J-A29028-16

                            2016 PA Super 286

DENNIS J. SMITH; CONSTANCE A.               IN THE SUPERIOR COURT OF
SMITH; SANDRA L. SMITH; JEAN                      PENNSYLVANIA
CLAYCOMB; KEVIN SMITH; ELAINE
SNIVLEY; JULIE BONNER; AND JAMES
SMITH

                       Appellants

                  v.

IVY LEE REAL ESTATE, LLC; GEORGE E.
KENSINGER; DONA L. KENSINGER;
MELVIN SHOENFELT; MICHAEL J.
MACOVITCH; PAULA M. DICK; ROGER L.
BOWSER; ELAINE K. BOWSER; ERMA
MAE SYNDER; TYNE N. PALAZZI; SKY E.
POTE; FIRST ENERGY CORP.; BILLIE
JEAN EMERT; TRAVIS A. KEAGY; JAMES
S. FREDERICK; CONNIE J. FREDERICK;
TAMARA J. OGG; AND ALL OTHER
PERSONS CLAIMING INTEREST IN THE
PROPERTY DESCRIBED IN THIS ACTION

                       Appellees                 No. 538 WDA 2016


                  Appeal from the Order March 18, 2016
              In the Court of Common Pleas of Blair County
                  Civil Division at No(s): 2015 GN 3388


BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:                     FILED DECEMBER 15, 2016

     Dennis J. Smith, Constance A. Smith, Sandra L. Smith, Jean Claycomb,

Kevin Smith, Elaine Snivley, Julie Bonner, and James Smith (together,

“Smiths”) appeal from the March 18, 2016 order of the Court of Common
J-A29028-16



Pleas of Blair County denying their request for injunctive relief.1 We transfer

this case to the Commonwealth Court.

       The Smiths and Ivy Lee Real Estate, LLC (“Ivy Lee”) own adjacent

properties in Taylor Township (“Township”).            The properties are separated

by a 50-foot, private right-of-way known as June Street. In 2015, Ivy Lee

began converting the existing residential structure on its property to a

restaurant. The Township does not have a zoning ordinance but does have a

subdivision and land development ordinance (“SALDO”).               Ivy Lee did not

submit a proposed land development plan to the Township. The Township

solicitor, however, informed Ivy Lee that the Township would not enforce the

SALDO’s requirements because Ivy Lee’s building conversion was not “land

development” under the SALDO.

       On October 29, 2015, the Smiths filed an action to quiet title against

Ivy Lee and a petition for preliminary injunction. On January 27, 2016, the

Smiths filed an amended complaint, asserting claims for adverse possession

and declaratory and injunctive relief.          Specifically, the Smiths alleged that

Ivy Lee’s building conversion constituted “land development” under the

SALDO and, thus, Ivy Lee violated the SALDO by failing to submit a land

development plan to the Township.              In support of their authority to bring


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       1
       See Pa.R.A.P. 311(a)(4) (permitting interlocutory appeal as of right
from order denying injunction).




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this   claim,   the   Smiths   relied   on   section   617   of   the   Pennsylvania

Municipalities Planning Code (“MPC”), which provides:

          In case any building, structure, landscaping or land is, or is
          proposed to be, erected, constructed, reconstructed,
          altered, converted, maintained or used in violation of
          any ordinance enacted under this act or prior
          enabling laws, the governing body or, with the approval
          of the governing body, an officer of the municipality, or
          any aggrieved owner or tenant of real property who
          shows that his property or person will be
          substantially affected by the alleged violation, in
          addition to other remedies, may institute any
          appropriate action or proceeding to prevent, restrain,
          correct or abate such building, structure, landscaping or
          land, or to prevent, in or about such premises, any act,
          conduct, business or use constituting a violation. When
          any such action is instituted by a landowner or tenant,
          notice of that action shall be served upon the municipality
          at least 30 days prior to the time the action is begun by
          serving a copy of the complaint on the governing body of
          the municipality. No such action may be maintained until
          such notice has been given.

53 P.S. § 10617 (emphases added).            The Smiths asserted that the plain

language of section 617 permits them to bring a private action against Ivy

Lee for violating the SALDO. In particular, they argued that the phrase “this

act” in section 617 refers to the entire MPC and that the SALDO is an

“ordinance enacted under [the MPC].”          In response, Ivy Lee asserted that

despite the seemingly broad reference to “this act,” section 617 creates a

private right of action only with respect to zoning ordinances because it is

located within the “Zoning” article of the MPC. Because the Township has no

zoning ordinance, Ivy Lee contended that section 617 is inapplicable.



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       Following two evidentiary hearings, the trial court denied the Smiths’

request for injunctive relief,2 concluding that the Smiths cannot bring a

private right of action against Ivy Lee to enforce the SALDO under section

617. The trial court explained:

           Section [617 of the MPC] is contained in the subchapter
           entitled “Zoning,” and the Commonwealth Court has
           almost exclusively applied [section 617] to the area of
           municipal zoning and planning. Although private citizens,
           such as [the Smiths], would be able to pursue a private
           right of action under an applicable municipal ordinance
           established under the MPC, the Taylor Township SALDO is
           inapplicable due to the lack of zoning in the Township.
           Thus, because the Township itself is foreclosed from
           bringing an action under its SALDO and the Pennsylvania
           MPC, [the Smiths] are also foreclosed from bringing a
           private action against Ivy Lee for the land development
           concerning June Street and the alleyway.

