           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Providence Props Inc.                           :
                                                :
               v.                               :   No. 933 C.D. 2018
                                                :   Argued: May 6, 2019
Limerick Township                               :
Board of Supervisors,                           :
                              Appellant         :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: May 31, 2019


               Appellant Limerick Township Board of Supervisors (Township)
appeals from an order of the Court of Common Pleas of Montgomery County (trial
court), dated June 1, 2018. The trial court, inter alia, granted Appellees Providence
Props Inc.’s (PPI)1 and Boyd Pennsylvania Partners, L.P.’s (Boyd)2 Petition to
Enforce Settlement Stipulation (Petition to Enforce). For the reasons set forth below,
we affirm the trial court’s order on alternative grounds.
               The relevant facts, which the parties do not appear to dispute, are as
follows. Chelsea Limerick Holdings LLC and PPI are the owners of certain real

       1
         Although identified in the notice of appeal as “Providence Props Inc.,” the parties refer
to Appellee as “Providence Properties, Inc.” in their briefs.
       2
         By order dated February 25, 2019, this Court granted Boyd’s petition to intervene and
permitted Boyd to participate in this appeal as an appellee.
property located south of the Route 422 Expressway at its interchange with
Evergreen Road in Limerick Township, Montgomery County (Property). The
Property consists of approximately 260.33 acres spanning across five individual
parcels.3 The Property is located in the LLI Limited Light Industrial Zoning District
(LLI District), which is governed by Article XXIII of the Township’s Zoning
Ordinance (Ordinance).         Included in Article XXIII of the Ordinance is
Section 184-163.1, which permits an Interchange Overlay option in the LLI District
as a conditional use, provided that the subject property meets certain specified
standards—i.e., the subject property is a minimum of 60 acres, the subject property
has at least one boundary along the right-of-way of the Route 422 Expressway, and
“[a]t least a portion of the [subject property] is within 1,800 feet of any portion of a
state-owned ramp of a limited access expressway.” Upon approval of an LLI
Interchange Overlay District as a conditional use, Article XXXI of the Ordinance,
which governs the LLI Interchange Overlay District, applies, and the subject
property can be developed for any of the following uses:
             A.     All permitted, special exception, and conditional
                    uses in the [LLI District] and [the RB Retail
                    Business District (RB District)].
             B.     Conference center.
             C.     Any use of the same general character as any of the
                    other uses permitted in this district.
Section 184-221 of the Ordinance.
             On March 21, 2005, PPI and the Association filed a Conditional Use
Application (Application) with the Township, seeking conditional use approval to
apply the Interchange Overlay option to the Property and “to use a portion of the

      3
         The trial court further characterized the Property as one condominium known as the
Chelsea Providence Condominium Association (Association).

                                            2
[Property] for the immediate development of a premium outlet shopping center and
for the future development of the remaining portions for other uses permitted [in]
the [LLI Interchange Overlay District].” (Reproduced Record (R.R.) at 88a.) The
Township conducted a hearing on the Application on June 21, 2005. Thereafter, on
August 2, 2005, the Township issued a decision and order, granting the Application
subject to certain enumerated conditions of approval. PPI appealed the Township’s
decision to the trial court, challenging the following conditions of the Township’s
approval:
            2.       Since the specific use of the remaining portion of
                     the [P]roperty is unknown at the present time, the
                     [Township] is unable to extend the grant of the
                     approval granted above to these areas. [PPI and the
                     Association] may, at a later date or dates, reopen
                     and amend this [A]pplication in order to present
                     supplemental evidence to justify the future
                     development of other portions of the [Property].
                     Such applications shall include information
                     regarding the proposed uses and their impacts of
                     such development upon traffic, runoff and other
                     major items of concern considered above for
                     development of Phase I.
                     ....
            8.       All road improvements required by [the
                     Pennsylvania Department of Transportation] to
                     serve the proposed uses on the [P]roperty shall be
                     installed at the sole cost of [PPI and the
                     Association] and will not be considered as “off-site”
                     improvements with regard to the impact fee
                     assessment . . . .
(R.R. at 95a-96a.)
            After PPI filed its appeal with the trial court, the matter remained
mostly inactive. During the period of inactivity, on April 10, 2008, the Township
amended Article XXXI of the Ordinance by adding Section 184-225.

