IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dechert LLP, : Petitioner :

:

v. : No. 442 M.D. 2019

: Argued: February 12, 2020 Pennsylvania Department of : Community and Economic : Development, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge H ONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE CROMPTON FILED: June 23, 2020

Before us is Dechert LLP’s (Dechert) dual jurisdiction petition for review
(P etition) challenging the Department of Community and Economic Development’s
( DCED) constr uc tion of the Keystone Opportunity Zone , Keystone Opportunity

E xpansion Zone and Keystone Opportunity Improvement Zone Act ( KOZ Act)

, 1
denying t ax benefits to a business relocating from an expired KOZ to an active KOZ
within the City of Philadelphia. In the interest of expeditious resolution of this
matter, this Court considers the merits of Dechert’s request for declaratory relief in

our original jurisdiction. The appellate jurisdiction part of the Petition is dismissed

. Based on the submissions, we grant declaratory relief to Dechert, concluding that

DCED ’s constructi on of the KOZ Act to preclude movement between an expired

1 Act of October 6, 1998, P.L. 705, as amended

, 73 P.S. § § 820.101

- 820.1308.2

zone and a zone in a different geographical area , albeit in the same c ity, was contrary
to the plain language of the KOZ Act. Because DCED’s construction is unsupported
by the statutory language, DCED lacks the author ity to enforce that construction.
Therefore, DCED shall construe the KOZ Act in accordance with this decision

.

I. Background A. Statutory Overview

The General Assembly enacted t he KOZ Act in 1998 as a measure to
encourage business development and employment in certain distressed areas . Under
the KOZ Act, geographic areas of varying size may be designated as one of three types
of opportunity zones , Keystone Oppo rtunity Zones (KOZs) , Keystone Opportunity
Expansion Zones (KOEZs) and Keystone Opportunity Improvement Zones (KOIZs)
(collectively, Zone s). KOZ subzone properties are exempt from local property taxes

and a qualified business within a Zone “shall be entit led to all tax exemptions,
deductions, abatements or credits set forth in this act for a period not to exceed 15

years ...

. ” Section 301(b) of the KOZ Act, 73 P.S. §820.301(b). By their nature,

KOZ tax benefits are temporary since the active status of a Z one has a specific end

date. See Section 102(3) of the KOZ Act, 73 P.S. §820.102 (3)

.

DCED is the Commonwealth agency that administers the KOZ Act
through the KOZ programs . DCED designates areas in the Commonwealth as KOZs

and KOEZs and may designate a limited number of subzones within KOZs and

KOEZ s , see 73 P.S. § §820.301 , 820.301 a, 2 820 .301d

, 3 and grant applications to extend

the duration of or enhance the size of a subzone

, 73 P.S. §820.301(e), (f). In addition,

2 Section 301.1 of the KOZ Act, added by the Act of December 20, 2000, P.L. 841.

3 S ection 301.4 of the KOZ Act, added by the Act of July 10, 2008, P.L. 1 014

.3

DCED administers the program for KOIZs , which are designated by the Governor.

See Section 301.2 of the KOZ Act, 7 3 P.S. §820.301b. 4 The Governor’s designation of

a KOIZ “ shall specify a period of time, not to exceed 15 years. ” 73 P.S. §820.301b(b).

DCED did not promulgate regulations reg arding r elocation restrictions

. DCED also did not issue policy statements or other guidance documents limiting a business’s movement from an expired zone into an active zone.

B. Relevant Facts

Dechert lease s space from Brandywine Realty Trust (Brandywine) in the

Cira Centre located at 2929 Arch Street in Philadelphia, next to the 30th Street Station.
Cira Centre is an office complex within a now expired K O IZ (Expired Zone).
Qualified businesses like Dechert received tax benefits under the KOZ Act during
the active term of the Zone, from 2004 to its expiration on December 31, 2018.
During its tenancy at the Cira Centre, Dechert received almost 15 years of KOZ tax
benefits. However, the KOZ tax benefits avai lable to Cira Centre tenants correspond
to the KOZ status of the Zone, and so ended when that status expired.

