J-S26018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SCOTT R. MONGER AND HOWARD S.                   IN THE SUPERIOR COURT OF
MORRIS                                                PENNSYLVANIA

                            Appellants

                       v.

UPPER LEACOCK TOWNSHIP

                            Appellee                No. 1623 MDA 2014


            Appeal from the Judgment Entered on August 28, 2014
              In the Court of Common Pleas of Lancaster County
                       Civil Division at No.: 2012-01094


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                             FILED APRIL 28, 2015

       In this action, Appellants have raised several contract claims against

Appellee, Upper Leacock Township (“the Township” 1), that arise out of the

Township’s review of a land use application for a proposed seventy-one-acre

real estate development that was submitted by Appellants through their

business entity.     Because we find that Appellants’ claims are inextricably

intertwined with the land use application process, which is governed by

Pennsylvania statute and local ordinance, we find that Appellants’ claims lie



____________________________________________


1
     For simplicity’s sake, we use the Township to refer interchangeably to
Upper Leacock, as a municipal entity, the Upper Leacock Planning
Commission, and the Upper Leacock Board of Supervisors, the latter two of
whom reviewed and acted upon Appellants’ land use application.
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in the exclusive jurisdiction of the Commonwealth Court.      Accordingly, we

transfer this case to that court.

      The land use application process undisputedly was governed by the

Township’s Subdivision and Land Development Ordinance (“SALDO”).            In

connection with their November 5, 2007 application, Appellants sought

waivers of certain SALDO requirements. The Township issued a conditional

approval of the plan granting one waiver but denying another, which had the

effect of requiring Appellants to revise their plan to satisfy the relevant

ordinance.   Thereafter, Appellants submitted a revised plan and requested

an extension from the SALDO-prescribed time period for complying with the

Township’s conditions. The extension was granted, but Appellants failed to

satisfy the conditions before the expiration of the extended deadline and did

not request a second extension. Thus, on May 1, 2008, after the expiration

of the time limit for establishing compliance, the Township voted to

disapprove the plan.       A written decision documenting the Township’s

decision was mailed to Appellants the next day.      See Trial Court Opinion

(“T.C.O.”), 8/28/2014, at 3-5.

      Pursuant to 53 P.S. § 11002-A(a), Appellants had thirty days from the

date of the Township’s decision to appeal that decision “to the court of

common pleas of the judicial district wherein the land is located.” Section

11002-A(a) specifies that “[i]t is the express intent of the General Assembly

that, except in cases in which an unconstitutional deprivation of due process

would result from its application, the 30-day limitation in this section should

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be applied in all appeals from decisions.” The decisions to which it refers are

“land use decisions rendered pursuant to Article IX,” 53 P.S. §§ 10901, et

seq., which governs zoning hearing board and other              administrative

proceedings.   See 53 P.S. §§ 10909.1(a)(5)-(6) (conferring the zoning

hearing board with exclusive jurisdiction over applications for variances or

special exceptions under the governing zoning ordinance). Appellants took

no other action in furtherance of seeking review of the Township’s decision.

      On June 27, 2012, Appellants in their individual capacities filed a

complaint against the Township asserting breach of express contract, breach

of implied contract, and promissory estoppel. The Township filed preliminary

objections, which the trial court denied without prejudice.          Following

discovery, on March 27, 2014, the Township filed a motion for summary

judgment alleging (1) that Appellants’ claims were time barred under the

Municipalities Planning Code (“MPC”), 53 P.S. §§ 10101, et seq.; (2) that the

claims were time barred under the governing statute of limitations; and (3)

that the complaint failed to state a cause of action upon which relief could be

granted. See T.C.O. at 5.

      On May 19, 2014, the trial court held a hearing on the Township’s

motion. At that hearing, Appellants asserted that their claims were based

upon the proposition that the parties entered into a contract when

Appellants submitted their land use application, obligating the Township to

act in good faith in reviewing that application.    Thereafter, the Township

requested leave to amend its motion for summary judgment to assert that

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Appellants lacked standing to bring the instant law suit.     The parties filed

supplemental briefs on that issue. See id. at 5-6.

      Thereafter, on August 28, 2014, the trial court entered summary

judgment in favor of the Township. It so ruled on the basis that Appellants,

in violation of 53 P.S. § 11002-A(a), had failed to appeal the Township’s land

use decision to the court of common pleas within thirty days of the

Township’s adverse decision.     It further noted that “The procedures for a

land use appeal in the MPC are ‘the exclusive mode for securing review of

any decision rendered pursuant to Article IX of the MPC.’”         T.C.O. at 7

(quoting 53 P.S. 11001-A; emphasis added by the trial court). Appellants

filed a timely notice of appeal to this Court on September 25, 2014.        On

September 29, 2014, the trial court entered an order directing Appellants to

prepare and file a concise statement of the errors complained of on appeal.

