Opinion

Carlino East Brandywine, L.P. v. East Brandywine Twp. Appeal of: Brandywine Village Associates

Court
Commonwealth Court of Pennsylvania
Filed
Jul 11, 2023
Status
Unpublished
On the bench
Ceisler, J.
Authority
More cited than 23.6%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlino East Brandywine, L.P. :

:

v. : No. 367 C.D. 2022

:

East Brandywine Township, Jason R. :

Winters, George Scherbak, :

Brandywine Village Associates, L.P., :

L&R Partnership, LLC, Leonard G. :

Blair, individually and as general :

partner of L&R Partnership, Richard :

J. Blair, individually and as general :

partner of L&R Partnership, John R. :

Cropper, individually and as general :

partner of L&R Partnership, and John :

Doe Corporations and Individuals :

:

Appeal of: Brandywine Village :

Associates, L.P., L&R Partnership, :

LLC, Leonard G. Blair, Richard J. :

Blair, and John R. Cropper : Submitted: June 7, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE CEISLER FILED: July 11, 2023

Appellants Brandywine Village Associates, L.P. (Brandywine); L&R

Partnership, LLC (L&R); Leonard G. Blair, Richard J. Blair; and John R. Cropper

(collectively Appellants) appeal from the Court of Common Pleas of Chester

County’s

(Common Pleas) orders, respectively filed on April 4, 2022, and April 11,

2022,1 granting Appellee Carlino East Brandywine,

(Carlino) Emergency L.P

Petition for Preliminary and Permanent Injunctive Relief (Emergency Petition).

Through these orders, Common Pleas ruled that a settlement agreement between

East Brandywine Township (Township), L&R, the Blairs, and Cropper was illegal,

invalidated the Township’s

transfer of land through that agreement to Cropper and

L&R, and ordered the Township to undo any steps it had taken to comply with the

agreement. See R.R. at 628a-29a. Upon review, we conclude that Common Pleas

improperly granted relief beyond that which could be deemed preliminary in nature

and, accordingly, vacate Common Pleas’

. orders

I. Background

The history behind this matter is rather baroque and, as such, necessitates a

lengthy discussion of the events that eventually gave rise to this specific appeal.2

Carlino owns a roughly 10-acre lot, which has mixed-use commercial zoning and is

1

The April 11, 2022 order served to correct typographical errors that were present in the

April 4, 2022 order. See Reproduced Record (R.R.) at 624a-29a.

2

The long-running dispute between the parties to this matter has birthed a multitude of

interrelated legal actions and administrative appeals, of which this one is but the most recent. See

Brandywine Vill. Assocs., LP v. E. BUDQG\ZLQH7ZS%GRI6XS¶Us (Pa. Cmwlth., No. 499 C.D.

2020, filed July 2, 2021), 2021 WL 3046662, reargument denied (Sept. 9, 2021), appeal denied,

275 A.3d 957 (Pa. 2022) (Brandywine V); Brandywine Vill. Assocs. v. E. Brandywine Twp. (E.D.

Pa. No. CV 20-2225, filed Sept. 14, 2020), 2020 WL 5517353 (Brandywine IV); Condemnation of

Fee Simple Title to 0.069 Acres of Vacant Land & Certain Easements Owned by Brandywine Vill.

Assocs. (Pa. Cmwlth., No. 1409 C.D. 2017, filed Jul. 2, 2018), 2018 WL 3213113 (Brandywine

III); Brandywine Vill. Assocs. v(%UDQG\ZLQH7ZS%GRI6XS¶rs (Pa. Cmwlth., No. 1149 C.D.

2017, filed Apr. 19, 2018), 2018 WL 1865792 (Brandywine II); Brandywine Vill. Assocs. v. E.

Brandywine Twp. Bd. of Sup¶rs (Pa. Cmwlth., No. 164 C.D. 2017, filed Jan. 5, 2018), 2018 WL

296999 (Brandywine I); see also R.R. at 1043a-45a (listing a number of other lawsuits and

administrative matters that, as of December 2021, were still pending). We direct interested readers

to peruse the opinions cited in this footnote if they desire more granular background detail than

that which we offer infra.

2

located at 1279 Horseshoe Pike in the Township (Property). Id. at 19a. To the

southeast of the Property is a parcel of land that is owned by Brandywine and is

currently occupied by a shopping center that includes, as one of its tenants, a grocery

store that is operated by Cropper. Id. at 19a, 262a, 767a-68a, 783a-84a, 810a. To the

north of the Property is an undeveloped lot, which is jointly owned by Cropper and

L&R. Id. at 20a, 768a, 783a-85a, 809a. Carlino desires to develop the Property by

building a mixed-use shopping center thereon, which, as currently envisioned, would

contain a supermarket. Id. at 19a, 262a. Thus, were Carlino to successfully attain

this goal, its new shopping center would directly compete with the one owned by

Brandywine and, more specifically, with Cropper’s See

grocery

id. at 13a. store

On August 10, 2014, Carlino entered into a memorandum of understanding

with the Township. By virtue of that memorandum, the Township agreed to

condemn portions of Brandywine’s

L&R’s

and Cropper/

respective parcels, as well

as to authorize Carlino to build a Township-mandated connector road once Carlino

had secured the other necessary permits and approvals, which would link Horseshoe

Pike and nearby North Guthriesville Road across the condemned land. Id. at 757a,

760a-62a.3 Concomitantly, Carlino promised, in relevant part, to cover the assessed

3

Per the memorandum of understanding:

In order to support existing volumes of traffic and traffic projected

to be generated by new growth and development in the Township,

the Township has an interest in creating a new public road

connecting Horseshoe Pike to North Guthriesville Road[.] . . . Th[is

c]onnector [r]oad would traverse the eastern side of the . . . Property

and extend northward through [Brandywin

to construct the [c]onnector [r]oad, a portion of the . . . Property

would need to be used for the right-of-way and the construction of

the [c]onnector [r]oad and related improvements.[] In addition, in

order to construct the [c]onnector [r]oad and storm water

management facilities necessary for the [c]onnector [r]oad, a portion

(Footnote continued on next page…)

3

amount of just compensation for the condemnation, shoulder the cost of building the

road, and indemnify the Township against any litigation that resulted from this

taking. Id. at 757a-61a. The Township’s Board of Super

(Board) then passed

a resolution on August 20, 2014, approving the memorandum of understanding,

followed by a second resolution on October 2, 2014, which directed the Township

to acquire that land via condemnation. Id. at 803a-07a. The Township then filed a

declaration of taking on November 17, 2014, for 1.93 acres of

tract Brand

and .069 acres of Cropper’s and

See id. at 872a-805a.4 In L&R’s

response,

Brandywine, Cropper, and L&R unsuccessfully challenged the condemnation

through preliminary objections that were overruled by Common Pleas, as well as

through a subsequent appeal to our Court, which we disposed of by upholding

Common Pleas’ ruling.

See Brandywine III, slip op. at 17-28, 2018 WL 3213113, at

*7-*12.

With the taking secured, Carlino then submitted a land development plan to

the Township on July 3, 2018, which showed, in detail, the proposed shopping center

and connector road. See R.R. at 22a, 853a. After several revisions, the plan was

conditionally approved by the Board on June 6, 2019. Id. at 23a, 265a. Brandywine

and L&R then appealed this conditional approval to Common Pleas. While that

appeal was pending, and in line with the conditions imposed by the Board, Carlino

and the Township signed two additional agreements, one for development and the

of the [land owned by Cropper and L&R] and [a] right-of-way over

a small area of . . . Brandywine[’s parc

. . . would need to be acquired.

R.R. at 755a. In other words, the condemnation Cropper/L&R’s of Brandywine’s

land wa

a

necessitated byence the Township’s

that Carlino construct the connectorinsist

road.

4

The declaration also established a temporary grading easement over .26 acres of

Brandywine’s tract. R.R. at 783a.

4

other for stormwater management facilities operation and maintenance, on

December 23, 2019. See id. at 855a-914a. Thereafter, on April 17, 2020, Common

Pleas upheld the

conditional

Board’s approval of

, Car

prompting Brandywine and L&R to appeal that ruling to our Court. See Brandywine

V, slip op. at 9, 2021 WL 3046662, at *5.

It was at this juncture that the Township sharply changed tact and began trying

to impede Carlino’s

efforts to develop the Property.5 On June 25, 2020, the

Commonwealth of Pennsylvania’s Departm

PennDOT)

approved Carlino’s request for a high

authorizing Carlino to make improvements to both Horseshoe Pike and North

Guthriesville Road as part of the connector road project. Common Pleas Op.,

6/27/22, at 6. Appellants then intervened before PennDOT and appealed its approval

of the HOP. Id. at 6-7. In October 2020, the Township itself intervened in

HOP

Appellants’ and, despiteappeal

its previous acts and approvals regarding

Carlino’s

elected

project,

to support

position. Id. at 8;Appellants’

see R.R. at 956a-

57a, 959a-62a. Shortly thereafter, on December 7, 2020, the Board filed an appellate

brief with our Court in Brandywine V, through which it articulated the reasoning

behind its metaphorical change of heart and argued that we should reverse its

approval of Carlino’s development plan.

2021 WL 3046662, at *5.Slip o

Carlino then filed an application to strike the Board’s bri

Board was judicially estopped from presenting arguments that contradicted the

5

It appears that this reversal was driven

created a new majority that opposed Carlino’s

See Common Pleas development.

Op., 6/27/22, at

8-9.

5

positions it had taken in the matter when it was before Common Pleas. Id.6 On

February 22, 2021, the Township withdrew from

R.R. at Appe

964a.

The Township then commenced a fronta

develop the Property, by attempting to effectively unwind the aforementioned

declaration of taking. On March 4, 2021, the Board passed a resolution by a 2-1 vote

that reads as follows, in relevant part:

WHEREAS, on November 17, 2014, the Township filed a

Declaration of Taking and supporting documents to

effectuate the condemnation of certain portions of land for

a connector road between North Guthriesville Road and

Horseshoe Pike; and

WHEREAS, the Township properly condemned such

portions of land under the Eminent Domain Code (26 Pa.

C.S.[] §[§] 101[-1106]); and

WHEREAS, the final design of the connector road

resulted in portions of the condemned land being

unnecessary for the proposed connector road (the “Excess

Land” ); and

WHEREAS, the Excess Land does not serve the purpose

for which it was condemned; and

WHEREAS, the Township desires to offer return of the

Excess Land to the appropriate condemnee pursuant to the

provisions of Section 310 of the Eminent Domain Code.

NOW, THEREFORE, BE IT RESOLVED, by the Board .

. . as follows:

1. [T]he Township’s Special Couns

to prepare and effectuate the notice of the offer

and all other documents required by Section 310

and Section 305(b) of the Eminent Domain

Code;

On July 20, 2021, we struck

6

Brandywinethe Board’s a

V on estoppel

grounds and affirmed Common Pleas’ decision t

Carlino’s development

See slip op. at 15-48, 2021plan.

WL 3046662, at *8-*24.

6

2. [T]he Township Engineer is authorized to

prepare all necessary legal descriptions, plot

plans and other technical documents required

under Section 305(b) and Section 310 of the

Eminent Domain Code; and

3. [S]taff of the Township is authorized to

complete any further actions required to

effectuate the transfer of the Excess Land, as

appropriate under the laws of the

Commonwealth of Pennsylvania.

R.R. at 974a.7 On March 29, 2021, a lawyer representing Appellants responded to

the resolution’s

a letter

passage

to by the sending

solicitor, Township’

in which the

lawyer requested that the Township return approximately half of the condemned

land to Appellants, on the basis that “[t]he

connector road nor for the stormwater

See id. at

977a-84a.

Carlino, which had been unaware of the Board’s

resolution Marc

both prior to its consideration by the Board and for some time after its passage, then

sent a letter to the Board on April 12, 2021.8 Therein, Carlino stated that the

resolution was illegal and contravened state and federal court rulings that had

conclusively established “that

the Township has not abandoned the purpose for the

condemnation[.]”Id. at 988a-91a. Additionally, Carlino stated that the Board had

until “the end of business on . . . Ap

rescind this resolution, while a failure to do so would res

lawsuit against the Township [and] Supervisors Winters and Scherbak individually,

7

The two supervisors who voted in favor of this resolution were George Scherbak and

Jason Winters, i.e., two of the defendants in Carlino’s

See R.R. at 974a-75a. The

particulars of that lawsuit are discussed infra.

8

Carlino had no knowledge at this point abo

the Township’s

solicitor. See Common Pleas Op., 6/27/22, at 10-13; R.R. at 397a-98a.

7

for breach of the [m]emorandum of [u]nderstanding and [of the d]evelopment

[a]greement and request[ing] injunctive relief.”

Id. at 991a.

Despite this warning, the Township continued to move forward with

facilitating the return to Appellants of the portion of the condemned land identified

in the March 29, 2021 letter. See id. at 993a-1003a. In response, Carlino sent a

second letter to the Board on May 25, 2021, in which it reiterated its previous claims

and threats of litigation, and disputed

made regarding the putatively excessive nature of the aforementioned

condemnation. See id. at 1005a-12a. The Township ignored this second letter and,

on August 20, 2021, its solicitor filed a “Declaration of D

Common Pleas, in which the solicitor stated that

[t]he Township has determined that a portion of the

[condemned] property shall not be necessary for the

construction of the [connector road] . . . , and therefore

pursuant to [Section] 310(a)(1) of the Eminent Domain

Code, that such . . . [p]ortion has been abandoned for the

purpose of its condemnation and is hereby offered to the

condemnees, L&R and Cropper.

Id. at 1020a-21a. The Township’s solicitor

also declared that Cropper and L&R had

accepted its offerpartto return

of the condemned the

land, i.e., “aband

the area

that Appellants had sought through the March 29, 2021 letter, as well as that Cropper

and L&R would retake title to it upon the Declaration of Dis

See id. at 1021a-26a; Common Pleas Op., 6/27/22, at 17-21. As with the Bo

March 4, 2021 resolution, Carlino did not receive any advance notice regarding the

Township’s filing of the . Declaration

Additionally, and o

without Carlino’sAppellants

knowledge

and the Townshipor assent,

undertook

coordinated efforts in the late summer and early fall of 2021 to redesign the

8

connector road’s route to account

. See for

R.R. at 1031a-33a; Common Pleas Op., 6/27/22, at 21.

The final straw for Carlino was when it received word from a third party that

the Township intended to enter into some sort of settlement agreement (Settlement

Agreement) with Appellants, the particulars of which were unknown to the general

public at that time.9 On December 13, 2021, Carlino submitted a records request to

the Township, through which it sought all relevant records regarding this Settlement

Agreement. See R.R. at 1035a. The following day, Carlino filed suit against

Appellants, the Township, Supervisors Scherbak and John

Winters,

Doe

Corporations and

in Individuals”

Common Pleas. Id. at 1a, 13a-14a. Carlino

summarized its reasons for filing suit as follows:

Township Supervisors[] Scherbak and Winters[] have

wrongfully conspired with [Appellants] to prevent,

obstruct and/or delay Carlino from developing its property

with a Giant Food Store, in accordance with its approved

development plan, in order to protect [Appellants’]

monopoly over the sole existing food store in the

community. Scherbak’s ters’ current and Win

major

position on the Board . . . is due to terminate by January 3,

2022, when a newly elected [s]upervisor replaces

Scherbak. However, upon information and belief,

Scherbak and Winters have entered into a purported

agreement with [Appellants] whereby the connector road

to be built as part of Carlino’s approved plan

relocated further west on Carlino’

causing Carlino’s property to be condem

approved development plan thwarted. This attempted

interference with Carlino’s approve

9

Carlino did not obtain a copy of the Settlement Agreement until December 17, 2021. R.R.

at 415a. The thrust of this Agreement was that Appellants agreed to settle, discontinue, and/or

waive a number of pending legal actions and potential damages claims against the Township and,

in return, the Township granted Appellants a number of favorable development rights and

promised to take certain, substantive iously approved land steps

development plan for the Property. See id. at 1043a-48a.

9

direct breachcontractual of the Township’s

obligations to

Carlino, thereby subjecting the Township to substantial

damages to Carlino for the substantial legal fees it has paid

on the Township’s n defense of [Appellants’]

behalf i

repeated meritless litigation against the Township. Carlino

has paid in excess of $1.5 million (a conservative estimate)

to reimburse the Township for litigation and engineering

fees incurred in defending against [Appellants’] repeated

meritless litigation, including a federal antitrust action

which was ultimately dismissed against the Township.

Carlino seeks to enjoin the Township and [Appellants]

from taking their latest wrongful, illegal actions –for

which [Scherbak and Winters] have no authority,

particularly as a lame duck Board. If the [Township and

Appellants] are not enjoined, the Township could well

become insolvent due only to the legal expenses it will be

compelled to pay back to Carlino for breach of its

contractual obligations. In other words, this Township

needs the Court’s direct assistance to p

further harm and costing the Township taxpayers well in

excess of $1.5 million in legal expenditures owed to

Carlino as a direct result of [Scherbak and Winters’]

conspiracy with [Appellants] to intentionally harm Carlino

in breach of the Township’s contracts. Carli

bringing this action (1) to stop these lame duck

[s]upervisors from further causing damage to Carlino and

(2) to declare null and void their illegal transfer of

condemned property to L&R and/or [Appellants], in

breach of the Township’s obligations to contrac

Carlino.

R.R. at 16a-17a. In line with this, Carlino pled three claims: breach of contract

against the Township, Scherbak, and Winters; tortious interference with contractual

relations against Appellants; and civil conspiracy against all of the defendants. Id. at

15-19. As relief, Carlino requested an injunction that would both prevent the

defendants from “taking any further ste

any transfers of condemned property to [Appellants,]” as well as com

punitive damages, and

attorney’s fees,

such other and further relief that cos

10

[Common Pleas] deem[ed] appropriate.”Id. at 17a-19a. Carlino then supplemented

its suit by filing its Emergency Petition. Therein, Carlino briefly reiterated many of

the averments it had made in its Complaint and alleged that the Board intended to

vote upon the Settlement Agreement at a public hearing that was scheduled for

December 16, 2021, in an effort to bind the Township before the Board’s ne

of supervisors was sworn into office in early January 2022. Id. at 205a-06a. Of

particular note, Carlino asserted that the Settlement Agreement’s

adoption would

both cause it to suffer substantial monetary damages, for which the Township and

Appellants would be liable, and also result in immediate and irreparable harm to its

commercial and property interests for which pecuniary compensation would be

inadequate. See id. at 207a-08a. In addition, Carlino maintained that a preliminary

injunction was proper because it was likely to prevail on the merits of its Complaint;

that an injunction would inure to the benefit of both the Township and the public-at-

large (by allowing the new Board to consider the Settlement Agreement and, in the

interim, preventing the Township and its taxpayers from incurring liability for

monetary damages suffered by Carlino); and that the relief sought was both narrowly

tailored and would preserve the status quo. Id. at 207a-10a. As such, Carlino

requested that Common Pleas grant a preliminary injunction that would prevent the

Township from

(a) entering into, voting or authorizing any agreement with

[Appellants] until the new Board . . . is appointed and can

vote on whether to approve any such agreement; (b) taking

any further steps to transfer property to [Appellants] that

is subject to Carlino’s approved development

taking any further steps to thwart in any way Carlino’s

approved development plan; [as well as s]uch other relief

that [Common Pleas] deems proper and just.

Id. at 210a.

11

Carlino’s legal efforts did

to prevent the not

Settlement com

Agreement’s

adoption, as Supervisors Scherbak and Winters voted to approve it

during the course of the Board’s

December 16, 2021 hearing. See id. at 1093a-

1115a.10 Common Pleas then convened a hearing of its own on December 21, 2021,

regarding the Emergency Petition and, concluding that Carlino had satisfied the

requirements for a preliminary injunction, ultimately granted the Emergency Petition

via an order issued on April 4, 2022, followed by a second,

April 11, 2022. In doing so, Common Pleas ruled:

7. The Township’ s purported transfer of condemned land

to . . . L&R . . . and . . . Cropper . . . as set forth in [the]

Declaration of Disposition of Land[] . . . is and was illegal

and is hereby invalidated and declared void ab initio

because the purported transfer violates [both Common

Pleas’ and Commonwealth Court’s de

Board’s approval of Carlino’s ; lan

[Section 508 of] the [Pennsylvania] Municipalities

Planning Code [(MPC)], 53 P.S. § 10508,[11] and [Sections

308 and 310 of] the Eminent Domain Code, 26 Pa. C.S. §§

308, 310.

8. Title to the condemned parcel no. 30-2-47.1 (formerly

owned by L&R and Cropper) (Parcel ID No. 3002-

004701000) is hereby declared quieted to remain solely in

the Township’ s name, and with all and any claims by

L&R, Cropper[,] or any other [d]efendant [named in

Carlino’sextinguished Complaint] completely and in their

entirety ab initio.

9. The alleged “Settlement which a prior Agreem

majority of the . . . Board . . . signed on December 16, 2021

solely with [Appellants], is declared invalid, ultra vires

10

Neither the Board nor Appellants provided the public with copies of the Settlement

Agreement either before or during the hearing

solicitor verbally summarized its contents to those in attendance at the hearing. See R.R. at 1095a-

97a.

11

Act of July 31, 1968, P.L. 805, as amended.

12

and void ab initio in its entirety, with no part of it

surviving, because it violates, inter alia, the

[aforementioned Common Pleas and Commonwealth

Court decisions], [Section 508 of] the [MPC], 53 P.S. §

10508, and s the Township’

contractual commitments with

Carlino.

10. The Township shall take immediate steps to unwind,

rescind or withdraw from any and all steps taken to

implement the alleged within“Settlement

five days of the date of this Order[.]

Id. at 627a-29a. This appeal to our Court followed shortly thereafter.

II. Discussion

Appellants raise the following arguments in support of their challenge to

Common Pleas’ aforementioned orders

,12 which we rearrange and summarize as

follows. First, Carlino waived its ability to contest the Township’s

and tra

to Cropper and L&R, because Carlino failed to exhaust the administrative remedies

that were available to it both after the Board’s March 4, 2021 reso

the Board’s December 16, 2021Appellants

approval

Br. at 22-25. Second, Common Pleas improperly quieted title regarding the at-issue

portion of the condemned parcel, as such relief had not been sought by Carlino and

did not restore the status quo ante. In doing so, and by essentially terminating

Appellants’ pro the land that had been transferred through the

perty rights regarding

Settlement Agreement, Common Pleas unlawfully awarded Carlino a permanent

injunction. Id. at 27-29. Third, Common Pleas abused its discretion and erred as a

matter of law by granting the Emergency Petition, because it failed to properly

consider all six prerequisites for a preliminary injunction, as well as because its

12

“An order that grants or denies, modifies

continue, or dissolves or refuses to dissolve an in

interlocutory basis, subject to a handful of exceptions that are inapplicable to this situation. See

Pa. R.A.P. 311(a)(4).

13

factual findings failed to support its determinations regarding irreparable harm and

impact upon the public interest. Id. at 18-22. Fourth, the Board appropriately

exercised its authority when it entered into the Settlement Agreement with

Appellants and, thus, Common Pleas erred by ruling that the Settlement Agreement

was ultra vires and void ab initio. Id. at 25-27. Finally, Common Pleas erred by

failing to mandate that Carlino post an injunction bond. Id. at 17-18.

We are unpersuaded assertion

by Appellants’

that Carlino has forfeited its

chance to oppose the land transfer. Generally speaking, a wide range of actions

undertaken by local authorities constitute adjudications from which aggrieved

individuals must appeal in order to preserve and vindicate their rights. Per Section

101 of the Administrative Agency Law, an adjudication is

[a]ny final order, decree, decision, determination or ruling

by an agency affecting personal or property rights,

privileges, immunities, duties, liabilities or obligations of

any or all of the parties to the proceeding in which the

adjudication is made[, but] does not include any order

based upon a proceeding before a court or which involves

the seizure or forfeiture of property, paroles, pardons or

releases from mental institutions.

2 Pa. C.S. § 101. Accordingly,

we have held that any agency action determining the

personal or property rights or obligations of the parties

before an agency in a particular proceeding is an

adjudication. If, however, the agency action does not

affect the rights of the parties, but only affects the interest

of the public in general, then the action will not be deemed

an adjudication.

Ondek v. Allegheny Cnty. Council, 860 A.2d 644, 648 (Pa. Cmwlth. 2004) (internal

citations and some punctuation omitted). In keeping with this broad definition, a

settlement agreement that resolves a land dispute between a municipality and

another party is an adjudication which must be challenged through an appeal via the

14

Local Agency Law to the appropriate court. See 0RQH\Y%GRI6XS¶rs of Twp. of

Westtown, 89 A.3d 308, 312 (Pa. Cmwlth. 2014); 2 Pa. C.S.

Any person § 752

aggrieved by an adjudication of a local agency who has a direct interest in such

adjudication shall have the right to appeal therefrom to the court vested with

“Where

jurisdiction of such appeals[.]”). aware

party

of a proposedis a

settlement,

that party is obligated to intervene and appeal the purported illegality of the

settlement. If it does not, the settlement will be binding on the parties that were aware

of the litigation.”

Money, 89 A.3d at 312. By the same token, generally applicable

local ordinances and resolutions are not adjudications and, as such, cannot be

contested in that manner. See Mazur v. Trinity Area Sch. Dist., 926 A.2d 1260, 1265

(Pa. Cmwlth. 2007) (“[T]he Local

hicle for Agenc

challenging the merits of legislative e

It follows, then, that Carlino did not waive its ability to challenge the

Township’

s transfer of land to Cropper and L&R. Simply put, though the resolution

specifically and directly affected Carlino’s property rights

, it remains that the Board

issued the March 4, 2021 resolution pursuant to its authority under the Eminent

Domain Code, not to resolve some sort of formal dispute or proceeding.13 See Ondek,

860 A.2d at 648. As for the Declaration of Disposition of Land, it was merely an

exercise of the very municipal power that was authorized by that same resolution.

Therefore, neither one qualifies as an adjudication from which an appeal could be

taken.

Nor did Carlino’s failure

the Settlement toin such

Agreement result appeal

waiver, either, despite the fact that it did constitute an appealable adjudication. As

13

Indeed, it seems that the March 4, 2021 resolution sprang forth from behind-the-scenes

machinations that involved Supervisors Scherbak and Winters. See Common Pleas Op., 6/27/22,

at 9.

15

just discussed, the Declaration of Disposition of Land was the vehicle by which the

Township returned a portion of the condemned area to Cropper and L&R; thus, the

fact that Carlino did not appeal the Settlement Agreement has no bearing on whether

it preserved its ability to challenge that land transfer. Furthermore, Appellants

argument would be similarly unavailing even if construed as a broader assertion that

Carlino had waived its ability to challenge the Settlement Agreement as a whole.

Guiding us to this conclusion is the logic behind our decision in an analogous case,

Raum v. Board of Supervisors of Tredyffrin Township, 370 A.2d 777 (Pa. Cmwlth.

1976). In Raum, Tredyffrin Township enacted an ordinance rezoning land that was

owned by Richard J. Fox, Greenview Associates, and Picket Post Village, Inc.

(collectively Fox), to create what it called a “Uniform”370

Developme

A.2d

at 780. Local residents and a community group then sought relief from Tredyffrin

Township’s

hearing zoning

board, which affirmed both t

the issuance of various, necessary permits to Fox, whereupon the group and residents

appealed that decision to Common Pleas, which reversed the zoning hearing board.

Id. Subsequently, we reversed the hearing

lower co

board’s decision and

t the ordinance ruling

was, in tha

fact, valid. Id. Our Supreme

Court denied allocatur, whereupon Tredyffrin Township

commenced what this Court view[ed] as a deliberate

attempt to thwart the letter and spirit of our validation of

the Fox zoning [through] unjustified refusals to grant

certain permits, the enactment of harsh and unreasonable

fee schedules pointed to Fox’s development - of

issue] tract, purposeful delays in acting upon applications

for development submitted by Fox, and intimidation by

advertising rezoning s of land] [Fox’

immediately

following the Supreme allocatur. . Court’s

. den

[thereby] exhibit[ing] a persistent intent to thwart our

[ruling] and in turn the meaningful development of [Fox’s

land].