Dechert plans to end its lease in the Cira Centre and lease space in a
new office complex under construction by the same landlord in a differe nt Z one

. Brandywine ’s new construction is at 3001 JFK Boulevard, “JFK Towers

, ” located in
the Schuylkill Yard KOE Z (Active Zone)

. Dechert anticipates that upon relocating,

it will lease 100,000 square feet in JFK Towers. Regardless of whether it relocates
to JFK Towers, Dechert intends to move at least some of its workforce from the
Expired Zone to another location

, which may be outside the Commonwealth

.

4 Added by the Act of Dec ember 9, 2002, P.L. 1727

.4 Dechert was required to give notice to Brandywine in 2019 as to whe ther

it wi ll leave its space at the Cira Centre when its lease expires on March 18, 2021

. Dechert subsequently received an extension of its lease renewal deadlin e

.

In April 2019, Dechert requested a letter ruling from DCED regarding

the availability of tax benefits should it move its location from the Cira Centre

located in the Expired Zone to JFK Towers in the Active Zone. 5 Dechert maintained
that its move from the Expired Zone to the Active Zone should not affect its
eligibility for KOZ tax benefi ts in the Active Zone , despite receiving almost 15 years

of KOZ benefits while located within the Expired Zone.

In a letter dated July 11 , 2019, t he Secretar y of DCED responded to

Dechert stating that its i nterpretation of the KOZ Act preclude s a ben eficiary of tax

benefits of an e xpired zone to rec eive full benefits should it relocate to an active zone
(Letter Ruling ). S ee Reproduced Record (R.R.) at 3a

- 5 a. In i t s Letter Ruli n g , the
Secretary explained that the KOZ program is designed to encourage businesses to

locate i n economically distressed communities; to become economic anchors of the
communities; and to re

- enter the state and local tax rolls at the end of the KOZ term.
Consequently, DCED “denie[d] Dechert’s request for Tax Benef its at a new Zone.”

See DCED’s Prelim. Objs. ¶6.

Section 307(b) of the KOZ Act

, relating to “Relocation

, ” sets forth
certain eligibility requirements for businesses that re locate from “outside” a zone.

73 P.S. §820.307(b). Relevant here, the provision is silent on how to treat a business

5 DCED refers to the relocation from one zone to another as “zone hopping.” See DCE D’s Br. at 6 n.3, 8, 14 n.6, 16 and 17.5

seeking to relocate from an expired Zone to an active Z one. Significantly, DCED

conceded that Secti on 307(b) lack s guidance regarding movement from one Z one to

another. DCED “interpret[ed] this omission, in conjunction with the legislative intent
of providing temporary tax relief, ” as prohibiting businesses from obtaining tax breaks
when they move “ from one zone to another , whether suc h z one i s active or expired .”

R.R. at 5a. In its L etter R uling, DCED raised concerns that an alternate construction
of the KOZ Act would result in a mass exodus from one zone to another in an attempt
to retain tax exemptions, and thus frustrate the purpose of the statute.

C

. Procedural Posture Dechert filed the instant Petition challenging DCED’s construction of
the KOZ Act to preclude movement from the Expired Z one into the A ctive Z one, appealing the Letter Ruling in Count I and seeking a declaration of the meaning of

the KOZ Act and a determination that DCED’s construction was invalid in Count II.
The parties filed various application s concerning proced ure . DCED filed preliminary
objections to the origin al jurisdiction part of the Petition predicated on our appellate
jurisdiction

. G iven the unique procedural posture, and Dechert’s initial request for
expedited treatment of its Petition, t his Court held a status conference and set a briefing schedule related to Dechert’s appeal.

