs via equitable
or legal actions, and Section 510 sets forth the only provisions relating to how a municipality
may assess and collect fees related to the required improvements and does not authorize this
provision. Common pleas concluded that Section 510 “pertains to improvement bonds, not to
invoices for work actually performed,” which is what is addressed in this provision. (1925(a)
Op. at 6.) Finally, Developer asserted that Paragraph 23 of the Stormwater Agreement
impermissibly restricts Developer’s ability to assign that agreement because it requires
Developer to obtain Township’s written consent before it does so even though the agreement
should run with the land and there is nothing in the MPC which authorizes such limitation.
Common pleas concluded that Developer provided no legal support for its contentions. (1925(a)
Op. at 6.)

                                                5
       allegations that the Township has acted outside the bounds of law, or
       that the Township is obligated to perform a ministerial act or
       mandatory duty. According[ly], there was no basis for mandamus to
       issue.
(1925(a) Op. at 6-7.) This matter is now ready for this Court’s review.4
       On appeal, Developer argues, citing Hamilton Hills Group, LLC v. Hamilton
Township Zoning Hearing Board, 4 A.3d 788, 795 (Pa. Cmwlth. 2010), that
Township only has the power specifically delegated to it by statute, and the MPC
does not authorize Township to impose these conditions on Developer. According
to Developer, the only terms Township may require are those expressly authorized
by the MPC, such as the specific financial security provisions set forth in Sections
509 and 510 of the MPC, 53 P.S. §§ 10509, 10510, and mandamus is appropriate
here to compel the striking of any provision that is not specifically authorized by
the MPC.
       “Mandamus is an extraordinary writ that lies to compel an official’s
performance of a ministerial act or mandatory duty where there is a clear legal


       4
          The standard of review of an appellate court in ruling on a challenge to the sustaining of
a judgment on the pleadings pursuant to Rule 1034 of the Pennsylvania Rules of Civil Procedure,
Pa. R.C.P. No. 1034, is limited. Emerich v. Philadelphia Center for Human Development, Inc.,
720 A.2d 1032, 1034 n.1 (Pa. 1998). A judgment on the pleadings will be granted where, on the
facts averred, the law says with certainty that no recovery is possible. Id. Principles applicable
to a judgment on the pleadings are the same as the principles applicable to a preliminary
objection in the nature of a demurrer, thus,
        [a]ll material facts set forth in the Complaint as well as all inferences reasonably
        deducible therefrom are admitted as true for the purpose of this review. The
        question presented by the demurrer is whether on the facts averred the law says
        with certainty that no recovery is possible. Where a doubt exists as to whether a
        demurrer should be sustained, this doubt should be resolved in favor of overruling
        it. (Citations and brackets omitted).
Id. (quoting Kyle v. McNamara & Criste, 487 A.2d 814, 816 (Pa. 1985)). A failure to state a
claim upon which relief can be granted is a basis upon which for granting judgment on the
pleadings. Enoch v. Food Fair Stores, Inc., 331 A.2d 912, 914 (Pa. Super. 1974).

                                                 6
right in the plaintiff, a corresponding duty in the defendant, and a want of any other
appropriate and adequate remedy.”         Clark v. Beard, 918 A.2d 155, 159 (Pa.
Cmwlth. 2007). “As a high prerogative writ, mandamus writs are rarely issued and
never where the plaintiff seeks to interfere with a public official’s exercise of
discretion.” Chadwick v. Dauphin County Office of Coroner, 905 A.2d 600, 603
(Pa. Cmwlth. 2006). “[M]andamus is appropriate to ‘compel the public official to
perform acts which are required or obliged to be performed and which do not
involve an exercise of discretion or judgment.’” Id. (quoting Nader v. Hughes,
643 A.2d 747, 753 n.13 (Pa. Cmwlth. 1994)) (bold emphasis added).
      Our Supreme Court has acknowledged that municipalities may possess
powers by implication and that the MPC should be liberally construed in order to
effect its purpose. Naylor v. Township of Hellam, 773 A.2d 770, 774 & n.2 (Pa.
2001). Section 501 describes the grant of power to a municipality to regulate
subdivisions and land development by enacting an ordinance, and Section 503 sets
forth what may be included in an ordinance, but does not limit what may be
included.5 53 P.S. §§ 10501, 10503. In Appeal of FPA Corporation, 485 A.2d
523, 524, 526 (Pa. Cmwlth. 1984), this Court held that a provision included in a
development agreement that eliminated “artificial time constraints,” which had
been incorporated into a court order, was binding even though it conflicted with a
specific provision in the MPC setting forth a three-year time limit. We held that an
agreement which has been reduced to court order governing the final approval
could waive the time limit in the MPC and to hold “otherwise would be to ignore


      5
        Township’s powers also derive, as acknowledged by Developer, from The First Class
Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 55101-58502.
(Developer’s Br. at 12.)

