Bradley v. Zoning Hearing Board of New Milford

DISSENTING OPINION BY

Judge LEAVITT.

Wayne Bradley transferred real property located at 153 Susquehanna Street in the Borough of New Milford (Property) to H.L. Bradley Farms, Inc., a corporation for which Bradley is the sole shareholder and only corporate officer. Notwithstanding these facts, the trial court dismissed Bradley’s land use appeal for lack of stand*494ing. I would vacate the trial court’s order and permit Bradley to amend his pleading.

Bradley acquired legal title to the Property from his mother’s estate after she died in 2010. The following year, the Susquehanna County Housing Development Corporation (Landowner) requested a variance to develop land it owns across the street from the Property. Bradley had standing to oppose the variance because of the Property’s proximity to Landowner’s parcel, and he did so. See Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19, 22-23 (Pa.Cmwlth.2009) (noting that the owner of the property adjacent to, abutting, or in near proximity to the area in question is “aggrieved”). Nevertheless, the Zoning Board granted the variance, and on June 9, 2011, Bradley appealed to the trial court.

On July 12, 2011, while his appeal was pending, Bradley transferred title to the Property to H.L. Bradley Farms, Inc., which Bradley owns, for “accounting ... and business purposes.” Supplemental Reproduced Record at 43b-44b. The Board moved to dismiss his appeal for the stated reason that Bradley no longer had standing to appeal because the Property was owned by Bradley Farms, not Bradley. The trial court quashed Bradley’s appeal for lack of standing.

The majority affirms the trial court’s holding that Bradley lacked standing to continue the appeal he filed. The majority agrees that Bradley had standing when he filed the appeal. Without doubt, a corporation is a legal person that is separate and distinct from its shareholders. Barium Steel Corporation v. Wiley, 379 Pa. 38, 47, 108 A.2d 336, 341 (1954).1 I believe that Bradley has standing for two reasons. First, he is the only individual with the power to act on behalf of Bradley Farms; he is the corporation’s sole shareholder and officer. Second, given his 100% ownership of Bradley Farms, he has a beneficial interest in the Property that is cognizable for purposes of a land use appeal.

Shareholders “have an equitable or beneficial interest in the property represented by the shares of stock.” Murray v. City of Philadelphia, 364 Pa. 157, 166, 71 A.2d 280, 285 (1950)(emphasis added). Section 107 of the Pennsylvania Municipalities Planning Code (MPC) defines a “landowner” as the

legal or beneficial owner ... of land including ... [a] person having a proprietary interest in land.

53 P.S. § 10107 (emphasis added). Black’s Law Dictionary defines a “beneficial owner” as one who is

recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else....

BlacK’s Law Dictionary 1214 (9th ed.2009). Similarly, it defines a “proprietary interest” as

[a] property right; specif., the interest held by a property owner together with all appurtenant rights....

Black’s Law Dictionary 886 (9th ed.2009).

As the sole shareholder and officer of Bradley Farms, Bradley has complete control of the corporation and its property. No one but Bradley has the power to act on behalf of the corporation. There is no question that Bradley, as an officer, can pursue this appeal on behalf of Bradley Farms.

*495In addition, Bradley retains a beneficial interest in the Property even though it is titled to Bradley Farms because he is the sole shareholder of Bradley Farms. Thus, Bradley’s beneficial interest in the Property also gives him standing under the MPC to pursue a land use appeal in his own right.

In holding that Bradley does not have standing, the majority relies upon Burdon v. Erskine, 264 Pa.Super. 584, 401 A.2d 369 (1979). First, Burdon is not binding on this Court. Second, it is factually distinguishable and inapposite. In Burdon, the trustee of a bankrupt corporation filed a direct action against the directors of a wholly-owned subsidiary of the bankrupt corporation for breach of fiduciary duty to the subsidiary, an action normally brought by the subsidiary. The Superior Court agreed that the injury to the subsidiary corporation had also injured its sole stockholder, the bankrupt corporation. However, it concluded that the injury to the bankrupt corporation, which had its own stockholders, was “indirect” and, thus, did not permit it to file a direct action against the subsidiary’s officers and directors.