Upon Dechert’s application for a stay of the origina l jurisdiction part of
the Petition, which was unopposed, in October 2019, this Court granted a stay. After
a series of continuances, in February, t his Court heard argument en banc on the
appellate jurisdiction part of the Petition.6 Critically, the material allegations and the prayer for relief in the
declaratory judgment claim and the appeal are virtually identical in that Dechert

seeks a declaration that DCED misconstrued the KOZ Act in its Letter Ruling

. 6
Although t he pa rties here treat DCED’s Letter R uling as an “adjudication” for
purposes of the Administrative Agency Law

, 2 Pa. C.S. §704 , i t is less than clear
that the Letter Ruling qualifies as a n adjudication within our appellate jurisdiction

. 7

Following argument

, we conclude d this matter presents a pure legal
question appropriate for disposition in our original jurisdiction

. On February 28, 2020,

w e issued an order advising the parties of our intent to treat the submission s before

us as applicat ions for summary relief absent an objection

. Neither party objected.
Thus, we consider Dechert’s Petition as an application for summary relief.

II. Discussion
The legal question before us concerns whether the KOZ Act permits

relocation from a Zone in which the KOZ tax benefits expired into an active Zone. We recognize DCED’s construction of the KOZ Act to preclude relocation from an
expired Z one into an active Z one poses a question of public importance with
ramifications beyond the parties to this action

. 8 Indeed

, DCE D’s construction of the

6 The material distinction between Count I (appeal) and Count II (d eclaratory judgment) is that in the prayer for relief in Count I, Dechert also asks this Court to reverse DCED’s Letter Ruling.

7 To qualify as an adjudication, the Letter Ruling must, with finality, affect Dechert’s property rights. See R uiz v. Att’y G en. of Pa. , 789 A.2d 372 (Pa. Cmwlth. 2001) ; see also 2 Pa. C.S. § § 101 (definition of adjudication) ; 504 ( valid adjudication require s “reasonable notice of a hearing and an opportunity to be heard” and development of a full and complete record )

.

8 As of the date of this litigation, several other businesses in the Cira Centre similarly intend to move into JFK Towers, some of which applied for tax exemption s in the Active Zone, which7

KOZ Act potentially affects the property rights of other qualified businesse s,

commercial interests in economic development and the Commonwealth ’s interest in
incentivizing infrastructure in areas of economic dis tress

. Mindful of t hese practical
considerations, we consider the meaning of relocation under Section 307(b) of the

KOZ Act pursuant to the Declaratory Judgments Act, 42 Pa. C.S. §§753 1

- 7541 (DJA).

A. DJA The DJA is remedial, its purpose “is to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered.” 42 Pa. C.S. §7541(a). Pursuant to

Section 7 532 of the DJA, “Courts of record, within their respective jurisdictions,
shall have power to declare rights, status and other legal relations whether or not
further relief is or could be claimed.” 42 Pa. C.S. §7532.

Declaratory relief is suitable whe n litigation “is both imminent and
inevitable and the declaration sought will practically help to end the conflict between
the p arties.” Eleven Eleven Pa., LLC v. State Bd. of Cosmetology , 169 A.3d 141,
145 (Pa. Cmwlth. 2017) ( citat ion omitted). Thus, lack of present harm is not fatal

to a DJA claim. Joint Barg aining Comm

. o f P a. Soc

. Servs. Union, Local No. 668,

SEIU v. Com. , 530 A.2d 962 (Pa. Cmwlth. 1987).

DCED denied. We stayed the a ppeals of DCED’s denials while this ma tter proceeded. See RCJ Consulting, LLC v. [

DCED ] (Pa. Cmwlth., No. 539 M .D. 2019 ); Affluent Ads, LLC v. [ DCED ] (Pa. Cmwlth., No. 556 M .D. 2019); Int’l Web Servs. , LLP v. [ DCED ] (Pa. Cmwlth., No. 55 7 M .D. 2019); No l imit Sol s

. , LLC v. [ DCED ] (Pa. Cmwlth., No. 558 M .D. 2019) ; Red Spark, LP v. [ DCED ] (Pa. Cmwlth., No. 559 M .D. 2019); REVZR Tech Strategies LP v. [ DCED ] (Pa. Cmwlth., No. 560 M .D. 2019).8 Section 7533 of the DJA provides that “[a]ny person ... whose rights,
status, or other legal relations are affected by a statute ... may have determined any
question of construction or validity arising under the ... statute ... and obtain a
declaration of rights, status, or other legal relations thereunder.” 42 Pa. C.S. §7533.
Declaratory judgme nt is thus appropriate to declare the meaning of a statute. See Bayada Nurses, Inc. v. Dep’t of Labor & Indus. , 8 A.3d 866 (Pa. 2010)

.

