Opinion
No. 458 C.D. 2011
05-21-2012
The Township of Bradford, Appellant v. Tom R. Vickery and Toni Ann Vickery, Husband and Wife
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
The Township of Bradford (Township) appeals from the June 14, 2010, decision and order of the Court of Common Pleas of McKean County (trial court) which dismissed the Township's claims against Tom R. Vickery (Mr. Vickery) and Toni Ann Vickery (Mrs. Vickery) (together, the Vickerys) and reversed a magistrate's judgment imposing a $500 per diem charge against the Vickerys and awarding counsel fees to the Township. We affirm.
Facts and Procedure
In 1993, Tom Vickery, a homebuilder, acquired a 29.8-acre tract of land, intending to subdivide and sell the lots at a modest price with the requirement that buyers would also contract with him to build homes. (R.R. at 317a.) He submitted an application with the Township seeking approval to subdivide the land. The subdivision was entitled "Tom R. Vickery Subdivision, Phase II," (Phase II), and consisted of a road known as "Pennbrook Lane" and five lots, which were numbered 4, 5, 6, 7, and 8.
The Township sewer system is a gravity-flow system. However, four of the five lots in Phase II were at a lower elevation than the site where they could tap into the Township's sewer system. (Trial court's Findings of Fact, Nos. 9, 10.) The only way a gravity-flow sewage system could be used would be to obtain a right-of-way from the owner of a neighboring parcel of land, Joe Keane. Keane was unwilling to grant this right-of-way. (Findings of Fact, Nos. 10, 19.) As an alternative, Mr. Vickery decided to build a pressure pump station under the cul-de-sac at the end of Pennbrook Lane, which would pump the sewage up to the closest manhole. (Findings of Fact, No. 9.)
In August 1993, the Township gave preliminary approval to Mr. Vickery's subdivision application subject to the following conditions: (1) Mr. Vickery's sewer plan was approved by both the Township and the Department of Environmental Resources (DER); and (2) Mr. Vickery would pave Pennbrook Lane to the Township's specifications. (Findings of Fact, No. 11; R.R. at 657a.) Mr. Vickery agreed in writing to these conditions. (R.R. at 653a.) The Township approved the sewage plan, then submitted it to the DER. In October 1993, the DER responded to the sewage plan, requesting that Mr. Vickery revise the plan to delineate wetland areas, which he did. (R.R. at 667a, 852a.)
Meanwhile, Mr. Vickery began selling the lots. In September 1993, he sold lot 4 to Steven and Patricia Kornacki and lot 6 to Colin and Molly Heron. (Findings of Fact, Nos. 13, 14; R.R. at 369a.) In addition, he contracted with both the Kornackis and the Herons to build homes on their lots. (R.R. at 369a, 373a.) In November 1993, he sold Lot 7 to Richard and Kathleen Obermeyer and contracted to build them a home. (Findings of Fact, No. 17; R.R. at 382a.)
On November 9, 1993, the Township Planning Commission held a meeting at which it further discussed Mr. Vickery's sewer plan. The Township did not give Mr. Vickery notice that Phase II would be discussed at the meeting, nor was he present. (Findings of Fact, No. 18; R.R. at 367-68a, 386-87a, 664a.) The record reflects that the Township was concerned that it would be burdened with the cost of maintaining the pressure pump system proposed by Mr. Vickery. (R.R. at 411-13a, 857-58a.) In addition, the Planning Commission mistakenly believed that Mr. Vickery was intending to change the sewer system from the pressure-pump system to a gravity flow system. (Findings of Fact, No. 18.) However, Mr. Vickery was not intending to use a gravity flow system because he knew he could not obtain the necessary right-of-way. (Findings of Fact, No. 19; R.R. at 376a, 395a.) To the contrary, Mr. Vickery was in the process of obtaining parts for the pressure-pump system. (Findings of Fact, No. 18.)
As a result of the November 9, 1993, meeting, the Planning Commission wrote the following letter to Mr. Vickery:
Dear Mr. Vickery:
At the Bradford Township Planning Commission meeting this evening, the Commission rescinded the conditional approval granted you at our meeting of August 10, 1993, for this Major Subdivision, Phase II.
This was necessary because you now propose to change the Phase II Sewer Project from a holding tank grinder pump lift station to the installation of a gravity sewer line extension.
It will be necessary for you to file with the Commission a new plot plan showing the exact location of this gravity line, along with engineering drawings for same, the necessary right of ways to Bradford Township and four (4) sets of plans and applications to DER.(R.R. at 661a) (emphasis in original).
It will also be necessary for the new plot plan to contain the wetland area delineated using the federal method as requested by DER.
The proposed roadway must meet Township specifications and be installed along with the sewer lines prior to final approval.
