           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Re: Appeal of Marple Newtown        :
School District from the Determination
                                    :
of the Board of Assessment Appeals of
                                    :
Delaware County, Pennsylvania       :
Regarding Date of Breach of Covenant:
Relating to the Properties Located at the
                                    :              No. 506 C.D. 2018
Intersection of Route 252 and Goshen:              ARGUED: March 14, 2019
Road, Newtown Township, County of   :
Delaware, Pennsylvania Owned by     :
Ashford Land Company, LP            :
                                    :
Appeal of: Ashford Land Company, LP :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge (P.)
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: April 15, 2019

       Ashford Land Company, LP (Ashford) appeals from the April 4, 2018 order
of the Court of Common Pleas of Delaware County (Trial Court) which overruled a
determination of the Delaware County (County) Board of Assessment Appeals
(BOAA) that Ashford breached its Act 5151 Open Spaces Covenant (Covenant) on
October 26, 2012, the date upon which Ashford submitted a development plan with
the County Recorder of Deeds for purposes of subdividing four pieces of real


       1
         Act of January 13, 1966, P.L. 1292, as amended, 16 P.S. §§ 11941 – 11947. Act 515,
colloquially known as the Clean and Green Act, permits counties to covenant with landowners for
the preservation of land in farm, forest, water supply, or open space uses in exchange for
preferential tax treatment.
property (collectively “Properties”) that were subject to the Covenant. Following a
tax assessment appeal filed by Marple Newtown School District (District),2 the Trial
Court determined that Ashford breached the Covenant on April 7, 2010, the date
Ashford purchased the Properties.            After careful review, we affirm with the
modification addressed below.
                                        Background
       The relevant facts are not in dispute and the sole point of contention between
the District and Ashford is the date upon which Ashford breached the Covenant.
       Section 3 of Act 515 permits counties to enter into covenants with owners of
land designated as farm, forest, water supply, or open space land. 16 P.S. § 11943.
The owner of land subject to such a covenant is granted a reduced real estate tax
assessment that reflects the restrictions of the covenant. Id. Section 6(a) of Act 515
provides that a covenant is breached if the use of the land subject to the covenant is
altered to any other use than that designated in the covenant. 16 P.S. § 11946(a).
As penalty for breach of the covenant, Section 6(a) provides that the landowner must
pay to the county liquidated damages in the form of rollback taxes. Id. These
rollback taxes are calculated as the difference between the amount of taxes paid
under the covenant and the amount of taxes that would have been paid in its absence,
plus interest. Id. Rollback taxes are assessed for each year of the covenant up
through the date of its breach or for the five years prior to the date of the breach,
whichever period is shorter. Id. Section 5 requires that each county establish
procedures governing covenants between land owners and counties for the
preservation of land in the uses covered by Act 515. 16 P.S. § 11945. To that end,

       2
          The District is a taxing district as defined in Section 8802 of the Consolidated County
Assessment Law (CCAL). 53 Pa.C.S. § 8802. Pursuant to Section 8855, a taxing district has the
right to appeal any tax assessment within its jurisdiction. 53 Pa.C.S. § 8855.


                                               2
the County promulgated the County Covenant Plan for the Preservation of Land in
Farm, Forest, Water Supply, or Open Spaces (County Plan).
      The purpose of the County Plan is set forth in Article I, as follows:
             In order to preserve environmentally sensitive areas of
             cultural, recreational, and historic value, and in order to
             promote orderly growth, [Act 515] enables [the County]
             to covenant with landowners to retain land in low intensity
             uses: farm, forest, water supply, or open space uses.

Reproduced Record (R.R.) at 32a.
      The Properties are located in Newtown Township (Township), Delaware
County, Pennsylvania. R.R. at 10a. On November 25, 1977, John E. du Pont (then-
owner of the Properties) and the County executed a Covenant pursuant to Act 515.
R.R at 10a-19a. The provisions of the Covenant granted the Properties preferential
tax treatment so long as the Properties were used as farmland. Id. at 11a. Farm land
is defined in Article II, Section 1 of the County Plan as “[a]ny tract or tracts of land
in common ownership of at least twenty (20) acres in area, used for the raising of
livestock or the growing of crops.” Id. at 33a. Paragraph 3 of the Covenant requires
the BOAA to fix the real property assessments of the Properties, taking into
consideration the restrictions upon the land. Id. at 11a.
      Du Pont further agreed he would “not commit any act whereby the
[Properties] or any part thereof would be used in a manner inconsistent with the
[County Plan] and/or whereby the [Properties] would become ineligible for open
space covenanting with the County under said [County Plan], and in particular under
Article III, ‘Lands Ineligible for Covenants’ thereof.” Id. at 10a. Additionally,
alteration of the use of the land “to any use other than as covenanted,” or any other
breach of the covenants or agreements set forth in the Covenant constitutes a breach
thereof. Id. at 11a.


