Opinion
No. 1800 C.D. 2014
07-10-2015
Roman Catholic Diocese of Allentown, Appellant v. City of Bethlehem
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this procedurally quirky appeal, the Roman Catholic Diocese of Allentown (RCDA) asks whether the Court of Common Pleas of Northampton County (trial court) erred in dismissing its appeal from a decision of the City Council of the City of Bethlehem (City Council). The decision of City Council denied RCDA's application for a permit to demolish a home and barn it owns in the City's historic district.
The trial court previously denied RCDA's appeal. According to the trial court, rather than appealing the previous denial, RCDA returned several months later seeking to re-litigate the same issues already decided by the trial court, which was procedurally improper. RCDA contends the trial court's initial order was interlocutory and unappealable; thus, a remand is warranted for a determination on the merits of its local agency appeal. Upon review, we affirm.
In November 2012, RCDA filed an application for a certificate of appropriateness (certificate) with the City, seeking a permit to demolish a single-family home and barn that RCDA owns at 1304 Spring Street, which is located in the City's Mount Airy Historic Conservation District. At a January 2013 meeting, the City's Historic Conservation Commission (Historic Commission) recommended that City Council deny RCDA's application.
City Council issues certificates of appropriateness pursuant to what is commonly known as the Historic District Act, Act of June 13, 1961, P.L. 282, No. 167, as amended, 53 P.S. §§8001-8006, and Article 1714 of the Codified Ordinances of the City of Bethlehem, Pennsylvania.
A few weeks later, City Council held a meeting at which it voted to approve the Historic Commission's recommendation to deny RCDA's application. Shortly thereafter, RCDA filed a document styled "COMPLAINT (Appeal from Adjudication of Local Government Agency Pursuant to 2 Pa. C.S.A. §§751-754)" with the trial court. Reproduced Record (R.R.) at 11a. The City filed an answer.
Thereafter, RCDA filed a "MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF/APPELLANT PURSUANT TO Pa.R.Civ.P. No. 1035" and a supporting brief. R.R. at 231a. In its motion, RCDA stated, "[t]his is an appeal by [RCDA] from an adjudication of a local government agency pursuant to 2 Pa. [C.S.] §§751-754." R.R. at 231a. RCDA sought reversal of the decisions of the Historic Commission and City Council on the grounds that these local bodies: (1) abused their discretion in refusing RCDA's application for the certificate to demolish the home and barn; (2) engaged in a capricious disregard of the evidence; (3) abused their power in denying the requested demolition; and, (4) did not render a timely decision on RCDA's application for the certificate. RCDA requested that the trial court reverse City Council's decision and direct that a certificate be issued authorizing the issuance of a permit for the demolition of 1304 Spring Street. The City filed a brief in opposition to RCDA's motion.
The City and RCDA also filed a stipulation setting forth the procedural background that led to RCDA's appeal to the trial court. The trial court did not receive any additional evidence.
Ultimately, in January 2014, the trial court issued an order, which stated:
[U]pon consideration of the Motion for Summary Judgment filed by Plaintiff, [RCDA], it is hereby ORDERED and DECREED as follows:R.R. at 253a. No request for reconsideration was filed, and no appeal was taken from this order.
1. [RCDA's] Motion for Summary Judgment is DENIED.
2. [City Council's] decision cannot be considered an abuse of discretion where [City Council] properly considered all factors set forth in City of Bethlehem Ordinances 1714.07(a) and 1714.09(a), and in light of the purpose of the ordinance, set forth at Section 1714.03.
3. [City Council] did not render its decision outside of the legal timeframe set forth at Ordinance 1714.11.D where [RCDA] consented to the continuation of the discussion of the demolition application from the December 17, 2013 meeting of the [Historic Commission] to the January 28, 2013 meeting, where the [Historic] Commission rendered its decision.
More than five months later, after a status conference before a different trial judge, the matter was listed on the trial court's September 2014 argument list. RCDA, through new counsel, subsequently filed a praecipe for argument. Thereafter, the parties filed briefs. RCDA's brief was identical to the brief it filed in support of its motion for summary judgment.
Ultimately, the case was assigned to the same trial judge who issued the January 2014 order. Shortly thereafter, the trial judge issued the following order:
[U]pon consideration of the Appeal from a Decision of a Local Government Agency, filed by Plaintiff, [RCDA], it is hereby ORDERED and DECREED as follows:R.R. at 256a. RCDA then filed a motion for reconsideration.
