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