As agreed to previously, be advised again, that no construction can begin until the above requirements are met. You may, as agreed, continue to sell building lots but should place the buyer on notice the above sub-division requirements have not been met.
Very truly yours,
BRADFORD TOWNSHIP PLANNING COMMISSION
Upon receiving this letter, Mr. Vickery, who had already entered into construction contracts calling for a pressure pump system, began exploring the possibility of changing his sewer plan. However, he could not change his sewer plan without the consent of the Kornackis, Herons, and Obermeyers. (R.R. at 398a, 421a.) The Herons indicated they would agree to the change but the Kornackis and the Obermeyers refused. (R.R. at 422-23a; 440a, 444a.). Thus, Mr. Vickery was unable to install a different type of sewer system without breaching his contracts with the Kornackis and the Obermeyers.
Rather than wait for Mr. Vickery to submit a revised sewer plan delineating the wetlands as requested by the DER, the Township proceeded to submit its own sewage plan to the DER. (Findings of Fact, No. 16; R.R. at 668-69a.) This was done without notification to Mr. Vickery. (Id.) The DER rejected the Township's plan, notifying the Township in a letter sent only to the Township and not Mr. Vickery. (Findings of Fact, No. 21.) Thereafter, the Township submitted a second plan to the DER without Mr. Vickery's knowledge or permission, this time calling for a "grinder pump system." (Findings of Fact, No. 22.) Under this plan, each home would have its own sewage pump which would be maintained by the individual homeowner. The DER approved the grinder pump sewer plan, but this fact was not communicated to Mr. Vickery. (Findings of Fact, Nos. 23-24.) At that point, the Township stopped communicating with Mr. Vickery about his sewage plan altogether, presumably because it had received approval from the DER for its own sewage plan.
Without Mr. Vickery's knowledge, and now in the absence of an approved subdivision plan, the Township began issuing sewer permits and building permits for lots 4, 6, and 7. (Findings of Fact, Nos. 28, 31; R.R. at 444a, 536a.) This was in contravention of the Township's own requirement, as set forth in its November 9, 1993, letter that no building should begin until there was an approved subdivision plan in place. In September 1994, Mr. Vickery, who by then had put the 29.8-acre tract of land in both his and his wife's name, sold lot 5 to the Herons, (Findings of Fact, No. 29), who already owned lot 6. Mr. Vickery attended the regular meeting of the Planning Commission on September 13, 1994, and objected to the recording of the plot plan approval because it contained amended sewage plans to which he did not agree. (Findings of Fact, No. 30.) Shortly thereafter, the Township issued building and sewage permits for lot 5. (Findings of Fact, No. 31.) The Herons used a builder other than Mr. Vickery to build their home, and they installed their own grinder pump system. (R.R. at 326a.)
On August 23, 1995, the Township issued building and sewer permits for lot 7, and the Obermeyers built their house using another builder. (Findings of Fact, No. 32.) Ultimately, Mr. Vickery only built one house in Phase II, the Kornacki's house, which was the one lot that was conducive to tapping into the existing gravity flow sewer system. (R.R. at 327a.)
While all of the above was going on, the Vickerys jointly filed a complaint in mandamus with the trial court seeking to compel the Township to submit Mr. Vickery's revised sewer plan (which now delineated the wetlands) to the DER. However, the trial court determined that the Vickerys were seeking to compel the performance of a discretionary act and dismissed the complaint. This court affirmed. Tom R. Vickery v. The Township of Bradford, et al. (No. 564 C.D. 1997, filed September 22, 1998). After he lost the mandamus lawsuit, Mr. Vickery stopped maintaining Pennbrook Lane. He testified that if there had been an approved subdivision plan, he would have paved the road, but since there was not he did not believe he was obligated to do so. (R.R. at 490a.) Pennbrook Lane remains unpaved to this day.
Mr. Vickery served as a Township Supervisor from 2001 to 2007. (Findings of Fact, No. 35.) Roughly four months after his term expired, and fourteen years after the Township rescinded its conditional approval for this subdivision project, the Township filed this action in equity against both Mr. Vickery and Mrs. Vickery, seeking to compel them to pave Pennbrook Lane. (Findings of Fact, No. 36.) At the same time, the Township filed a related enforcement proceeding against the Vickerys with a magisterial district justice, (R.R. at 23a-37a.), who entered a judgment in favor of the Township and imposed per diem fines of $500 a day until the road was paved and granted attorney's fees to the Township. (R.R. at 38a-41a.)
As of 2010, all but two members of the Planning Commission who reviewed Phase II plans in 1993 and 1994 are deceased. (Findings of Fact, No. 37.) In 1994, an engineer estimated the cost of paving Pennbrook Lane to be $15,410.00; in 2009, the engineer estimated the cost of paving the road to be $31,784.00. (Findings of Fact, Nos. 25, 38.)
On May 30, 2008, the Vickerys appealed from the district justice's decision and filed preliminary objections to the Township's complaint in equity on the basis that Mrs. Vickery was never involved in the subdivision project, and, therefore, should not have been named as a defendant. The trial court consolidated the two cases, tolled the per diem fine, and dismissed the Vickerys' preliminary objections. After a two-day bench trial, the trial court reversed the district justice's decision, concluded that the Township's claims were barred by laches and equitable estoppel, and dismissed motions for attorney fees made by both parties.
On appeal to this Court, the Township argues that the trial court erred in concluding that: (1) the Township's claims were barred by laches; (2) the Township's claims were barred by equitable estoppel; (3) Mr. Vickery's wife, Toni Ann Vickery, was not an indispensable party; and (4) the Township is not entitled to receive attorney's fees.
Our scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. Mellish, II v. Hurlock Neck Duck Club, Inc., 886 A.2d 1151 (Pa. Cmwlth. 2005).
Laches
"Estoppel by laches is a time-honored doctrine 'that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another.'" In Re Estate of Leitham, 726 A.2d 116, 119 (Pa. Cmwlth. 1999) (quoting Stilp v. Hafer, 553 Pa. 128, 132, 718 A.2d 290, 292 (1998)). The party asserting laches must establish two elements: (1) there was a delay arising from the complaining party's failure to exercise due diligence; and (2) prejudice to the asserting party resulting from the delay. Stilp. "Whether the complaining party acted with due diligence depends upon what that party might have known by use of information within its reach, and prejudice may be found where some change in the condition or relation of the parties occurs during the period the complaining party failed to act." Leitham, 726 A.2d at 1119 (citation omitted). Prejudice "is established where ... witnesses die or become unavailable, records are lost or destroyed, and changes in position occur due to the anticipation that a party will not pursue a particular claim." Weinberg v. State Board of Examiners of Public Accountants, 509 Pa. 143, 148, 501 A.2d 239, 242 (1985).
In Leitham, we held that the equitable defense of laches precluded the Department of Revenue from assessing additional inheritance taxes against an estate based on the decedent's retirement plan, more than eight years after the estate filed a return, where the delay arose from the Department's failure to exercise due diligence without justification; the retirement plan had been disclosed on the estate's federal return and therefore necessary information was within the Department's possession and knowledge; and the delay prejudiced the estate, which had been closed after all assets were distributed to beneficiaries.
Although courts historically have been reluctant to apply the doctrine of laches against a government body, it is "now firmly settled that when all the traditional elements of estoppel have otherwise been established, its application should not be denied merely because it is being asserted against the government." Leitham, 726 A.2d at 1120 (Pa. Cmwlth. 1999). However, courts will require a stronger showing when the equitable defense of laches is asserted against a governmental entity than when it is asserted against an individual. Weinberg.
We agree with the trial court that there has been an inexcusable delay in this case resulting from the Township's failure to act with due diligence. As the trial court noted, due diligence would require "that the Township, using all the information and knowledge it had in its possession, would commence an action somehow sooner than 2008." (Trial court op. at 8.) Further, the facts of this case "indicate that the Township possessed all the information it needed to bring this action sooner. It was issuing building permits, sewer connection permits, and allowing the lots of Phase II to be developed over-and-above the fact that no final recordation of the plat had been completed." (Id.) In fact, the Township rescinded its preliminary, conditional approval for the subdivision, meaning that Mr. Vickery had no reason to believe he was obligated to pave Pennbrook Lane until such time as he and the Township reached a new agreement. Instead of requiring Mr. Vickery to submit a new subdivision plan and thereby fulfill the Township's conditions, the Township began communicating directly with the DER, excluding Mr. Vickery from the process. In addition, and against its own policy, the Township issued building permits and sewer permits before a subdivision plan had been approved, and, without informing Mr. Vickery, allowed other builders to begin constructing houses on the lots. (Findings of Fact, Nos. 12, 31, 32.) Ultimately, with all of this information in its possession, the Township allowed well over a decade to pass before filing its complaint. Thus, there is no question that the Township caused an inexcusable delay in this matter.
We also agree with the trial court that the Vickerys have suffered prejudice from the Township's delay in bringing suit. All but two members of the Planning Commission as constituted during the time that the Phase II subdivision was submitted are now deceased. (Trial court op. at 9.) This fact alone demonstrates that the Vickerys would be prejudiced by the Township's action. The trial court specifically found that the Township mistakenly believed that Mr. Vickery was intending to change his sewer plan. (Findings of Fact, No. 18.) Thus, it is clear that a misunderstanding of some sort occurred between the Planning Commission and Mr. Vickery. Without the testimony of the prior Planning Commission members—if indeed they could remember after fourteen years—there is no way to determine how this misunderstanding occurred. In sum, the record supports the trial court's determination that the doctrine of laches bars the Township's claims.