                                           7
certain provisions of the agreement between the parties.” Id. at 526. Our Supreme
Court affirmed this Court’s holding, in Mountain Village v. Board of Supervisors
of Longswamp Township, 874 A.2d 1, 9 (Pa. 2005), that a municipality could not
require a developer to pay its solicitor’s fees to review a development application
and plan because they were not included at that time in Sections 503 and 510,6 the
municipality’s actions were directly contrary to the provisions in the MPC. The
situation in Mountain Village would be analogous to Township’s attempt here to
impose a two-year maintenance period, which Township conceded exceeded the
eighteen-month period allowed under the MPC and that the provision was stricken.
       Here, Township’s conditional approval of the Plan required it to exercise its
discretion and judgment to review the Plan and to determine whether it complied
with the MPC and Township’s Subdivision and Land Development Ordinance and
what conditions were necessary to ensure that compliance. Developer does not
argue that Township could not, in its discretion, place conditions on its approval of
the Plan, only that the conditions imposed were wrong under the MPC. Although
not precisely on point, this Court has held that mandamus is available as a remedy
where the entitlement in land use is clear;7 however, approval of a subdivision plan
is within the discretion of the board. Trojnacki v. Board of Supervisors, 842 A.2d


       6
          The General Assembly amended the definition of “professional consultants” in Section
107(a) of the MPC to include “attorneys” and amended other provisions of the MPC to reflect
this change. Mountain Village, 874 A.2d at 5 n.4.
        7
          Pennsylvania courts have acknowledged that, “even where the grounds are proven,”
“mandamus is not automatic” and “‘its issuance is not a matter of right but in certain
circumstances is a matter for the sound discretion of the court.’” Seeton v. Adams, 50 A.3d 268,
275 n.8 (Pa. Cmwlth. 2012) (quoting Travis v. Teter, 87 A.2d 177, 179 (Pa. 1952)). Thus, “a
writ of mandamus has been refused where its issuance would be inequitable or would cause
‘disorder and confusion in municipal or governmental departments.’” Id. (quoting Waters v.
Samuel, 80 A.2d 848, 849 (Pa. 1951)).

                                               8
503, 511 (Pa. Cmwlth. 2004); see also Blain v. Township of Radnor, 167 Fed.
Appx. 330, 334-35 (3d Cir. 2006) (holding that township’s handling of subdivision
plan was a discretionary, rather than ministerial, act under Pennsylvania law).8
Accordingly, Developer has not proven that a township is without discretion to
negotiate land development agreements that impose conditions on the approval of a
land development plan to the extent that the execution of such agreements would
be a ministerial or mandatory act subject to mandamus.
       Moreover, in requiring Developer to execute the Agreements, Township was
placing conditions on its approval of the Plan, which it is authorized to do. Bonner
v. Upper Makefield Township, 597 A.2d 196, 199 (Pa. Cmwlth. 1991). Under the
MPC, “if the applicant does not accept the proposed conditions, then the
conditional approval is deemed a rejection.               If the applicant objects to the
conditions, an aggrieved party may appeal the matter to the trial court for a
determination of whether the objected-to conditions are legal.”                       Koller v.
Weisenberg Township, 871 A.2d 286, 292 (Pa. Cmwlth. 2005). “Mandamus is not
a substitute for a statutory remedy that provides the means to review a public
official’s action and correct error.” Seeton v. Adams, 50 A.3d 268, 277 (Pa.
Cmwlth. 2012). “[M]andamus cannot be used to ‘review or compel the undoing of
an action taken by such an official or tribunal in good faith and in the exercise of
legitimate jurisdiction,’ even if the decision was wrong.” Green v. Tioga County
Board of Commissioners, 661 A.2d 932, 934 (Pa. Cmwlth. 1995) (emphasis added)
(quoting Pennsylvania Dental Association v. Insurance Department, 516 A.2d 647,


       8
         Pursuant to the Third Circuit’s internal operating procedure 5.7, this unreported opinion
is not precedential and, therefore, is not binding. 28 U.S.C. Appendix I, Chapter 5, IOP 5.7.
However, the rule does not prohibit the citation of such cases as persuasive authority.

