IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott R. Monger and Howard S. Morris, :

Appellants :

:

v. : No. 690 C.D. 2015

: Argued: October 5, 2015 

Upper Leacock Township :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge 

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: January 7, 2016

Before this Court is the appeal of Scott R. Monger (Developer 

Monger) and Howard S. Morris (Developer Morris), (collectively, Developers),

from the August 28, 2014 Order of the Court of Common Pleas of Lancaster 

County (trial court) granting Upper Leacock Township’s (Township) Motion for 

Summary Judgment and dismissing with prejudice the complaint filed by the 

Developers. We affirm.

Developers’ complaint was filed in June 2012 and asserted counts for 

breach of express and implied contract and promissory estoppel, premised upon an 

allegation that the Township breached its implied duty of good faith and fair 

dealing during its review of Developers’ 2007 land use application for a proposed 

development. (Complaint, Reproduced Record (R.R.) at 1a-12a.) The Township 

filed preliminary objections in July 2012, which were denied without prejudice. 
2

(R.R. at 27a-30a, 64a.) Following discovery, Township filed a Motion for 

Summary Judgment, in March 2014. (R.R. at 85a-86a.) Following oral argument 

held on May 19, 2014, the Trial Court granted the Township’s motion. (R.R. at 

352a.) In September 2014, the Developers appealed to Superior Court; the 

Township argued that the appeal should be transferred to this Court due to its 

jurisdiction and expertise with matters involving land use appeals and the 

Municipalities Planning Code (MPC),1and Superior Court transferred the case to 

this Court.2 

In August 2007, Developers, along with another individual, became 

party to an agreement of sale to purchase real estate consisting of 71 acres of land 

in the Township. Their obligation to purchase was contingent upon obtaining land 

use approval by the Township for their intended use plan of development. 

Subdivision and land development procedures, requirements and standards are set 

forth in the Township’s Subdivision and Land Development Ordinance (SALDO), 

and Sections 301 to 304 of the SALDO set forth three stages in the procedure for 

approval of land development plans: (1) pre-application review; (2) preliminary 

plan application; and (3) final plan application. (R.R. at 135a-141a.) Pursuant to 

Section 303.05 of the SALDO, compliance with conditions of preliminary plan 

approval must be attained within six months of the Board of Supervisors’ (Board) 

action, or the Township’s action on the plan shall be a disapproval, unless the 

Board grants a waiver by extending the effective time period. (R.R. at 138a.)

 

1 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.

2

The Superior Court found that Developers’ claims lay in the exclusive jurisdiction of the 

Commonwealth Court, as they were “inextricably intertwined with the land use application 

process, which is governed by Pennsylvania statute and local ordinance.” (Pa.Super., No. 1623 

MDA 2014, filed April 28, 2015, Supplemental Reproduced Record (SRR) at 101b.) 
3

In August 2007, Developers first met with Township Manager 

Michael Morris (Township Manager) to discuss the proposed project. Township 

Manager informed Developers of an informal process whereby prospective 

developers would attend a “pre-application” meeting with Township Manager, the 

department heads and other staff. (Complaint, R.R. at 2a-3a.) Section 302 of the 

SALDO indicates that applicants are “urged, but not required, to discuss possible 

development sites and plans with the Planning Commission prior to the submission 

of the Preliminary or Final Plans” and states that the purpose of the pre-application 

meeting process is to give applicants an opportunity to receive the advice and 

assistance of the Planning Commission. (SALDO, R.R. at 136a.) Developers 

attended a series of meetings with Township Manager, Water and Sewer 

Department heads, an engineer, and a zoning officer and allege that they spent 

substantial time and financial resources to address concerns articulated by 

Township staff during these meetings. 

Developers’ land use application was submitted in November 2007 

and included a request for a waiver from Section 602.14 of SALDO, which 

establishes the maximum length of the cul-de-sac streets. (Application for 

Consideration of a Waiver, R.R. at 19a-21a.) On January 7, 2008, the Board voted 

to approve the request for waiver with respect to Developers’ proposed industrial 

tract, but denied the request for waiver with respect to the maximum length of the 

cul-de-sac street for the proposed residential tract, due to its concerns with traffic 

issues. (R. Exhibit 5, R.R. at 147a-148a.) Developers revised the land use plans to 

change the design of the access road for the residential tract from a cul-de-sac to a 

circle, purportedly upon the advice of the Township Manager. The revised plans 

were submitted on January 16, 2008, and on April 3, 2008, Developers requested 
4

and were granted an extension until May 1, 2008, to comply with the conditions of 

plan approval. (R. Exhibits 7, 8.) To meet the May 1 deadline, Developers had 

until April 23, 2008 to submit the revisions or to request another extension for 

compliance; however, Developers failed to submit revisions and on April 24, 2008 

they informed the Township that they would not be applying for an extension on 

the project. (R. Exhibits 10, 11.) The Board thereupon voted to disapprove the 

project pursuant to Section 303.05 of SALDO, as Developers had neither 

submitted a revision nor requested an extension and had advised the Board that 

they would not be applying for another extension; on May 2, 2008, a written 

decision denying the land use application was mailed to Developers. (Id.) 

Developers had 30 days from May 2, 2008, to appeal the adverse land use decision 

to the court of common pleas under Section 1002-A(a) of the MPC, added by the 

Act of December 21, 1988, P.L. 1329, 53 P.S. §11002-A(a), and did not appeal.

 On June 27, 2012, Developers filed their complaint. As aptly 

described by the Superior Court in its decision to transfer the case to this Court:

The land use application process undisputedly was 

governed by the Township’s Subdivision and Land 

Development Ordinance (SALDO). In connection with 

their November 5, 2007 application, Appellants sought 

waivers of certain SALDO requirements. The Township 

issued a conditional approval of the plan granting one 

waiver but denying another, which had the effect of 

requiring Appellants to revise their plan to satisfy the 

relevant ordinance. Thereafter, Appellants submitted a 

revised plan and requested an extension from the 

SALDO-prescribed time period for complying with the 

Township’s conditions. The extension was granted, but 

Appellants failed to satisfy the conditions before the 

expiration of the extended deadline and did not request a 

second extension. Thus, on May 1, 2008, after the 

expiration of the time limit for establishing compliance, 
5

the Township voted to disapprove the plan...Appellants 

took no other action in furtherance of seeking review of 

the Township’s decision.

(Pa.Super., No. 1623 MDA 2014, filed April 28, 2015, Supplemental Reproduced 

Record at 102b-103b.) 

Before the Trial Court, Developers asserted that their claims were 

based upon the proposition that the parties entered into a contract when they 

submitted their application, obligating the Township to act in good faith in 

reviewing that application. The Trial Court entered summary judgment on the 

basis that Developers had failed to appeal the Township’s land use decision to the 

Court of Common Pleas within thirty days of the Township’s adverse decision, 

further noting that the “procedures for a land use appeal in the MPC are ‘the 

exclusive mode for securing review of any decision rendered pursuant to Article IX 

of the MPC.’” (Trial Ct. Op. at 7 (quoting Section 1001-A of the MPC, added by 

the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11001-A, emphasis added by 

the Trial Court).) Citing this Court’s decision in Koresko v. Farley, 844 A.2d 607, 

615 (Pa. Cmwlth. 2004), the Trial Court determined that subdivision review is 

included in Article IX of the MPC and accordingly, the MPC is the exclusive 

vehicle for challenging the validity of a subdivision or land development plan. The 

Trial Court noted Developers’ contention that their claims were not appeals of the 

land use decisions but rather related to the Township’s conduct during the time 

before and after the Developers had submitted their land use applications, but 

stated that the Developers had failed to cite “even one case that has held that 

submitting a land use application creates either an express or implied contract with 

the reviewing municipality, which takes it out of the realm of the MPC.” (Trial Ct. 

Op. at 8.) 
6

Pursuant to Section 501 of the MPC, 53 P.S. §10501, the governing 

body (here, the Board) of each municipality is granted the power to regulate 

subdivisions and land development within the municipality by enacting a SALDO. 

The MPC expressly governs appeals of land use decisions, as follows:

All appeals from all land use decisions rendered 

pursuant to Article IX shall be taken to the court of 

common pleas of the judicial district wherein the land 

is located and shall be filed within 30 days after entry 

of the decision as provided in 42 Pa. C.S. §5572 (relating 

to time of entry of order) or, in the case of a deemed 

decision, within 30 days after the date upon which notice 

of said deemed decision is given as set forth in section 

908(9) of this act. It is the express intent of the General 

Assembly that, except in cases in which an 

unconstitutional deprivation of due process would 

result from its application, the 30-day limitation in 

this section should be applied in all appeals from 

decisions. 

53 P.S. §11002-A(a) (emphasis supplied). In Koresko, our Court found the MPC 

to be the exclusive vehicle for challenging the validity of actions concerning a 

subdivision, stating:

Section 1001-A of the MPC, added by the Act of 

December 21, 1998, P.L. 1329 provides “the procedures 

set forth in this article shall constitute the exclusive mode 

for securing review of any decision rendered pursuant to 

Article IX or deemed to have been made under this act.” 

53 P.S. §11001-A (emphasis added.) Subdivision review 

is included in Article IX. See, 53 P.S. §10909.1(b)(2), 

added by the Act of December 1988, P.L. 1329. 

Accordingly, the trial court did not err in holding that the 

MPC provided the exclusive vehicle for challenging 

the validity of the subdivision. 

Koresko, 844 A.2d at 615 (emphasis supplied).
7

Before this Court,3 Developers assert that they suffered losses as a 

result of the conduct, representations, and assurances of the Township both before 

and during the application process. Nevertheless, Developers acknowledged that 

during the pre-application process they were informed and understood that the 

project may not be favorably received by neighboring property owners, special 

interest groups or by the government agencies involved in the approval process, 

and that the authority to approve or deny a land use application rested solely with 

the Board and not with the Township Manager, the Planning Commission or any 

other Township official. (R.R. at 107a, 119a.) Developers contend that their 

appeal is not an appeal of the Board’s land use decision but rather relates to the 

conduct of Township personnel before and after their land use application was 

submitted; they assert that their claims of breach of both express and implied 

contract and promissory estoppel should lie regardless of the outcome of the 

Township’s land use decisions. Developers seek damages because, they assert, the 

Township breached its implied contractual duties of good faith and fair dealing in 

the relationship that arose by virtue of the course of events, and because the 

Township made promises that induced them to take actions ultimately to their 

detriment. 

 

3 Our standard of review of a trial court’s order granting summary judgment is de novo, and our 

scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Summary 

judgment is appropriate where there are no genuine issues of material fact and the moving party 

is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.2(1); Pyeritz, 32 A.3d at 692; 

Royal v. Southeastern Pennsylvania Transportation Authority, 10 A.3d 927, 929 n.2 (Pa. 

Cmwlth. 2010). We review the record in the light most favorable to the nonmoving party, and 

any doubt as to the existence of a genuine issue of material fact must be resolved against the 

moving party. LJL Transportation, Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 

2009); Royal, 10 A.3d at 929 n.2.
8

Here, it is undisputed that Developers were aware that they had the 

right to immediately appeal the Board’s decision based on their claim that the 

Township failed to consider the application in good faith. (R.R. at 112a, 125a.) 

Moreover, Developers concede that their claims are based on the Board’s decision 

denying their plan. While Developer Morris testified that Developers’ claims were 

based upon their having proceeded in good faith to spend a substantial amount of 

money relying upon things said to Developers by Township Manager, he also

stated that the Board itself did not act in good faith – he indicated his belief that the 

Board did not want the project to go through, and that this was “not necessarily 

related to anything we submitted.” (R.R. at 113a.) Developer Morris was asked 

whether Developers were not bringing the lawsuit because of the denial of their 

land use application and he replied, “I don’t think that’s correct. I mean, it is 

because of the denial. If the project had been approved after we listened to the 

[Township Manager] and spent our money, we wouldn’t be here with a lawsuit.” 

(Id.) Developer Morris was questioned as to why Developers did not appeal the 

denial of the land use application and he testified, “it was obvious...it wasn’t going 

to go anyplace” and indicated that Developers did not evaluate whether there was 

any basis for appealing the land use application denial and did not know whether 

they would have had a basis for it or not. (Id.) Developer Monger indicated that 

he was aware that Developers could have appealed the Board’s decision on the 

basis that the Board was not acting in good faith, but did not do so. (R.R. at 125a.)

Before this Court, Developers contend that they attempted, during the 

initial pre-application meeting and at a subsequent meeting, to alert the Township 

as to their concerns about the financial impact on profitability of off-site 

improvements that may be required by the Township; Developers point to a letter 
9

to Township Manager submitted by their engineer, which addresses their concerns 

about possible Township demands for expensive off-site improvements, traffic 

study issues, and water line funding. (R.R. at 14a.) This letter requests, inter alia, 

that the Township consider assisting with the funding of required water lines for 

the proposed project; however, the letter also acknowledges that Developers 

“understand the [Township] staff’s concerns expressed at our meeting about 

burdening the taxpayers in the Township with the cost of bringing water to the [ ] 

site.” (R.R. at 15a.) 

We find that Developers’ claims are inherently intertwined with the 

land development procedures established by the Township’s SALDO, and as such, 

Developers were required to bring any claims arising therefrom within thirty (30) 

days of the denial of their application as required by the MPC. Clearly, the 

Township has a duty of good faith in the review and processing of Developers’ 

land use application. See Highway Materials v. Board of Supervisors, 974 A.2d 

539 (Pa. Cmwlth. 2009); Raum v. Board of Supervisors of Tredyffrin Township, 

370 A.2d 777 (Pa. Cmwlth. 1977). However, in each of these cases, a timely 

appeal to the court of common pleas was made, pursuant to the MPC, for a 

determination of whether good faith and fair dealing had been exercised by the 

municipality during the application process. As noted by the Trial Court, no court 

in this Commonwealth has permitted such claims independent of the land use 

appeal process, and we decline to do so here. Accordingly, we affirm. 

_______________ ______________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott R. Monger and Howard S. Morris, :

Appellants :

:

v. : No. 690 C.D. 2015

: 

Upper Leacock Township :

O R D E R

AND NOW, this 7

th day of January, 2016, the order of the Court of 

Common Pleas of Lancaster County in the above-captioned matter is AFFIRMED.

_______________ ______________________

JAMES GARDNER COLINS, Senior Judge