              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philip P. Palencar, II,                  :
                    Appellant            :
             v.                          :
                                         :   No. 1635 C.D. 2014
Hereford Township Zoning Hearing         :
Board                                    :   Argued: March 9, 2015
                                         :
            v.                           :
                                         :
Hereford Township                        :


BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                    FILED: October 14, 2015


            Philip P. Palencar, II, appeals from the August 20, 2014 order of the
Court of Common Pleas of Berks County (trial court) dismissing his appeal from a
decision of the Hereford Township (Township) Zoning Hearing Board (ZHB). The
trial court determined that, because Palencar failed to file a written appeal from a
Stop Order/Notice of Violation/Enforcement Notice (enforcement notice) to the ZHB,
as required by statute and Township ordinance, the ZHB lacked jurisdiction to
consider his appeal, and consequently, the trial court was without jurisdiction to hear
Palencar’s appeal from the ZHB’s adverse determination.
            The relevant facts are as follows. On October 25, 2013, the Township’s
Code Enforcement Officer issued an enforcement notice which informed Palencar
that a pergola-type structure erected on his property and retail sales that were
occurring on the property required permits pursuant to sections 1502 (zoning
permits), 1503 (certificate of use and occupancy), and 502 (use regulations) of the
Township’s ordinance. The enforcement notice advised Palencar that, in order to
abate the violations of those ordinance provisions, he must immediately cease the
retail sales on the property until a permit for such activity is issued, and he must
either submit a permit application for the pergola structure within thirty days or
remove it from the property. Further, the enforcement notice informed Palencar that
he had a right to appeal the enforcement notice to the ZHB within 30 days and could
obtain an application for a zoning hearing at the Township office. (Reproduced
Record (R.R.) at 2-4.)
             On    November      12,   2013,    Palencar    submitted   a   “Uniform
Application/Appeal,” a four-page document that is used to request a hearing before
the Board of Supervisors and/or the ZHB. (R.R. at 5.) Section IV of the form (“Type
of proceeding(s)”) directs an applicant for a hearing to check off any of the ten
paragraphs that follow to indicate the reasons the hearing is requested. Palencar
checked paragraph 1, which states that a variance is requested, and specifically
requested a variance from section 502 of the Township’s zoning ordinance. He did
not check paragraph 6, which states that a hearing is requested for an appeal from an
enforcement notice, or paragraphs 5 or 10, also relating to appeals.
             In a November 21, 2013 email to ZHB Solicitor Elizabeth Magovern,
(R.R. at 11), Larry Sager, Esquire, Palencar’s attorney, confirmed their earlier
discussion that the application was amended to reflect that Palencar was also
requesting variance relief from section 1803.L of the Ordinance and asserting that he




                                           2
has a right to use the property for the sale of pumpkins under the “Right to Farm
Act.”1 (ZHB’s Finding of Fact No. 4.)
              The ZHB published notices of the hearing scheduled for January 30,
2014, advising that the ZHB would consider Palencar’s application for variances and
his appeal “from the zoning officer’s determination” that a violation of the ordinance
had occurred on the property. (R.R. at 12.)
              At the start of the hearing, ZHB Solicitor Magovern announced that
Palencar was requesting variances and appealing the enforcement order. She then
asked Attorney Sager to present his case. Attorney Sager responded: “The interesting
thing is, you have indicated that there is an appeal with respect to the cease and desist
order, a stop order, under the circumstances. So I believe that appropriately the
township should proceed with the burden as to the violation purported.” (Notes of
Testimony (N.T.) at 10.)
              Eventually the ZHB heard testimony and received other evidence.
During the proceedings, Palencar withdrew his requests for variance relief. Palencar
admitted having the pergola on his property and selling pumpkins, among other
things, while Attorney Sager insisted that such conduct was legal under “the Farm
Act.” At the conclusion of the hearing, the ZHB found that Palencar violated the
ordinance by erecting a structure on his property without a permit and by using the
property for retail sales and voted to uphold the enforcement notice.
              In its written decision dated March 13, 2014, the ZHB found that
Palencar filed an application for a variance under section 502.A of the Township
ordinance and that, as reflected by a November 21, 2013 email, Attorney Sager

       1
         The Act of June 10, 1982, P.L. 454, as amended, 3 P.S. §§951 – 957, is commonly known
as the Right to Farm Act.



