Smith, D. v. Ivy Lee Real Estate , 152 A.3d 1062 ( 2016 )

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
____________________________________________
1
See Pa.R.A.P. 311(a)(4) (permitting interlocutory appeal as of right
from order denying injunction).
-2-
J-A29028-16
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.
-3-
J-A29028-16
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.
-4-
J-A29028-16
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
____________________________________________
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.
-5-
J-A29028-16
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,
____________________________________________
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.
-6-
J-A29028-16
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.
-7-
J-A29028-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2016
-8-