           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Wissahickon Playground         :
                                      :
Appeal of: Gregory Paulmier, Melissa :
Graham, Dean Brown, Wayne Allen,      :
Karletha Brooks, Ronald Hays, Henry :
(Hal) Sawyer, Miriam L. Rollins, Dock :      No. 2492 C.D. 2015
Brown, Helen Jones, Rodney Haines     :      Argued: February 7, 2017


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: March 28, 2017

            Gregory Paulmier (Paulmier), Melissa Graham, Dean Brown, Wayne
Allen, Karletha Brooks, Ronald Hays, Henry (Hal) Sawyer, Miriam L. Rollins, Dock
Brown, Helen Jones and Rodney Haines (collectively, Appellants) appeal from the
Philadelphia County Orphans’ Court’s (trial court) November 3, 2015 order denying
Appellants’ Petition for Citation and Petition for Injunction (collectively, Petition).
Appellants present three issues for this Court’s review: whether the trial court erred
by dismissing their action (1) on the basis of laches; (2) because Orphans’ Court
approval was required before the sale; and (3) where the elements necessary for a
preliminary injunction had been met. After review, we affirm.
                                         Background1
              This matter concerns a piece of land bordered by Pulaski Avenue, Queen
Lane, Prisdilla Street and Penn Street in the Germantown section of the City of
Philadelphia (City). In the 18th century, this land was used as a burial ground
(commonly known as Potter’s Field). On August 8, 1935, the land was deeded to the
City for use as a playground or recreational space. In 1953, half of the property was
sold to the Philadelphia Housing Authority (PHA) to build high-rise housing projects.
In 2005, the City and PHA began to examine the property for possible redevelopment
(Redevelopment Plan).         Between 2005 and 2010, the Redevelopment Plan was
refined with resident and community participation. On March 4, 2010, City Council
introduced Ordinance No. 100110 (Ordinance) which proposed the City’s
conveyance of 5326 Pulaski Avenue (Property) to the Philadelphia Authority for
Industrial Development (PAID).             On April 8, 2010, City Council passed the
Ordinance. Thereafter, the Redevelopment Plan proposed that the 120-unit rental
high-rise building (High-Rise) be replaced by 55 lower-density public housing rental
units. From at least 2011 onward, Appellants complained at public meetings about
the proposed construction.
              On June 27, 2012, Paulmier stated at a public meeting that the Westside
Neighborhood Council intended to file a lawsuit to stop the Redevelopment. On
September 11, 2014, Samuel C. Stretton, Esquire (Appellants’ Counsel) sent a letter
to PHA’s President and CEO Kelvin Jeremiah (Jeremiah) and Councilwoman Cindy
Bass, stating that he represented Appellants and that he was raising questions because
it was his position that the Property has been used as a playground for many years
and the use should not be changed without Orphans’ Court approval. On September
14, 2014, after four public meetings, community outreach and major press coverage,

       1
       The facts recited herein are undisputed as they are taken from the Joint Stipulation of Facts
which was submitted to the trial court by the parties on October 13, 2015.
                                                 2
the High-Rise was imploded. On September 17, 2014, PHA received Appellants’
Counsel’s letter. On December 2, 2014, Appellants’ Counsel informed PHA’s Senior
Counsel Starr Marshall Cash, Esquire (PHA’s Counsel) that he would be filing a
lawsuit shortly. On December 17, 2014, PHA began removing the High-Rise’s
remnants. Thereafter, the Redevelopment began. Fifty-five new homes have been
completed on the Property, and 55 families have been living therein, in some cases,
for almost a year.


                                              Facts
              On March 3, 2015,2 Appellants filed a Complaint Seeking Injunctive and
Declaratory Relief and a Motion Requesting Preliminary Hearing. On March 19,
2015, the trial court denied the request without prejudice because Appellants should
have filed a petition for citation and a petition for injunction pursuant to Local
Orphans’ Court Rule 1.2.P(1). On March 26, 2015, Appellants filed the Petition.
The Petition sought to enjoin the City, PHA and PAID (collectively, Appellees)
from developing the Property into low-density rental housing units and to direct
Appellees to reopen the Property as a playground. A hearing was held on October
14 and 15, 2015.       On November 3, 2015, the trial court denied the Petition.3
Appellants filed a timely notice of appeal.4 The trial court issued an order directing

       2
         By that time, PHA was already six months into the Redevelopment, and had spent tens of
millions of dollars.
       3
          Appellants did not seek reconsideration, did not attempt to have the appeal expedited
pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 123, and did not seek an injunction
pending appeal under Rule 1732.
       4
         Our standard of review from a final order of the Orphans’ Court is as follows:

                  The findings of a judge of the [O]rphans’ [C]ourt division,
                  sitting without a jury, must be accorded the same weight and
                  effect as the verdict of a jury, and will not be reversed by an
                  appellate court in the absence of an abuse of discretion or a
                  lack of evidentiary support. . . . In reviewing the Orphans’
                                                3
Appellants to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement of
errors complained of on appeal (1925(b) Statement). Appellants filed their 1925(b)
Statement on November 25, 2015. On February 3, 2016, the trial court filed its
opinion.


                                          Discussion
              Initially,

              [t]he prerequisites for a preliminary injunction are 1) that
              the injunction is necessary to prevent immediate and
              irreparable harm that could not be compensated by
              damages; 2) that greater injury would result by refusing the
              injunction than by granting it; 3) that the injunction restores
              the parties to the status quo that existed immediately before
              the alleged wrong; 4) that the wrong is manifest and the
              injunction is reasonably suited to abate it; and 5) the
              applicant’s right to relief is clear. To establish a clear right
              to relief, the applicant must show that it is likely to succeed
              on the merits. Our review of a trial court’s grant of a
              preliminary injunction is to determine whether there were
              any reasonable grounds for the trial court’s action, and we
              will reverse only if no such grounds exist.

In re Milton Hershey School Trust, 807 A.2d 324, 326-27 (Pa. Cmwlth. 2002)
(citation omitted).




                  Court’s findings, our task is to ensure that the record is free
                  from legal error and to determine if the Orphans’ Court’s
                  findings are supported by competent and adequate evidence
                  and are not predicated upon capricious disbelief of
                  competent and credible evidence.
             In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014) (citation
             omitted).
Werner v. Werner, 149 A.3d 338, 341 (Pa. Super. 2016).
                                                4
               Appellants first argue that the trial court erred by determining that their
action was barred by the doctrine of laches (Laches)5 because, in order for Laches to
apply, Appellees had to have acted with clean hands and due diligence. Specifically,
Appellants maintain that because Appellees were aware that the public trust doctrine6
and what is commonly known as the Dedicated or Donated Property Act (DDPA)7
require Orphans’ Court approval prior to the sale of the Property, Laches does not
apply.
               Appellees8 rejoin that (1) the appeal should be dismissed as moot
because PHA has completed the Redevelopment’s construction and 55 families have
moved in, and (2) the trial court properly applied Laches because Appellants failed to
prosecute their claims with due diligence, thereby prejudicing PHA. Because it is
potentially dispositive, we will address the mootness issue first.


                                            Mootness

               The mootness doctrine requires an actual case or
               controversy to exist at all stages.
                  It is a well-established principle of law that this Court
                  will not decide moot questions. The articulation of the
                  mootness doctrine . . . was acknowledged in our
         5
          “Equity has established the doctrine of laches to preclude actions that are brought without
due diligence and which result in prejudice to the non-moving party.” Koter v. Cosgrove, 844 A.2d
29, 34 (Pa. Cmwlth. 2004).
        6
                As this Court explained, ‘[u]nder the common law public trust
                doctrine, when land has been dedicated and accepted for public use, a
                political subdivision is estopped from interfering with or revoking the
                grant at least so long as the land continues to be used, in good faith,
                for the purpose for which it was originally dedicated.’ In re Estate of
                Ryerss, 987 A.2d 1231, 1237 n.[]8 (Pa. Cmwlth. 2009) (citation
                omitted).
Borough of Downingtown v. Friends of Kardon Park, 55 A.3d 163, 169 n.9 (Pa. Cmwlth. 2012).
        7
          Act of December 15, 1959, P.L. 772, 53 P.S. §§ 3381-3386.
        8
          On December 2, 2016, PHA filed a brief and the City and PAID filed a joinder in PHA’s
brief.
                                                 5
                  decision in In re Gross, . . . 382 A.2d 116 ([Pa.] 1978)
                  as follows:
                     The problems arise from events occurring after
                     the lawsuit has gotten under way—changes in the
                     facts or in the law—which allegedly deprive the
                     litigant of the necessary stake in the outcome.
                     The mootness doctrine requires that ‘an actual
                     controversy must be extant at all stages of review.
                     . . .’ G. Gunther, Constitutional Law 1578 (9th
                     ed.1975).
                  [Gross,] 382 A.2d at 119. An issue can become moot
                  during the pendency of an appeal due to an intervening
                  change in the facts of the case or due to an intervening
                  change in the applicable law.
               In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991).

Dep’t of Envtl. Protection v. Cromwell Twp., Huntingdon Cnty., 32 A.3d 639, 651
(Pa. 2011).
               Appellees maintain that this case has become moot because, first, the
Property has already been redeveloped with low-density rental housing units and,
second, the Property cannot now be reopened as a playground.

               We agree that these two factors render the current appeal
               moot. Because Appellants sought an injunction to prevent
               [Appellees] from [developing the Property9], and because,
               since the filing of this appeal, [Appellees have completed
               the Redevelopment], there is currently ‘nothing for the
               lower court to enjoin, nor can this Court now order the
               injunctive relief sought below.’ Gross, . . . 382 A.2d at 121.
               Moreover, though Appellants’ [P]etition below sought an
               injunction [and an order directing reopening of the
               playground,] any such relief provided by this [C]ourt would
               be superfluous in light of the [fact that the Property had
               already been developed into housing units]. Accordingly,
               we hold that the instant appeal has become moot.




      9
          Here, the Redevelopment began before the filing of the Petition.
                                                  6
Phila. Lodge No. 5, Fraternal Order of Police v. Phila. Bd. of Pensions &
Retirement, 606 A.2d 603, 605 (Pa. Cmwlth. 1992) (citation omitted).
                “It is well settled that the courts ‘do not render decisions in the abstract
or offer purely advisory opinions.’                    Pittsburgh Palisades Park, LLC v.
Commonwealth, . . . 888 A.2d 655, 659 ([Pa.] 2005).” Harris v. Rendell, 982 A.2d
1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa. 2010).

                An advisory opinion is one issued despite the lack of a
                justiciable case or controversy between the parties to an
                appeal. See [Pa.] Pub[.] Util[.][Comm’n] v. [Cnty.] of
                Allegheny, . . . 203 A.2d 544, 546 ([Pa.] 1964). Where the
                issues in a case are moot, any opinion issued would be
                merely advisory and, therefore, inappropriate. [Dep’t]
                of [Envtl.] Res[.] v. Jubelirer, . . . 614 A.2d 204, 212–13
                ([Pa.] 1992) (citations omitted).

Stuckley v. Zoning Hearing Bd. of Newtown Twp., 79 A.3d 510, 516 (Pa. 2013)
(emphasis added). Consequently, “a decision on the merits of the case is precluded
by the doctrine of mootness[.]” Util. Workers Union of Am., Local 69, AFL-CIO v.
Pub. Util. Comm’n, 859 A.2d 847, 849 (Pa. Cmwlth. 2004).
                Based on the foregoing, the trial court’s order is affirmed.10


                                               ___________________________
                                               ANNE E. COVEY, Judge




      10
           This Court has reviewed the trial court’s decision and discerns no error in its reasoning.
                                                   7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Wissahickon Playground         :
                                      :
Appeal of: Gregory Paulmier, Melissa :
Graham, Dean Brown, Wayne Allen,      :
Karletha Brooks, Ronald Hays, Henry :
(Hal) Sawyer, Miriam L. Rollins, Dock :   No. 2492 C.D. 2015
Brown, Helen Jones, Rodney Haines     :


                                   ORDER

            AND NOW, this 28th day of March, 2017, the Philadelphia County
Orphans’ Court’s November 3, 2015 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