                                           3
      Pertinently, Article III, Section 3 of the County Plan provides that any tract of
land which is subject to a subdivision or development proposal within five years
prior to application for preferential tax treatment is ineligible for open space
covenanting. Id. at 36a. A subdivision or development proposal may be evidenced
by final approval of a subdivision or land development plan. Id. Lands which owner
contemplated development within one year prior to application for preferential tax
treatment are likewise ineligible for open space covenanting under Article III,
Section 4 of the County Plan. Id. at 37a. Such development may be evidenced by
negotiations, discussion, or request for consideration with a municipal planning
commission. Id.
      Paragraph 7 of the Covenant provides that any citizen of the County or any
taxing district within which the Properties are located may notify the County of an
alleged breach of the Covenant. R.R. at 13a-14a. In the event of a breach, the
County shall give written notice to the landowner that the Covenant is terminated,
with liquidated damages imposed accordingly. Id. at 14a. The landowner may
appeal to the BOAA, which may take testimony and receive evidence concerning
the breach, as well as make any independent investigation as it deems appropriate.
Id. The BOAA is not bound by formal rules of evidence and the decision of the
BOAA concerning the breach “shall be final from which no appeal may be taken.”
Id.
      Negotiations for a sale of the Properties by du Pont to Ashford began in 1998-
99. Notes of Testimony (N.T.), 8/8/17, at 10. On November 21, 2007, Ashford filed
a subdivision and land development plan with the Township Board of Supervisors.
R.R. at 879a. On April 4, 2008, Ashford entered into an agreement of sale to
purchase the Properties from du Pont. R.R. at 569a. Paragraph 13.1.2 of the sales



                                          4
agreement provided notice that the Properties were subject to the Covenant, which
would be breached or terminated “[a]t or prior to closing,” unless Ashford requested
otherwise in writing. Id. at 589a. Payment of rollback taxes from the period
beginning January 1, 2007, and thereafter, would be shared by the parties. Id.
       A supplemental sales agreement was executed between du Pont and Ashford
on March 25, 2010. R.R. at 788a. Paragraph 1(f) of the supplemental sales
agreement specified that the Properties were conveyed subject to the Covenant and
Ashford would be solely responsible for payment of any rollback taxes resulting
from a breach of the Covenant. Id. at 789a. Deed to the Properties transferred from
du Pont to Ashford on April 7, 2010. Id. at 799a. Ashford’s November 21, 2007
subdivision and land development plan was revised October 15, 2010 and
conditionally approved by the Township on July 11, 2011. Id. at 879a, 886a.
       On October 26, 2012, Ashford filed its final subdivision and land development
plan for the Properties with the County Recorder of Deeds. R.R. at 834a. Ashford
conveyed portions of the Properties to the Liseter Community Association on March
27, 2013. Id. at 814a. By letter dated October 15, 2013, the District notified the
County that it believed the Covenant had been breached. Id. at 40a. The District
requested that the County initiate the procedures set forth in Paragraph 7 of the
Covenant, relating to breach of the Covenant. Id. In a subsequent letter dated
November 12, 2013, the District asserted its position that the Covenant was breached
no later than April 7, 2010, the date Ashford acquired title to the Properties. Id. at
43a.
       In a letter dated February 5, 2014, the BOAA notified Ashford that the
Covenant was breached when Ashford recorded a “planned development” for the
Properties. R.R. at 53a. As a consequence, the preferential tax assessment granted



                                          5
the Properties was removed and rollback taxes in the amount of $436,672.28 were
owed. Id. The February 5, 2014, letter did not specify the date upon which the
breach occurred, however it noted that a “standard assessment” was imposed on the
Properties for the 2013 tax year. Id.
      The District appealed the BOAA’s assessment to the Trial Court, which issued
an order on June 29, 2015, remanding the matter to the BOAA to take additional
evidence and determine if, and when, the Covenant was breached, since that specific
information was not provided in the BOAA’s February 5, 2014 letter to Ashford.
R.R. at 91a. A remand hearing took place on August 21, 2015, at which the parties
presented argument but no testimony. BOAA Decision, March 9, 2017, Conclusions
of Law Nos. 13-14. No court reporter was present for the August 21, 2015 hearing.
BOAA Conclusion of Law No. 14. On August 2, 2016, the BOAA issued a
determination that the Covenant was breached on October 26, 2012. Id. at 147a.
The District appealed this determination to the Trial Court, which ordered a second
remand to the BOAA for purposes of preparing findings of fact and conclusions of
law to support its determination that the Covenant was breached on October 26,
2012. Id. at 431a.
      On March 9, 2017, the BOAA issued its findings of fact and conclusions of
law. The BOAA noted that the only evidence of a change in the “state” of the
Properties was the recording of Ashford’s subdivision and land development plan
on October 26, 2012. BOAA Conclusion of Law No. 17. In the absence of evidence
that the Properties were no longer maintained in the use for which the lands were
covenanted, the BOAA concluded the Covenant was breached on October 26, 2012.
BOAA Conclusion of Law No. 18.