16

Id. at 780-81. Fox responded by filing a petition with our Court, through which it

requested enforcement of the judgment the Court had issued in the original case. Id.

at 780. Prior to reaching

s merits, theandpetition’

the Raum court addressed, denied,

Tredyffrin Township’s motion to quash the petition

the

Court

[declined to] accept the notion th

remedy [was through] appeal to [Tredyffrin Township’s ]

zoning [hearing] board and thereafter to the local court of

common pleas, for given the inherent delays in such a

process, a party seeking to develop, once having had his

zoning validated and reaching the stage of implementation

by applications for permits, would surely be frustrated if it

became necessary to follow the circuitous route each time

a permit application was denied.

Id. at 782. Expanding upon this point, the Raum court concluded tha

to appeal the Township’s actions did n

petition’s the

merits, because

court had both inherent and statutory authority to

enforce its own orders, which was especially applicable in instances where a litigant

sought to vindicate its judicially confirmed zoning rights. Id. at 782-83.

The factual and procedural circumstances here are indisputably different than

in Raum, but that is ultimately of no moment. Though this matter involves eminent

domain, revesting of land with a condemnee, involuntary redesign of previously

approved development plans, a settlement agreement, and a new lawsuit in Common

Pleas, rather than, as in Raum, rezoning, permitting and fee disputes, and a petition

to enforce at the appellate level, the issue at the heart of both matters is the same: a

landowner’s effort to enforce its lega

development rights against a municipality that has been conducting a concerted and

multifaceted effort to vitiate those rights. While it would have been more

procedurally appropriate for Carlino to challenge the Settlement Agreement by filing

17

a petition to enforce judgment with this Court, see id., seeking injunctive relief from

Common Pleas was nevertheless proper as well, since an injunction in this instance

effectively offers the same remedy that would be available through such a petition,

namely, ensuring that a municipality complies with judicial rulings without requiring

a landowner to play what would amount to a game of Whac-A-Mole through

litigation.

Nevertheless, we agree with Appellants that it was an abuse of discretion for

Common Pleas to grant the Emergency Petition.

The six essential prerequisites that a moving party must

demonstrate to obtain a preliminary injunction are as

follows: (1) the injunction is necessary to prevent

immediate and irreparable harm that cannot be

compensated adequately by damages; (2) greater injury

would result from refusing the injunction than from

granting it, and, concomitantly, the issuance of an

injunction will not substantially harm other interested

parties in the proceedings; (3) the preliminary injunction

will properly restore the parties to their status as it existed

immediately prior to the alleged wrongful conduct; (4) the

party seeking injunctive relief has a clear right to relief and

is likely to prevail on the merits; (5) the injunction is

reasonably suited to abate the offending activity; and, (6)

the preliminary injunction will not adversely affect the

public interest.

SEIU Healthcare Pennsylvania v. Com., 104 A.3d 495, 501 (P

preliminary injunction to issue, every one of these prerequisites must be established;

if the petitioner fails to establish any one of them, there is no need to address the

others.”

Allegheny Cnty. v. Com., 544 A.2d 1305, 1307 (Pa. 1988). By contrast,

or

permanent injunctive relief, the following criteria must be established: (1) the right

to relief is clear; (2) the relief is necessary to prevent an injury which cannot be

compensated by damages; and (3) greater injury will occur from refusing the

18

injunction than from granting it.”First Phila. Preparatory Charter 6FKY'HS¶t of

Educ., 179 A.3d 128, 133 n.2 (Pa. Cmwlth. 2018).

[A] preliminary injunction is intended to preserve the

status quo and prevent imminent and irreparable harm that

might occur before the merits of the case can be heard and

determined. After a preliminary injunction is awarded or

denied, the case proceeds for a final hearing on the merits.

. . . The preliminary injunction proceeding is distinct from

the final hearing on the merits. . . . Indeed, it is well

established that separate standards govern a request for a

preliminary injunction and a request for permanent

injunctive relief: a preliminary injunction looks for the

presence of imminent, irreparable harm, whereas a

permanent injunction is warranted if no adequate remedy

at law exists for a legal wrong.

Lindeman v. Borough of Meyersdale, 131 A.3d 145, 151 (Pa. Cmwlth. 2015); see id

at 151 n.6 (“A court’s final dispositio

is independent of its determination relating to preliminary injunctive relief and the

[granting] of the latter does not foreclose an order [denying] a permanent

injunction.”).

We keep in mind that an appellate court reviews an order

granting or denying a preliminary injunction for an abuse

of discretion. Summit Towne Centre, Inc. v. Shoe Show of

Rocky Mount, Inc., . . . 828 A.2d 995, 1000 ([Pa.] 2003).

Under this highly deferential standard of review, an

appellate court does not inquire into the merits of the

controversy, but examines the reco

were any apparently reasonable grounds for the action of

the court below.”

Id.[] (quoting Roberts v. [Bd.] of Dirs.

of Sch. Dist., . . . 341 A.2d 475, 478 ([Pa.] 1975)).

