Opinion
No. 2287 C.D. 2013
10-20-2014
Bartkowski Investment Group, Inc., Appellant v. Board of Commissioners of Marple Township
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Bartkowski Investment Group, Inc. (BIG) appeals from an order of the Court of Common Pleas of Delaware County (trial court). The trial court's order granted the motion of Marple Township (Township), seeking an order of the trial court (1) "remanding" to the Zoning Hearing Board of Marple Township (ZHB) a claim BIG included in a complaint seeking declaratory relief (the Complaint) and (2) staying proceedings relating to the other claims in the Complaint. Additionally, the Township has filed with this Court a motion to quash BIG's appeal. For the reasons set forth below, we will grant the motion to quash and, consequently, will not address the merits of BIG's appeal.
This Court first addressed the claims in the Complaint in Bartkowski Investment Group, Inc. v. Board of Commissioners of Marple Township, 18 A.3d 1259 (Pa. Cmwlth. 2011) (BIG I). In BIG I, we reviewed the trial court's earlier order granting summary judgment in favor of the Township. In 2009, the Township initiated an attempt to enact a curative amendment to its zoning ordinance (ZO), relating to outdoor advertising, pursuant to Section 609.2 of the Pennsylvania Municipalities Planning Code (MPC). After the Township's governing body voted upon and approved the curative amendment, BIG filed two actions with the trial court: (1) a procedural validity challenge to the curative amendment; and (2) the Complaint, which sought declaratory and mandamus relief relating to the curative amendment. We affirmed the trial court's grant of summary judgment as to the procedural challenge, but we reversed the trial court's entry of summary judgment in favor of the Township on the Complaint.
Act of July 31, 1968, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 10609.2.
BIG filed with the Township's zoning hearing board (ZHB) a substantive validity challenge to the curative amendment on the same date.
Specifically, we disagreed with the trial court's conclusion that the claims in the Complaint were the equivalent of a procedural validity challenge. With regard to BIG's claim in the Complaint that the curative amendment was invalid based upon the Township's failure to record the curative amendment, we concluded that factual and legal questions remained concerning whether the Township had recorded the curative amendment, and, if the Township did record the curative amendment, how the timing of the recording affected the trial court's consideration of the merits of BIG's Complaint. We directed the trial court to conduct a hearing on the issue.
After our remand, however, and following a stenographically recorded conference conducted by the trial court with counsel for BIG and the Township, the Township submitted its motion for "remand" and stay, which, as noted above, the trial court granted. BIG appealed the trial court's order, and the Township filed its motion to quash. For obvious reasons, we first consider the Township's motion to quash BIG's appeal.
The Township contends that the trial court's order does not constitute a final order that is appealable to this Court. Pennsylvania Rule of Appellate Procedure 341 (Rule 341) provides that a party may appeal as of right from any final order of a lower court. Rule 341(b) defines a final order as
any order that:
(1) disposes of all claims and of all parties; orAlthough BIG contends that the trial court's order is a "final order," it fails in its brief to cite to the above definition in the Rules of Appellate Procedure. Subparagraphs (b)(2) and (b)(3) clearly do not apply. As for subparagraph (b)(1), the trial court's order "remanding" part of BIG's claims in the Complaint and staying other parts of BIG's claims does not dismiss all of BIG's claims.
(2) is expressly defined as a final order by statute; or
(3) is entered as a final order pursuant to subdivision (c) of this rule.
We recognize that while the Township asked for a remand, which the trial court granted, that aspect of the trial court's order is invalid as a remand. Trial courts have no power under the rules of procedure or statute to "remand" a declaratory judgment action initiated in the trial court's original, civil jurisdiction. BIG's claims do not constitute an appeal of any action on the part of the Township's zoning hearing board (ZHB), and, therefore, the trial court could not remand any matter to the ZHB. Nor could the trial court transfer the matter to the ZHB. There is no procedural mechanism for a trial court to transfer a declaratory judgment claim to a zoning hearing board. Rather, we perceive the trial court's order as an implicit dismissal of the particular claim in the Complaint.
Regardless of whether we regard the trial court's "remand" order as an invalid "remand" or as a dismissal, the trial court did not dismiss the remaining claims in the Complaint.
BIG also argues that the trial court's order is appealable under Pennsylvania Rule of Appellate Procedure 311, which addresses the instances where a party may appeal an interlocutory order as of right. BIG contends that the trial court's order falls within Rule 311(c) or (f).
Rule 311(c) provides for interlocutory appeals as of right from an order directing a change of venue. Rule 311(c) provides that
[a]n appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.The trial court's order, however, did not change venue or transfer BIG's claim to a court of coordinate jurisdiction. Rather, the trial court's order essentially dismissed one of the claims in the Complaint. As such, because BIG will have an opportunity to challenge the trial court's action dismissing that claim when all of BIG's remaining claims in the Complaint are finally resolved, we cannot agree with BIG's argument that the trial court's order constitutes a change of venue or transfer.
BIG also argues that the trial court's order constitutes an interlocutory order that is appealable under Rule 311(f) which relates to "[a]dministrative remand," and provides:
An appeal may be taken as of right from . . . an order of a common pleas court . . . remanding a matter to an administrative agency . . . that decides an issue which would ultimately evade appellate review if an immediate appeal is not allowed.As we determined above, while the Township incorrectly sought a remand and the trial court similarly issued an order "remanding" one of BIG's claims, the trial court lacked the power to remand the claim to the ZHB. Nevertheless, BIG has not offered any explanation as to how an issue will evade appellate review. Because the trial court merely stayed some of the claims in the Complaint, BIG eventually will have an opportunity to pursue the claim the trial court purported to remand when the trial court finally addresses the other claims in the Complaint and the issues for which we remanded the matter in BIG I. Even if the trial court refuses to address the "remanded" claim when it proceeds to address the claims the trial court stayed—i.e., including those for which we issued our remand, BIG will have an opportunity to challenge the trial court's decision dismissing the validity challenge contained in the Complaint.
BIG also relies upon notions of jurisprudential economy in arguing that the trial court's order directs the ZHB to address issues that are not within its jurisdiction—i.e., part of BIG's declaratory judgment request and its mandamus request. In support of its argument, BIG refers this Court to our decision in Johnston v. Upper Macungie Township, 638 A.2d 408 (Pa. Cmwlth. 1994). In Johnston, however, this Court based its decision to accept the appeal upon Rule 311(a)(6), which relates to "[n]ew trials." This matter does not involve a trial court order awarding a new trial. Thus, Johnston is inapplicable to this case.
At the time of the Court's decision in Johnston, this provision was identified as Rule 311(a)(5).
We also note in passing that the trial court's order cannot be characterized as a collateral order under Pa. R.A.P. 313. The right at issue does not appear to be one that is too important to be denied review. See Spanier v. Freeh, 95 A.3d 342 (Pa. Super. 2014) ("[i]n order to satisfy the second prong . . . it is not sufficient that the issue be important to the particular parties. Rather, the issue must involve rights deeply rooted in public policy going beyond the particular litigation at hand." Id. at 346 (citations omitted)).
Accordingly, we will grant the Township's motion to quash BIG's appeal from the order of the trial court "remanding" part of BIG's claims and staying BIG's claims relating to the curative amendment.
Because we lack jurisdiction over this appeal, we do not reach the question of whether the trial court abused its discretion in staying the declaratory judgment action pending the ZHB's decision in a matter that (a) both BIG and the Township had previously agreed to defer and (b) invites the ZHB to rule on the validity of an ordinance that has since been repealed by a curative amendment (which has not yet been declared invalid or unenforceable as to BIG). --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 20th day of October, 2014, the motion to quash filed by the Board of Commissioners of Marple Township is GRANTED, and the appeal filed by Appellant Bartkowski Investment Group, Inc. is DISMISSED.
/s/_________
P. KEVIN BROBSON, Judge