         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester County Outdoor, LLC      :
                                 :
            v.                   :
                                 : No. 1303 C.D. 2016
                                 : Argued: February 7, 2017
Westtown Township and Therese L. :
Money                            :
                                 :
Appeal of: Therese L. Money      :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: March 20, 2017


            Therese L. Money (Money) appeals the order of the Court of
Common Pleas of Chester County (trial court) granting Westtown Township
(Township) and Chester County Outdoor, LLC’s (Chester Outdoor) joint petition
for approval of the first amendment to the parties’ settlement agreement and
denying as moot Money’s petition for contempt and sanctions. For the following
reasons, we affirm.


                                        I.
            Many of the facts in this case were set out in more detail in a previous
appeal filed by Money, which also pertained to the parties’ settlement agreement.
See Money v. Board of Supervisors of the Township of Westtown (Money I), 89
A.3d 308 (Pa. Cmwlth. 2014). Pertinent to this case, in December 2010, Chester
Outdoor challenged the validity of the Township’s Zoning Ordinance alleging a de
jure exclusion of off-premises billboards and advertising signs in the Township.
Following negotiations, Chester Outdoor and the Township drafted a proposed
settlement agreement (Settlement Agreement) permitting Chester Outdoor to
construct an off-premises digital outdoor sign (Billboard)1 adjacent to Money’s
property. Section 8.f of the Settlement Agreement states that “[t]he Proposed
Monument Sign shall not . . . [s]pill any light or glare onto neighboring properties
or the roadway. . . .” (Reproduced Record (R.R.) at 18a-19a.) (Emphasis added.)


             Moreover, the Settlement Agreement specifies that Chester Outdoor is
responsible for maintenance and repair of the Billboard as well as landscaping, and
Section 7 states, in pertinent part, “[t]he maintenance responsibilities of Chester
Outdoor shall be set forth in a separate Maintenance Agreement which shall be
incorporated by reference into this [Settlement] Agreement and made part hereof.”
(R.R. at 18a.) Section 12(c) also contains an integration clause, stating that the
Settlement Agreement “shall constitute the entire agreement among the Parties and
supersedes all prior negotiations, understandings and agreements of any nature
whatsoever with respect to the subject matter hereof.” (R.R. at 20a.)




      1
      The parties and previous opinion of this Court also refer to the Billboard as the
Monument Sign.



                                          2
               Because the site of the proposed Billboard was in close proximity to
Money’s property, the Township provided her with notice of the Board of
Supervisors’ (Board) scheduled consideration of the Settlement Agreement.2
Relying upon information provided by the Township and its counsel, Money did
not object, and both the Board and the trial court approved the Settlement
Agreement. That settled and discontinued the proceedings except for purposes of
enforcement.3


               At a February 6, 2012 public meeting of the Board to consider the
proposed Maintenance Agreement, Money’s counsel appeared and objected,
arguing that the screening proposed by Chester Outdoor did not comply with the
landscape plan or with Paragraph 8.f’s requirement that the sign should not “spill
any light or glare onto neighboring properties or the roadway.” (R.R. at 19a.) The




       2
           In zoning and land use matters, zoning disputes can be settled over the objection of
potential aggrieved parties provided the agreement is reasonable and not adverse to the public
health, safety, morals and general welfare. See Rees v. Board of Supervisors of Indiana
Township, 513 A.2d 584 (Pa. Cmwlth. 1986); Summit Township Taxpayers Association v.
Summit Township Board of Supervisors, 411 A.2d 1263 (Pa. Cmwlth. 1980). Agreements that
settle a zoning challenge can be entered into as long as there is public notice of such a settlement
and the public is provided with an opportunity to participate and be heard. If there is outstanding
litigation, an aggrieved party can intervene as of right in the proceeding. If there is no litigation,
then an aggrieved party can appeal the governing body’s administrative action in approving the
maintenance agreement. See Money I; Yaracs v. Summit Academy, 845 A.2d 203 (Pa. Cmwlth.
2004); Summit Township.