SEIU Healthcare, 104 A.3d at 501. “Moreover, we will not ‘

for or against such action unless it is plain that no such grounds existed or that the

rules of law relied on are palpably

Credit All. wro

19

Corp. v. Phila. Minit-Man Car Wash Corp., 301 A.2d 816, 818 (Pa. 1973) (quoting

United Nat. Gas Co. v. Wagner, 208 A.2d 843, 844 (Pa. 1965)).

In its “corrected” April

2022 order, Common 11,

Pleas explicitly stated, in

relevant part:

1. Carlino’s Petition for prelimina

GRANTED.

2. Carlino has met the requirements for obtaining

injunctive relief by establishing that it is likely to

succeed on the merits of the claims in its Complaint; it

will suffer immediate and irreparable harm if relief is

not granted that cannot be adequately compensated by

damages; the harm it will suffer is greater than any

harm any interested part would suffer if the relief is

granted; the parties will be returned to the status quo

that existed prior to the occurrence of the wrongful

conduct; the relief is narrowly tailored to the remedy

sought and the remedy will not adversely affect the

public interest. Summit Towne[,] . . . 828 A.2d [at]

1000-[01].

....

6. Carlino demonstrated that it will suffer irreparable

harm if the following injunctive relief is not granted.

R.R. at 636a-37a (emphasis in original); see also Common Pleas Op., 6/27/22, at 28,

34-44, 46-47 (explaining whyregarding

arguments Appellants’

the propriety of

issuing a preliminary injunction are without merit). Common Pleas therefore clearly

viewed the Emergency Petition through the lens of the six-part preliminary

injunction test, not the one applicable to permanent injunctions. Compare First

Phila., 179 A.3d at 133 n.2, with SEIU Healthcare, 104 A.3d at 501. By doing so,

Common Pleas evinced its unmistakable intent to issue a preliminary injunction.

Despite this objective, however, the substance of the relief that Common Pleas

granted through its April 11, 2022 order was far from preliminary. Instead, Common

Pleas declared that the Township’s transfer

Declaration

20

of Disposition of Land “is and was illegal and is he

void ab initio;”extinguished Appellants’ ruled

propert

that the Settlement Agreement was “invalid,

ultra vires and void ab initio in its

entirety;”and ordered the Township to expeditiously take all steps necessary to

unwind the Settlement Agreement. R.R. at 627a-29a. It is clear, then, that Common

Pleas granted what amounts to a permanent injunction. In doing so, Common Pleas

erred by failing to restore the status quo ante, reaching the merits of the underlying

case, and awarding Carlino relief that far exceeded that which could be lawfully

dispensed through a preliminary injunction.14

III. Conclusion

In light of the foregoing, we vacate Common April

Pleas’4, 2022 and April

11, 2022 orders and remand this matter to the lower court. On remand, Common

Pleas shall again consider, based upon the record as currently constituted, whether

Carlino is entitled to a preliminary injunction and, if so, shall grant relie

favor only to the extent it comports with the interim nature of such injunctions.15

__________________________________

ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision of this case.

14

Moreover, even if we assumed arguendo that Common Pleas had intended to grant a

permanent injunction in Carlino’s favor, the

subsequent opinion would serve to show that it did not actually apply the proper legal standard

when determining whether a permanent injunction was warranted under the circumstances. See

R.R. at 636a-37a; Common Pleas Op., 6/27/22, at 28, 34-44, 46-47.

15

As we have resolved this appeal in Appella

of their arguments.

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlino East Brandywine, L.P. :

:

v. : No. 367 C.D. 2022

:

East Brandywine Township, Jason R. :

Winters, George Scherbak, :

Brandywine Village Associates, L.P., :

L&R Partnership, LLC, Leonard G. :

Blair, individually and as general :

partner of L&R Partnership, Richard :

J. Blair, individually and as general :

partner of L&R Partnership, John R. :

Cropper, individually and as general :

partner of L&R Partnership, and John :

Doe Corporations and Individuals :

:

Appeal of: Brandywine Village :

Associates, L.P., L&R Partnership, :

LLC, Leonard G. Blair, Richard J. :

Blair, and John R. Cropper :

ORDER

AND NOW, this 11th day of July, 2023, it is hereby ORDERED that the Court

of Common Pleas (Common

of Chester County’s

Pleas) April 4, 2022 and April 11,

2022 orders are VACATED. It is FURTHER ORDERED that this matter is

REMANDED to Common Pleas, with instructions that the lower court again

consider, based upon the record as currently constituted, whether Appellee Carlino

East Brandywine, L.P. (Carlino) is entitled to a preliminary injunction and, if so,

shall grant s favor

reliefonly to the in

extent itCarlino’

comports with the interim

nature of such injunctions.

Jurisdiction relinquished.

__________________________________

ELLEN CEISLER, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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