Equitable Estoppel
"Equitable estoppel . . . acts to preclude one from doing an act differently than the manner in which another was induced by word or deed to expect." Stonehedge Square Limited Partnership v. Movie Merchants, Inc., 685 A.2d 1019, 1024 (Pa. Super. 1996) (quoting Zitelli v. Dermatology Educ. & Res., 543 Pa. 360, 370, 633 A.2d 134, 139 (1993)). The question of whether equitable estoppel applies to a case is a question of law. Id. The party asserting equitable estoppel must demonstrate: (1) "misleading words, conduct, or silence by the party against whom the estoppel is asserted;" (2) "unambiguous proof of reasonable reliance upon the misrepresentation by the party asserting the estoppel;" and (3) "the lack of a duty to inquire on the party asserting the estoppel." Makoroff v. Department of Transportation, 938 A.2d 470, 473 (Pa. Cmwlth. 2007).
We agree with the trial court that equitable estoppel applies here. First, as to the requirement that there must be a misrepresentation or silence on the part of the Township, the trial court found that the Township submitted its own proposed sewage plans to the DER without notifying Mr. Vickery, then fell silent regarding the Phase II subdivision. After doing so, and despite its letter to Mr. Vickery proclaiming that no building could begin until a subdivision plan had been agreed upon, the Township proceeded to issue building permits and sewer permits without notifying Mr. Vickery, resulting in builders other than Mr. Vickery building on the lots. Given that the Township began dealing directly with the DER to develop a sewer plan, then issued building permits to other builders, it was entirely reasonable for Mr. Vickery to interpret the Township's silence as acquiescence to the development of a subdivision without requiring Mr. Vickery to take further action on the subdivision and sewer plan. The Township essentially created a subdivision itself, and excluded Mr. Vickery. Moreover, the Township approved Mr. Vickery's plans for another subdivision, Phase III, in August 1997, without conditioning such upon Mr. Vickery's obtaining approval for Phase II.
Given that the Township rescinded its approval of Phase II and granted approval for Phase III without reference to problems or deficiencies regarding Phase II, we conclude that it was reasonable for Mr. Vickery to rely on the Township's rescission and silence and cease plans to pave Pennbrook Lane. We also conclude that Mr. Vickery had no duty to inquire into the matter any further than he did. Not only did the Board rescind its approval of Phase II, it allowed the subdivision to be established without Mr. Vickery's knowledge, participation, or consent and in contradiction of its own policies. It was more than reasonable for Mr. Vickery to assume that the Board no longer expected him to pave the road in a subdivision that the Board allowed to be developed by other builders after rescinding approval of Mr. Vickery's subdivision plan. Moreover, despite Mr. Vickery's continued appearances before the Board on other matters subsequent to the Board rescission of its approval of Phase II, the Board never required Mr. Vickery to pave the road. The facts presented are sufficient to support the trial court's conclusion that the principle of equitable estoppel applies to this case.
Accordingly, we agree with the trial court that the Township's action is barred by the doctrines of laches and equitable estoppel. Having so concluded, we need not address the Township's arguments that it is entitled to attorney's fees and that Mrs. Vickery was an indispensable party.
For the foregoing reasons, we affirm.
In their response to the Township's appeal, the Vickerys argue that the trial court erred in denying their request for attorney's fees pursuant to section 2503(9) of the Judicial Code, 42 Pa.C.S. §2503(9), which allows for an award of attorney's fees where the "conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith." In this context, "arbitrary" refers to filing suit based on random or convenient selection or choice rather than on reason or nature; "vexatious" means filing a suit that lacked sufficient grounds in either law or in fact and served the sole purpose of causing annoyance; and "bad faith" involves filing suit "for purposes of fraud, dishonesty, or corruption." Hart v. Arnold, 884 A.2d 316, 342 (Pa. Super. 2005). It is well settled that the decision to grant or deny attorney's fees is committed to the discretion of the trial court, and appellate review of such an order is limited to determining whether the trial court palpably abused its discretion. Thusberg v. Strause, 545 Pa. 607, 682 A.2d 295 (1996). As the Vickerys note, the trial court harshly criticized some of the Township's conduct over the course of its dealings with the Vickerys. However, the trial court specifically found that the Township filed this action to enforce a valid ordinance and that there is no evidence that the Township acted arbitrarily or vexatiously in doing so. (Trial court op. at 18.) --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 21st day of May, 2012, the June 14, 2010, order of the Court of Common Pleas of McKean County is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge