IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip P. Palencar, II, :

Appellant : v. : : No. 1635 C.D. 2014 Hereford Township Zoning Hearing : Board : Argued: March 9, 2015
: v. : : Hereford Township :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: October 14 , 2015

Philip P. Palencar , II, appeals from the August 20, 2014 order of the Court of Common Pleas of Berks County (trial court) dismissing his appeal from a decision of the Hereford Township (Township) Zoning Hearing Board (ZHB). The trial court determined that, because Palencar failed to file a written appeal from a Stop Order/Notice of Violation/Enforcement Notice (enforcement notice) to the Z HB, as required by statute and T ownship ordinance, the ZHB lacked jurisdiction to consider his appeal, and consequently, the trial court was without jurisdiction to hear Palencar’s appeal from the ZHB’s adverse determination.

The relevant facts are as follows. On October 25, 2013, the Township ’s
Code Enforcement Officer issued an enforcement notice which informed Palencar2

that a pergola

- type structure erected on his property and retail sales that were occurring on the property required permits pursuant to sections 1502 (zoning permits), 1503 (certificate of use and occupancy), and 502 (use regulations) of the Township’s ordinance. The en forcement notice advised Palencar that, in order to abate the violations of those ordinance provisions, he must immediately cease the retail sales on the property until a permit for such activity is issued
, and he must either submit a permit application fo r the pergola structure within thirty days or remove it from the property. Further, the enforcement notice informed Palencar that he had a right to appeal the enforcement notice to the ZHB within 30 days and could obtain an application for a zoning hearin g at the T ownship office. (Reproduced Record (R.R.) at 2

- 4.)

On November 12, 2013, Palencar submitted a “Uniform Application/Appeal,” a four

- page document that is used to request a hearing before the Board of Supervisors and/or the ZHB. (R.R. at 5.) Se ction IV of the form (“Type of proceeding(s)”) directs an applicant for a hearing to check off any of the ten paragraphs that follow to indicate the reasons the hearing is requested. Palencar checked paragraph 1, which states that a variance is request ed, and specifically requested a variance from section 502 of the T ownship’s zoning ordinance. He did not check paragraph 6, which states that a hearing is requested for an appeal from an enforcement notice, or paragraphs 5 or 10, also relating to appeals.

In a November 21, 2013 email to ZHB Solicitor Elizabeth Magovern, (R.R. at 11), Larry Sager, Esquire, Palencar’s attorney, confirmed their earlier discussion that the application was amended to reflect that Palencar was also requesting variance relief f rom section 1803.L of the Ordinance and asserting that he3

has a right to use the property for the sale of pumpkins under the “Right to Farm
Act.” 1 (ZHB’s Finding of Fact No. 4.)

The ZHB published notices of the hearing scheduled for January 30,
2014 , a dvising that the ZHB would consider Palencar’s application for variances and his appeal “from the zoning officer’s determination” that a violation of the ordinance had occurred on the property. (R.R. at 12.)

At the start of the hearing, ZHB Solicitor M agovern announced that Palencar was requesting variances and appealing the enforcement order. She then asked Attorney Sager to present his case. Attorney Sager responded: “The interesting thing is, you have indicated that there is an appeal with respect to the cease and desist order, a stop order, under the circumstances. So I believe that appropriately the township should proceed with the burden as to the violation purported.” (Notes of Testimony ( N.T. ) at 10.)

Eventually the ZHB heard testimony a nd received other evidence. During the proceedings, Palencar withdrew his requests for variance relief. Palencar admitted having the pergola on his property and selling pumpkins, among other things, while Attorney Sager insisted that such conduct was leg al under “the Farm Act.” At the conclusion of the hearing, the ZHB found that Palencar violated the ordinance by erecting a structure on his property without a permit and by using the property for retail sales and voted to uphold the enforcement notice.

In its written decision dated March 13, 2014, the ZHB found that Palencar filed an application for a varia nce under section 502.A of the T ownship ordinance and that, as reflected by a November 21, 2013 email, Attorney Sager

1 The Act of June 10, 1982, P.L. 454, as amended
, 3 P.S. §§ 951

– 957 , is commonly known as the Right to Farm Act

.4

subsequently amended the appli cation to request an additional variance and assert rights under the Right to Farm Act. (ZHB’s Finding s of Fact No s

. 3

- 4.) The ZHB
further found that “ Upon receipt of the email, Attorney Sager clarified through a telephone conversation with the Zoning He aring Board Solicitor that he also wanted to amend the Application to appeal the October 25, 2013, Zoning Officer’s
determination. ” (ZHB’s Finding of Fact No.4

. )

Palencar appealed to the trial court. During argume nt before the trial court, the T ownship , for the first time, raised the issue of whether the ZHB had jurisdiction to decide Palencar’s appeal of the enforcement notice. The trial court denied Palencar’s appeal on the ground that he failed to file a written appeal to the ZHB and, therefore, the ZHB lacked authority to consider his appeal from the enforcement notice. The trial court noted that the ZHB has exclusive jurisdiction to hear “appeals from a determination of a zoning officer, including . . . the issuance of any cease and desist order,” 2 and that such appeals to the ZHB “may be filed in writing” by the affected landowner. Section 913.3 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10913.3.

The trial court observed that the MPC requires the ZHB’s procedural

ru les to be consistent with ordinances of the municipality and the laws of the
Commonwealth. Section 906 of the MPC, 53 P

. S. §10906. As authorized by statute, section 1604 of the Hereford Zoning Ordinance establishes the rules of procedure for appeals to t he ZHB and states that all “appeals [and] applications for hearing to the Board shall be in writing on forms prescribed by the Board and shall be submitted to the Secretary of the Board

. ” ( R.R. at 100. ) The written appeal must be timely filed

2 Section 909.1(a)(3) of the Municipalities Planning Code (MPC) , Act of July 31, 1968, P.L. 805, as amended
, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1(a)(3).5

with the Se cretary, consistent with the statutory requirement that “all appeals from [ZHB] determinations adverse to the landowners shall be filed . . . within 30 days
after notice of the determination is issued.” Section 914.1(b) of the MPC, added by
the Act of Dec ember 21, 1988, P.L. 1329, 53 P.S. §10914.1(b).

The trial court concluded that, notwithstanding the ZHB Solicitor’s apparent interpretation to the contrary, the November emails and tele phone calls did not comply with the procedural requirements of the ordinance or the statute, and the fact that the ZHB held a hearing did not cure the defect in the filing of Palencar’s appeal. The trial court determined that the ZHB lacked jurisdiction to hear Palencar’s appeal, and, consequently, the trial court also l acked jurisdiction to consider it.

On appeal to this Court, Palencar argues that the trial court erred in determining that the ZHB la ck ed subject matter jurisdiction with respect to his appeal from the Township’s enforcement notice. Whether the ZHB had subject matter jurisdiction over Palencar’s appeal is a question of law as to which our standard of
review is de novo and the scope of review is plenary. Seitel Data, Ltd., v. Center Township and Center Township Board of Supervisors
, 92 A.3d 851 , 859 (Pa.
Cmwlth. 2014 ).

In relevant part, section 909.1 of the MPC vests exclusive jurisdiction in
the ZHB as follows:

Section 909.1

- Jurisdiction (a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters: * * * (3) Appeals from the determination of the zoning officer, including, but not limited to, the granting or denial of any permit, or failure to act on the application therefor, the6

issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.

* * * (5) Applications for variances from the terms of the zoning ordinance and flood hazard ordinance or such provisions within a land use ordinance, pursuant to section 910.2

. 53 P.S. §10909.1(a)(3), (5).

Section 913.3 of the MPC states:
Appeals under section 909.1(a)(1), (2), (3), (4), (7), (8) and (9) may be filed with the board in writing by the landowner affected, any officer or agency of the municipality, or any person aggrieved. Requests for a variance under section 910.2 and for special exception under 912.1 may be filed with the board by any landowner or any tenant with the permission of such landowner.

53 P.S. §10913.3 (emphasis added). Consistent with that statutory pr ovision, section
1604.A of the T ownship’s ordinance states that “[a]ll appeals, challenges, and any other applications for hearing to the Board shall be in writing on forms prescribed by the Board and shall be submitted to the Secretary of the Board.” (R.R. at 100) (emphasis added).

Palencar first argues that the proper analysis is not whether the ZHB had jurisdiction over the appeal but, rather, whether an appea l from the enforcement notice was perfected. Palencar asserts that the ZHB had jurisdiction to decide that question , and that the ZHB did , in fact, decide that Palencar timely perfected an appeal from the enforcement notice. Based on these assertions, Pa lencar argues that a challenge to the determination that his appeal was perfected is now barred by the
doctrine of res judicata

.7

In support, Palencar cites the ZHB’s Finding of Fact No. 4, which states that Attorney Sager “clarified through a telephone co nversation with the ZHB Solicitor that he also wanted to amend the Application to [include an] appeal,” and the ZHB’s legal conclusion that it “has jurisdiction to decide this land use Application pursuant to Section 1602 of the Zoning Ordinance and the [M PC], 53 P.S. Section 10909.1.” (ZHB’s Conclusion of Law No. 1.) Palencar also emphasizes that the ZHB’s public notice stated that the hearing would address the appeal from the enforcement notice, and the ZHB took evidence and decided the enforcement appe al following the hearing.

We reject the argument that res judicata applies on appeal to this Court, where there has yet to be a final decision on the merits. 3 Moreover, whether the facts satisfy the statutory requirements to perfect an appeal is a ques tion of law, and the
ZHB’s factual finding that Palencar orally expressed a desire to amend his application
does not bar th is C ourt’s examination of that legal issue

. Additionally, the provision
cited in the ZHB’s C onclusion of L aw No. 1 sets forth the ZH B’s jurisdiction over numerous matters, including variance applications, which is what Palencar’s written application requested, and does not identify the enforcement appeal.

The Township argues that the issue is one of subject matter jurisdiction,
whic h is not waivable. Fayette County Office of Planning v. Fayette County Zoning Hearing Board , 981 A.2d 336, 340 (Pa. Cmwlth. 2009); Reserve v Zoning Hearing
Board
, 468 A.2d 872, 874 n.3 (Pa. Cmwlth. 1983). The Township further maintains
that a failure to timely file a written appeal to the ZHB, as required by the MPC and
the T ownship’s ordinance, cannot be cured by the mistaken belief of the parties.

3 “ Res judicata literally means a matter adjudged or a thing judicially acted upon or decided.” McCarthy v. Township of McCandless , 300 A.2d 815, 819 (Pa. Cmwlth. 1973).8

By way of analogy, the Township relies on P ennsylvania Commercial Drivers Conference v. Milk Control Commission , 62 A.2d 9 (Pa. 1948), in which the Supreme Court held that parties could not confer standing on an organization by stipulation. This Court also has expressly held that a court’s jurisdiction can neither
be e nlarged nor limited by stipulation of the parties. Conyer v. Norristown , 428 A.2d 749, 751 (Pa. Cmwlth. 1981); George A. Fuller Co. v Pittsburgh , 327 A.2d 191, 194 (Pa. Cmwlth. 1974); DeCarbo v. Elwood City

, 284 A. 2d 342 , 344 ( Pa. Cmwlth. 1971)

. The Township notes that its ordinance expressly requires an appeal to be submitted in writing to the Secretary of the Board and does not designate oral communication or even filing with the ZHB’s solicitor as an alternative. The Township argues that even if a n email from Palencar’s counsel could be considered a “writing,” communication with the ZHB’s solicitor is insufficient to perfect an appeal. Additionally, the Township points out that the emails make no mention of an “appeal” or the enforcement notice.

Upon review, w e conclude that t he record compels the conclusion that the appeal was, in fact, perfected.

In Swarey v. Limestone Township Zoning Hearing Board , No. 03

- 00, 495 (Lycoming Cnty

. 2003), the court reversed a zoning hearing board’s ruling and
hel d that an appeal filed via FAX was sufficient to perfect a timely appeal. Noting that the zoning ordinance required a notice of appeal form to be used, the court declined to elevate form over substance, explaining as follows:

‘[T]he rules of procedure mu st be liberally construed so as to guaranty that actions [ are ] resolved in a just, speedy and inexpensive manner . . . .’ Delverme v. Pavlinsky , 592 A.2d 746, 748 (Pa. Super. 1991) (The Superior Court applied a broader interpretation of procedural rules i nvolving an9

appeal from a district justice decision.) Taking guidance from Delverme on how procedural rules should be interpreted, the Court believes that the November 27, 2002 faxed notice of appeal substantially complied with the zoning ordinance. Upon examining the information requested in the form and that submitted by the faxed notice of appeal, it is clear that the faxed notice of appeal has provided the information that is requested in the form. At argument before this Court the ZHB and Township c ounsel acknowledged the adequacy of the appeal documents as to supplying all the information required in the appeal form (and more). It would not stand to reason that t he appeal should be dismissed solely on the basis that the information requested was no t provided in the blank spaces of a prearranged form sheet. Swarey , slip op. at 8

- 9.

In this case, the essential facts are not in dispute

. Palencar filed the appropriate form to request a hearing; he checked the box for a variance and he also specifically cited the sections of the ordinance referenced in the enforcement notice; the ZHB Solicitor was contacted before the hearing; the ZHB determined tha t the appeal had been perfected ; it published notice that it would hear an appeal from the enforcement notice; and it held a hearing . In fact, the ZHB, through its counsel, announced that the appeal from the enforcement order was the first issue to be

con sidered at the hearing, and the Township raised no objection and presented
evidence on the matter

. The matter was heard
, and all issues were considered by the
ZHB in its decision. Based on these facts, w e conclude that an individual could reasonably rely on these circumstances, and the ZHB’s conduct in particular, to
believe that he had accomplished the amendment of his application

.

Indeed, because the circumstances unquestionably establish that all parties understood that the appeal form had been effe ctively amended by the ZHB,
like the trial court in Swarey , we decline to allow form to prevail over substance. W e10

further conclude that , in the interests of justice, the most appropriate remedy is to
vacate the trial court’s order and remand th is matter to the trial court , with
instructions to consider the merits of Palencar’s appeal. 42 Pa.C.S. §706 ; Grand Central Sanitary Landfill, Inc. v. Zoning Hearing Board of Plainfield Township , 625 A.2d 115 (Pa. Cmwlth. 1993)

. 4

In accord with section 706 of the Judicial Code, 42 Pa. C.S. §706, which authorizes an appellate court to remand a matter or require further proceedings to be had “as may be just under the circumstances,” we vacate the trial court’s order and
remand the ma tter to the trial court for a decision on the merits of Palencar’s appeal, based upon the record made before the ZHB.

________________________________ PATRICIA A. McCULLOUGH, Judge

4 In Grand Central Sanitary Landfill, the common pleas court determined that the zoning hearing bo ard of Plainfield Township (Board) lacked jurisdiction to rehear a decision it had rendered on February 6, 1989, where there had been no appeal from that decision and the rehearing petition had not been filed until approximately one year later, even though the rehearing petition alleged that fraud and misrepresentations occurred at the original hearing. Ultimately, this Court held that, instead of petitioning the Board for reconsideration, the appellants should have filed a request with the common pleas co urt for permission to appeal the Board’s decision nunc pro tunc

. In that petition, they could have alleged fraud, a legitimate basis for nunc pro tunc relief. We explained that the trial court then would have been able to make findings on those allegatio ns and, if found to be true, could have vacated the Board’s decision and taken testimony on the merits or remanded the case for the Board to do so.

After considering the totality of the circumstances, and noting that s ection 706 of the Judicial Code, 4 2 Pa.C.S. §706, allows us to remand for further proceedings in the interest of justice, we concluded that the most appropriate remedy was to remand the case to the trial court with directions that it allow the appellants to file a petition to appeal nunc p ro tunc within thirty days of entry of our order. We also recommended that, to expedite the matter, evidence from the second "void" hearing could be moved into evidence at the new hearing.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip P. Palencar, II, :

Appellant : v. : : No. 1635 C.D. 2014 Hereford Township Zoning Hearing : Board : : v. : : Hereford Township :

ORDER

AND NOW, this 14 th day of October , 201 5 , the order of the Court of Common Pleas of Berks County (trial court) , dated August 20, 2014, is vacated,
and this matter is remanded to the trial court for a decision on the merits based on the existing record.