       3
         The trial court’s September 1, 2011 order approving the Settlement Agreement states
“[t]his Court shall retain jurisdiction over this matter for purposes of enforcing the terms of the
Settlement Agreement.” (R.R. at 26a.)



                                                  3
Board approved the Maintenance Agreement and accompanying landscape plan,
despite Money’s objection.4


                Money appealed5 the Board’s approval of the Maintenance Agreement
to the trial court, and Chester Outdoor filed a petition to strike arguing Money was
not a party to the Settlement Agreement. The trial court granted the petition and
dismissed Money’s appeal, holding that the Board’s approval of the Maintenance
Agreement was not an appealable adjudication under the Local Agency Law
(Law).6 Money then appealed to this Court.


                In Money I, we noted that settlement agreements affecting personal or
property rights are appealable adjudications under Section 101 of the
Administrative Agency Law, 2 Pa. C.S. § 101. 89 A.3d at 312 (citations omitted).
Moreover, “[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. . . .” 2 Pa. C.S. § 752.




       4
           Chester Outdoor subsequently submitted a revised landscape plan. The Township
solicitor’s landscape consultant identified several deficiencies in the plan and Money also lodged
objections at the Board’s February 21, 2012 meeting. Nonetheless, the Board approved the
revised landscape plan.

       5
          Money filed a petition to intervene in the trial court action on February 6, 2013. The
trial court granted her unopposed motion on April 3, 2013, and she was granted party status to
enforce the Settlement Agreement.

       6
           2 Pa. C.S. §§ 551-555, 751-754.



                                                4
            Given the above, we reversed the trial court holding that the
Maintenance Agreement made changes to the substantive provisions of the
Settlement Agreement that could not be integrated by mere incorporation under
Paragraph 7’s integration clause. We held that “[t]he Maintenance Agreement
changed the express and substantive terms of the Settlement Agreement by
removing Paragraph 8.f’s prohibition [against spilling any light or glare onto
neighboring properties]. As a result, the Maintenance Agreement constitutes a new
‘adjudication’ modifying the Settlement Agreement which Money could properly
appeal to the trial court.” Money I, 89 A.3d at 313 (citing Melat v. Melat, 602 A.2d
380, 385 (Pa. Super. 1992)). We remanded the case for the trial court to consider
the merits of Money’s appeal. On remand, the trial court issued an order dated
September 4, 2015, invalidating the Board’s approval of the Maintenance
Agreement. That ended that proceeding.


                                        II.
            On July 29, 2013, Money filed a contempt petition in the trial court
alleging Chester Outdoor and the Township were in violation of Section 8.f of the
Settlement Agreement because light and/or glare was spilling onto Money’s
property from the Billboard. Money was permitted to withdraw the contempt
petition without prejudice on November 13, 2013.         She then filed a similar
contempt petition on November 19, 2013, which was withdrawn on March 10,
2014.


            On February 10, 2014, Chester Outdoor and the Township proposed a
First Amendment to the Settlement Agreement (First Amendment) amending


                                         5
Section 8.f of the Settlement Agreement “to ‘clarify’ the mutual understanding and
original intent of Chester Outdoor and the Township.”7 (Trial Court’s August 25,
2016 Opinion at 3.) Section 8.f of the First Amendment states “[t]he Proposed
Monument Sign shall not . . . [s]pill any light or glare onto neighboring properties
or the roadway in excess of 0.1 footcandles. . . .” (Id.) (Emphasis added.) The
Board approved the First Amendment during a February 10, 2014 public meeting,
at which Money’s counsel appeared and objected.


             Money did not file an appeal from the Board’s decision to approve the
First Amendment. Instead, on November 2, 2015, Money filed another contempt
petition in the trial court alleging Chester Outdoor and the Township are in
contempt of the trial court’s September 1, 2011 order approving the Settlement
Agreement because light and/or glare are spilling from the Billboard onto her
property in violation of the terms of that agreement.


             On November 19, 2015, Chester Outdoor and the Township filed a
joint petition to have the trial court approve the First Amendment, which Money
opposed. Chester Outdoor and the Township claimed that they always intended
Section 8.f of the Settlement Agreement to comply with the “dark skies” and off-
premises advertising sign provisions of the Township’s Zoning Ordinance which
permit a maximum luminance of 0.1 footcandles.



      7
         Section 12(d) of the Settlement Agreement provides, in pertinent part, that the
“[Settlement] Agreement may be amended upon the written consent of the Parties to this
Agreement. . . .” (R.R. at 20a.)



                                           6
              Following oral argument, the trial court issued an order granting the
joint petition to approve the First Amendment and denying Money’s petition for
contempt. Citing our decision in Money I, the trial court determined that because
the First Amendment affects Chester Outdoor’s property rights and potentially
other aggrieved parties’ property rights, the Board’s approval of the First
Amendment was an adjudication under the Law. Because Money did not appeal
the Board’s approval of the First Amendment, her appeal is barred and she cannot
now collaterally attack or contest the validity of the First Amendment. The trial
court approved the First Amendment, finding that allowing up to 0.1 footcandles of
illumination at the property line is reasonable and consistent with the public health,
safety, morals and general welfare.


              As for the contempt petition, the trial court determined that “Money
has failed to demonstrate facts sufficient to establish a finding of civil contempt
against the Township and Chester Outdoor.” (Trial Court’s July 14, 2016 Order at
2.) The trial court also held that its order approving the First Amendment applies
retroactively to February 10, 2014, when the Board approved the First Amendment
at its public meeting; therefore, Money’s November 2, 2015 petition for contempt
is moot. This appeal followed.8



       8
          We review a trial court’s acceptance or rejection of a settlement proposal for abuse of
discretion. BPG Real Estate Investors-Straw Party II, L.P. v. Board of Supervisors of Newtown
Township, 990 A.2d 140, 145 (Pa. Cmwlth. 2010). Our review of a trial court’s contempt order
is limited to determining whether the trial court committed an error of law or abused its
discretion. Office of Attorney General v. Lubisky, 88 A.3d 328, 332 n.5 (Pa. Cmwlth. 2014)
(citing Township of Lycoming v. Shannon, 780 A.2d 835, 838 n.1 (Pa. Cmwlth. 2001)).



                                               7
                                       III.
                                        A.
            Money first argues that the trial court abused its discretion in holding
that the Board’s February 10, 2014 approval of the First Amendment was an
adjudication from which she was required to take an appeal. She argues that her
current situation is different from that of Money I because, there, Chester Outdoor
and the Township attempted to incorporate into the Settlement Agreement by
reference a separate Maintenance Agreement which adversely affected her rights
and substantially changed the terms of the Settlement Agreement.          She also
attempts to differentiate the situations by claiming Chester Outdoor and the
Township never petitioned the trial court for approval of the Maintenance
Agreement in Money I.


            Just like the Maintenance Agreement in Money I, the First
Amendment changes “the express and substantive terms of the Settlement
Agreement by removing Paragraph 8.f’s prohibition.” Money I, 89 A.3d at 313.
Specifically, the First Amendment removes the total ban on light or glare from the
Billboard and now allows the Billboard to spill light or glare onto Money’s
property up to 0.1 footcandles in luminance. It also modifies the terms of the
Settlement Agreement, again affecting the personal or property rights of those
involved. Money appeared, via counsel, at the Board’s February 10, 2014 meeting
and objected to the First Amendment, but failed to file an appeal of the Board’s
approval to the trial court. Just as in Money I, to challenge the propriety of the
First Amendment, Money was required to take steps to challenge that action.




                                        8
Because she did not do so, Money cannot now contest the propriety of the terms
contained in the First Amendment.


                                               B.
               Money also argues that she is not barred from challenging the validity
of the First Amendment because she is a party as the trial court granted her petition
to intervene in Money I. While the trial court did grant Money’s petition to
intervene, the only matter in which the trial court could allow intervention was
whether Chester Outdoor and the Township had complied with the Settlement
Agreement. That intervention did not make Money a party to the underlying
Settlement Agreement. What gave her the ability to challenge the Maintenance
Agreement was Money appealing that action by the Board, which ended when the
trial court invalidated the Maintenance Agreement. The First Amendment is a
separate agreement, and while Money may have had the ability to participate
through an appeal or other proceeding,9 she failed to do so.




       9
          Money also argues that the Board’s approval of the Settlement Agreement is not an
adjudication because she had another existing forum in which to assert her rights, e.g., she could
file an action in the trial court to enforce the Settlement Agreement pursuant to the September 1,
2011 order. See Middle Creek Bible Conference Inc. v. Department of Environmental
Resources, 645 A.2d 295, 300 (Pa. Cmwlth. 1994) (“[w]hen an agency’s decision or refusal to
act leaves a complainant with no other forum in which to assert his or her rights, privileges or
immunities, the agency’s act is an adjudication.”) (quoting Wortman v. Philadelphia Commission
of Human Relations, 591 A.2d 331 (Pa. Cmwlth. 1991)). Because this issue was not raised in
Money’s statement of errors complained of on appeal, it has been waived. See Pa. R.A.P.
1925(b)(3)(vii); Muldrow v. Southeastern Pennsylvania Transportation Authority, 88 A.3d 269
(Pa. Cmwlth. 2014). Moreover, this same remedy was available to Money at the time she filed
her appeal in Money I.



                                                9
                                              C.
              In addition, Money argues that the trial court erred or abused its
discretion in applying the First Amendment retroactively to February 10, 2014, the
date of the Board’s approval, and not all the way back to 2011 when the Settlement
Agreement was first drafted, making her contempt petition moot.10                      Money
willingly withdrew her previous contempt petitions and the current petition was not
filed until November 2, 2015, some 21 months after the Board’s approval of the
First Amendment. Because the trial court’s order makes the First Amendment
retroactive to February 10, 2014, the date of the Board’s approval, Money’s
petition is moot.11 In any event, no matter which date the trial court made the First
Amendment effective, once approved, it made Money’s petition moot because
Chester Outdoor and the Township were in compliance with the Settlement
Agreement.


              Accordingly, the order of the trial court is affirmed.


                                            ______________________________
                                            DAN PELLEGRINI, Senior Judge


       10
          Given our decision on this issue, we do not reach Money’s substantive arguments
regarding the First Amendment’s approval including the mutual understanding and intent of
Chester Outdoor and the Township. Notably, Money does not develop an argument nor did she
present any evidence before the trial court that approval of the First Amendment is unreasonable
or inconsistent with the public health, safety, morals and general welfare.

       11
          Because the remainder of Money’s arguments either were not raised before the trial
court or were not included in Money’s statement of errors complained of on appeal, they have
been waived. See Pa. R.A.P. 302(a) and 1925(b)(3)(vii); Muldrow v. Southeastern Pennsylvania
Transportation Authority, 88 A.3d 269 (Pa. Cmwlth. 2014); Campbell v. Department of
Transportation, Bureau of Driver Licensing, 86 A.3d 344, 349 (Pa. Cmwlth. 2014).


                                              10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chester County Outdoor, LLC      :
                                 :
            v.                   :
                                 : No. 1303 C.D. 2016
Westtown Township and Therese L. :
Money                            :
                                 :
Appeal of: Therese L. Money      :




                                   ORDER


            AND NOW, this 20th day of March, 2017, the order of the Court of
Common Pleas of Chester County in the above-captioned matter is affirmed.



                                    ______________________________
                                    DAN PELLEGRINI, Senior Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester County Outdoor, LLC                     :
                                                :
               v.                               :   No. 1303 C.D. 2016
                                                :   Argued: February 7, 2017
Westtown Township and                           :
Therese L. Money                                :
                                                :
Appeal of: Therese L. Money                     :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE BROBSON                                    FILED: March 20, 2017

               Respectfully, I believe the Court erred in Money v. Board of
Supervisors of the Township of Westtown, 89 A.3d 308 (Pa. Cmwlth. 2014)
(Money I), when it ruled that a local governing board’s vote to authorize its legal
counsel to settle litigation is an adjudication that is appealable under the Local
Agency Law (LAL).1 The decision in Money I is on such weak footing that,

      1
          2 Pa. C.S. §§ 551-555, 751-754. “Adjudication” is defined as follows:
              Any final order, decree, decision, determination or ruling by an agency
      affecting personal or property rights, privileges, immunities, duties, liabilities or
      obligations of any or all of the parties to the proceeding in which the adjudication
      is made. The term does not include any order based upon a proceeding before a
      court or which involves the seizure or forfeiture of property, paroles, pardons or
      releases from mental institutions.
2 Pa. C.S. § 101.
notwithstanding stare decisis and the law of the case doctrine,2 it deserves
reconsideration by the Court.
              Not every action of a local agency governing body is an adjudication.
For the reasons set forth in Judge Covey’s dissent in Money I, a vote of a board of
supervisors approving a settlement of litigation does not constitute an adjudication
under the LAL that may be appealed to the court of common pleas. It is an
“executive,” not quasi-judicial, function by a local governing body to authorize its
attorney to terminate pending litigation on agreed-to terms.              See 65 Pa. C.S.
§ 708(a) (authorizing “executive” sessions to discuss matters inherently managerial
in nature, including to discuss litigation strategy). To the extent a party adversely
affected by the settlement of the litigation wishes to challenge the settlement itself
(rather than the governing board’s executive decision to enter into the settlement),
then the remedy is to seek intervention in the disputed litigation and object to the
settlement, not to appeal a public vote authorizing counsel to enter into the
settlement on the municipality’s behalf. Summit Twp. Taxpayers Assoc. v. Summit
Twp. Bd. of Supervisors, 411 A.2d 1263 (Pa. Cmwlth. 1980) (holding that to
challenge settlement of validity challenge to zoning ordinance, party must
intervene in litigation that is the subject of settlement, not appeal governing body’s
vote to authorize settlement).




       2
         Flagiello v. Pa. Hosp., 208 A.2d 193, 205 (Pa. 1965) (“The principle of stare decisis
does not demand that we follow precedents which shipwreck justice.”); Commonwealth v. Starr,
664 A.2d 1326, 1332 (Pa. 1995) (holding that departure from law of the case doctrine
appropriate in only exceptional circumstances, such as where “the prior holding was clearly
erroneous and would create a manifest injustice if followed”).



                                           PKB-2
             In this case, on November 19, 2015, Chester County Outdoor, LLC
(Chester Outdoor) and Westtown Township (Township) filed a joint petition with
the Court of Common Pleas of Chester County (trial court), seeking court approval
of an amendment to their settlement agreement (First Amendment). At that time,
Therese L. Money (Money) was a party intervenor, having secured that status over
two years earlier. Nonetheless, the majority relies on Money I to hold that Money,
although a party to the litigation, could not object to the joint petition because she
did not appeal the Township Board of Supervisor’s vote authorizing the filing of
the joint petition. Such a ruling may be consistent with Money I, but it is not
consistent with any other precedent, particularly Summit Township. Here, Money
did exactly what this Court in Summit Township said she had to do to protect her
interest—i.e., she intervened in the court proceeding that was the subject of the
settlement and lodged her objection.
             Notwithstanding my disagreement with Money I, like the majority, I
would affirm the trial court’s decision approving the First Amendment, but on
different grounds. The trial court held that the Township and Chester Outdoor
could lawfully amend their original settlement agreement and that the First
Amendment was reasonable and consistent with the public health, safety, morals,
and general welfare. Nothing in Money’s brief on appeal convinces me that the
trial court erred in its determinations. Accordingly, for these reasons, I would
affirm.




                                P. KEVIN BROBSON, Judge



                                       PKB-3