Trial Ct. Op. at 8-9. The Smiths timely appealed to this Court.

       On appeal, the Smiths, relying on the plain-language arguments

discussed above, contend that the trial court erred in concluding that a

private right of action does not exist to enforce alleged violations of a SALDO

under section 617. Because we conclude that the Commonwealth Court is

better equipped to consider this issue, we transfer the appeal.

       Section 762(a)(4)(i)(A) of the Judicial Code provides that the

Commonwealth Court has “exclusive jurisdiction” over appeals from the
____________________________________________


       2
         The trial court deferred ruling on the Smiths’ claims for adverse
possession and declaratory relief at that time. Those claims are still pending
in the trial court.



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courts of common pleas in “[a]ll actions or proceedings . . . where is

drawn in question the application, interpretation or enforcement of

any . . . statute regulating the affairs of political subdivisions,

municipalit[ies]        and      other     local   authorities.”   42    Pa.C.S.

§ 762(a)(4)(i)(A) (emphasis added).3 The MPC is a statute “regulating the

affairs of political subdivisions, municipalit[ies] and other local authorities.”

Id.; see also Karpe v. Borough of Stroudsburg, 461 A.2d 859, 860

(Pa.Super. 1983) (stating that subject matter jurisdiction of appeal involving

consideration and interpretation of MPC “lies with the Commonwealth

Court”). Therefore, the Commonwealth Court has exclusive jurisdiction over

the subject matter of this appeal.

       We recognize that because the parties have not contested this Court’s

jurisdiction, “the appeal is perfected and we have discretion to retain

jurisdiction.” Trumbull Corp. v. Boss Constr., Inc., 747 A.2d 395, 398-99

(Pa.Super. 2000); see 42 Pa.C.S. § 704(a). Nevertheless, this Court may,

sua sponte, raise the issue of whether an appeal should be transferred to the

Commonwealth Court. Karpe, 461 A.2d at 860.

       In determining whether to retain jurisdiction or transfer an appeal, we

balance the interests of the parties and matters of judicial economy against


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       3
        An appellate court with jurisdiction over a final order in a matter also
has jurisdiction over an interlocutory order in the same matter.            See
Pa.R.A.P. 701.



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other factors, including: (1) whether the case has already been transferred;

(2) whether retaining jurisdiction 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, 747 A.2d at 399. We “examine each potential

transfer on a case-by-case basis.” Valley Forge Indus., Inc. v. Armand

Constr., Inc., 374 A.2d 1312, 1316 (Pa.Super. 1977).

       The question presented in this appeal is whether section 617 of the

MPC permits a private right of action to enforce the terms of a SALDO. This

issue appears to be one of first impression, as we have found no

Pennsylvania appellate decision addressing it.4

       After considering the above factors, we conclude that transfer to the

Commonwealth Court is appropriate.             Although the parties will experience

some additional delay and expense, the remaining factors weigh in favor of a

transfer.   First, this matter has not previously been transferred from the

Commonwealth Court.          Second, because the Pennsylvania appellate courts

have not previously addressed the issue presented in this appeal, this Court

would not simply be applying a settled principle of law to the facts. Finally,


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       4
        In support of its claim that section 617 does not permit a private
right of action to enforce a SALDO, Ivy Lee cites several Commonwealth
Court cases, all of which have applied section 617 to zoning violations. Ivy
Lee’s Br. at 10; see Trial Ct. Op. at 7-8. As the Smiths point out, however,
none of those cases hold that section 617 applies only to zoning ordinances.



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we believe that the division of labor between this Court and the

Commonwealth Court “would be served[,] rather than disrupted[,] if the

Commonwealth Court heard all appeals involving” the MPC’s interpretation

and application. United Plate Glass Co., Div. of Chromalloy Am. Corp.

v. Metal Trims Indus., Inc., 505 A.2d 613, 616 (Pa.Super. 1986); see

also Karpe, 461 A.2d at 861 (“[I]t would benefit both the public and the

municipalities and boroughs operating under the [MPC] if substantive

decisions on the statute and its application to damages actions resulting

from its enforcement[] were made by one court.”).

     For these reasons, we will defer to the Commonwealth Court’s

expertise in interpreting the MPC, as the Commonwealth Court has been

designated by the legislature as the appropriate forum for such disputes.

See 42 Pa.C.S. § 762(a)(4)(i)(A); cf. Lara, Inc. v. Dorney Park Coaster

Co., 534 A.2d 1062, 1066 (Pa.Super. 1988) (stating that “the interest of

avoiding conflicting lines of authority concerning governmental immunity and

the expertise of the Commonwealth Court in this difficult area of the law are

compelling reasons to transfer the case to the Commonwealth Court”).

     Case transferred to Commonwealth Court. Jurisdiction relinquished.




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J-A29028-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2016




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