                                              3
subsequently amended the application to request an additional variance and assert
rights under the Right to Farm Act. (ZHB’s Findings of Fact Nos. 3-4.) The ZHB
further found that “Upon receipt of the email, Attorney Sager clarified through a
telephone conversation with the Zoning Hearing Board Solicitor that he also wanted
to amend the Application to appeal the October 25, 2013, Zoning Officer’s
determination.” (ZHB’s Finding of Fact No.4.)
              Palencar appealed to the trial court. During argument before the trial
court, the Township, for the first time, raised the issue of whether the ZHB had
jurisdiction to decide Palencar’s appeal of the enforcement notice. The trial court
denied Palencar’s appeal on the ground that he failed to file a written appeal to the
ZHB and, therefore, the ZHB lacked authority to consider his appeal from the
enforcement notice. The trial court noted that the ZHB has exclusive jurisdiction to
hear “appeals from a determination of a zoning officer, including . . . the issuance of
any cease and desist order,”2 and that such appeals to the ZHB “may be filed in
writing” by the affected landowner. Section 913.3 of the MPC, added by the Act of
December 21, 1988, P.L. 1329, 53 P.S. §10913.3.
              The trial court observed that the MPC requires the ZHB’s procedural
rules to be consistent with ordinances of the municipality and the laws of the
Commonwealth. Section 906 of the MPC, 53 P.S. §10906. As authorized by statute,
section 1604 of the Hereford Zoning Ordinance establishes the rules of procedure for
appeals to the ZHB and states that all “appeals [and] applications for hearing to the
Board shall be in writing on forms prescribed by the Board and shall be submitted to
the Secretary of the Board.” (R.R. at 100.) The written appeal must be timely filed

       2
         Section 909.1(a)(3) of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L.
805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1(a)(3).



                                                4
with the Secretary, consistent with the statutory requirement that “all appeals from
[ZHB] determinations adverse to the landowners shall be filed . . . within 30 days
after notice of the determination is issued.” Section 914.1(b) of the MPC, added by
the Act of December 21, 1988, P.L. 1329, 53 P.S. §10914.1(b).
             The trial court concluded that, notwithstanding the ZHB Solicitor’s
apparent interpretation to the contrary, the November emails and telephone calls did
not comply with the procedural requirements of the ordinance or the statute, and the
fact that the ZHB held a hearing did not cure the defect in the filing of Palencar’s
appeal. The trial court determined that the ZHB lacked jurisdiction to hear Palencar’s
appeal, and, consequently, the trial court also lacked jurisdiction to consider it.
             On appeal to this Court, Palencar argues that the trial court erred in
determining that the ZHB lacked subject matter jurisdiction with respect to his appeal
from the Township’s enforcement notice. Whether the ZHB had subject matter
jurisdiction over Palencar’s appeal is a question of law as to which our standard of
review is de novo and the scope of review is plenary. Seitel Data, Ltd., v. Center
Township and Center Township Board of Supervisors, 92 A.3d 851, 859 (Pa.
Cmwlth. 2014).
             In relevant part, section 909.1 of the MPC vests exclusive jurisdiction in
the ZHB as follows:

             Section 909.1 - Jurisdiction

             (a) The zoning hearing board shall have exclusive
             jurisdiction to hear and render final adjudications in the
             following matters:
                                      * * *
             (3) Appeals from the determination of the zoning officer,
             including, but not limited to, the granting or denial of any
             permit, or failure to act on the application therefor, the



                                            5
             issuance of any cease and desist order or the registration or
             refusal to register any nonconforming use, structure or lot.

                                      *    *    *

             (5) Applications for variances from the terms of the zoning
             ordinance and flood hazard ordinance or such provisions
             within a land use ordinance, pursuant to section 910.2.
53 P.S. §10909.1(a)(3), (5).
             Section 913.3 of the MPC states:

             Appeals under section 909.1(a)(1), (2), (3), (4), (7), (8) and
             (9) may be filed with the board in writing by the landowner
             affected, any officer or agency of the municipality, or any
             person aggrieved. Requests for a variance under section
             910.2 and for special exception under 912.1 may be filed
             with the board by any landowner or any tenant with the
             permission of such landowner.

53 P.S. §10913.3 (emphasis added). Consistent with that statutory provision, section
1604.A of the Township’s ordinance states that “[a]ll appeals, challenges, and any
other applications for hearing to the Board shall be in writing on forms prescribed by
the Board and shall be submitted to the Secretary of the Board.” (R.R. at 100)
(emphasis added).
             Palencar first argues that the proper analysis is not whether the ZHB had
jurisdiction over the appeal but, rather, whether an appeal from the enforcement
notice was perfected. Palencar asserts that the ZHB had jurisdiction to decide that
question, and that the ZHB did, in fact, decide that Palencar timely perfected an
appeal from the enforcement notice. Based on these assertions, Palencar argues that a
challenge to the determination that his appeal was perfected is now barred by the
doctrine of res judicata.




                                           6
             In support, Palencar cites the ZHB’s Finding of Fact No. 4, which states
that Attorney Sager “clarified through a telephone conversation with the ZHB
Solicitor that he also wanted to amend the Application to [include an] appeal,” and
the ZHB’s legal conclusion that it “has jurisdiction to decide this land use
Application pursuant to Section 1602 of the Zoning Ordinance and the [MPC], 53
P.S. Section 10909.1.” (ZHB’s Conclusion of Law No. 1.) Palencar also emphasizes
that the ZHB’s public notice stated that the hearing would address the appeal from the
enforcement notice, and the ZHB took evidence and decided the enforcement appeal
following the hearing.
             We reject the argument that res judicata applies on appeal to this Court,
where there has yet to be a final decision on the merits.3 Moreover, whether the facts
satisfy the statutory requirements to perfect an appeal is a question of law, and the
ZHB’s factual finding that Palencar orally expressed a desire to amend his application
does not bar this Court’s examination of that legal issue. Additionally, the provision
cited in the ZHB’s Conclusion of Law No. 1 sets forth the ZHB’s jurisdiction over
numerous matters, including variance applications, which is what Palencar’s written
application requested, and does not identify the enforcement appeal.
             The Township argues that the issue is one of subject matter jurisdiction,
which is not waivable. Fayette County Office of Planning v. Fayette County Zoning
Hearing Board, 981 A.2d 336, 340 (Pa. Cmwlth. 2009); Reserve v Zoning Hearing
Board, 468 A.2d 872, 874 n.3 (Pa. Cmwlth. 1983). The Township further maintains
that a failure to timely file a written appeal to the ZHB, as required by the MPC and
the Township’s ordinance, cannot be cured by the mistaken belief of the parties.

      3
         “Res judicata literally means a matter adjudged or a thing judicially acted upon or
decided.” McCarthy v. Township of McCandless, 300 A.2d 815, 819 (Pa. Cmwlth. 1973).



                                             7
             By way of analogy, the Township relies on Pennsylvania Commercial
Drivers Conference v. Milk Control Commission, 62 A.2d 9 (Pa. 1948), in which the
Supreme Court held that parties could not confer standing on an organization by
stipulation. This Court also has expressly held that a court’s jurisdiction can neither
be enlarged nor limited by stipulation of the parties. Conyer v. Norristown, 428 A.2d
749, 751 (Pa. Cmwlth. 1981); George A. Fuller Co. v Pittsburgh, 327 A.2d 191, 194
(Pa. Cmwlth. 1974); DeCarbo v. Elwood City, 284 A. 2d 342, 344 (Pa. Cmwlth.
1971).
             The Township notes that its ordinance expressly requires an appeal to be
submitted in writing to the Secretary of the Board and does not designate oral
communication or even filing with the ZHB’s solicitor as an alternative.           The
Township argues that even if an email from Palencar’s counsel could be considered a
“writing,” communication with the ZHB’s solicitor is insufficient to perfect an
appeal. Additionally, the Township points out that the emails make no mention of an
“appeal” or the enforcement notice.
             Upon review, we conclude that the record compels the conclusion that
the appeal was, in fact, perfected.
             In Swarey v. Limestone Township Zoning Hearing Board, No. 03-00,
495 (Lycoming Cnty. 2003), the court reversed a zoning hearing board’s ruling and
held that an appeal filed via FAX was sufficient to perfect a timely appeal. Noting
that the zoning ordinance required a notice of appeal form to be used, the court
declined to elevate form over substance, explaining as follows:

             ‘[T]he rules of procedure must be liberally construed so as
             to guaranty that actions [are] resolved in a just, speedy and
             inexpensive manner . . . .’ Delverme v. Pavlinsky, 592 A.2d
             746, 748 (Pa. Super. 1991) (The Superior Court applied a
             broader interpretation of procedural rules involving an


                                          8
             appeal from a district justice decision.) Taking guidance
             from Delverme on how procedural rules should be
             interpreted, the Court believes that the November 27, 2002
             faxed notice of appeal substantially complied with the
             zoning ordinance.       Upon examining the information
             requested in the form and that submitted by the faxed notice
             of appeal, it is clear that the faxed notice of appeal has
             provided the information that is requested in the form. At
             argument before this Court the ZHB and Township counsel
             acknowledged the adequacy of the appeal documents as to
             supplying all the information required in the appeal form
             (and more). It would not stand to reason that the appeal
             should be dismissed solely on the basis that the information
             requested was not provided in the blank spaces of a
             prearranged form sheet.
Swarey, slip op. at 8-9.
             In this case, the essential facts are not in dispute. Palencar filed the
appropriate form to request a hearing; he checked the box for a variance and he also
specifically cited the sections of the ordinance referenced in the enforcement notice;
the ZHB Solicitor was contacted before the hearing; the ZHB determined that the
appeal had been perfected; it published notice that it would hear an appeal from the
enforcement notice; and it held a hearing. In fact, the ZHB, through its counsel,
announced that the appeal from the enforcement order was the first issue to be
considered at the hearing, and the Township raised no objection and presented
evidence on the matter. The matter was heard, and all issues were considered by the
ZHB in its decision. Based on these facts, we conclude that an individual could
reasonably rely on these circumstances, and the ZHB’s conduct in particular, to
believe that he had accomplished the amendment of his application.
             Indeed, because the circumstances unquestionably establish that all
parties understood that the appeal form had been effectively amended by the ZHB,
like the trial court in Swarey, we decline to allow form to prevail over substance. We



                                          9
further conclude that, in the interests of justice, the most appropriate remedy is to
vacate the trial court’s order and remand this matter to the trial court, with
instructions to consider the merits of Palencar’s appeal. 42 Pa.C.S. §706; Grand
Central Sanitary Landfill, Inc. v. Zoning Hearing Board of Plainfield Township, 625
A.2d 115 (Pa. Cmwlth. 1993).4
               In accord with section 706 of the Judicial Code, 42 Pa. C.S. §706, which
authorizes an appellate court to remand a matter or require further proceedings to be
had “as may be just under the circumstances,” we vacate the trial court’s order and
remand the matter to the trial court for a decision on the merits of Palencar’s appeal,
based upon the record made before the ZHB.



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge


       4
          In Grand Central Sanitary Landfill, the common pleas court determined that the zoning
hearing board of Plainfield Township (Board) lacked jurisdiction to rehear a decision it had
rendered on February 6, 1989, where there had been no appeal from that decision and the rehearing
petition had not been filed until approximately one year later, even though the rehearing petition
alleged that fraud and misrepresentations occurred at the original hearing. Ultimately, this Court
held that, instead of petitioning the Board for reconsideration, the appellants should have filed a
request with the common pleas court for permission to appeal the Board’s decision nunc pro tunc.
In that petition, they could have alleged fraud, a legitimate basis for nunc pro tunc relief. We
explained that the trial court then would have been able to make findings on those allegations and, if
found to be true, could have vacated the Board’s decision and taken testimony on the merits or
remanded the case for the Board to do so.
                After considering the totality of the circumstances, and noting that section 706 of the
Judicial Code, 42 Pa.C.S. §706, allows us to remand for further proceedings in the interest of
justice, we concluded that the most appropriate remedy was to remand the case to the trial court
with directions that it allow the appellants to file a petition to appeal nunc pro tunc within thirty
days of entry of our order. We also recommended that, to expedite the matter, evidence from the
second "void" hearing could be moved into evidence at the new hearing.




                                                 10
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philip P. Palencar, II,                   :
                    Appellant             :
             v.                           :
                                          :    No. 1635 C.D. 2014
Hereford Township Zoning Hearing          :
Board                                     :
                                          :
             v.                           :
                                          :
Hereford Township                         :


                                      ORDER


             AND NOW, this 14th day of October, 2015, the order of the Court of
Common Pleas of Berks County (trial court), dated August 20, 2014, is vacated,
and this matter is remanded to the trial court for a decision on the merits based on
the existing record.


             Jurisdiction relinquished.

                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip P. Palencar, II,                    :
                    Appellant              :
                                           :
                v.                         :
                                           :
Hereford Township Zoning                   :
Hearing Board                              :
                                           :
                v.                         :
                                           :   No. 1635 C.D. 2014
Hereford Township                          :   Argued: March 9, 2015

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McGINLEY                              FILED: October 14, 2015

      I respectfully dissent to the Majority’s conclusion that “because the
circumstances unquestionably establish that all the parties understood the
appeal to have been perfected, like the trial court in Swarey [v. Limestone
Township Zoning Hearing Board, No. 03-00, 495 (Lycoming Cnty. 2003)],
we decline to allow form to prevail over substance.” Slip Opinion at 9. “We
further conclude that, in the interests of justice, the most appropriate remedy
is to vacate the trial court’s order and remand the matter to the trial court,
with instructions to consider the merits of [Phillip P.] Palencar’s [II] appeal.”
(Citations and footnote omitted.) Slip Opinion at 9.


      In City of Pittsburgh v. Silver, 50 A.3d 296 (Pa. Cmwlth. 2012), this
Court stated:
             The issue of subject matter jurisdiction may be
             raised by the parties at any stage of the
             proceedings or by the court sua sponte. 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.
             (Emphasis added.)

Id. at 299 n.9, quoting Greenberger v. Pennsylvania Insurance Department,
39 A.3d 625, 629-30 n.5 (Pa. Cmwlth. 2012) (Citations omitted.)


      In the present controversy, the trial court addressed the issue of
subject matter jurisdiction:
             The plain language of 53 PA. C.S [sic]§ 10913.3
             read in conjunction with Zoning Ordinance #2009-
             04 make it clear with mandatory language that all
             appeals shall be submitted to the Secretary of the
             Board on forms prescribed by the Board within 30
             days after notice of the determination. Thus
             although the ZHB did in fact conduct a hearing
             and heard testimony and argument on the appeal of
             the determination on January, the ZHB lacked
             subject matter jurisdiction rendering the ZHB’s
             decision moot. The phone conversation and
             subject email between Appellant’s [Palencar’s]
             attorney and the ZHB Solicitor do not save
             Appellant [Palencar] here, as strict compliance
             with Zoning Ordinance #2009-04 is required to
             perfect an appeal.
             ....
             In the present case as in Johnston [v. Upper
             Macungie Township, 638 A.2d 408 (Pa. Cmwlth.
             1994)], the Appellant [Palencar] failed to timely
             file a written appeal. The appeal was required to
             be filed with the ZHB Secretary within 30 days of

                                    BLM-2
             October 25, 2013, the date that the Zoning Officer
             issued the Notice of Violation/Enforcement
             Notice. The November 12, 2013 application for
             Use Variance which Appellant [Palencar] filed did
             not in any way include an appeal of the October
             25, 2013 Notice of Violation/Enforcement Notice.
             Notwithstanding the ZHB Solicitor’s apparent
             interpretation to the contrary, the Court finds that
             the November 21, 2013 phone conversation and
             subsequent email between Appellant’s [Palencar’s]
             attorney and the ZHB Solicitor do not comply with
             the requirements of 53 Pa. C.S. [sic] 10906(c) and
             Ordinance §1604.A. Additionally, the fact that the
             hearing in front of the ZHB included testimony
             and argument regarding the determination appeal
             does not cure the defect in the filing of the appeal.
             ....
             The Court finds that Palancer [sic] did not file an
             appeal with the Secretary of the ZHB on forms
             prescribed by the ZHB within 30 days after
             receiving notice of the determination. The ZHB’s
             jurisdiction was never invoked. Because the ZHB
             lacked subject matter jurisdiction, this Court lacks
             jurisdiction to hear Palancer’s [sic] appeal.
             (Emphasis added.)

Opinion of the Trial Court, November 5, 2014, at 5-7.


      Here, Palencar’s attorney and the ZHB’s Solicitor did exactly what
Silver prohibited, they attempted to confer subject matter jurisdiction on the
ZHB and the trial court pursuant to their phone conversation and email.
Clearly, such an attempt by the parties cannot circumvent the prescribed rule
that all appeals must be submitted to the Secretary of the Board on the




                                   BLM-3
appeal forms1 within thirty days following the notice of determination. See
Opinion of the Trial Court at 5.


       Because a variance request is completely different than appealing a
violation notice, I would affirm the decision of the trial court.


                                               ____________________________
                                               BERNARD L. McGINLEY, Judge




       1
          The majority noted that Palencar “did not check paragraph 6, which states that a
hearing is requested for an appeal from an enforcement or paragraphs 5 or 10, also
relating to appeals.” (Emphasis added.) Slip opinion at 2.
                                        BLM-4