                                           3
Section 184-225 of the Ordinance applies to mixed-use development within the LLI
Interchange Overlay District and sets forth certain standards that must be met if a
proposed development “includes a combination of either [three] or more
nonresidential uses . . . or [a] residential use plus [two] or more nonresidential uses.”
Subsequent thereto, on May 28, 2009, PPI and the Township entered into an
agreement to settle PPI’s appeal from the Township’s decision, which agreement
was approved by the trial court as a Settlement Stipulation and Order (Settlement
Agreement). The Settlement Agreement provided, in pertinent part, as follows:
             [T]he Conditional Use Decision of the [Township] dated
             August 2, 2005 is amended as provided hereinafter:
                          1. Except as modified herein, all provisions
                   of the [Township’s] Conditional Use Decision dated
                   August 2, 2005 remain in full force and effect.
                          2. The Conditional Use is approved for the
                   entire property (260.33 +/- acres), which is the
                   subject matter of [the Application].
                          3. [PPI and the Association] shall be
                   permitted the following uses:
                                a. Permitted uses in the [LLI District];
                                b. Permitted uses outlined in
                          § 184-221 [of the Ordinance] for approved
                          “conditional use parcels.”
                          ....
                          6. The [trial c]ourt shall keep continuing
                   jurisdiction of this matter to assure [sic] the
                   implementation of the terms of this Settlement
                   [Agreement].
                          7. This Settlement [Agreement] shall run
                   with the [Property].
(R.R. at 52a-53a.)
             At some point during the pendency of PPI’s appeal from the
Township’s decision, but before PPI and the Township entered into and the trial
                                           4
court approved the Settlement Agreement, Boyd purchased one of the five individual
parcels comprising the Property (Boyd Property) from PPI.                    Thereafter, on
December 4, 2017, TCT, LLC, which had entered into an agreement of sale with
Boyd to purchase the Boyd Property, sent a letter to the Township’s zoning officer,
requesting written confirmation that, inter alia, “[a] mixed[-]use project, as
referenced in Section 184-225 of the [Ordinance], is permitted to be developed on
the Boyd [Property] and without having to obtain an additional conditional use
approval.” (R.R. at 101a-02a.) By letter dated February 22, 2008, the Township’s
zoning officer advised TCT, LLC, inter alia:
              The Settlement Agreement limits the uses to be any use set
              forth in Section 184-221 of the [Ordinance].
              Section 184-225 (Mixed-use provision) is not included in
              the Settlement Agreement and therefore does not apply to
              the Boyd Property. A Conditional Use application
              proposing to opt into the Interchange Overlay option may
              be filed for the Boyd Property independent of the
              Settlement Agreement, but may be opposed by the
              Township because the property does not appear to meet
              the requirements of Section 184-163.1 of the [Ordinance].
(R.R. at 98a-99a.) Thereafter, on March 22, 2018, PPI and Boyd filed with the trial
court a petition to reinstate PPI’s appeal of the Township’s decision,4 a petition for
leave for Boyd to intervene in the matter, and the Petition to Enforce, ultimately
seeking, inter alia, an order from the trial court that a mixed-use project, as
referenced in Section 184-225 of the Ordinance, could be developed on the Property,
including the Boyd Property, pursuant to the terms and conditions of the Settlement




       4
          The trial court had previously terminated PPI’s appeal of the Township’s decision for
inactivity on January 27, 2012.


                                              5
Agreement.5 On May 21, 2018, the trial court heard argument on the petition to
reinstate and the petition to intervene and held a hearing on the Petition to Enforce.
By decision and order dated June 1, 2018, the trial court: (1) denied the petition to
reinstate PPI’s appeal of the Township’s decision but retained jurisdiction for
purposes of ruling on the Petition to Enforce; (2) granted Boyd’s petition for leave
to intervene; and (3) granted the Petition to Enforce. With respect to the Petition to
Enforce, the trial court reasoned as follows:
                     On April 10, 2008, the Township amended
              Article XXXI of the LLI Interchange Overlay District to
              add § 184-225 which provides for mixed-use provisions.
              As of the date that the [trial c]ourt [approved] the
              [Settlement Agreement], § 184-225 was in full force and
              effect in the LLI Interchange Overlay District.
              Accordingly, mixed[]uses were permitted as of the date of
              the [Settlement Agreement].           The language of
              [s]ubparagraph (C) of § 184-221 incorporates the
              mixed-use provisions set forth in § 184-225. Thus, these
              mixed uses were thereby incorporated and encompassed in
              [P]aragraph 3[(b)] of the [Settlement Agreement] which
              allows for the permitted uses outlined in § 184-221.
(Trial Ct. Decision at 7-8.) The Township appealed the trial court’s decision to this
Court, and the trial court directed the Township to file a statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
(Rule) 1925. In its Rule 1925(a) opinion, the trial court further reasoned:
              A simple reading of the plain language of
              subparagraph (C) of Article XXXI § 184-221 reveals that
              the mixed-use provisions delineated in Section [184-]225
              are permitted in the LLI Interchange Overlay District and
              are incorporated and encompassed in Paragraph 3(b) of the

       5
         PPI and Boyd also appealed the Township’s zoning officer’s February 22, 2008
determination to the Township. To this Court’s knowledge, the Township has not yet scheduled
a hearing on the matter due to PPI’s and Boyd’s request to hold the matter in abeyance pending
the outcome of this case.

                                              6
               [Settlement Agreement]. Specifically, Section [184-]225,
               under any reasonable interpretation, would be included
               under “any use of the same general character as any of the
               other uses permitted in this district.” Accordingly,
               Article XXXI § 184-225 of the [Ordinance] is available to
               the holder of the Boyd Property under the terms of the
               [Settlement Agreement].
                      Despite the disagreement of the parties over the
               interpretation of the [Settlement Agreement] and the
               [Ordinance], no ambiguity exists on the face of the
               [Settlement Agreement] or in the pertinent sections of the
               [Ordinance] when reading them in a normal, common
               sense fashion. Thus, this [trial] court cannot consult any
               extrinsic or parol evidence, such as testimony, for the
               purpose of determining the subjective intent of the parties
               with respect to the [Settlement Agreement]. Further,
               assuming arguendo there is an ambiguity in the
               [Ordinance] itself, any conflict in the pertinent language
               involved must be resolved in favor of Boyd, the
               landowner, and the least restrictive use of the land at issue.
               Reading the [Settlement Agreement] and the applicable
               [Ordinance] sections in the manner proposed by the
               Township would further restrict the use of the Boyd
               Property.
(Trial Ct. Rule 1925(a) Opinion at 7-8 (internal citations omitted).)
               On appeal to this Court,6 the Township argues that the trial court
committed an error of law by interpreting the Settlement Agreement to permit PPI
and Boyd to develop the Property utilizing the mixed-use provisions set forth in
Section 184-225 of the Ordinance. The gist of the Township’s argument appears to
be that the trial court should have limited its analysis to the permitted uses set forth
in Section 184-221 of the Ordinance but improperly expanded its analysis to include
Section 184-225 of the Ordinance, thereby disregarding the terms and conditions of

       6
         Contract interpretation is a question of law. Riverside Sch. Dist. v. Career Tech. Ctr. of
Lackawanna Cty., 104 A.3d 73, 76 (Pa. Cmwlth. 2014). “When the issues on appeal are questions
of law, the standard of review is de novo and the scope of review is plenary.” Douglass Vill.
Residents Grp. v. Berks Cty. Bd. of Assessment Appeals, 84 A.3d 407, 408 n.3 (Pa. Cmwlth. 2014).

                                                7
the Settlement Agreement. Alternatively, the Township argues that, to whatever
extent the Settlement Agreement is ambiguous and there is more than one reasonable
interpretation of the Ordinance and Settlement Agreement, the trial court committed
an error of law by failing to consider the testimony presented regarding the
subjective intent of the parties. In response, PPI and Boyd argue that Paragraph 3 of
the Settlement Agreement is unambiguous and clearly provides that the Property,
including the Boyd Property, can be developed for any of the permitted uses in the
LLI District or the LLI Interchange Overlay District, which includes a mixed-use
project, provided that any proposed development meets the standards set forth in
Section 184-225 of the Ordinance. PPI and Boyd further argue that, because the
terms of the Settlement Agreement are unambiguous, the trial court properly
disregarded all parol evidence.
              The enforceability of a settlement agreement is determined based on
the principles of contract law.               Mastroni-Mucker v. Allstate Ins. Co.,
976 A.2d 510, 517 (Pa. Super. 2009), appeal denied, 991 A.2d 313 (Pa. 2010).7
“The fundamental rule in contract interpretation is to ascertain the intent of the
contracting parties.” Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462,
480 (Pa. 2006). If the terms of the contract are clear and unambiguous, the intention
of the contracting parties must be ascertained from the express language of the
contract itself.      TIG Specialty Ins. Co. v. Koken, 855 A.2d 900, 908
(Pa. Cmwlth. 2004), aff’d, 890 A.2d 1045 (Pa. 2005). When, however, the contract
terms are ambiguous and are subject to more than one reasonable interpretation, the



       7
        While we recognize that Pennsylvania Superior Court cases are not binding on this Court,
such cases “offer persuasive precedent where they address analogous issues.” Lerch v.
Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).

                                               8
court can consider parol evidence to resolve any ambiguity. Amerikohl Mining, Inc.
v. Mount Pleasant Twp., 727 A.2d 1179, 1182 (Pa. Cmwlth. 1999).
             Here, the trial court is misguided in its reliance on Section 184-221(C)
of the Ordinance to support its conclusion that Paragraph 3(b) of the Settlement
Agreement permits the Property, including the Boyd Property, to be developed for a
mixed-use project under Section 184-225 of the Ordinance. Contrary to the trial
court’s reasoning and interpretation, Section 184-225 of the Ordinance does not
establish that a mixed-use project is a permitted use within the LLI Interchange
Overlay District. Rather, Section 184-225 of the Ordinance merely sets forth
additional standards that must be met if a mixed-use project is developed within the
LLI Interchange Overlay District. Thus, the trial court’s reasoning that a mixed-use
project is a permitted use within the LLI Interchange Overlay District pursuant to
Section 184-225 of the Ordinance and, therefore, that the Property, including the
Boyd Property, can be developed for a mixed-use project because Section 184-225
of the Ordinance is incorporated into Paragraph 3(b) of the Settlement Agreement
through Section 184-221(C) of the Ordinance is flawed.
             This does not mean, however, that the Settlement Agreement precludes
PPI and/or Boyd from developing the Property, including the Boyd Property, as a
mixed use. Section 3 of the Settlement Agreement clearly and unambiguously
provides that the Property can be developed for any of the “[p]ermitted uses in the
[LLI District]” or the “[p]ermitted uses outlined in [Section] 184-221 [of the
Ordinance] for approved ‘conditional use parcels.’” Pursuant to Section 184-221(A)
of the Ordinance, once a property has been approved for the LLI Interchange
Overlay District as a conditional use, the property can be used for “[a]ll permitted,
special exception, and conditional uses in the [LLI District] and [the RB District].”


                                         9
There are no provisions within Article XXIII of the Ordinance, governing the
LLI District, or Article XXX of the Ordinance, governing the RB District, that
specifically preclude a developer from employing a mixed-use project at a property
located within the LLI District or the RB District. In fact, Article XXX of the
Ordinance contemplates that a property located within the RB District could possibly
be developed for a mixed use.8 Thus, Paragraph 3(b) of the Settlement Agreement,
by its clear and unambiguous terms, establishes that a mixed-use project is permitted
to be developed on the Property, including the Boyd Property, because mixed-use
projects are permitted within the LLI Interchange Overlay District pursuant to
Section 184-221(A) of the Ordinance. For these reasons, we conclude that, while
the trial court’s reasoning is flawed, the trial court properly granted the Petition to
Enforce because the Settlement Agreement permits PPI, Boyd, or any other
subsequent owner of the Property, including the Boyd Property, to develop a
mixed-use project thereon.          In addition, because the terms of the Settlement
Agreement are clear and unambiguous, the trial court properly disregarded all parol
evidence pertaining to the intent of the parties.
               Accordingly, we affirm the trial court’s order on alternative grounds.




                                                P. KEVIN BROBSON, Judge




       8
         For example, pursuant to Section 184-214(A) of the Ordinance, a planned retail business
center, which is permitted within the RB District as a conditional use, “may include any use listed
as permitted by right in the RB District.”

                                                10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Providence Props Inc.                 :
                                      :
            v.                        :   No. 933 C.D. 2018
                                      :
Limerick Township                     :
Board of Supervisors,                 :
                        Appellant     :



                                    ORDER


            AND NOW, this 31st day of May, 2019, the order of the Court of
Common Pleas of Montgomery County is hereby AFFIRMED on alternative
grounds.




                                      P. KEVIN BROBSON, Judge