                                                9
652 (Pa. 1986)). In other words, mandamus cannot act as a substitute for judicial
review. Pennsylvania Dental Association, 516 A.2d at 653. Here, Developer is
essentially asserting that the conditions Township imposed via the Agreements are
wrong and should not be enforced. However, “even if [Township’s] decision was
wrong,” it was made “in good faith and in the exercise of legitimate jurisdiction”
and, therefore, “mandamus cannot be used to review or compel the undoing of
[that] action.”   Green, 661 A.2d at 934 (internal quotation marks omitted).
Accordingly, we conclude, as common pleas did, that mandamus will not lie to
compel Township to execute the Agreements as proposed by Developer.
      This Court’s opinion in Hamilton Hills, 4 A.3d at 795, and the statement on
which Developer relies regarding limitations on a municipality’s authority, is not
inconsistent with this analysis. In Hamilton Hills, a developer wanted to construct
325 townhomes on a parcel that spanned three municipalities and sought approval
for the project by asserting that Hamilton Township’s ordinance’s requirement for
open space could be met by using land in the neighboring municipalities. Id. at
791-92. The zoning hearing board denied the application on the basis that the
developer did not meet its burden of establishing that the open space requirements
were met within the municipality. Id. at 789-90. Common pleas and this Court
affirmed on appeal. We held that the zoning hearing board did not abuse its
discretion by limiting its consideration to the land located within the municipality’s
boundaries. Id. at 790. Hamilton Hills involved a question of a municipality’s
ability to act and regulate land that was outside its borders. Based on language in
the MPC and its general police powers, we concluded that a municipality does not
have such authority and, therefore, could not be compelled to consider the land
outside its borders in determining whether to grant approval for land development.


                                         10
Id. at 793, 795. This matter does not involve a question of a municipality being
asked to act extra-territorially in order to approve land development and,
consequently, Hamilton Hills is not applicable.
       Developer further asserts that common pleas should have held a hearing to
determine whether damages and/or attorney’s fees were warranted because
common pleas struck the two-year maintenance provision for the maintenance of
street trees and landscape plantings.9 Developer contends that Township’s actions
associated with this claim were arbitrary and vexatious because it provided no
justification for requiring the two-year maintenance period, which was clearly
contrary to the requirements of the MPC.
       A successful plaintiff in a mandamus action is entitled to damages, even if
the failure to act is the result of an erroneous legal interpretation. 42 Pa. C.S. §
8303 (a person found to have failed or refused without lawful justification to
perform a legal duty is liable for damages to the person aggrieved by the failure or
refusal); Maurice A. Nernberg & Associates v. Coyne, 920 A.2d 967, 970 (Pa.
Cmwlth. 2007).         Section 2503 of the Judicial Code authorizes the award of
attorney’s fees and litigation costs for arbitrary and vexatious conduct. Having
concluded that common pleas did not err in granting the Motion, it did not abuse
its discretion in not awarding damages and/or attorney’s fees because Developer
was not a successful plaintiff in its Complaint. Common pleas did not find that



       9
          This Court “review[s] the trial court’s decision to deny mandamus damages for abuse of
discretion or legal error.” Maurice A. Nernberg & Associates v. Coyne, 920 A.2d 967, 969 n.3
(Pa. Cmwlth. 2007). “A denial of counsel fees under Section 2503 of the Judicial Code, 42 Pa.
C.S. § 2503, rests with the discretion of the trial court, and this Court reviews its denial for abuse
of discretion.” Id.

                                                 11
Township failed or refused to perform a ministerial duty required by law and did
not direct Township to execute the Agreements as Developer requested.


      Accordingly, we affirm.


                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                      12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Big Bear Management Fund,            :
                                     :
                       Appellant     :
                                     :
           v.                        :   No. 802 C.D. 2015
                                     :
Lower Macungie Township              :



                                   ORDER



     NOW, March 10, 2016, the Order of the Court of Common Pleas of Lehigh
County, entered in the above-captioned matter, is AFFIRMED.



                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge
