              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James F. Martin, III and Renee Martin:
                                     :
                 v.                  :
                                     :
Zoning Hearing Board of West Vincent :
Township                             :
                                     :
                 v.                  :
                                     :
Marc Duey and Maureen Duey,          :      No. 686 C.D. 2019
                        Appellants   :      Submitted: March 24, 2020


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge

OPINION BY
JUDGE COVEY                                 FILED: April 29, 2020

             Marc Duey and Maureen Duey (the Dueys) appeal from the Chester
County Common Pleas Court’s (trial court) March 22, 2019 order that sustained the
appeal of intervenors James F. Martin, III and Renee Martin (the Martins), and
vacated the West Vincent Township (Township) Zoning Hearing Board’s (Board)
Opinion and Order (Order), which sustained the issuance of a violation notice to the
Dueys. There are three issues before this Court: (1) whether the Board properly
assumed jurisdiction over the Dueys’ appeal filed more than one year after the
violation notice’s issuance; (2) whether the Dueys waived all issues on appeal for
failure to serve their statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement)
on the trial judge; and (3) whether the trial court should have dismissed the Martins’
appeal as non-justiciable.
               Since 2008, the Dueys have owned the approximately 12.7 acres of land
located at 2105 Conestoga Road (Property), which is in an R-3 Residential District.
The Dueys used the Property for horseback riding, all-terrain vehicle riding, walking,
hiking and running, and permitted a neighbor to use the Property for horseback riding
and horse grazing. In 2014, the Dueys began constructing an obstacle course on the
Property to be used for charitable events. The Dueys advised the Township about the
planned Property use and inquired whether there was a limit to the number of
individuals they could have on the Property. The Township did not respond to the
Dueys’ inquiry, but warned that if the proposed obstacle course use was for a
commercial purpose and the Dueys charged a fee, such use would violate the
Township’s Zoning Ordinance1 (Ordinance). Rather than charge a fee, the Dueys
asked those who used the Property to make a donation to a non-profit of their choice
in exchange for access to the Property. As a result, various non-profit organizations
received donations from individuals who used the Property.
               On December 5, 2015, CrossFit Proven Gym held an event on the
Property to raise money for 22 Until None, a non-profit organization that brings
awareness to veterans’ suicides. The Dueys did not charge admission and did not
receive compensation for CrossFit Proven Gym’s use.                  Moreover, although
participant donations were not required at the event, some participants donated to 22
Until None. The Township’s Zoning Officer (Zoning Officer) visited the Property on
December 5, 2015. On December 9, 2015, the Zoning Officer issued a Zoning
Officer Determination, Enforcement Notice and Cease and Desist Order (2015
Enforcement Notice) asserting that the Dueys violated Sections 501 and 503 of the
Ordinance (relating to purposes and use regulations in an R-3 Residential District),
and various provisions of Sections 2102 and 2014 of the Ordinance (pertaining to


      1
          Township Zoning Ordinance 2010, as amended December 23, 2013.
                                              2
parking, access, screening and design requirements). See Reproduced Record (R.R.)
at 16a-19a. In response, the Dueys ceased the allegedly objectionable activities on
the Property and did not appeal from the 2015 Enforcement Notice.
               On January 9, 2016, the Dueys permitted an online Facebook group to
use the Property to raise funds for a Bucks County non-profit corporation’s anti-
bullying campaign (January 9, 2016 Event). The Dueys did not charge admission or
receive compensation for the group’s Property use. Donations were not required, and
there was no preregistration or prepayment. On March 22, 2016, the Zoning Officer
issued a Notice of Violation (2016 Enforcement Notice) to the Dueys for various
Ordinance violations pertaining to the Property’s use and the January 9, 2016 Event.
After receiving the 2016 Enforcement Notice, the Dueys ceased all events on the
Property.
               Thereafter, the Dueys worked with the Township to negotiate a
settlement of the 2016 Enforcement Notice, initially requesting (within 30 days of the
2016 Enforcement Notice) that the Township agree to extend the period to appeal
from the 2016 Enforcement Notice. The Township’s Solicitor agreed to extend the
Dueys’ appeal time, and consented to subsequent appeal period extensions from the
2016 Enforcement Notice during the settlement negotiations. See R.R. at 1047a. On
March 29, 2017, more than a year after issuance of the 2016 Enforcement Notice, the
Dueys appealed from the 2016 Enforcement Notice to the Board.
               The Board held numerous hearings between May 31, 2017 and
November 30, 2017. The Martins appeared with counsel at the hearings in support of
the 2016 Enforcement Notice, were granted party status,2 and participated by
testifying, presenting evidence and cross-examining witnesses. During the hearings,
the Martins’ counsel argued that the Dueys’ appeal should be dismissed as untimely,


      2
          See R.R. at 44a-45a.
                                          3
since it was filed more than a year after the 2016 Enforcement Notice’s issuance, and
the Township was without authority to extend the appeal period. See R.R. at 68a.
Notwithstanding the Martins’ arguments, the Board assumed jurisdiction. See R.R. at
77a.
            On January 30, 2018, the Board issued the Order. Therein, the Board
addressed the untimely filing argument, explaining:

            The [Dueys] engaged in discussion with the Township in
            the [30]-day period following [issuance of] the 2016
            [Enforcement] Notice. In that time, representatives of the
            Township made statements that led the [Dueys] to believe
            their appeal could be postponed beyond the [30]-day period
            following the issuance of the [2016 Enforcement N]otice.
            But for these actions on behalf of the Township, it is likely
            the [Dueys] would have filed their appeal with the Board in
            the requisite time. Thus, the doctrine of variance by
            estoppel and other equitable principles indicate the appeal
            of the 2016 [Enforcement] Notice beyond the specified
            [30]-day period should be allowed.

R.R. at 1074a-1075a.
            The Board ultimately denied the Dueys’ appeal and sustained the 2016
Enforcement Notice, concluding that the January 9, 2016 Event was for a prohibited
commercial recreational purpose. Notwithstanding, the Board declared:

            The Board does not find this means the [Dueys] must cease
            use of the obstacle course on the Property. Rather, the
            Board finds the [Dueys] may only use the Property and the
            obstacle course thereon for recreational use and other
            permitted uses as specified in the . . . Ordinance, Article V,
            Section 503(A), and not for commercial recreational use.

R.R. at 1081a.
            On March 1, 2018, the Martins appealed to the trial court (Martins’
Appeal) arguing that, because the Dueys’ appeal to the Board was untimely, the 2016
Enforcement Notice was binding and unassailable, and the Board improperly


                                          4
assumed jurisdiction.       The Dueys and the Township intervened in the Martins’
Appeal. On April 30, 2018, the Board filed a motion to quash the Martins’ Appeal
(Motion), contending that, since the Martins prevailed below, they were not
aggrieved by the Board’s Order. The Township and the Dueys joined in the Motion.
On August 21, 2018, the trial court dismissed the Motion without prejudice. By
March 22, 2019 order, the trial court sustained the Martins’ Appeal, vacated the
Board’s Order, and held that the 2016 Enforcement Notice and the violations alleged
therein were binding and unassailable due to the Dueys’ late-filed appeal to the
Board. The Dueys appealed to this Court.3
              By April 22, 2019 order, the trial court directed the Dueys:

              [T]o file of record and serve upon the [trial court judge]
              [their Rule 1925(b) Statement] . . . . The [Rule 1925(b)]
              Statement must be served upon the [trial court judge]
              pursuant to [Rule] 1925(b)(1).        The [Rule 1925(b)]
              Statement must be filed and served no later than twenty-one
              (21) days from the date of the entry on the docket of this
              Order. Any issue not properly included in the [Rule
              1925(b)] Statement timely filed and served pursuant to
              [Rule] 1925(b) shall be deemed waived.

R.R. at 1275a.
              On May 13, 2019, the Dueys filed their Rule 1925(b) Statement with the
trial court, attached to which was a certificate indicating service was made on all
parties and the trial court. Notwithstanding, in a May 23, 2019 Order in Lieu of Rule
1925(a) Opinion (May 23, 2019 Order), the trial court noted that, although the Rule
1925(b) Statement had been filed with the trial court, the Dueys had not served the
trial court judge as ordered. The trial court urged this Court to find that the Dueys


       3
          “In an appeal from a trial court’s decision in a zoning enforcement proceeding, our review
is limited to determining whether the trial court committed an abuse of discretion or error of law.”
Loganville Borough v. Godfrey, 59 A.3d 1149, 1151 n.4 (Pa. Cmwlth. 2012).


                                                 5
had waived all issues and to quash the Dueys’ appeal. On July 24, 2019, this Court
ordered the parties to address in their briefs whether the Dueys preserved any issues
for appeal.
               Initially, the law is well-established that “[i]f an adjudicative body
below lacks subject matter jurisdiction, an appellate court does not acquire
jurisdiction by an appeal.” Pa. Higher Educ. Assistance Agency v. Lal, 714 A.2d
1116, 1118 (Pa. Cmwlth. 1998) (PHEAA) (emphasis added); see also Pa. Nat’l
Guard v. Workmen’s Comp. Appeal Bd., 437 A.2d 494 (Pa. Cmwlth. 1981).
Consequently, if the Board lacked jurisdiction to hear the Dueys’ appeal, the trial
court did not have jurisdiction to hear the Martins’ Appeal and, thus, this Court would
not have jurisdiction to decide the instant appeal. Because “[a] court’s jurisdiction is
a threshold issue . . . ,” McCutcheon v. Philadelphia Electric Co., 788 A.2d 345, 349
(Pa. 2002),4 this Court must first determine whether it has jurisdiction over the instant
appeal. Accordingly, the first issue we must address is whether the Board had
jurisdiction over the Dueys’ appeal.
               At the outset,

               [t]he issue of subject matter jurisdiction may be raised by
               the parties at any stage of the proceedings or by the court
               sua sponte.[5] Lack of subject matter jurisdiction of a
               court or administrative tribunal to act in a matter is an
               issue that neither can be waived by the parties, nor can
               the parties confer subject matter jurisdiction on a court
               or tribunal by agreement or stipulation.




       4
          See also Adams v. Dep’t of Health, 967 A.2d 1082, 1086 n.7 (Pa. Cmwlth. 2009) (This
Court need not consider a motion to dismiss the appeal for mootness “in light of our disposition on
the threshold issue of subject matter jurisdiction.”).
        5
          Even where a party fails to raise the issue, “‘it is still the affirmative duty of [a c]ourt to
consider the issue of subject matter jurisdiction.’” Stake v. Metzger, 681 A.2d 1345, 1346 (Pa.
Super. 1996) (quoting Commonwealth v. Lewis, 431 A.2d 357, 358 (Pa. Super. 1981)).
                                                   6
Greenberger v. Pa. Ins. Dep’t, 39 A.3d 625, 629 n.5 (Pa. Cmwlth. 2012) (citation
omitted; bold and underline emphasis added); see also Zuver v. Workers’ Comp.
Appeal Bd. (Browning Ferris Indus. of Pa., Inc.), 755 A.2d 112, 114 (Pa. Cmwlth.
2000) (“As with any issue going to the subject matter jurisdiction of an administrative
tribunal to act, the parties cannot confer subject matter jurisdiction on a tribunal by
agreement or stipulation.”). Thus “[w]here an act of assembly fixes the time within
which an appeal may be taken, courts have no power to extend it, or to allow the act
to be done at a later day, as a matter of indulgence.” Julia Ribaudo Senior Servs. v.
Dep’t of Pub. Welfare, 969 A.2d 1184, 1188 (Pa. 2009). Pursuant to Section 914.1(b)
of the Pennsylvania Municipalities Planning Code (MPC),6 “[a]ll appeals from
determinations adverse to the landowners shall be filed by the landowner within 30
days after notice of the determination is issued.” 53 P.S. § 10914.1(b)7 (emphasis
added).
              The Martins contend that, since the Township’s Solicitor was without
authority to extend the Dueys’ appeal deadline, the Board lacked subject matter
jurisdiction over the Dueys’ untimely appeal. The Martins cite Kocher v. Zoning
Hearing Board of Wilkes-Barre Township (Pa. Cmwlth. No. 81 C.D. 2015, filed
February 9, 2016), and Rothrock v. Zoning Hearing Board of South Whitehall
Township (Pa. Cmwlth. No. 2127 C.D. 2007, filed September 8, 2008), to support
their position.8
              In Kocher, the township zoning enforcement officer issued a December
12, 2013 enforcement letter to Kocher, an auto body shop owner, for expanding his