Jurisdiction relinquished.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip P. Palencar, II, :

Appellant :

: v. : : Hereford Township Zoning : Hearing Board : : v. : : No. 1635 C.D. 2014 Hereford Township : Argued: March 9, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY JUDGE McGINLEY FILED: October 14, 2015
I respectfully dissent to the Majority’s conclusion that “because the circumstances unquestionably establish that all the parties understood the appeal to have been perfected, like the trial court in Swarey [v. Limestone Township Zoning Hearing Board , No. 03

- 00, 495 (Lycoming Cnty. 2003)]
, we decline to allow form to prevail over substance .” Slip Opinion at 9. “We further conclude that, in the interests of justice, the most appropriate remedy is to vacate the trial court’s order and remand the matter to t he trial court, with instructions to consider the merits of [Phillip P.] Palencar’s [II] appeal.” (Citations and footnote omitted.) Slip Opinion at 9.

In City of Pittsburgh v. Silver , 50 A.3d 296 (Pa. Cmwlth. 2012), this
Court stated:BLM

- 2 The issue of subje ct matter jurisdiction may be raised by the parties at any stage of the proceedings or by the court sua sponte

. Lack of subject matter jurisdiction of a court or administrative tribunal to act in a matter is an issue that neither can be waived by the part ies, nor can the parties confer s u bject matter jurisdictio n on a court or tribunal by agreement or stipulation

. (Emphasis added.)

Id. at 299 n.9, quoting Greenberger v. Pennsylvania Insurance Department
, 39 A.3d 625 , 629

- 30 n.5 (Pa. Cmwlth. 2012) (Cita tions omitted.)

In the present controversy, the trial court addressed the issue of subject matter jurisdiction:

The plain language of 53 PA. C.S [sic]§ 10913.3 read in conjunction with Zoning Ordinance #2009

- 04 make it clear with mandatory language that all appeals shall be submitted to the Secretary of the Board on forms prescribed by the Board within 30 days after no tice of the dete r mination . Thus although the ZHB did in fact conduct a hearing and heard testimony and argument on the appeal of the determination on January, the ZHB lacked subject matter jurisdiction rendering the ZHB’s decision moot . The phone conversation and subject email between Appellant’s [Palencar’s] attorney and the ZHB Solicitor do not save Appellant [Palencar] here, as stri ct compliance with Zoning Ordinance #2009

- 04 is required to perfect an appeal.

. . . . In the present case as in Johnston [v. Upper Macungie Township, 638 A.2d 408 (Pa. Cmwlth. 1994)] , the Appellant [Palencar] failed to timely file a written appeal . The a ppeal was required to be filed with the ZHB Secretary within 30 days ofBLM

- 3 October 25, 2013, the date that the Zoning Officer issued the Notice of Violation/Enforcement Notice. The November 12, 2013 application for Use Variance which Appellant [Palencar] fil ed did not in any way include an appeal of the October 25, 2013 Notice of Violation/Enforcement Notice

. Notwithstanding the ZHB Solicitor’s apparent interpretation to the contrary, the Court finds that the November 21, 2013 phone conversation and subseque nt email between Appellant’s [Palencar’s] attorney and the ZHB Solicitor do not comply with the requirements of 53 Pa. C.S. [sic] 10906(c) and Ordinance §1604.A. Additionally, the fact that the hearing in front of the ZHB included testimony and argument r egarding the determination appeal does not cure the defect in the filing of the appeal.

. . . . The Court finds that Palancer [sic] did not file an appeal with the Secretary of the ZHB on forms prescribe d by the ZHB within 30 days after receiving notice o f the determination . The ZHB’s jurisdiction was never invoked. Because the ZHB lacked subject matter jurisdiction, this Court lacks jurisdiction to hear Palancer’s [sic] appeal

. (Emphasis added.)
Opinion of the Trial Court, November 5, 2014, at 5

- 7.

Here, Palencar’s attorney and the ZHB’s Solicitor did exactly what
Silver prohibited, they attempted to confer subject matter jurisdiction on the ZHB and the trial court pursuant to their phone conversation and email. Clearly, such an attempt by the parties cannot circumvent the prescribed rule that all appeals must be submitt ed to the Secretary of the Board on theBLM

- 4

appeal forms 1 within thirty days following the notice of determination. See Opinion of the Trial Court at 5.

Because a variance request is completely different than appealing a violation notice, I would affirm the decision of the trial court.

____________________________ BERNARD L. McGINLEY, Judge

1 The majority noted that Palencar “ did not check paragraph 6, which states that a hearing is requested for an appeal from an enforcement or paragraphs 5 or 10, also relating to appeals .” (Emphasis added.) Slip opinion at 2.