1. [RCDA's] Appeal is DENIED and DISMISSED.
2. This matter was decided by final Order dated January 17, 2014.
3. [RCDA] neither sought reconsideration nor filed an appeal from the January 17, 2014 Order.
4. [RCDA] is attempting to re-litigate the same issues previously addressed by this Court. This Court has already ruled, after review of the same record currently before the Court, that the [City] did not abuse its discretion in denying the demolition permit, and that the City's decision was not untimely.
Shortly thereafter, the trial court heard oral argument. At that time, the trial court questioned why the matter was again listed for argument in September 2014 when the trial court disposed of it in January 2014. The trial court indicated that RCDA's brief raised the exact same issues previously decided. In response, RCDA's counsel asserted the January 2014 order, which denied RCDA's motion for summary judgment, was not a final order; therefore, it was unappealable. RCDA's counsel explained it was now seeking to obtain a final, appealable order.
The trial court subsequently denied reconsideration, stating that this matter, which sought review of City Council's denial of RCDA's application for a certificate to demolish the home and barn, was decided by the trial court in January 2014. The trial court also stated that if RCDA had new facts to present it could attempt to reapply for a certificate from City Council.
RCDA filed a timely notice of appeal to this Court, and the trial court directed it to file a Concise Statement of Errors Complained of on Appeal, which it did. In a subsequently filed opinion, the trial court explained:
[T]he issue raised by [RCDA] is procedural in nature. [RCDA] requested permission from the [City] to demolish a residential property located in the historic district. The City denied the application. [RCDA] appealed to the [trial court], filing [its] Complaint in March 2013. Thereafter, [RCDA] took no action on the case until a [m]otion for [s]ummary [j]udgment was filed in December 2013 and placed on the December 5, 2013 Argument List. The matter was assigned to the Honorable F.P. Kimberly McFadden, and on January 17, 2014, an Order was issued denying summary judgment and finding that the City's decision was not an abuse of discretion and was not untimely. Although termed as a 'Motion for Summary Judgment' by [RCDA], the issues presented to the Court were whether the [RCDA] was entitled to a demolition permit because the City's decision was an abuse of discretion and/or
because the City's decision was untimely. Thus, the [m]otion as presented to the Court, and this Court's resulting Order, was dispositive of all of the issues in the case.
[RCDA] took no further action on the case until it was listed on the September 2, 2014 Argument List. FN2 At that time, [RCDA] [was] attempting to obtain a different decision, on the same record that had been submitted in December 2013, and on the same issues, i.e. whether the City's decision was an abuse of discretion and/or untimely. Thus, the Court entered the September 3, 2014 Order finding that the issues had been addressed in the January 17, 2014 Order of Court. Thereafter, [RCDA] filed a Motion for Reconsideration, which was denied by Order of Court dated September 30, 2014.
Tr. Ct., Slip Op., 11/14/14, at 1-2. RCDA's appeal is now before us for disposition.FN2 Counsel also acted improperly in failing to advise the assigning judge that the undersigned had previous involvement with this case. The case was re-assigned to Judge McFadden by chance.
On appeal, RCDA asserts it initially appealed a local agency decision to the trial court. It then filed a motion for summary judgment, which the trial court denied. RCDA contends it subsequently sought a final decision from which an appeal could be taken. The trial court held that its prior order denying summary judgment was a final appealable order from which no appeal was taken, and it refused to issue a final decision on the merits. RCDA maintains that an order denying summary judgment is not a final, appealable order.
Where the trial court takes no additional evidence, our review of a local agency decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether the procedure before the local agency was contrary to statute, and whether necessary findings of fact were supported by substantial evidence. Kovler v. Bureau of Admin. Adjudication, 6 A.3d 1060 (Pa. Cmwlth. 2010) (citing Section 754 of the Local Agency Law, 2 Pa. C.S. §754).
To that end, RCDA argues the Pennsylvania Rules of Civil Procedure that govern motions for summary judgment expressly limit a court's power to grant summary judgment to those situations where a moving party is entitled to judgment as a matter of law. RCDA asserts Pennsylvania courts do not authorize the entry of summary judgment in favor of a non-moving party. And, no such effect can be given to a court's denial of a moving party's motion for summary judgment. See Sidkoff, Pincus, Greenberg & Green, P.C. v. Pa. Nat'l Mut. Cas. Ins. Co., 555 A.2d 1284 (Pa. 1989). Thus, an appeal does not lie from the denial of a moving party's motion for summary judgment. Id. Rather, such a denial is interlocutory as the party "remains in court." Br. for Appellant at 8.
Here, RCDA contends, the trial court's January 2014 order denied RCDA's motion for summary judgment. This ruling was interlocutory. Sidkoff. Because it does not constitute a final order, RCDA could not appeal it. Further, because it was an interlocutory order, the period within which to timely appeal did not commence. Rather, the appeal period only begins to run when a final order is entered. Thus, RCDA asks that this Court conclude the trial court's order denying summary judgment was interlocutory and remand for a final, appealable decision on the merits.
It is undisputed that this matter originated in the trial court as an appeal from a local agency adjudication, which is governed by the Local Agency Law, 2 Pa. C.S. §§551-555, 751-754. Pursuant to Section 752 of the Local Agency Law: "Any person 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 jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure)." 2 Pa. C.S. §754; see also Section 4(d) of the Historic District Act, 53 P.S. §8004(d). Further, as to the disposition of such appeals, Section 754 of the Local Agency Law states:
A "local agency" is: "A government agency other than a Commonwealth agency." 2 Pa. C.S. §101.
(a) Incomplete record.--In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.2 Pa. C.S. §754.
(b) Complete record.--In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).
There is no dispute here that a complete record was made before the local agency. Thus, the trial court was required to hear the appeal on the record certified by the agency. Id. Further, the trial court was required to affirm the agency's adjudication unless it found: (1) the adjudication violated constitutional rights; (2) the adjudication was not in accordance with law; (3) the provisions relating to practice and procedure of local agencies were violated; or, (4) the agency's necessary factual findings were not supported by substantial evidence. Id.
Ordinarily, a final order is any order that disposes of all claims and of all parties or is expressly defined as a final order by statute. Pa. R.A.P. 341(b)(1), (2). An appeal of a trial court order disposing of a local agency appeal must be filed within 30 days after the entry of the trial court's order. 42 Pa. C.S. §5571(b); Pa. R.A.P. 903(a). As our Supreme Court explains:
Additionally, "[a] motion for post-trial relief may not be filed in an appeal from the final adjudication or determination of a local agency ... as to which jurisdiction is vested in the courts of common pleas." Pa. R.C.P. No. 227.1(g). As the Explanatory Comment -- 1989 to that Rule states: "New subdivision (g) prohibits post-trial proceedings in a statutory appeal. The decision of the court in all such cases will be a final, appealable order." Id. Despite the clear language of Pa. R.C.P. No. 227.1(g), which explicitly prohibits post-trial practice in statutory appeals, Pennsylvania courts permit post-trial practice in those cases where the trial court finds it helpful. Appeal of Borough of Churchill, 575 A.2d 550 (Pa. 1990); In re PP&L, Inc., 838 A.2d 1 (Pa. Cmwlth. 2003); In re Upset Price Tax Sale for Springfield Twp., 700 A.2d 607 (Pa. Cmwlth. 1997); In re Appeal of Sheetz, Inc., 651 A.2d 563 (Pa. Cmwlth.), rev'd per curiam, 650 A.2d 443 (Pa. 1994); Shapiro v. Center Twp., 632 A.2d 994 (Pa. Cmwlth. 1993); Eachus v. Chester Cnty. Tax Claim Bureau, 612 A.2d 586 (Pa. Cmwlth. 1992). Thus, it is within the trial court's discretion to invite and entertain post-trial motions in statutory appeals. Id. The trial court chose not to exercise this discretion here.
The timeliness of an appeal and compliance with the statutory provisions granting the right to appeal implicate an appellate court's jurisdiction and its competency to act. Absent extraordinary circumstances, an appellate court lacks the power to enlarge or extend the time provided by statute for taking an appeal. Thus, an appellant's failure to appeal timely an order generally divests the appellate court of its jurisdiction to hear the appeal.Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (citations omitted). Further, "orders following adjudications in statutory appeals are appealable without the necessity of a formal entry of judgment." See Colville v. Allegheny Cnty. Ret. Bd., 888 A.2d 21, 25 n.7 (Pa. Cmwlth. 2005).
As to RCDA's filing of a motion for summary judgment after it filed its local agency appeal with the trial court, the Local Agency Law does not contemplate the filing of such a motion under these circumstances. Also, the Rules of Civil Procedure, which authorize the filing of motions for summary judgment, do not apply in statutory appeals. In re Appeal of Churchill, 575 A.2d 550 (Pa. 1990). As a result, this Court previously determined that it cannot ignore the fact that the Rules of Civil Procedure do not apply in a local agency appeal simply because a party characterizes its filing as a motion for summary judgment. See Ret. Bd. of Allegheny Cnty. v. Colville, 852 A.2d 445 (Pa. Cmwlth. 2004).
Where a party files a summary judgment motion in the context of a local agency appeal, and the trial court treats the matter as a local agency appeal and disposes of it as such, the fact that the trial court also denies summary judgment does not render the trial court's order non-final. See Colville v. Allegheny Cnty. Ret. Bd., 888 A.2d at 26 n.9 (Pa. Cmwlth. 2005).
Consequently, although RCDA is correct that, normally, an order denying summary judgment is interlocutory and unappealable, we disagree with RCDA that the trial court's January 2014 order was an unappealable, interlocutory order. As RCDA indicated in its initial appeal, its motion for summary judgment and its supporting brief, this matter came before the trial court as an appeal of a local agency decision. See R.R. at 10a, 231a, 234a. The trial court's January 2014 order, which denied RCDA's motion for summary judgment, also determined that the local agency, here City Council, did not abuse its discretion in denying RCDA's application for a certificate and rendered its decision within the applicable timeframe to do so. Inexplicably, in its brief to this Court, RCDA completely disregards that portion of the trial court's January 2014 order that rejected RCDA's attempt to overturn City Council's decision denying RCDA's application for the certificate.
See, e.g., Yorty v. PJM Interconnection, L.L.C., 79 A.3d 655 (Pa. Super. 2013).
In short, the trial court's January 2014 order was a final, appealable order because it decided the merits of RCDA's local agency appeal. See Pa. R.A.P. 341(b). RCDA did not file a timely appeal from that order. Therefore, it became final, and any issues associated with the entry of that order can no longer be raised. Pa. R.A.P. 903(a); Office of Attorney Gen., Bureau of Consumer Prot. v. Lubisky, 88 A.3d 328 (Pa. Cmwlth. 2014). Rather than filing a timely appeal of the trial court's January 2014 order, about seven months later, RCDA refiled the identical brief it filed in support of its motion for summary judgment, raising the same issues already decided by the trial court on the same record, in an effort to obtain a different result. Compare Certified Record (C.R.), Item #19 (Brief of Plaintiff/Appellant in Support of Appeal from a Decision of a Local Government Agency) with C.R., Item #9 (Brief of Plaintiff in Support of Motion for Summary Judgment). We agree with the trial court that this was procedurally improper. Accordingly, we affirm the trial court's September 2014 order, which denied and dismissed RCDA's appeal based on its unappealed January 2014 order that disposed of the issues raised in RCDA's appeal of City Council's denial of its application for the certificate.
In its reply brief, RCDA argues that at a status conference before a different trial judge in June 2014, the City agreed that the trial court's order that denied RCDA's motion for summary judgement was a non-final, unappealable order. Thus, it contends the City should be estopped from now taking a contrary position. We disagree.
First, this issue was raised for the first time in RCDA's reply brief; thus, it is waived. See Commonwealth v. Colavita, 993 A.2d 874 (Pa. 2010) (reply brief is not appropriate vehicle to raise a new claim). Additionally, the record contains no transcript of the status conference referenced by RCDA. This Court cannot base a determination solely on factual assertions in a party's brief. See Erie Indem. Co. v. Coal Operators Cas. Co., 272 A.2d 465, 46667 (Pa. 1971) ("[B]riefs are not part of the record, and the court may not consider facts not established by the record." (internal footnotes omitted)). As such, we reject this argument.
/s/_________
ROBERT SIMPSON, Judge President Judge Pellegrini concurs in the result only. ORDER
AND NOW, this 10th day of July, 2015, the order of the Court of Common Pleas of Northampton County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge