J-A28001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENNIS L. 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 :
:
: No. 505 WDA 2020
v. :
:
:
IVY LEE REAL ESTATE, LLC; GEORGE :
E. KENSINGER; DONA L. :
KENSINGER; MELVIN SHOENFELT, :
JR.; LISA C. SHOENFELT; MICHAEL :
J. MACOVITCH; PAULA M. DICK; :
ROGER L. BOWSER; ELAINE K. :
BOWSER; ERMA MAE SNYDER; 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 ANY INTEREST :
IN THE PROPERTY DESCRIBED IN :
THIS ACTION :
Appeal from the Order Entered March 13, 2020
In the Court of Common Pleas of Blair County Civil Division at No(s):
2015 GN 3388
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 10, 2021
Appellants, Dennis L. Smith, Constance A. Smith, Sandra L. Smith, Jean
Claycomb, Kevin Smith, Elaine Snively, Julie Bonner, and James Smith appeal
from an order entered on March 13, 2020 disposing of a claim for adverse
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possession and private causes of action seeking enforcement of a local
subdivision and land development ordinance (SALDO).1 We transfer this case
to Commonwealth Court.
A prior panel of this Court previously summarized the facts of this case
as follows:
[Appellants] 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, [Appellants] 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.
Smith v. Ivy Lee Real Estate, LLC, 152 A.3d 1062, 1062–1064 (Pa. Super.
2016).
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1 The trial court order also dismissed a counter-claim filed by Appellees, Ivy
Lee Real Estate, LLC, et al, as captioned above. Appellees have not appealed
that decision.
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The trial court examined Section 617 of the Pennsylvania Municipalities
Planning Code (MPC)2 and concluded there is no right to bring a private cause
of action to enforce alleged violations of the SALDO. As such, it denied
Appellants relief. Id. at 1064-65. Appellants appealed to this Court. Citing
42 Pa.C.S.A. § 762,3 we “conclude[d] that the Commonwealth Court [was]
better equipped to consider this issue [and] we transfer[ed] the appeal.” Id.
at 1065. Following our transfer, the Commonwealth Court determined, “the
plain language of [S]ection 617 permit[ted] a private cause of action to
enforce an alleged violation of any ordinance enacted under the MPC, including
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2 53 P.S. § 10617.
3 More specifically, Section 762 of the Judicial Code provides, in pertinent part:
(a) General rule-- […T]he 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:
* * *
(B) home rule charter or local ordinance or resolution[.]
42 Pa.C.S.A.. § 762(a)(4)(i)(B).
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a SALDO.” Smith v. Ivy Lee Real Estate, LLC, 165 A.3d 93, 96 (Cmwlth.
Ct. 2017). Accordingly, the Commonwealth Court reversed the trial court’s
decision and remanded the matter to allow Appellants to pursue their private
claims under the SALDO, as well as, the additional asserted claims for relief.
Id. at 99.
Following remand from the Commonwealth Court and after several
subsequent hearings, on March 13, 2020, the trial court determined “that the
SALDO d[id] not apply in this case because the [] property [at issue] and the
changes to it are not the sort intended to be covered by the SALDO.” Trial
Court Opinion, 3/13/2020, at 8. The trial court found that minor
improvements to the exterior of the building, including “the installation of a
drive-thru window, a small seating area, and a parking area that had
previously existed,” did not constitute the type of large-scale development or
subdivision of land into smaller parcels that was subject to regulation under
the SALDO. Id. at 8-9.
The trial court also ruled upon Appellants’ claim for adverse possession
regarding June Street, the roadway between the properties. Id. The trial
court noted that there was no dispute that Appellants were entitled to adverse
possession, but that the parties disagreed upon how much to apportion. Id.
at 10-11. Ultimately, the trial court determined that Appellants were “entitled
to 20 feet and [nine] inches of the June Street roadway[.]” Id. at 11.
Finally, the trial court ruled on several of Appellants’ specific private
nuisance claims. First, the trial court established limitations on commercial
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business vehicles using June Street. Id. at 13. Next, it further ordered that
floodlights not impinge upon the peaceful and quiet enjoyment of neighboring
residents. Id. at 19. However, the trial court deferred ruling on a claim
pertaining to water run-off and “retain[ed] jurisdiction to accept additional
testimony on this issue[.]” Id. at 20.
A timely appeal to this Court followed.4 On appeal, Appellants present
the following issues for our review:
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4 Appellants did not file post-trial motions, but filed a timely notice of appeal
on Monday, April 13, 2020. See Pa.R.A.P. 903(a) (notice of appeal must be
filed within 30 days of the entry of an order to preserve the right of appeal);
1 Pa.C.S.A. § 1908 (when last day of any period of time referred to in any
statute falls on Sunday, such day shall be omitted from computation).