This Court’s ruling on declaratory judgment is committed to our sound

discretion. GTECH Corp. v. Dep’t of Revenue , 965 A.2d 1276 (Pa. Cmwlth. 2009).

Because the issue presented is one of statutory interpretation, which is a pure
question of law , o ur review is plenary. Com. v. Giulian , 141 A.3d 1262 (Pa. 2016).

1

. Statutory Provisions in KOZ Act
We begin by reviewing the applicable provisions within the KOZ Act.

T he construct ion of Section 307 of the KOZ Act presents a matter of first impression.

Since its enactment, the KOZ Act has been amended to add new zone
types such as KOEZs and KOIZs an d to allow DCED to authorize new types of

subzones. However, and relevant here, Section 307 has not materially changed.
Section 307 of the KOZ Act, entitled “Qualified Businesses,” states in full:

(a) Qualifications.

-- In order to qualify each year for a tax exemption, deduction, abatement or credit under this act, a business shall own or lease real property in a subzone, improvement subzone or expansion subzone from which the business actively conducts a trade, profession or business. The qualified busine ss shall receive certification from [DCED] that the business is located and is in the active conduct of a trade, profession or business, within the subzone, improvement9 subzone or expansion subzone. The business shall obtain annual renewal of the certifica tion from [DCED] to continue to qualify under this section. The certification form shall include, but not be limited to, all of the following:
(1) The type and duration of the zone designation.
(2) The number of jobs created.
(3) The number of jobs retained.
(4) The amount of capital investment.

(5) Any other information, conditions or requi rements reasonably required by [DCED]

. (b) Relocation.

-- Any business that relocates from outside a subzone, improvement subzone or expansion subzone into a subzon e, improvement subzone or expansion subzone shall not receive any of the exemptions, deductions, abatements or credits set forth in this act unless that business does one of the following:

(1) increases full

- time employment by at least 20% in the first ful l year of operation within the subzone, improvement subzone or expansion subzone;
(2) makes a capital investment in the property located within the subzone, improvement subzone or expansion subzone at least equivalent to 10% of the gross revenues of that b usiness in the immediately preceding calendar or fiscal year; or

(3) enters into a lease agreement for property located within the subzone, improvement subzone or expansion subzone :
(i) for a term at least equivalent to the duration of the subzone, improvement subzone or expansion subzone ; and
(ii) with aggregate payment under the lease agreement at least equivalent to 5% of the gross revenues of that10 business in the immediately preceding calendar or fiscal year.

[DCED], in consultat ion with the Department of Revenue, may waive or modify the requirements of this subsection, as appropriate.

73 P.S. §820.307 (emphasis added).

Section 102 of t he KOZ Act includes the following legislative findings:

(1) There exist in this Commonwealth areas of economic distress characterized by high unemployment, low investment of new capital, inadequate dwelling conditions, blighted conditions, underutilized, obsolete or abandoned industrial, commercial and residential structures and deteriorating tax bases.
(2) These areas require coordinated efforts by private and public entities to restore prosperity and enable the areas to make significant contributions to the economic and social life of this Commonwealth.
(3) Long

- term economic viability of these areas requires the cooperative involvement of residents, businesses, State and local elected officials and community organizations. It is in the best interest of the Commonwealth to assist and encourage the creation of keystone opportunity zones and keysto ne opportunity expansion zones and to provide temporary relief from certain taxes within the zones to accomplish the purposes of this act.

73 P.S. §82 0 .102. Section 1305 provides : “This act shall be interpreted to ensure that
all provisions relating to St ate and local tax exemptions, deductions, abatements and
credits are strictly construed in favor of the Commonwealth.” 73 P.S. §8 2 0.1305.

2. Declaration of M eaning of Section 307 (b)

Dechert a rgue s the plain language of Section 307(b) allows its plan to

relocate “from outside” a Z one and “ into ” the Zone with the proposed JFK Towers.11

73 P.S. §820.307(b). It states in pertinent part: “Any business that relocates from
outside a [Zone] into a [Zone] shall not receive any of the [KOZ benefits] unless that business” meets one of the criteria for economic development. 9 Id.

We construe the meaning of the provisions in the KOZ Act pursuant to
the principles set forth in the Statutory Construction Act of 1972 , 1 Pa. C.S. §§1501

-
1991. Our goal in statutory interpretation is to ascertain and effectuate the intention
of the General Assembly. See 1 Pa. C.S. §§1903(a)

, 1921(b)

. “Where the words of

a statute are c lear and free from ambiguity the legislative intent i s to be glea ned from those very words.” Pa. Fin. Resp. Assigned Claims Plan v. English , 664 A.2d 84,

87 (Pa. 1995)

. Only when the words of a statute are not explicit

, i.e. , ambi g uous , will
we resort to other means to discern legislative intent. 1 Pa. C.S. §1921(c)

.

Where the statute is ambiguous, the interpretation of the agency
charged with its enforcement will be given deference, unless it is clearly erroneous.

Summit Sch

. , Inc. v. Dep’ t of Educ

. , 108 A.3d 192 (Pa. Cmwlth. 2015). However,

“when the statute is unambiguous, such administrative interpretation carries little weight.” Lancaster Cty. v. Pa. Labor Relations Bd. , 94 A.3d 979, 986 (Pa. 2014)
(citations omitted). Thus, it is critical at the outset to determine whether the statutory
language at issue qualifie s as ambiguous.

A statut ory provision is ambiguous when it is capable of two reasonable
interpreta tions

. A.S. v. Pa. State Police , 143 A.3d 896 (Pa. 2016). But such an

9 Section 307(b) of the KOZ Act also requires a business to (1) increase full

- time employment by at least 20% ; (2) make a capital investment in the property ; or (3) enter into a lease for property in the Zone for its active term

. Dechert concedes it must meet on e of these criteria.12

interpretation must be supported by its language, and when words of a statute are clear,

we construe them “according to their common and approved usage.” 1 Pa

. C.S. §1903.

Importantly, DCED does not offer a different construction of the terms contained in Section 307(b) (from “outside” a Zone and “into” a Zone). Rather,

DCED asks this Court to disregard the statute’s plain meaning in favor of its
proffered construction of t he statute’s silence as a prohibition. It contends that the

terms should not be construed in accordance with their plain meaning because that
would permit businesses like Dechert to abandon the Expired Zone and pursue

additional KOZ benefits in the Active Zone. DCED posits that such a construction
is inconsistent with legislative intent and allows an absurd result. We disagree.

We do not construe statutory silence as ambiguity. Indeed, we not only

review what the statute says ; we “must also listen attentively to what it does not say.”

Giulian , 141 A.3d at 1268 (emphasis added) ; see E. Coast Vapor , LLC v. Pa. Dep’t
of Revenue , 189 A.3d 504, 519 (Pa. Cmwlth. 2018) ( en banc ) (reasoning this Court may not adopt an agency’s interpretation and “add terms to the [statute] under the
guise of interpreting it” as the legislature could have easily included such terms but
“did not do so”). We observe no ambiguity triggering deference to DCED’s
construction of the KOZ Act to impose a limitation that it does not contain. 10

10 DCED construed the KOZ Act to prohibit “ zone hopping ” because businesses were to be given temporary relief from certain taxes. It argues that it is absurd for Philadelphia to subsidize business relocations to leave a zone in which hundreds of millions of dollars in tax credits have been invested. However, a business may leave a zo ne after KOZ benefits expire without constraints that it retain its business in an expired zone, or even in the Commonwealth.13 The plain language of Section 307(b) entitles a qualified business to KOZ

benefits when it “relocates from outside a subzone” and meets one of the three other
requirements. 73 P.S. §820.307(b) (emphasis added). The statute delineates between
a business already located in a KOZ and a business seeking to “relocate” to a new

KOZ without addressing the zone status of the business ’s locati on before r elocating

. Section 307(b ) addresses duration only with respect to th e leas e term option , stating

the lease must be for the duration of the Zone, meaning a tenant may not leave before
expiration of the Zone. See 73 P.S. §820.307(b)(3).

Because Dechert is located in the Cira Centre

, for which the KOZ status
expired in 2018, Dechert is relocating “ from outside a subzone. ” Id. Further, it is
relocating “ from outside ” the Active Z one covering the location of JFK Towers.

R elocation in this context focuses only on the Zone into which a business is relocating,

and the sta tute is silent regarding the KOZ status of the area the business is leaving. 11
Thus, by its plain language, the KOZ Act permits “relocation” from outside a zone.

DCED’s pro hibition on ‘zone

- hopping’ is simply not contained in the

statute. Contrary to DCED’s proffered application, the KOZ Act does not impose a “one and done” rule whereby a qualified business may only receive KOZ tax benefits

once. Because DCED cannot engraft additions upon the KOZ Act that the legislature

did not impos e, i t s extension of the KOZ Act to bar Dechert’s proposed movement from the Expired Zone into the Active Zone is not supportable

.

11 We a ddress ed relocation from an active Zone under the KOZ Act in Vetri Navy Yard, LLC v. Department of Community & Economic Dev elopment , 189 A.3d 1137 (Pa. Cmwlth. 2018). There, a business relocated to a KOZ where it opened a restaurant, but left the Zone before the term expired . The question was whether the tax benefits it enjoyed before leaving the Zone were subject to recapture. Here, Dechert is not leaving an active Zone, and there is no dispute that it contributed to the community and actively conducted business in that Zone during its f ull term

.14 Although repeatedly admitt ing the KOZ Act is silent on the matter, see
Dechert’s Br. at 16

- 17, DCED nonetheless maintains that it would yield an absurd

result to construe the KOZ Act in accordance with its terms. Cf. 1 Pa. C.S. §19 22(1)
(courts should construe language to avoid an absurd result). However, t his Court m ay not ignore th e plain meaning of the statute under the pretext of pursuing its spirit. In re Appeal of Bd. of Comm’rs of Chelte n ham Twp. , 211 A.3d 845 (Pa. 2019); see 1
Pa. C.S. §1921(b). By construing that silence as a prohibition on movement out of
the Expired Zone into the Active Zone, DCED disregarded established principles of
statutory construction and exceeded its authority. See Har mon v. Unemployment
Comp. Bd. of Review , 207 A.3d 292 (Pa. 2019).

We are cognizant of the imp act of o ur interpretation and that its effects

may generate a legislative response

. But DCED may not engraft restrictions upon a

statute it administers to advance its policy goals

. E. Coast Vapor

. To the extent DCED

believes the statute should prohibit movement from an expired Z one to an active Z one , that end implicat es a legislative remedy beyond its purview or that of this Court. 12

In sum, considering the explicit legislative findings in Section 102(3)

, that the KOZ Act established temporary , not perpetual, tax relief

, we discern no

violation of legislative intent to allow the future relocation of businesses that

benefited from the KOZ status from an expired Z one and into an active Zone

. The

KOZ Act does not restrict the movement of a business’s physical location out of an

12 Moreover, the legislative history of the KOZ Act at the time of enactment reflects a contrary intent to DCED’s proposal. In fact, DCED draws this Court’s attention to comments of Representative Sturla asserting the necessity for a penalty for leaving a Zone within a certain period of time following its expiration. Notably, however, the legislature declined to impose such a post

- expiration limitation. See DCED’s Br. at 23

- 2415

e xpired Zone for a cert ain period of time. Just as the benefits are of finite duration

, the timeframe within which a qualified business must remain a resident of a Zone
without relinquishing past KOZ benefits is likewise finite

.

The ultimate goal of raising economic vitalit y of distressed areas is met
when a resident of an expired Z one chooses to relocate to an active Z one as opposed
to leaving the Commonwealth altogether, and taking the jobs and associated benefits

and fund sources with it. Indeed, incentivizing large empl oyers and vital commercial
areas to remain in Philadelphia was precisely the purpose of the KOZ Act. As such,
construing the KOZ Act to pr eclude DCED’s unsupported policy judgment
restricting movement from an expired Zone into an active Zone is consistent with
the plain language of Section 307(b), the legislative findings in Section 102 and the
principle contained in Section 1305

. Therefore, based on the plain language of
Section 307(b), we declare that the KOZ Act does not restrict or penalize the

reloca tion of a qualified business from an expired Zone into an a ctive Zone.

B. Summary Relief
Applications for summary relief are governed by Pa. R.A.P. 1532(b). It provides: “At any time after the filing of a petition for review in an ... original
jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear.” Id. “An application for summary relief may be granted
if a party’s right to judgment is clear and no material issues of fact are in dispute.”

Eleven Eleven

, 169 A.3d at 14 5 (citation omitted) ; see Hosp. & Healthsys

. Ass’n of

Pa. v. Com. , 77 A.3d 587 (Pa. 2013). In ruling on a n application for summary relief,
we view the record in the light most favorable to the non

- moving party. Id.16 Because the meaning of Section 307(b) and the relocation requirements presented a pure question of law, based on agreed upon facts as set forth in DCED’s
Letter Ruling and Dechert’s Petition, as well as the Unopposed Motion for Stay,
summary relief may be granted.

Accordingly , we grant summary relief to Dechert on Count II of its

Petition and enter judgment on its declaratory judgment claim in its favor

. As such,

we d ismiss DCED’s preliminary objections as moot

. Because the relief is virtually

id entical in both counts

, and we do not recognize the Letter Ruling as a final

determination properly within our appellate jurisdiction, we dismiss Count I of the

Petition.

III . Conclusion

For the foregoing reasons, we grant Dechert the declaratory relief
sought in Count II of its Petition. We declare that DCED overstepped its authority
by construing a prohibition into the KOZ Act that is not express nor implied.
Provided a business qualifies under the KOZ Act, and meets the express rel ocation
requirements, then the movement from an expired zone into an active zone is not
grounds for deeming a business unqualified for the tax benefits under the KOZ Act.

Provided Dechert otherwise satisfies the requirements in Section 307(b) of the KOZ

A ct
, Dechert may receive full KOZ benefits should it relocate into the A ctive Z one.

______________________________ J. ANDREW CROMPTON, Judge

Judge Fizzano Cannon did not participate in the decision of this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dechert LLP, : Petitioner :

:

v. : No. 442 M.D. 2019

: Pennsylvania Department of : Community and Economi c : Development, : Respondent :

O R D E R

AND NOW , th is 23 rd day of June 2020, Count II of Petitioner Dechert

LLP’s (Dechert) Petition for Review , seek ing declaratory relief , which we treat as
an application for summary relief, is GRANTED , and the Department of Community and Economic Development’s (DCED) preliminary objections are therefore

D ISMISSED AS MOOT.

Accordingly

, we DECLARE that DCED’s statutory construction of the
Keystone Opportunity Zone , Keysto ne Opportunity Expansi on Zone and Keystone
Opportunity Improvement Zone Act 1 to preclude a qualified business from receiving
full benefits when it relocates from an expired zone into an active zone is unsupported
by the plain language in the statute , and it shall not be so cons trued.

The remainder of the Petition for Review invoking our appellate
j urisdiction is DISMISSED

.

______________________________ J. ANDREW CROMPTON, Judge

1 Act of October 6, 1998, P.L. 705, as amended

, 73 P.S. § §820.101

- 82 0.1308.