                                        6
      The District appealed to the Trial Court, which conducted a de novo non-jury
trial on October 13, 2017. Ashford presented the testimony of John Rouse, a
developer and prior owner of Ashford who negotiated the purchase of the Properties
from du Pont. The parties agreed to enter additional testimony from Mr. Rouse taken
by deposition on August 8, 2017, and the deposition testimony of Ashford’s
corporate designee, Brian Thierrin.
      Mr. Rouse testified that Ashford began negotiating a purchase of the
Properties from du Pont in 1998 or 1999. N.T., 8/8/17, at 9. Plans to develop the
Properties commenced four years later when Mr. Rouse began submitting plans to
the township. Id. at 16. At the time of Ashford’s purchase of the Properties on April
7, 2010, the Properties consisted primarily of farmland. Id. at 16. Approximately 6
or 7 barns were located on the Properties along with at least 20 horses. Id. The
horses were removed from the Properties after Ashford acquired them on April 7,
2010. Id. at 25. Prior to Ashford’s acquisition of the Properties, there was hay
growing on the Properties which was harvested by an unnamed farmer pursuant to
an agreement between the farmer and du Pont. Id. at 26. After the Properties
transferred to Ashford, Mr. Rouse brought in a different farmer to harvest the hay
two or three times per year, as it was not possible to survey the Properties “with all
the [hay] that was growing.” Id. at 26, 30. Mr. Rouse could not remember the name
of either farmer. Id. at 27. Once cut, the hay was removed from the Properties and
used as feed for the farmer’s cattle. Id. at 26-27. No money was exchanged in this
arrangement. Id. at 27-28. The hay was not planted by Ashford, but rather grew on
its own. Id. at 27. Mr. Rouse likened it to a lawn or weeds. Id.
      Mr. Rouse testified that he visited the Properties every day throughout the
years 2010-12. N.T., 10/13/17, at 42. On November 26, 2012, Rouse Group sold



                                          7
Ashford to another developer, Toll Brothers. Id. at 35. Mr. Rouse continued to visit
the property on a weekly basis after Ashford was acquired by Toll Brothers. Id. at
42. Demolition of buildings located on the Properties commenced shortly after Toll
Brothers settled on the Properties. N.T., 8/8/17, at 19-20. Mr. Rouse testified that
hay was last harvested from the Properties at some point after November 2012. N.T.,
10/13/17, at 35.
       Mr. Rouse identified several aerial photographs taken of the Properties which
purported to establish the state of the Properties on various dates. N.T., 10/13/17,
Ex. No. 4. A photograph dated September 10, 2012 showed the presence of a main
house, several barns and outbuildings, and open space. Id. Mr. Rouse testified hay
grew in the open space. N.T., 10/13/17, at 32. The open space identified in the
September 10, 2012 photograph was still apparent in a photograph dated November
17, 2012, but demolition of the main house had commenced. Id., Ex. No. 4. By
February 15, 2013, the grassy areas of the open space were converted to bare ground
and several more buildings on the Properties had been demolished. Id.
       Brian Thierrin, a senior vice president of Toll Brothers, testified by video
deposition on July 20, 2017. Mr. Thierrin appeared as Ashford’s corporate designee,
however, his testimony regarding the condition of the Properties was limited to the
fall of 2011 and thereafter, during which Toll Brothers negotiated and finalized its
acquisition of Ashford. N.T., 7/20/17, at 30. Mr. Thierrin visited the Properties
approximately once a month during that time. Id. He noted the presence of “a
couple” of horses3 and farming equipment such as tractors and thatching machines.
Id. at 31-32. Mr. Thierrin believed straw or hay was harvested from the Properties
because “[i]t was there at one time on one visit, and it was gone the next visit.” Id.

       3
         This testimony conflicts with that of Mr. Rouse, who stated that the horses were removed
from the Properties after Ashford acquired them from du Pont. N.T., 8/8/17, at 25.


                                               8
at 33. He could not identify the specific crop or plant, only that it was cut and
removed from the Properties and “not left in clumps.” Id. at 34. While Mr. Thierrin
never saw the farming equipment in operation, he believed it had been used recently.
Id. at 86.
       Mr. Thierrin testified that removal of any livestock and equipment from the
Properties was a condition of the agreement by which Toll Brothers acquired
Ashford. Id. at 40. The Properties were required to be in a condition in which
development could begin immediately after the acquisition took place in November
2012. Id. at 40-41, 84. As of November 2012, no crops remained on the Properties.
Id. at 40-41. Site improvements on the Properties began in January 2013. Id. at 85.
       Mr. Thierrin was not aware of any documents, such as receipts paying an
individual to farm the land, that could establish the use of the Properties as farmland
from January 1, 2010 onward. Id. at 52, 54. He was likewise unable to identify any
person who raised livestock or grew crops on the Properties during that time frame.
Id. at 53, 55. Mr. Thierrin could not testify as to the condition of the Properties, or
activities taking place thereon, from April 7, 2010 through fall 2011. Id. at 30, 75.
       Each party submitted proposed findings of fact for the Trial Court’s
consideration. Ashford asserted that the District was bound by Paragraph 7 of the
Covenant, which provided that the decision of the BOAA was final and not subject
to appeal. R.R. at 238a. Alternatively, Ashford argued the District was bound by
the provisions of the Covenant as a third-party beneficiary by virtue of its right to
notify the County of the Covenant’s breach. Id. at 239a. Ashford challenged the
Trial Court’s decision to hold a de novo trial on the basis that the record from the
BOAA was complete and sufficient for the Trial Court to resolve the matter. Id. at
242a. For its part, the District maintained a de novo review of the BOAA’s decision



                                          9
was the appropriate standard. Id. at 260a. As to the date Ashford violated the
Covenant, the District argued that Ashford’s actions taken prior to its purchase of
the Properties resulted in the breach taking place no later than April 7, 2010, the date
upon which ownership of the Properties transferred to Ashford. Id. at 271a.
      On April 4, 2018, the Trial Court entered an order overruling the BOAA’s
determination that the Covenant was breached on October 26, 2012, the date upon
which Ashford recorded its subdivision and land development plan. R.R. at 434a.
The Trial Court determined that the breach took place no later than April 7, 2010,
the date upon which the Properties were transferred to Ashford by means of the
agreement of sale with du Pont. Id. at 435a. Ashford was ordered to remit rollback
taxes, plus interest, from April 7, 2005 through the date upon which the Properties
ceased being maintained as farmland. Id. This appeal followed.
      Subsequent to Ashford’s filing a notice of appeal with this Court, the Trial
Court issued an opinion in support of its April 4, 2018 order, pursuant to Pa.R.A.P.
1925(a).   It rejected Ashford’s arguments that the District was bound by the
provisions of the Covenant, either as a direct party or a third-party beneficiary, as
the Covenant contained no such language and Ashford failed to cite legal authority
to support its contentions. Trial Ct. Op. at 20. Ashford’s argument that a de novo
trial was inappropriate was likewise dismissed by the Trial Court, as a de novo
review was necessitated by the absence of a complete record from the BOAA.           Id.
at 22. Finally, the Trial Court opined that sufficient credible evidence was presented
that demonstrated the Properties were not maintained as farmland after the April 7,
2010 sale date. Id. at 24.




                                          10
                                            Issues
       On appeal,4 Ashford argues the BOAA’s determination that the Covenant was
breached on October 26, 2012, the date Ashford recorded its subdivision and land
development plan, was final and unappealable, per the express terms of the
Covenant. According to Ashford, the District was bound by the Covenant as a third-
party beneficiary and its appeal of the BOAA’s determination should have been
disallowed as the Covenant provides the decision of the BOAA concerning the
breach “shall be final from which no appeal may be taken.” R.R. at 14a. Ashford
further argues the Trial Court erred in conducting a trial de novo, and its finding that
the Covenant was breached on April 7, 2010 was not supported by substantial
evidence.
                                         Discussion
                               A. Third-Party Beneficiary
       First, we address whether the District was bound by the terms of the Covenant
which provided that a determination of the BOAA was final and not subject to
appeal.
       While acknowledging that only the County and Ashford are “direct parties”
to the Covenant, Ashford argues that the District is also bound by its terms.
Ashford’s Br. at 18.        More particularly, Ashford asserts that the language in
Paragraph 7 of the Covenant, which provides “the decision of the [BOAA] shall be
final from which no appeal may be taken,” applies not merely to prospective appeals
by the parties, but to the District as well. Further, Ashford argues the District is a


       4
          Our scope of review in a tax assessment appeal is limited to a determination of whether
the trial court abused its discretion or committed an error of law, or whether its decision is
supported by substantial evidence. Westinghouse Elec. Corp. v. Bd. of Prop. Assessment, Appeals,
and Review of Allegheny Cty., 652 A.2d 1306, 1309 (Pa. 1995).


                                               11
third-party beneficiary of the Covenant in part because the Covenant grants to the
District the right to notify the County of any alleged breach, and because the District
benefits from receipt of its portion of the rollback taxes. This right, Ashford argues,
binds the District to the express limitations and conditions of the Covenant,
including the provision that a determination by the BOAA is a final one from which
no appeal may be taken.
       The District responds that it has a statutory right to appeal all decisions of the
BOAA pursuant to Section 752 of the Local Agency Law,5 which provides that
“[a]ny person aggrieved by an adjudication of a local agency who has a direct
interest in such adjudication shall have the right to appeal therefrom to the court
vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to
judiciary and judicial procedure).”          2 Pa.C.S. § 752.        Furthermore, Section
8854(a)(1) of the Consolidated County Assessment Law (CCAL)6 grants a taxing
district affected by a decision of a board of assessment appeals the right to appeal to
the court of common pleas in accordance with 42 Pa.C.S. § 5571(b)7 (relating to
appeals generally) and local rules of court. 53 Pa.C.S. § 8854(a)(1). The District
contends that a provision in the Covenant which restricts the appeal rights of the
parties to that Covenant cannot strip the District, a non-party, of its statutory right to
appeal a decision of the BOAA.



       5
           2 Pa.C.S. §§ 751-754.

       6
           53 Pa.C.S. §§ 8801-8868.

       7
          Section 5571(b) of the Judicial Code provides that an appeal from a tribunal or other
government unit to a court must be commenced within 30 days after the entry of the order from
which the appeal is taken. 42 Pa.C.S. § 5571(b). Exceptions are made for certain matters not at
issue in the present matter.


                                              12
      The District also dismisses Ashford’s claim that the District qualifies as a
third-party beneficiary to the Covenant. The District maintains that taxes are not a
benefit conferred on the District by means of the Covenant. Furthermore, the District
asserts it does not actually benefit from the Covenant, as it provides Ashford with
more favorable tax treatment. The District points out that the Covenant does not
express any intention to confer third-party beneficiary status on the District.
      We agree with the District that Ashford’s argument that the District is bound
by the terms of the Covenant lacks merit, as the Covenant is utterly devoid of any
language which suggests any person or entity beyond the County and Ashford would
be governed by its provisions. To the contrary, Paragraph 7 of the Covenant
provides:
             the then landowner to whom a [notice of breach] has been
             sent shall have the right to appeal within thirty (30) days
             from the mailing of such written notice to the [BOAA]
             who [sic] shall hear the appeal within thirty (30) days after
             appeal is made to it, giving the then landowner and the
             County ten (10) days written notice of the time and place
             of the hearing; the [BOAA] may hear such testimony and
             receive such evidence concerning the said breach and may
             make such investigation concerning the same as it deems
             appropriate, without being bound by formal rules of
             evidence and the decision of the [BOAA] concerning such
             breach will be final from which no appeal may be taken.
R.R. at 14a (emphasis added).
      Under the plain language set forth above, the landowner has the right to appeal
the BOAA’s notice of breach. The BOAA must hear the appeal within 30 days and
provide the landowner and the County written notice of the time and place of the
hearing.    This provision does not require notification to any other entity or
individual. After notification to the landowner and the County, the BOAA is to hear
testimony and receive evidence. The resultant decision of the BOAA is “final from


                                          13
which no appeal may be taken.” R.R. at 14a. This provision unambiguously applies
to the landowner and the County. In the absence of language which expresses an
intent to bind anyone but the parties to the Covenant, we cannot read Paragraph 7 of
the Covenant as binding the District and restricting its statutory appellate rights.
       With regard to the District’s status as an intended third-party beneficiary of
the Covenant, generally, a contract must express an intention to confer standing on
a third-party beneficiary. McGaffic v. City of New Castle, 74 A.3d 306, 311 (Pa.
Cmwlth. 2013). An exception to the general rule regarding third-party beneficiaries
was carved out by our Supreme Court in Guy v. Liederbach, 459 A.2d 744, 751 (Pa.
1983), when it adopted Section 302 of the Restatement (Second) of Contracts8 and
established a two-part test for determining whether one is an intended third-party
beneficiary.
       The first part of the Guy test sets forth a standing requirement which leaves
discretion with the court to determine whether recognition of third-party beneficiary
       8
           Section 302 of the Restatement (Second) of Contracts provides:

                (1) Unless otherwise agreed between promisor and promissee, a
                    beneficiary of a promise is an intended beneficiary if
                    recognition of a right to performance in the beneficiary is
                    appropriate to effectuate the intention of the parties and either

                        (a) the performance of the promise will satisfy an
                        obligation of the promise to pay money to the
                        beneficiary; or

                        (b) the circumstances indicate that the promise
                        intends to give the beneficiary the benefit of the
                        promised performance.

                (2) An incidental beneficiary is a beneficiary who is not an intended
                beneficiary.

Restatement (Second) of Contracts § 302 (Am. Law Inst. 1979).


                                                 14
status is appropriate. Guy, 459 A.2d at 751. In other words, a third party’s right to
performance of a contract must be appropriate to effectuate the intentions of the
parties to the agreement. The second part defines the two types of claimants who
may be intended as third-party beneficiaries. Id. If a party satisfies both parts of the
test, a claim may be asserted under the contract. Id. See also Scarpitti v. Weborg,
609 A.2d 147 (Pa. 1992) (purchasers of lots in residential subdivision, whose
construction plans required architect approval, were intended beneficiaries of
contract between architect and developer, and thus had cause of action against
architect for failing to approve construction plans).

      Ashford has not suggested or argued that the District is expressly designated
in the Covenant as a third-party beneficiary. Therefore, the District only attains
third-party beneficiary status if it meets the two-part test set forth in Guy. Under the
first part of that test, it must be shown that the District has 1) a right to performance
of the Covenant which 2) is appropriate to effectuate the intentions of the parties to
the agreement, namely Ashford and the County. Having reviewed the provisions of
the Covenant, we cannot discern how the District would have a right to its
performance. Following Ashford’s logic, the District’s right to performance of the
Covenant, stems from its right to notify the County of the Covenant’s breach.
Breach of the Covenant results in its termination. Therefore, the District’s right to
performance of the Covenant is rooted in its ability to effectuate a termination of the
Covenant. A decision to extend third-party beneficiary status to the District on the
basis of such facts would border on the absurd. Furthermore, an attempt by the
District to enforce the Covenant would fly in the face of reason, given the negative
impact the Covenant has on the District’s tax revenues. As the District has no right
to performance of the Covenant, the first prong in the Guy test cannot be met.


                                           15
       The Covenant does not express an intention to confer third-party beneficiary
status on the District, and the requirements of the Guy test are not met by the facts
presented here. Therefore, we conclude the Trial Court committed no error when it
determined that the District is not a third-party beneficiary of the Covenant.
                                    B. De Novo Trial
       Next, Ashford argues the Trial Court erred in conducting a de novo trial.
Ashford suggests that the Trial Court’s January 10, 2017 remand to the BOAA “to
make a full and complete record” precluded the Trial Court from conducting a de
novo trial on October 13, 2017. Ashford relies on Section 754(b) of the Local
Agency Law, which provides that, where a “full and complete record of the
proceedings before the local agency was made, the court shall hear the appeal
without a jury on the record certified by the agency.”9 2 Pa.C.S. § 754(b). After a
hearing, the court must affirm the adjudication unless it finds a violation of
constitutional rights, an error of law, a violation of the rules and regulations of the
agency, or the agency’s findings of fact are not supported by substantial evidence.
Id.
       Ashford disputes the District’s characterization of the present matter as a tax
assessment appeal proceeding under Section 8854(a)(1) of CCAL, which provides
that an appeal of the BOAA’s tax assessment is to be heard by the Trial Court in
accordance with Section 5571(b) of the Judicial Code and local rules of court. 53
Pa.C.S. § 8854(a)(1). Ashford asserts the pertinent issue before this Court is not the
amount of Ashford’s tax assessment, but rather the date upon which Ashford
breached the Covenant. Consequently, Ashford maintains that Section 754 of the

       9
         Ashford acknowledges that, when a full and complete record of the proceedings before
the local agency is not made, the Trial Court may hold a hearing de novo and take additional
evidence. Ashford’s Br. at 29.


                                             16
Local Agency Law governs the appeal in this matter, and the record from the BOAA
proceedings was adequate and complete enough to preclude the need for a de novo
trial.
         The District argues a de novo trial was appropriate, as the present matter is a
tax assessment appeal governed by Section 8854(a)(1) of CCAL. Section 8854(a)(1)
provides in part that such an appeal shall be in accordance with local rules of court.
Rule * 27(2) of the County Local Rules mandates that, with the exception of zoning
appeals, all administrative agency appeals are to be heard de novo. District’s Br.,
Ex. A.
         We must first note our disagreement with Ashford’s interpretation of the Trial
Court’s January 10, 2017 order as directing a remand for purposes of making a full
and complete record.10 That order pertinently provides:

               AND NOW, this 10th day of January 2017, upon
               consideration of [Ashford’s] request pursuant to 2
               [Pa.C.S.] § 754(a) for remand to the local agency for the
               purpose of making a full and complete record, and the
               [District’s] opposition thereto, it is hereby ORDERED and
               DECREED that [Ashford’s] request will be, and hereby is,
               GRANTED.

               IT IS FURTHER ORDERED and DECREED that these
               matters will be, and here are REMANDED to the [BOAA]
               for the sole purpose of preparing Findings of Fact and
               Conclusions of Law in support of its determination
               rendered on August 2, 2016, that the Act 515 Covenant in


          Ashford appears to have conflated the Trial Court’s January 10, 2017 order with the
         10

order issued on June 29, 2015, which did direct the BOAA to “take additional evidence . . . .” R.R.
at 91a. However, as noted previously herein, the BOAA did not take additional evidence at the
August 21, 2015 hearing. Rather, the BOAA issued its August 2, 2016 determination that the
Covenant was breached on October 26, 2012, the recordation date of Ashford’s final subdivision
and land development plan, after consideration of the arguments of the parties.


                                               17
               regard to the [Properties] was breached on October 26,
               2012.
R.R. at 431a (emphasis added).
       A plain reading of the Trial Court’s order indicates it granted Ashford’s
request for a remand expressly for the purpose of preparing findings of fact and
conclusions of law to support the BOAA’s August 2, 2016 decision. It does not
direct the BOAA to take additional testimony and evidence.
       Even if we accept Ashford’s argument that Section 754 of the Local Agency
Law, and not Section 8854(a)(1) of CCAL, governed the District’s appeal11 from the
BOAA’s decision, the first paragraph of Section 754 provides that “[i]n the event a
full and complete record of the proceedings before the local agency was not made,
the court may hear the appeal de novo, or remand the proceedings to the agency for
purposes of making a full and complete record or for further disposition in
accordance with the order of the court.” 2 Pa.C.S. § 754(a) (emphasis added).
       A “full and complete record” is defined as “a complete and accurate record of
the testimony taken so that the appellant is given a base upon which he may appeal
and, also, that the appellate court is given a sufficient record upon which to rule on
the questions presented.” In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006),
quoting City of Philadelphia v. Bd. of License and Inspection Review, 590 A.2d 79,
86 (Pa. Cmwlth. 1991). A record has been deemed incomplete in situations where
the record fails to contain a transcript of the proceedings before the local agency or


       11
           The provisions of the Local Agency Law shall apply to any adjudication which under
any existing statute may be appealed to a court of record, but only to the extent not inconsistent
with such statute. 2 Pa.C.S. § 751(b) (emphasis added). Section 8854(a)(1) of CCAL provides
that a tax assessment appeal shall be governed by Section 5571(b) of the Judicial Code and local
rules of court. Section 754 of the Local Agency Law, and its restriction on the ability of the Trial
Court to hear an agency appeal de novo, is inconsistent with Rule * 27(2) of the County Local
Rules, which mandates a tax assessment appeal be heard de novo.


                                                18
where a party refuses to provide relevant and necessary documentation to the local
agency. Kuziak v. Borough of Danville, 125 A.3d 470, 475 (Pa. Cmwlth. 2015).
       Here, no transcript was made of the August 21, 2015 hearing before the
BOAA. The BOAA acknowledged as much in its March 9, 2017 decision which
established October 26, 2012 as the date Ashford breached the Covenant.                   No
testimony was presented and no court reporter was available to make a record of the
proceeding.12 BOAA Decision, March 9, 2017, Conclusion of Law No. 14. The
BOAA based its findings of fact and conclusions of law solely on the arguments of
the parties and took no additional evidence. Consequently, it can hardly be said that
the Trial Court was provided a “full and complete record of the proceedings.”
       As to the second part of Ashford’s argument, Ashford is correct that the issue
in this case is the date upon which Ashford breached the Covenant. However, it
cannot be seriously argued that the present appeal ultimately constitutes anything
but an appeal of the amount of Ashford’s tax assessment, as the date of breach clearly
implicates that amount. Consequently, we find no error in the Trial Court’s decision
to hold a de novo non-jury trial.
                                C. Substantial Evidence
       Finally, Ashford argues the Trial Court’s determination that the breach
occurred on April 7, 2010, the date the Properties were acquired from du Pont, is not
supported by substantial evidence. While Ashford concedes it was not actively
engaged in farming activities on the Properties, Ashford maintains that hay
continued to grow on the Properties well beyond the April 7, 2010 date of breach
established by the Trial Court. According to Ashford, the presence of hay satisfied


       12
         The BOAA noted that neither party requested a court reporter be present at the remand
hearing. BOAA Decision, March 9, 2017, Conclusion of Law No. 14.


                                             19
the requirements of the Covenant that the Properties be used for “the growing of
crops.” Ashford’s Br. at 31.
      Ashford also suggests that the BOAA incorrectly determined October 26,
2012 as the date upon which the Covenant was breached. Ashland asserts that its
recordation of a land use plan on October 26, 2012 did not constitute a breach of the
Covenant so long as hay continued to grow on the Properties. The strict language
of the County Plan provides that a property is ineligible for open space covenanting
if it is the object of subdivision or development proposals within five years prior to
application for a covenant, or where the landowner contemplated development
within one year prior to application. Du Pont filed the application for the Covenant
in 1977. Ineligibility under the County Plan could only be triggered by actions which
took place prior to filing of the application. Therefore, any steps taken by Ashford
in anticipation of development which occurred after the application was filed in 1977
could not render the Properties ineligible for open space covenanting and trigger a
breach of the Covenant. Ashford concedes that the Covenant was breached on
March 27, 2013, when it conveyed portions of the Properties to the Liseter
Community Association.
      The District responds that the passive act of allowing hay to grow “like
weeds” does not constitute the growing of crops such that Ashford should be granted
preferential tax treatment. District’s Br. at 34. The District maintains that where the
Properties were only acquired for the purpose of development, and the hay growing
thereon was only cut to assist with surveying the Properties in anticipation of
development, the Properties were never used as farmland.
      In its 1925(a) opinion, the Trial Court found that Ashford breached the
Covenant on April 7, 2010, in part due to Mr. Rouse’s testimony that he initiated the



                                          20
development process several years prior to that date. Trial Ct. Op. at 9. The Trial
Court relied on Article III, Section 3 of the County Plan, which provides that any
tract of land subject to a subdivision or development proposal within five years prior
to application for preferential tax treatment is ineligible for open space covenanting.
R.R. at 34a.     Paragraph 2(b) of the Covenant restricts the landowner from
committing “any act whereby the [Properties] or any part thereof would be used in
a manner inconsistent with the [County Plan] and/or whereby the [Properties] would
become ineligible for open space covenanting . . . in particular under Article III,
‘Lands Ineligible for Covenants’ thereof.” Id. at 10a. Violation of this provision of
the Covenant constitutes a breach thereof. Id. at 11a.
      The Trial Court determined that Ashford’s actions to advance development of
the Properties were taken in derogation of the Covenant and the County Plan “from
the getgo.” Trial Ct. Op. at 23. Consequently, breach of the Covenant occurred “no
later than the date of passage of the [Properties] and the Covenant to [Ashford] on
April 7, 2010.” Trial Ct. Op. at 17. For this reason, the Trial Court determined that
rollback taxes should have been levied against Ashford for five years prior to April
7, 2010, the date upon which Ashford purchased the Properties from du Pont. Id.
      The Trial Court is correct that the provisions of the Covenant explicitly
anticipated a breach would occur should the landowner commit any act which would
render the Properties ineligible for open space covenanting, or where the Properties
were used in a manner inconsistent with the County Plan. Mr. Rouse testified that
Ashford initiated the development process several years prior to acquiring the
Properties on April 7, 2010. The Trial Court concluded these actions rendered the
Properties ineligible for open space covenanting. It must be noted, however, that
prior to April 7, 2010, Ashford did not own the Properties. It was not a party to the



                                          21
Covenant or bound by its terms, and therefore could not have breached the Covenant
at any time prior to April 7, 2010. As a result, only the actions of Ashford taken
after April 7, 2010, and not before, should guide our decision.
      In that regard, the record does not support the Trial Court’s finding that
Ashford breached the Covenant on April 7, 2010. While Ashford clearly intended
to develop the Properties at the time of purchase, the original record filed with this
Court contains no evidence to suggest Ashford otherwise acted in derogation of the
Covenant on that date. Therefore, the Trial Court’s finding that the Covenant was
breached on April 7, 2010 is not supported by substantial evidence.
      For its part, Ashford has essentially argued that, regardless of the steps taken
to develop the Properties, so long as hay was harvested from the Properties, it
complied with the requirements of the Covenant. We agree Ashford presents a
persuasive argument that crops were grown on the Properties. The hay was not
simply cut down and left to rot, but rather was removed from the Properties to be
used as feed for cattle. Nothing in the County Plan or the Covenant suggests that a
specific type of crop must be grown, or that a landowner must take affirmative steps
to cultivate a particular crop versus harvesting hay which grew “like weeds.”
However, Mr. Thierrin provided uncontroverted testimony that, as of November
2012, no crops remained on the Properties. Accordingly, if the harvesting of hay
constituted the “growing of crops” under the Covenant, based on the testimony of
Mr. Thierrin, it appears the Covenant was breached at least as of November 2012,
when that activity ceased.
      This conclusion is bolstered by the photographic evidence produced at the
October 13, 2017 de novo trial. The November 2012 photograph indicates that
demolition of the buildings, and development of the Properties, had commenced.



                                         22
Mr. Rouse testified that such activity began after Toll Brothers acquired Ashford on
November 26, 2012.
      Our conclusion that the Covenant was breached at least as of November 2012
does not end our analysis, however, as Section 2(b) of the Covenant specifically
provides that Ashford shall not commit any act where the Properties are used in a
manner inconsistent with the County Plan. Violation of this prohibition constitutes
a breach of the Covenant. Therefore, we must review whether other steps taken by
Ashford to advance development of the Properties were inconsistent with the County
Plan, the purpose of which is to preserve environmentally sensitive areas, preserve
areas of special public value, and promote orderly growth. R.R. at 32a.
      Ashford filed a revised subdivision and land development plan with the
Newtown Township (Township) Board of Supervisors on October 15, 2010. Id. at
879a. This plan was conditionally approved on July 11, 2011. Id. at 886a. Ashford’s
conduct in filing a subdivision and land development plan is unquestionably a step
taken to advance development of the Properties. Development of the Properties is a
use inconsistent with the purpose of the County Plan, which in turn is a violation of
the Covenant. Consequently, the evidence demonstrates that Ashford breached the
Covenant on October 15, 2010 when it filed its revised subdivision and land
development plan with the Township.
                                    Conclusion
      The Trial Court correctly concluded the District is neither a party to the
Covenant nor is it entitled to third-party beneficiary status. The Trial Court’s
decision to conduct a de novo trial on the issue of Ashford’s breach of the Covenant
was likewise legally sound.




                                         23
      Substantial evidence exists to support a finding that Ashford breached the
Covenant.    However, actions taken by Ashford prior to its acquisition of the
Properties cannot constitute a breach of the Covenant, as Ashford was not a party to
that Covenant or bound by its terms. Simply purchasing the Properties with the
intent of developing them cannot constitute a breach, and therefore the Trial Court’s
finding that the breach occurred on April 7, 2010 is not supported by the evidence.
Rather, as evidenced in the record, October 15, 2010, the date upon which Ashford
filed its subdivision and development plan with the Township, is the first date upon
which Ashford took action to develop the Properties in violation of the Covenant.
      Accordingly, we modify the order of the Trial Court to reflect October 15,
2010 as the date upon which Ashford breached the Covenant. In all other respects,
we affirm.



                                       ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision of this case.




                                         24
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Re: Appeal of Marple Newtown        :
School District from the Determination
                                    :
of the Board of Assessment Appeals of
                                    :
Delaware County, Pennsylvania       :
Regarding Date of Breach of Covenant:
Relating to the Properties Located at the
                                    :       No. 506 C.D. 2018
Intersection of Route 252 and Goshen:
Road, Newtown Township, County of   :
Delaware, Pennsylvania Owned by     :
Ashford Land Company, LP            :
                                    :
Appeal of: Ashford Land Company, LP :


                                    ORDER


      AND NOW, this 15th day of April, 2019, the April 4, 2018 order of the Court
of Common Pleas of Delaware County is affirmed as modified as set forth in the
foregoing opinion.




                                       ELLEN CEISLER, Judge