       6
         Act of July 31, 1968, P.L 805, as amended, 53 P.S. §§ 10101-11202.
       7
         Added by Section 95 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10914.1.
       8
         This Court’s unreported memorandum opinions may only be cited “for [their] persuasive
value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).


                                              7
business without complying with the township’s zoning ordinance, and notified
Kocher that he had 30 days to appeal. By January 10, 2014 letter, postmarked on
January 13, 2014, Kocher’s counsel notified the township zoning enforcement officer
that, if the enforcement letter was a formal decision, then counsel’s letter would
constitute an enforcement notice appeal. The township zoning enforcement officer
received Kocher’s counsel’s letter on January 14, 2014, and, the next day, informed
Kocher’s counsel that the appeal was untimely.
            Notwithstanding, pursuant to a discussion with the township solicitor,
the township zoning enforcement officer granted Kocher an additional five days to
appeal to the zoning hearing board. After a hearing, the zoning hearing board upheld
the December 12, 2013 enforcement letter. Kocher appealed to the common pleas
court, which considered the appeal de novo, took additional testimony, and affirmed
the zoning hearing board’s decision. Thereafter, Kocher appealed to this Court.
            The Kocher Court held:

            We cannot reach these issues because, as we noted earlier,
            Kocher’s appeal to the [zoning hearing board] was
            untimely. Section 914.1(b) of the MPC . . . provides that
            ‘[a]ll appeals from determinations adverse to the
            landowners shall be filed by the landowner within 30 days
            after notice of the determination is issued.’ . . .
            Statutory appeal periods are mandatory and may not be
            extended as a matter of grace or mere indulgence. Appeals
            filed beyond the appeal period are untimely and deprive the
            reviewing tribunal of subject matter jurisdiction over the
            appeals. Questions of subject matter jurisdiction may be
            raised at any time, even on appeal, by the parties, or by the
            court on its own motion. By permitting Kocher to file a late
            appeal, the [zoning hearing board], through [the township
            zoning enforcement officer], enlarged the appeal period,
            thereby extending to itself jurisdiction it would not
            otherwise have. Although Kocher’s counsel filed his appeal
            just one day late, the late filing is a jurisdictional defect that
            appellate courts may not overlook. Common pleas’ review
            was a nullity as the [zoning hearing board] lacked
                                            8
            jurisdiction over Kocher’s initial appeal and we must
            therefore vacate that [o]rder and the [zoning hearing
            board’s] decision accordingly.

Kocher, slip op. at 6-8 (emphasis added; citations and footnotes omitted).
            In Rothrock, the zoning enforcement officer issued an August 9, 2005
enforcement notice alleging that Rothrock’s sign violated the zoning ordinance. On
December 21, 2005, Rothrock filed an untimely appeal to the zoning hearing board.
By agreement, no objection was made to Rothrock filing an appeal nunc pro tunc.
On March 9, 2007, after a hearing, the zoning hearing board denied Rothrock’s
appeal. Rothrock timely appealed to the trial court which, on October 17, 2007,
affirmed the zoning hearing board’s order. Rothrock appealed to this Court.
            The Rothrock Court explained:

            As a preliminary matter, this Court must first address
            jurisdiction and Rothrock’s ‘nunc pro tunc’ appeal to the
            [zoning hearing b]oard. It is well-settled that issues of
            subject matter jurisdiction cannot be waived and may be
            raised by a party for the first time on appeal or sua sponte
            by the court. Jurisdiction of the subject matter cannot be
            acquired by a court through consent, waiver, or estoppel of
            the parties.
            The failure to timely appeal an administrative agency’s
            action is a jurisdictional defect. The time for taking an
            appeal cannot be extended as a matter of grace or mere
            indulgence. The appellant must justify the delay in filing
            the appeal. An appeal nunc pro tunc may be permitted, but
            only where the appellant proves that the delay in filing the
            appeal was caused by extraordinary circumstances
            involving fraud or some breakdown in the administrative
            process or non-negligent circumstances related to the
            appellant or counsel or a third party. The appellant must
            also establish that (1) the appeal was filed within a short
            time after learning of and having an opportunity to address
            the untimeliness; (2) the elapsed time period is of very short
            duration; and (3) the appellee is not prejudiced by the delay.
            Here, the zoning enforcement notice was mailed to
            Rothrock on August 19, 2005. The appeal period is thirty
                                          9
             (30) days after notice has been served. Rothrock filed its
             notice of appeal on December 21, 2005, which was well
             beyond the appeal period and therefore late. The notice of
             appeal itself acknowledges that it was not filed on a timely
             basis, but asserts that it was agreed by counsel on both sides
             that the request for an interpretation could be made on a
             nunc pro tunc basis. As stated above, jurisdiction of the
             subject matter cannot be acquired by the hearing tribunal
             through the consent of the parties. There is no assertion that
             the delay in filing was caused by any extraordinary
             circumstances warranting an appeal nunc pro tunc. The
             record is void of any evidence which could support an
             appeal nunc pro tunc. As a result, the [zoning hearing
             b]oard lacked jurisdiction to hear Rothrock’s untimely
             appeal. Likewise, this Court lacks jurisdiction to consider
             the merits of Rothrock’s appeal.

Rothrock, slip op. at 4-6 (citations omitted).
             The Dueys discount Kocher and Rothrock as lacking precedential value,
and cite to Union Electric Corp. v. Board of Property Assessment, Appeals & Review
of Allegheny County, 746 A.2d 581 (Pa. 2000). The Dueys respond that “[o]ur
Supreme Court . . . has held that, where a government entity represents that it has
extended the time in which to appeal, that promise must be honored by the courts
even where it was improvidently made[.]” Dueys’ Br. at 17 (bold and italic emphasis
omitted).
             In Union Electric, property owners attempted to challenge real estate
assessment notices for their property. Although the owners were prepared to timely
appeal to the county board of property assessment, appeals and review (County
Board), the County Board issued an order extending the time for filing tax assessment
appeals, and the property owners filed their appeal in accordance with that order, but
beyond the time permitted by the relevant statute. The County Board held hearings,
and the property owners received a tax assessment reduction.          Nonetheless, the
property owners appealed from the decisions to the common pleas court. The school
district filed motions to quash on the basis that the appeals to the County Board were

                                           10
untimely. The common pleas court granted the motions to quash. On appeal, this
Court affirmed on the basis that the County Board did not have authority to extend
the appeal filing deadline.     On further appeal, the Pennsylvania Supreme Court
explained:

             Allowing an appeal nunc pro tunc is a recognized exception
             to the general rule prohibiting the extension of an appeal
             deadline. This Court has emphasized that the ‘principle
             emerges that an appeal nunc pro tunc is intended as a
             remedy to vindicate the right to an appeal where that right
             has been lost due to certain extraordinary circumstances.’
             Commonwealth v. Stock, . . . 679 A.2d 760, 764 ([Pa.]
             1996). Generally, in civil cases, an appeal nunc pro tunc is
             granted only where there was ‘fraud or a breakdown in the
             court’s operations through a default of its officers.’ Bass [v.
             Commonwealth], . . . 401 A.2d [1133,] 1135 [(Pa. 1979).]

Union Elec., 746 A.2d at 584.
             Finding that nunc pro tunc relief was appropriate, the Union Electric
Court concluded:

             [T]here is a breakdown in the court’s operations where an
             administrative board or body is negligent, acts improperly
             or unintentionally misleads a party. Thus, where an
             administrative body acts negligently, improperly or in a
             misleading way, an appeal nunc pro tunc may be warranted.
             Here, the [County] Board extended the filing deadline for
             tax assessment appeals in contravention of [the relevant
             statute]. The [County] Board acted without authority, in
             violation of express statutory language, and misled [the
             property owners] into believing that they had the ability to
             extend the filing deadline. Moreover, the [County] Board
             was cloaked with the apparent authority to extend the
             deadline because it was the governmental reviewing body
             before which the appeals were filed and the [property
             owners] reasonably relied on this appearance of
             authority. Under these circumstances, we find that the
             [County] Board’s negligent action in extending the filing
             deadline constitutes a breakdown in the court’s operations


                                           11
             such that [the property owners’] appeals should be
             permitted nunc pro tunc.

Id. (bold and italic emphasis added).
             Relying on Union Electric, the Dueys argue that they

             relied on the representations of Township officials that the
             time to appeal would be tolled during their good faith
             negotiations toward settlement. The trial court was bound
             to honor that government representation or grant allowance
             of appeal nunc pro tunc - which, because a hearing has
             already been held, amounts to the same thing.

Dueys’ Br. at 19.
             The Township’s Solicitor, acting on the Township’s behalf, agreed to
extend the Dueys’ Board filing deadline. However, the “governmental reviewing
body” in this case was the Board, not the Township. Union Elec., 746 A.2d at 584
(emphasis added). Thus, unlike in Union Electric, the Township’s Solicitor “was
[not] cloaked with the apparent authority to extend the deadline because [the
Township] was [not] the governmental reviewing body before which the appeals
were filed [such that] [the Dueys] reasonably relied on this appearance of authority.”
Union Elec., 746 A.2d at 584. Further, the Dueys were represented by counsel in
their communications, see R.R. at 1014a-1015a, who could not have reasonably
relied on the Township’s Solicitor’s representations when such were contrary to the
well-established legal precedent that “parties [may not] confer subject matter
jurisdiction on a court or tribunal by agreement or stipulation.” Pennsylvanians for
Union Reform v. Ctr. Cty. Dist. Attorney’s Office, 139 A.3d 354, 356 (Pa. Cmwlth.
2016). Accordingly, Union Electric is inapposite.
             Thus, consistent with this Court’s Kocher and Rothrock decisions, and in
accordance with PHEAA, this Court holds that since the Board lacked jurisdiction to
decide the matter in the first instance, the trial court lacked jurisdiction over the
appeal.   Although the trial court properly concluded that the Board lacked

                                         12
jurisdiction, because it also lacked jurisdiction, see PHEAA, the trial court should
have quashed the Martins’ Appeal and vacated the Board’s Order, rather than
deciding the matter. See In the Interest of K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007)
(“An appeal is [properly] ‘quashed’ when the court lacks jurisdiction over the appeal
in the first instance.”).
              For all of the above reasons, the Dueys’ appeal is quashed, the trial
court’s order is vacated, and the matter is remanded to the trial court with direction to
vacate the Board’s Order and to quash the appeal therefrom.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James F. Martin, III and Renee Martin:
                                     :
                 v.                  :
                                     :
Zoning Hearing Board of West Vincent :
Township                             :
                                     :
                 v.                  :
                                     :
Marc Duey and Maureen Duey,          :       No. 686 C.D. 2019
                        Appellants   :


                                      ORDER

            AND NOW, this 29th day of April, 2020, the appeal of Marc Duey and
Maureen Duey is quashed, the Chester County Common Pleas Court’s (trial court)
March 22, 2019 order is vacated, and the matter is remanded to the trial court with
direction to vacate the West Vincent Township Zoning Hearing Board’s January 30,
2018 Order for lack of jurisdiction and to quash the appeal therefrom.
            Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