Thereafter, Appellants and the trial court complied with Pa.R.A.P. 1925. On
May 27, 2020, this Court issued a rule to show cause addressing several issues
pertaining to the existence of appellate jurisdiction and the proper
preservation of claims for appellate review. First, it was unclear whether the
order was final and disposed of all claims, as the trial court noted it deferred
ruling on a water run-off claim. Further, it was unclear whether Appellants’
failure to file post-trial motions waived their appellate issues. Finally, we
posited that the appeal might properly lie in Commonwealth Court, as a prior
panel had determined. See Smith v. Ivy Lee Real Estate, LLC, 152 A.3d
1062 (Pa. Super. 2016). Appellants responded on June 8, 2020, asserting
that the appeal was proper pursuant to Pa.R.A.P. 311(a)(4) (which grants
immediate appellate review of an order that “grants or denies, modifies, or
refuses to modify, continues or refuses to continue or dissolves or refuses to
dissolve an injunction”). Appellants further asserted that post-trial motions
were not required pursuant to Rule 311. Additionally, Appellants claimed that
the issues involved in the prior appeal, which resulted in the transfer of the
appeal to Commonwealth Court, had been resolved. Accordingly, by per
curiam order entered on June 22, 2020, the rule to show cause was discharged
and the appeal permitted to proceed. This ruling, however, was “not binding
upon this Court as a final determination as to the propriety of the appeal [and
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1. Whether the [t]rial [c]ourt [e]rred as a matter of law in finding
that the [SALDO] did not apply to [Ivy Lee’s] development
where the plain language of the [o]rdinance makes the
development subject to the [o]rdinance since [Ivy Lee]
improved the property with a non-residential building[?]
2. Whether the [t]rial [c]ourt [e]rred as a matter of law in finding
that the [SALDO] did not apply to [Ivy Lee’s] development
where the evidence established that the property is allocated
between two existing occupants[?]
3. Whether the [t]rial [c]ourt [e]rred as a matter of law and
[a]bused its [d]iscretion in failing to abate the [] unlawful
expansion of the use of the easement known as June Street
and the cartway thereon, even though the [trial c]ourt found
that [Ivy Lee] had unlawfully expanded [its] traditional use of
the easement[?]
4. Whether the [t]rial [c]ourt [e]rred as a [m]atter of [l]aw and
[a]bused [i]ts [d]iscretion in failing to abate the private
nuisance caused by [the] illumination of [] floodlights by failing
to require [the] erect[ion of] a buffer area according to the
SALDO[?]
Appellants’ Brief at 6-7.
After careful review and consideration, we conclude that we lack subject
matter jurisdiction over the current dispute and we once again transfer this
matter to the Commonwealth Court.5 In their first, second and fourth issues,
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t]he parties [we]re advised that the issue may be revisited by the panel []
assigned to the case[.]” Superior Court Order, 6/22/2020.
5 We may raise the issue of whether an appeal should be transferred sua
sponte. See Karpe v. Borough of Stroudsburg, 461 A.2d 859, 860 (Pa.
Super. 1983), citing 42 Pa.C.S.A. § 705 (“The Superior Court and the
Commonwealth Court shall have power pursuant to general rules, on their
own motion or upon petition of any party, to transfer any appeal to the other
court for consideration and decision with any matter pending in such other
court involving the same or related questions of fact, law or discretion.”). As
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as set forth above, Appellants challenge the trial court’s application of the
SALDO, a local ordinance. As previously explained, pursuant to Section
762(a)(4)(i)(B) of the Judicial Code, the Commonwealth Court possesses
exclusive subject matter jurisdiction of local, civil matters involving all actions
or proceedings arising under any municipality planning or zoning code or the
application, interpretation, or enforcement of any such local ordinance.
Accordingly, three of Appellants’ four appellate issues fall squarely within the
exclusive province of the Commonwealth Court. “[W]e find that transfer [] to
the Commonwealth Court will best serve to promote the legislative intent
underlying the grant of exclusive jurisdiction over this type of appeal to that
court.” Wilson v. Sch. Dist. of Philadelphia, 600 A.2d 210, 213 (Pa. Super.
1991), citing Lara, Inc. v. Dorney Park Coaster Co., Inc., 534 A.2d 1062,
1066 (Pa. Super. 1987) (“we should be most cautious in assuming jurisdiction
over matters that properly belong before the Commonwealth Court” and
should avoid “the establishment of possibly conflicting lines of authority”).
Moreover, the Commonwealth Court has addressed appellate claims regarding
easements when intertwined with zoning or planning ordinance disputes.
See, i.e., Koresko v. Farley, 844 A.2d 607, 610–611 (Cmwlth. Ct. 2004)
(claims of unreasonable interference with an easement and alleged zoning
ordinance violations decided contemporaneously by Commonwealth Court).
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such, we reject Appellants’ contention regarding an untimely objection to our
jurisdiction. See Appellants’ Reply Brief, at 9.
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As such, the Commonwealth Court can also address Appellants’ third issue as
presented above. Thus, in order to avoid potential conflicting lines of
authority, Commonwealth Court is the proper forum for all of Appellants’
current appellate claims and, accordingly, we transfer the entire matter.6
Case transferred to Commonwealth Court. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2021
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6 Finally, we do not express an opinion as to whether Appellants properly
preserved their appellate claims via post-trial motions or otherwise
established appellate jurisdiction by appealing from either a final order or an
interlocutory order appealable as of right pursuant to the Pennsylvania Rules
of Appellate Procedure.
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