Appellants timely complied on October 20, 2014.             In lieu of a full

Rule 1925(a) opinion, on October 27, 2014, the trial court issued a brief

statement indicating that its August 28, 2014 opinion was sufficient to

explain its reasoning. Accordingly, this case is ripe for our review.

      Appellants raise the following issue:

      Did the lower court commit legal error and/or abuse its
      discretion in dismissing the entire Complaint and the common
      law claims pleaded therein, by treating those claims as being in
      the nature of an appeal of an “adverse land use decision” which
      involved a prerequisite appellate process pursuant to the [MPC],
      when Appellants’ common law contract-based claims were
      propounded to redress [the Township’s] improper conduct—
      irrespective of any land-use decisions or purportedly required
      statutory appellate process?

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Brief for Appellants at 2.

      Before   reaching      the   merits,   we   must   address   the   Township’s

contention that this case should be transferred to the Commonwealth Court,

because its subject matter falls within that court’s exclusive jurisdiction. The

governing statute provides, in relevant part, as follows:

      (a) General rule.—Except as provided in subsection (b), the
      Commonwealth Court shall have exclusive jurisdiction of appeals
      from final orders of the courts of common pleas in the following
      cases

                                       ****

         (4)        Local government civil and criminal matters.—

            (i)    All actions or proceedings arising under any
            municipality, institution district, public school, planning
            or zoning code or under which a municipality or other
            political subdivision or municipality authority may be
            formed or incorporated or where is drawn in question
            the application, interpretation or enforcement of any:

               (A)      statute regulating the affairs of political
               subdivisions, municipality and other local authorities
               or other public corporations or of the officers,
               employees or agents thereof, acting in their official
               capacity;

               (B)      home rule charter or local ordinance or
               resolution . . . .

42 Pa.C.S. § 762.

      Despite the fact that the Township specifically contends that this case

should be heard by the Commonwealth Court rather than this Court, see

Brief for Township at 12-14, Appellants do not address the issue in their

primary brief, and have not filed a reply brief. Nonetheless, insofar as the


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trial court entered summary judgment on the basis that Appellants’ claims

were rooted in the Township’s land use decision, and consequently were

waived because Appellants failed to follow the prescribed procedure for

appealing that decision, an argument that subsection 762(a)(4)(i) does not

apply in this matter may be teased out from Appellants’ brief, which

naturally takes up that issue as presented. That is to say, if Appellants are

correct that the land use decision, as such, is not implicated in this case, and

that their claims sound solely in contract and/or estoppel, then section 762

might not govern the appellate jurisdictional question.      However, for the

reasons that follow, we do not believe that we are the proper venue to test

this argument, not least because we find it facially unpersuasive, although

we do not intend to answer the question definitively.

      A brief review of Appellants’ complaint supports our determination.

After a lengthy recitation of factual allegations aimed at establishing the

Township’s bad faith, Appellants set forth, in relevant part, the following

allegations in support of their claim for breach of express contract:

      40. . . . . [Appellants] and [the Township] entered into an
      express contract whereby [Appellants] submitted written
      applications for land use approval, [Appellants] paid to [the
      Township] the consideration of the required application and
      review fees and [Appellant] delivered to [the Township] the
      required land use plans and specifications, plus revisions thereto,
      and [the Township] agreed to a review of the application and
      supporting materials in accordance with all relevant legal
      requirements.

      41. In Pennsylvania, every party to a contract has an implied
      duty of good faith and fair dealing in performance of contract
      obligations.

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     42. In Pennsylvania, a municipality also has a duty of good
     faith in the review and processing of a land use
     application.

Complaint at 7-8 (emphasis added).            In support of its claim for breach of

implied contract, in addition to the above allegations, Appellants asserted

that they and the Township “entered into an implied contract regarding

[the Township’s] review and processing of [Appellants’] land use

applications.”     Id. at 8 ¶ 46 (emphasis added); see id. at 8 ¶ 47

(“[Appellants]    undertook     a    series     of   actions . . .   regarding   [the

Township’s       review   and       processing       of   [Appellants’]   land   use

applications.” (emphasis added)).             Finally, in support of their claim for

promissory estoppel, Appellants alleged, inter alia, that it was foreseeable

that the Appellants “would have relied on the various promises by [the

Township] in order to induce [Appellants] to make their decisions and

expenditures regarding [Appellants’] land use applications, plans and

revisions, in light of the specific issues and concerns [that the

Township] had communicated to [Appellants].”                         Id. at 10 ¶ 57

(emphasis added).

     It is true, as the trial court noted, that municipal bodies owe a duty of

good faith in reviewing a party’s land use application. See T.C.O. at 8 n.1

(citing Highway Materials v. Bd. of Supervisors, 974 A.2d 539

(Pa. Cmwlth. 2009); Raum v. Bd. of Supervisors of Tredyffrin Twp., 370

A.2d 777 (Pa. Cmwlth. 1977).           However, we fail to see how resolving

allegations of bad faith in this context would not require a fact-finder to

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measure the Township’s conduct relative to its legal obligations as set forth

in the MPC and other authorities. This, in turn, implicates the very concerns

that   limn    the   boundary       between    our    jurisdiction    and   that   of   our

Commonwealth Court.

       Appellants’ argument on appeal only reinforces that this case belongs

before the Commonwealth Court.                Regardless of the legal principle that

Appellants     asserted   as    a    basis   for   relief,   their   argument,     perhaps

necessarily, is replete with technical arguments regarding, e.g., the

availability of an estoppel remedy in cases implicating the MPC. Appellants

assert the lack of on-point precedent on that question, but suggest that this

Court may find guidance in decisions on related topics such as Perrige v.

Horning, 654 A.2d 1183 (Pa. Super. 1995), J.B. Stevens v. Rullo, 658

A.2d 460, 462 (Pa. Cmwlth. 1995), and Day v. Civil Service Commission

of Borough of Carlisle, 931 A.2d 646 (Pa. 2007).                     Not surprisingly, the

second of these cases was decided by the Commonwealth Court and the

third contained our Supreme Court’s review of a Commonwealth Court

decision.     In the one of these cases that was decided by this Court, we

expressly held that the restrictive covenant dispute at issue in that case did

not, under the MPC, fall within the exclusive jurisdiction of the township

board of supervisors. See Perrige, 654 A.2d at 1186-87. Conversely, the

land use review that Appellants allege was conducted in bad faith in this

matter undisputedly was undertaken by the Township pursuant to its

jurisdiction and authority under the MPC.

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      Notwithstanding the clear mandate of 42 Pa.C.S. § 762, it is well-

established that this Court has discretion to retain jurisdiction over an appeal

that more properly would have been filed in the Commonwealth Court under

section 762.    See Wilson v. Sch. Dist. of Phila., 600 A.2d 210, 211

(Pa. Super. 1991). In determining whether to retain a case encompassed by

section 762, “we must balance the interests of the parties and matters of

judicial economy” against the following non-exhaustive list of factors:

      (1) whether the case has already been transferred; (2) whether
      our retention will disrupt the legislatively ordained division of
      labor between the intermediate appellate courts; and
      (3) whether there is a possibility of establishing two conflicting
      lines of authority on a particular subject.

Trumbull       Corp.   v.   Boss   Constr.,   Inc.,   747    A.2d   395,    399

(Pa. Super. 2000) (citations omitted).     Furthermore, we frequently have

transferred cases when we perceived that the Commonwealth Court had

greater expertise in the issues at bar. See, e.g., Osser v. City of Phila.,

441 A.2d 1317, 1318 (Pa. Super. 1982).

      It clearly is the case that MPC cases are encompassed by section 762

and consequently are decided far more frequently by the Commonwealth

Court, which reviews such cases according to its own extensive body of

precedent concerning such matters.         Thus, the Commonwealth Court’s

greater expertise in such matters cannot be denied. Furthermore, although

we might issue a non-binding memorandum decision on the merits that

would avoid the prospect of conflicting binding lines of authority, there



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remains a risk that such a memorandum would be at odds with related

precedent issued by the Commonwealth Court, which in turn could mislead

members of the bench and bar in future cases.

      To be clear, our review of precedent and the parties’ arguments

suggests that the availability of contract or quasi-contract remedies under

these circumstances and whether they are materially separable from the

land use decision underlying the allegations remain open questions. Those

questions’   resolutions   ultimately   may   have   appellate   jurisdictional

implications for future cases. However, those questions inherently implicate

the scope and effect of the MPC and, as such, fall within the Commonwealth

Court’s greater expertise in that subject matter.     Indeed, that the court

deciding this matter may issue new precedential authority under the MPC

militates strongly in favor of, rather than against, transferring this case to

the Commonwealth Court, which is more fit to decide in the first instance the

relationship of these claims to the MPC. See Eldred Township v. Monroe

County, 478 A.2d 1357, 1358 (Pa. Super. 1984) (noting the Commonwealth

Court’s greater expertise in the subject matter and emphasizing that transfer

was preferable to “prevent unnecessary confusion and lack of coordination”

because the Commonwealth Court would “be the forum for similar cases in

this area of the law”).        Accordingly, we transfer this case to the

Commonwealth Court.




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     Case transferred.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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