That is not the case here. Bradley is not suing a corporation’s officers and directors to redress an injury he sustained in his capacity as shareholder of the corporation. Nor has Bradley filed a derivative shareholder suit whereby he seeks to correct an injury done to the corporation for which the corporation did not take action. Rather, Bradley filed his challenge to the Zoning Board’s grant of a use variance that will adversely affect the Property in which he has a “proprietary interest.” 53 P.S. § 10107.

There is no question that Bradley had standing to initiate the land use appeal. After he transferred the Property to Bradley Farms, he retained a beneficial interest in the Property as sole shareholder of the corporation. In his answer to the motion to dismiss, Bradley attached an affidavit of ownership, which, on its face, supports his standing. It stated as follows:

1. That I, Wayne E. Bradley, am the Appellant in this action, and I make this Affidavit on behalf of myself as a beneficial owner of the Property located at 153 Susquehanna Street, New Milford, PA, and as the sole owner of H.L. Bradley Farms, Incorporated, a Pennsylvania corporation that is the current record owner of said property, by virtue of a Deed dated July 12, 2011. (Admitted as Appellant’s Exhibit 2 at the Hearing of 12/16/11)
2. That I became the legal owner of this Property through a specific devise in the Last Will and Testament of my Mother, Eleanor V. Bradley, upon her death on September 17, 2010. (Admitted as Appellant’s Exhibit 1 at the Hearing of 12/16/11)
3. At all times relevant to my Appeal— including the date of the initial Hearing on the Variance Application filed by Susquehanna County Housing Development Corporation on March 10, 2011, the approval of the Grant of Variance by the New Milford Zoning Hearing Board on May 9, 2011, and also at the time of the filing of my Notice of Appeal on June 9, 2011 — I was the legal owner of the subject Property by virtue of the said Specific Devise in my late Mother’s Will. The Estate was being administered by my Brother, H. William Bradley, at these times.
4. That in a Fiduciary Deed dated July 11, 2011, I joined with the Executor of Eleanor Bradley’s Estate to convey legal title of this Property to H.L. Bradley Farm, Inc., a Pennsylvania business corporation in which *496I have sole ownership interest and am the sole shareholder and sole presiding officer. H.L. Bradley Farm, Inc. is registered as a Business Corporation, with Wayne Bradley as its President, with the Pennsylvania Department of State. See the attached Business Name History. (Exhibit “A”)
5. I have previously testified to my status as landowner of the Property in the Appeals Hearing of December 16, 2011. (12/16/11 Transcript, page 56, lines 18-19), and for the reasons outlined, believe I have had, and continue to have, standing in this Appeal by virtue of a continuing beneficial interest in said property.

Reproduced Record at 80a-81a.

The trial court dismissed the appeal, holding that Bradley lacked standing. This was error because Bradley was “aggrieved,” whether in his individual capacity or in his capacity as the sole owner and corporate officer of Bradley Farms. Land may change hands during an appeal, and litigation rights relating to land are assignable. See Cole v. Boyd, 719 A.2d 311, 313-314 (Pa.Super.1998). This is why pleadings may be amended and parties substituted. Pa. R.C.P. No. 2004;2 Birdsboro Corporation v. Weng, 426 Pa.Super. 301, 626 A.2d 1216, 1217 (1993) (holding that once suit has been commenced, “substitution of parties is permissible, it is not essential. [Pennsylvania Rule of Civil Procedure 2004] does not affect the rights of the plaintiff to pursue the remedy for the use of the transferee.”). A change in a property’s ownership does not terminate all litigation relating to that property.

I would reverse and allow Bradley to maintain his suit and remand with instructions that Bradley be allowed to amend his pleading to substitute Bradley Farms as the party.

. However, in Barium the Supreme Court recognized that in certain instances equity demands "that Courts can go behind the corporate entity” and "treat as identical the corporation and the individual or individuals owning all its stock and assets.” Barium, 379 Pa. at 47-48, 108 A.2d at 341.

. Pennsylvania Rule of Civil Procedure 2004 states:

Transfer of Interest in Pending Action If a plaintiff has commenced an action in his or her own name and thereafter transfers the interest therein, in whole or in part, the action may continue in the name of the original plaintiff, or upon petition of the original plaintiff or of the transferee or of any other party in interest in the action, the court may direct the transferee to be substituted as plaintiff or joined with the original plaintiff.

Pa. R.C.P. No. 2004.